Jordan v. Elyassi's Greenbelt Oral & Max. Surg. ( 2022 )

Melissa Phillips Jordan v. Elyassi’s Greenbelt Oral & Facial Surgery, P.C., et al., No.
1049, Sept. Term, 2021. Opinion by Albright, J.
Healthcare Malpractice Claims Act – Certificate of Qualified Expert – Sufficiency –
In a medical malpractice case where the standard of practice is at issue, if the defendant is
board certified, then the expert who signs a Certificate of Qualified Expert supporting the
claimant’s or plaintiff’s case must also be board certified, unless an exception applies.
There is an exception for experts who taught medicine in the defendant’s specialty or a
related field, and that exception applies regardless of when the expert’s teaching
experience occurred. Md. Code, Cts. & Jud. Proc. § 3–2A–02(c)(2)(ii).
Healthcare Malpractice Claims Act – Certificate of Qualified Expert – Dismissal for
Failure to File – If the claimant or plaintiff fails to file a timely and proper Certificate of
Qualified Expert, then the case must be dismissed without prejudice. A court does not
have discretion to dismiss the case with prejudice. Md. Code, Cts. & Jud. Proc. § 3–2A–
04(b)(1).
Circuit Court for Prince George’s County
Case No. CAL20-03390
REPORTED
IN THE APPELLATE COURT
OF MARYLAND*
No. 1049
September Term, 2021
MELISSA PHILLIPS JORDAN
v.
ELYASSI’S GREENBELT ORAL &
FACIAL SURGERY, P.C., ET AL.
Reed,
Shaw,
Albright,
JJ.
Pursuant to the Maryland Uniform Electronic Legal Materials
Opinion by Albright, J.
Act (§§ 10-1601 et seq. of the State Government Article) this
document is authentic.
2022-12-29 15:33-05:00 Filed: December 29, 2022
Gregory Hilton, Clerk
* At the November 8, 2022 general election, the voters of Maryland ratified a constitutional
amendment changing the name of the Court of Special Appeals of Maryland to the
Appellate Court of Maryland. The name change took effect on December 14, 2022.
This case presents an issue of statutory construction. We must interpret Section 3–
2A–02(c)(2)(ii) of the Courts and Judicial Proceedings Article, which is part of the
Healthcare Malpractice Claims Act (“HCMCA”).1 Under the HCMCA, the plaintiff in a
medical malpractice action typically must file a valid Certificate of Qualified Expert
(“CQE”) to support a claim of malpractice.2 Otherwise, the malpractice claim cannot
proceed. A valid CQE must be signed by an attesting expert, and Section 3–2A–
02(c)(2)(ii) sets forth certain requirements that the attesting expert must have met within
five years of the alleged malpractice at issue. If the defendant is board certified in a
specialty,3 the statute also imposes a further requirement on the attesting expert (board
certification in the same or a related specialty), as well as two exceptions to that
requirement. This appeal concerns the scope of the second exception to the board
certification requirement: the exception for an attesting expert who “taught medicine in
1
See Md. Code (1974, 2013 Repl. Vol.), Cts. & Jud. Proc. § 3–2A–01, et seq.
2
A CQE is sometimes also referred to as a “Certificate of Merit” or a “Certificate.” There
are situations, not relevant here, where certain CQE requirements will not apply. There
are also situations where a CQE need not be filed, such as when the sole issue is lack of
informed consent. See Md. Code, Cts. & Jud. Proc. § 3–2A–04(b).
The HCMCA’s CQE requirements apply equally to plaintiffs and to claimants who file
claims with the Health Care Alternative Dispute Resolution Office (“HCADRO”). See
Md. Code, Cts. & Jud. Proc. §§ 3–2A–02(c)(2)(i), 3–2A–04(b). As such, we will use the
term “plaintiff” here to refer to both plaintiffs and claimants.
3
Board certification is an additional credential available to certain medical professionals.
Typically, a board certification requires further training and satisfactory exam
performance. As we have previously noted, the American Board of Medical Specialties
identifies medical specialties and the entities that offer board certification in those
specialties. See DeMuth v. Strong, 205 Md. App. 521, 545 n.6 (2012).
the defendant’s specialty or a related field[.]” See Md. Code, Cts. & Jud. Proc. § 3–2A–
02(c)(2)(ii)(2)(B).
The Appellant, Dr. Melissa Phillips Jordan,4 brought a malpractice action against
the Appellees, Dr. Ali Reza Elyassi, and his practice, Elyassi’s Greenbelt Oral & Facial
Surgery, P.C., in the Circuit Court for Prince George’s County. Dr. Elyassi is board
certified in a specialty, and the attesting expert who signed Dr. Jordan’s CQE is not. The
attesting expert, however, has clinical experience in a related field within five years of the
alleged malpractice at issue. He also taught as an assistant professor in that same field for
approximately two years during the 1970s (decades before Dr. Jordan’s claim arose). At
that time, however, the technologies used in that field had not advanced to the point that
they are at today, and the attesting expert did not teach the procedures that Dr. Elyassi
used in treating Dr. Jordan because they had not yet been developed. On Dr. Elyassi’s
motion, the circuit court struck Dr. Jordan’s CQE and dismissed her complaint with
prejudice, holding that the attesting expert’s teaching experience was not recent enough
to satisfy the exception to the board certification requirement. Dr. Jordan timely
appealed, posing two questions for our consideration:
1. Did the Circuit Court err by determining that Appellant’s CQE was insufficient
because the certifying expert had not taught medicine in Dr. Elyassi’s specialty or
a related field of health care within five years of his alleged underlying
negligence?
2. Did the Circuit Court err by dismissing Appellant’s Complaint with prejudice?
4
Dr. Jordan’s current legal name is Melissa Dawn Phillips.
2
We answer both questions in the affirmative. In so doing, we conclude that an
expert who taught medicine5 in a related field satisfies an exception to the board
certification requirement, pursuant to Section 3–2A–02(c)(2)(ii)(2)(B) of the Courts and
Judicial Proceedings Article, regardless of when that teaching experience occurred. In the
alternative, we conclude that the circuit court erred in dismissing Dr. Jordan’s complaint
with prejudice.6 We will reverse the judgment of the circuit court.
BACKGROUND
I. TREATMENT OF DR. JORDAN
For purposes of this appeal, we accept as true the allegations in Dr. Jordan’s
complaint, which we summarize as follows. Dr. Elyassi is a board certified oral and
maxillofacial surgeon and the owner of his surgery practice, Elyassi’s Greenbelt Oral &
Facial Surgery, P.C. In 2017, Dr. Elyassi provided treatment to Dr. Jordan related to two
dental implants, which had been installed some years prior. As part of the treatment, Dr.
Elyassi removed Dr. Jordan’s existing dental implants and installed replacements, a
procedure involving both implant placement and bone grafting. That procedure failed. Dr.
Jordan returned to Dr. Elyassi about two weeks later, complaining of persistent pain and
discomfort. Dr. Elyassi performed additional work, but Dr. Jordan was nonetheless left
5
Here, the attesting expert taught for approximately two years as an assistant professor at
a university.
6
Because it has been rendered unnecessary to decide, we will not address the parties’
dispute over whether the CQE could be valid as to Dr. Elyassi’s practice, even if it is
invalid as to Dr. Elyassi.
3
with a postoperative infection and a need for further surgery. Eventually, Dr. Jordan
sought treatment from a different provider unaffiliated with Dr. Elyassi’s practice, who
provided Dr. Jordan with additional diagnostic and surgical care.
II. CIRCUIT COURT LITIGATION
Approximately two years after the failed procedure, Dr. Jordan filed a complaint
against Dr. Elyassi and his practice in the circuit court.7 The complaint included only one
count, styled “dental/medical negligence[,]” which we will refer to as “Dr. Jordan’s
malpractice claim.” Dr. Jordan supported this claim with a CQE,8 which was executed by
Dr. Michael Kossak, a periodontist,9 as the attesting expert. In that CQE, Dr. Kossak
certified his opinion that, to a reasonable degree of scientific and dental probability, Dr.
Elyassi and his practice deviated from the applicable standards of care in treating Dr.
Jordan, and that deviation was the proximate cause of Dr. Jordan’s alleged injuries.
7
Before filing suit in the circuit court, and under the requirements of the HCMCA, Dr.
Jordan first filed her malpractice claim with HCADRO. She then waived arbitration with
HCADRO, and an order of transfer was issued. This enabled Dr. Jordan to file suit in the
circuit court. See Md. Code, Cts. & Jud. Proc. §§ 3–2A–02(a), 3–2A–04, 3–2A–06B.
8
Under the HCMCA, a malpractice claim against a health care provider must be
supported by a CQE that attests that (1) the defendant departed from the relevant
standards of care, and (2) the departure proximately caused the alleged injury. Md. Code,
Cts. & Jud. Proc. § 3–2A–04. If the plaintiff fails to file a valid CQE, then the claim must
be dismissed without prejudice (unless the “sole issue” is lack of informed consent). Md.
Code, Cts. & Jud. Proc. § 3–2A–04(b).
9
The parties agree that periodontics is a related field to oral and maxillofacial surgery
today, and that the fields have been related at least since the alleged malpractice here.
4
A period of initial discovery followed, with a particular focus on Dr. Kossak’s
credentials. Dr. Kossak obtained his D.D.S. degree in 1971. After completing a residency
in periodontics, he taught periodontics for approximately two years in the 1970s as a full-
time assistant clinical professor at Georgetown University. At that time, implants and
bone grafting did not exist as treatment options, so Dr. Kossak did not teach those
subjects as part of the periodontics curriculum. After leaving Georgetown, Dr. Kossak
practiced periodontics for approximately 30 years, though he never became board
certified in any specialty. Once the necessary technologies developed in the 1980s and
1990s, Dr. Kossak incorporated implants and bone grafting into his active periodontics
practice. He retired in 2015, but returned to practice part-time two years later, seeing
patients once per week through the first few months of 2021. Although he no longer
placed implants during his part-time practice, he continued to perform bone grafts in
certain cases. Dr. Kossak estimated that, throughout his 35-year career as a practicing
periodontist, he served as an expert in legal proceedings only ten times in total.10
After confirming that Dr. Kossak had never been board certified in a specialty, Dr.
Elyassi moved to strike the CQE and dismiss Dr. Jordan’s malpractice claim. In so doing,
Dr. Elyassi conceded that Dr. Kossak practiced periodontics within five years of the
alleged malpractice at issue and that periodontics was a sufficiently related field (at least
as of the time of the alleged malpractice). Dr. Elyassi, however, argued that Dr. Kossak
10
This figure includes those times when Dr. Kossak was retained only in a consulting
capacity and did not testify.
5
did not meet the board certification requirement and that his teaching experience in the
1970s was not recent enough to satisfy the statutory exception. Dr. Jordan disagreed,
arguing that teaching experience in a related specialty should mean that the board
certification requirement does not apply, regardless of when that teaching experience
occurred.
After a hearing, the circuit court found that the board certification requirement and
its exceptions were “ambiguous” and adopted Dr. Elyassi’s interpretation.11 The circuit
court then granted Dr. Elyassi’s motion, striking Dr. Jordan’s CQE and dismissing her
complaint with prejudice because her attesting expert had not taught medicine within five
years of the alleged malpractice. Dr. Jordan timely appealed.
THE PARTIES’ CONTENTIONS
Dr. Jordan argues that Section 3–2A–02(c)(2)(ii) of the Courts and Judicial
Proceedings Article, which sets forth the qualifications that an attesting health care
provider must have to execute a CQE, is not ambiguous and should be interpreted as
written. She explains that the section is structured in two parts, each of which imposes
separate requirements on attesting experts. The first part outlines the basic experience
requirements that all attesting experts must possess, regardless of whether the defendant
is board certified in a specialty. See Md. Code, Cts. & Jud. Proc. § 3–2A–
11
At that hearing, Dr. Elyassi conceded that Dr. Jordan had identified a board certified
oral surgeon who would testify as to the standard of care at trial. Dr. Elyassi also
conceded that this expert would meet the requirements of the HCMCA. Nevertheless, Dr.
Elyassi asked the circuit court to dismiss Dr. Jordan’s complaint because Dr. Kossak was
not qualified, and it was Dr. Kossak who signed the CQE.
6
02(c)(2)(ii)(1)(A). It also contains a five-year recency requirement, meaning that an
expert’s experience will not satisfy the statutory requirements unless it occurred within
five years of the date of the alleged malpractice. The second part imposes a board
certification requirement on the attesting expert, but only if the defendant is board
certified in a specialty. Even then, the statute provides two exceptions to the board
certification requirement. See Md. Code, Cts. & Jud. Proc. §§ 3–2A–02(c)(2)(ii)(1)(A);
3–2A–02(c)(2)(ii)(2). Dr. Jordan points out that the exception at issue here (where the
attesting expert “taught medicine in the defendant’s specialty or a related field of health
care”) does not include any recency requirement—much less a five-year requirement.
Thus, Dr. Kossak’s prior teaching experience exempts him from the board certification
requirement, even though that teaching experience occurred more than five years before
the alleged malpractice here.12
Dr. Jordan further argues that the circuit court erred in dismissing her complaint
with prejudice. Pointing to language in the HCMCA that provides only for dismissal
without prejudice for the failure to file a valid CQE, she asserts that the circuit court did
not have discretion to dismiss her complaint with prejudice.
In contrast, Dr. Elyassi argues that the five-year recency requirement in the first
part of the statute also limits the exceptions to the requirements of the second part of the
12
Dr. Jordan acknowledges that, at the time that her attesting expert taught medicine, the
technologies used in periodontics and oral and maxillofacial surgery had not advanced to
the point that they are at today. As such, she concedes that certain procedures used in
treating her had not been developed at the time that her attesting expert taught medicine,
and she agrees that her expert did not teach those procedures.
7
statute. Although he concedes that the statute “may not be ambiguous [when] read in a
vacuum,” he nevertheless asserts that “common sense” requires holding that the General
Assembly intended to curtail the exception to board certification, narrowing its scope to
situations where the teaching experience occurred within five years of the alleged
malpractice. Dr. Elyassi further notes that, here, the attesting expert taught medicine over
40 years before the alleged malpractice at issue—before dental implants and bone grafts
(the procedures used during Dr. Elyassi’s treatment of Dr. Jordan) had been developed.
Dr. Elyassi concedes that periodontics is sufficiently related to oral and maxillofacial
surgery today with respect to this case. He urges us, however, to conclude that the fields
are unrelated with respect to the attesting expert’s teaching experience, which predated
implants and bone grafts.
As to the circuit court’s dismissal of Dr. Jordan’s complaint, Dr. Elyassi argues
that the circuit court had discretion to dismiss the complaint with prejudice and did not
abuse its discretion by so doing. He asserts that the statute of limitations had run on Dr.
Jordan’s claim and that the claim would not otherwise survive. As such, he contends that
a dismissal with prejudice would, at least as a practical matter, constitute a “distinction
without a difference” that was within the circuit court’s discretion to grant.
STANDARD OF REVIEW
The sufficiency of a CQE is a question of law, and the standard “is the same as
determining whether a complaint is legally sufficient”—that is, after assuming the truth
of all assertions in the CQE and taking all permissible inferences in favor of its validity,
we ask whether the CQE meets the requirements set forth in the HCMCA. See Carroll v.
8
Konits, 400 Md. 167, 179-80 & n.11 (2007). As with other questions of law, our review is
de novo. Amaya v. DGS Constr., LLC, 479 Md. 515, 539-40 (2022). In interpreting
statutory language, we bear in mind that the “cardinal rule” of statutory construction is to
ascertain and give effect to the General Assembly’s intent. Id. (quotations and citation
omitted). As such, we first assess whether the statutory language is clear and
unambiguous. Peterson v. State, 467 Md. 713, 727 (2020). If it is, we will not add or
delete words or force a particular interpretation; we will simply interpret the language as
written and end our inquiry:
When the statutory language is clear, we need not look beyond the statutory
language to determine the General Assembly’s intent. If the words of the
statute, construed according to their common and everyday meaning, are
clear and unambiguous and express a plain meaning, we will give effect to
the statute as it is written. In addition, we neither add nor delete words to a
clear and unambiguous statute to give it a meaning not reflected by the
words that the General Assembly used or engage in forced or subtle
interpretation in an attempt to extend or limit the statute’s meaning. If there
is no ambiguity in the language, either inherently or by reference to other
relevant laws or circumstances, the inquiry as to legislative intent ends.
Bellard v. State, 452 Md. 467, 481 (2017); see also Elsberry v. Stanley Martin
Companies, LLC, --- Md. ---, 2022 WL 17351619, at *7 (2022) (“This Court need not
resort to other rules of statutory construction when the plain language of the statute
unambiguously communicates the intent of the General Assembly.”); Graves v. State,
364 Md. 329, 351 (2001) (courts cannot “invade the function of the legislature by reading
missing language into a statute[,]” and are generally “incapable of correcting” legislative
omissions, even when those omissions “appear[] to be the obvious result of
inadvertence”) (internal quotations omitted). “Even in instances when the language is
9
unambiguous, it is useful to review the legislative history of the statute to confirm that
interpretation and to eliminate another version of legislative intent alleged to be latent in
the language.” Blackstone v. Sharma, 461 Md. 87, 113 (2018) (quotations and citation
omitted).
If the statutory language is ambiguous,13 however, we engage in a broader inquiry
by resolving the ambiguity “in light of the legislative intent, using all the resources and
tools of statutory construction at our disposal.” Carroll, 400 Md. at 192. (quotations and
citation omitted). In that case, we may consider “not only the literal or usual meaning of
the words, but their meaning and effect in light of the setting, the objectives[,] and [the]
purpose of the enactment[.]” Id. And we may interpret the language with regard to
various indicia of legislative intent, including “the structure of the statute, including its
title; how the statute relates to other laws; the legislative history[;] . . . the general
purpose behind the statute; and the relative rationality and legal effect of various
competing constructions.” Witte v. Azarian, 369 Md. 518, 525-26 (2002). In so doing, we
will avoid any “absurd interpretation” of the statutory language, and we will interpret
plain language “within the context in which it appears.” Peterson, 467 Md. at 728; see
also Bellard, 452 Md. at 482 (“In construing a statute, we avoid a construction of the
statute that is unreasonable, illogical, or inconsistent with common sense.”) (quotations
and citation omitted).
13
Statutory language is ambiguous “when there exist[s] two or more reasonable
alternative interpretations of the statute.” Bellard, 452 Md. at 481 (quotations and citation
omitted).
10
Separately, in assessing a circuit court’s decision to dismiss a complaint with
prejudice, as opposed to without prejudice, we first must ask whether the circuit court had
discretion to select one mode of dismissal over the other. If it did, then we review the
circuit court’s choice for an abuse of discretion. See Bodnar v. Brinsfield, 60 Md. App.
524, 538 (1984) (“At that point, the court has at least discretion to dismiss with prejudice.
We hold that . . . [the circuit court] did not abuse [its] discretion in so dismissing [the
complaint].”); cf. Conwell Law LLC v. Tung, 221 Md. App. 481, 498-99 (2015)
(dismissal of an action for lack of jurisdiction, under Maryland Rule 2-507(b), is a
discretionary matter that is reviewed for abuse of discretion); Maddox v. Stone, 174 Md.
App. 489, 502 (2007) (“If the judge has discretion, he must use it and the record must
show that he used it. He must use it, however, soundly or it is abused.”) (quotations and
citation omitted). If, however, the circuit court’s choice is not a matter of discretion, we
will not apply a deferential standard of review.14 Cf., Colkley v. State, 251 Md. App. 243,
289 (2021) (applying no deference in reviewing evidentiary determinations that, under
the Maryland Rules, are not discretionary).
14
Of course, in such a case, an abuse of discretion analysis would not change the result; it
would simply be a different way to reach the same conclusion. This is because discretion
is necessarily abused whenever it is exercised “without the letter or beyond the reason of
the law.” Nelson v. State, 315 Md. 62, 70 (1989).
11
DISCUSSION
I. LEGISLATIVE BACKGROUND
We first review the relevant legislative history and background. As we have
explained, such history can be useful in confirming that statutory language is
unambiguous, as well as in resolving ambiguity that might exist. Maryland’s appellate
courts have previously set out in detail the history and background of the HCMCA and its
amendments. See, e.g., Breslin v. Powell, 421 Md. 266, 278-286 (2011); Debbas v.
Nelson, 389 Md. 364, 375-80 (2005); Witte, 369 Md. at 526-31; DeMuth v. Strong, 205
Md. App. 521, 538-42 (2012). As such, rather than retread this ground, we will
summarize the relevant portions of the legislative background, adding to the discussion as
necessary.
The HCMCA and its amendments evolved in response to multiple reported crises
in Maryland’s marketplace for medical malpractice insurance. See Final Report,
Governor’s Task Force on Medical Malpractice and Health Care Access (Nov. 2004) 1, 7
(“Task Force Report”).15 Beginning in the 1970s, insurance companies began to raise the
alarm that medical malpractice expenditures were exceeding the premiums collected,
resulting in deficits. Such a deficit prompted at least one insurer to plan an exit from
Maryland and to refuse to allow doctors in Maryland to renew their malpractice insurance
coverage. See Terry L. Trimble, The Maryland Survey: 1994–1995: Recent Development:
15
The Task Force Report is available at
https://msa.maryland.gov/megafile/msa/speccol/sc5300/sc5339/000113/000000/000455/u
nrestricted/20040962e.pdf.
12
The Maryland General Assembly: Torts, 55 Md. L. Rev. 893, 895 (1996); Kevin G.
Quinn, The Health Care Malpractice Claims Statute: Maryland’s Response to the
Medical Malpractice Crisis, 10 U. Balt. L. Rev. 74, 77 (1980). The General Assembly
responded in multiple ways, including passing the HCMCA in 1976. Among other things,
this initial version of the HCMCA created an arbitration panel to resolve malpractice
claims and mandated arbitration for certain claims. Either party could reject an arbitration
award, and the claimant could then file suit. See Debbas, 389 Md. at 376-77.
This arbitration procedure “did little to resolve the crisis.” Id. at 377. As such, in
1986, the General Assembly passed a significant amendment to the HCMCA, introducing
CQE requirements in certain cases for both plaintiffs and defendants, codified at Section
3–2A–04(b) of the Courts and Judicial Proceedings Article. DeMuth, 205 Md. App. at
538-39. For plaintiffs, the CQE requirements were designed to serve a gatekeeping
function, “‘eliminat[ing] excessive damages and reduc[ing] the frequency of claims’”—
thereby weeding out non-meritorious claims and ultimately reducing medical malpractice
insurance expenditures. DeMuth, 205 Md. App. at 539 (quoting Debbas, 389 Md. at 378).
These requirements proved more effective than arbitration at forwarding that goal,
eventually prompting amendments to the HCMCA to permit waiver of arbitration. See
Witte, 369 Md. at 526-31.
In 2004, Governor Robert Ehrlich, Jr. called a special session of the General
Assembly to address what he termed a continuing “health care crisis in the State resulting
from the rise in medical malpractice liability insurance costs . . . .” DeMuth, 205 Md.
App. at 539-540 (citing Letter from Governor Robert Ehrlich, Jr. to Speaker Michael
13
Busch (Jan. 10, 2005), at 1) (“Jan. 10, 2005 Letter”). This special session focused on
medical malpractice and ultimately amended the HCMCA, including by imposing the
additional requirements for attesting experts who execute CQEs (and certain exceptions
to those requirements) that are at issue here. DeMuth, 205 Md. App. at 539-42 (providing
a detailed history of those amendments); see also Md. Code, Cts. & Jud. Proc. § 3–2A–
02(c)(2). The bill initially supported by the Governor, the Maryland Medical Injury
Compensation Reform Act, H.D. 0001, 2004 Leg., 419th Sess., 1st Spec. Sess. (Md.
2004), would have enacted significantly tighter requirements for experts to sign CQEs
than the law as codified today. Specifically, the Governor’s bill would have required that
such an expert have prior clinical experience, consulting experience related to clinical
experience, or teaching experience—all within one year of the alleged malpractice at
issue (and in a related specialty). Additionally, if the defendant was board certified in a
specialty, the Governor’s bill would have further required that the attesting expert be
board certified in a related specialty unless the malpractice stemmed from care outside of
the defendant’s board certified specialty. Unlike the current law, the Governor’s bill
would have provided no exception to the board certification requirement for teaching
experience.
Ultimately, the House of Delegates passed a different bill, which eventually
became law and added Section 3–2A–02(c)(2) to the Courts and Judicial Proceedings
Article. See Maryland Patients’ Access to Quality Health Care Act of 2004, H.D. 0002,
2004 Leg., 419th Sess., 1st Spec. Sess. (Md. 2004) (“House Bill 2”). DeMuth, 205 Md.
App. at 540. As originally drafted, House Bill 2 contained similar requirements for
14
attesting experts as the Governor’s bill, but it only required an expert signing a CQE to
have clinical, consulting, or teaching experience in a related field within five years of the
alleged malpractice at issue—not one year. As to the board certification requirement (in
cases of board certified defendants), House Bill 2 originally contained the same language
as the Governor’s bill, but by its third reading, House Bill 2 was amended to include the
additional exception at issue here, which exempts experts who “taught medicine” in a
related field from the board certification requirement.
Governor Ehrlich vetoed House Bill 2, stating that the bill was “woefully
inadequate” to meaningfully reduce malpractice premiums in Maryland. Jan. 10, 2005
Letter, at 3-4. In his nine-page letter explaining the reasons for the veto, Governor
Ehrlich raised several criticisms of House Bill 2, including that it did not go far enough in
capping plaintiffs’ economic and noneconomic damages. Jan. 10, 2005 Letter, at 3.
Relevant here, the Governor also cited a few “miscellaneous issues” at the end of his
letter, among them, that the bill had “watered down” his desired provisions concerning
expert witnesses. Those provisions, said the Governor, had been designed to “prevent the
prevalent use of ‘hired gun’ experts who do not practice medicine but instead have
become experts for hire.” Jan. 10, 2005 Letter, at 8. The Governor’s veto letter also cited
the removal of a provision that would have adopted the Daubert standard for expert
witnesses.16 Jan. 10, 2005 Letter, at 8. The Governor noted that the effect of the
16
At the time, Maryland had not yet adopted the Daubert standard, as articulated by the
U.S. Supreme Court in Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) and its
progeny. This has since changed. See Rochkind v. Stevenson, 471 Md. 1 (2020).
15
provisions concerning expert witnesses and the Daubert standard was “difficult to
quantify” but nonetheless, he asserted that those provisions “likely would have reduced”
malpractice insurance costs in Maryland. Jan. 10, 2005 Letter, at 8.
Despite the Governor’s objections, House Bill 2 was enacted by a veto override the
following day. See DeMuth, 205 Md. App. at 540.17
II. THE EXCEPTION TO BOARD CERTIFICATION FOR EXPERTS WHO TAUGHT
MEDICINE DOES NOT HAVE A FIVE-YEAR RECENCY REQUIREMENT.
Dr. Elyassi contends that the exception to the board certification requirement for
experts who “taught medicine,” which is contained in Section 3–2A–02(c)(2)(ii) of the
Courts and Judicial Proceedings Article, should only apply in cases where the attesting
expert taught within five years of the alleged malpractice at issue. The relevant CQE
requirements state as follows:
(ii) 1. In addition to any other qualifications, a health care provider who attests in a
certificate of a qualified expert or testifies in relation to a proceeding before a
panel or court concerning a defendant's compliance with or departure from
standards of care:
A. Shall have had clinical experience, provided consultation relating to
clinical practice, or taught medicine in the defendant's specialty or a related
field of health care, or in the field of health care in which the defendant
provided care or treatment to the plaintiff, within 5 years of the date of the
alleged act or omission giving rise to the cause of action; and
17
House of Delegates and Senate committee proceedings were not routinely recorded
until 2011. As such, aside from the legislative history discussed above, there is little else
to reveal the purpose and intent of the 2004 amendments as they relate to the
qualifications of attesting experts. See Breslin, 421 Md. at 286 (“The legislative history
illuminating the purpose of this amendment is scant.”).
16
B. Except as provided in subsubparagraph 2 [below], if the defendant is
board certified in a specialty, shall be board certified in the same or a
related specialty as the defendant.
2. [1B] does not apply if:
A. The defendant was providing care or treatment to the plaintiff unrelated
to the area in which the defendant is board certified; or
B. The health care provider taught medicine in the defendant's specialty or
a related field of health care.
See Md. Code, Cts. & Jud. Proc. § 3–2A–02(c)(2)(ii) (emphasis added).18
In interpreting the exception for providers who “taught medicine,” we bear in
mind precedent from the Supreme Court of Maryland (at the time named the Court of
Appeals of Maryland).19 On multiple occasions, the Court has held the HCMCA’s
language to be unambiguous, at least with respect to the CQE requirements. See Breslin,
421 Md. at 268-69 (“[W]e held that the language of the [HCMCA] is clear and its
meaning unambiguous. . . . We shall stick to our guns in that regard as we consider the
requirements of a [CQE] in . . . [Section] 3–2A–02, added in 2004.”) (cleaned up); cf.
Walzer v. Osborne, 395 Md. 563, 581 (2006) (reasoning that “we need not, and should
not, look beyond the [HCMCA]” because it is “clear and its meaning unambiguous” with
The HCMCA sometimes refers to standards of care as “standards of practice[.]” See
18
Md. Code, Cts. & Jud. Proc. § 3–2A–02(c)(1).
19
At the November 8, 2022 general election, the voters of Maryland ratified a
constitutional amendment changing the name of the Court of Appeals of Maryland to the
Supreme Court of Maryland. The name change took effect on December 14, 2022. See,
also, Md. Rule 1-101.1(a) (“From and after December 14, 2022, any reference in these
Rules or, in any proceedings before any court of the Maryland Judiciary, any reference in
any statute, ordinance, or regulation applicable in Maryland to the Court of Appeals of
Maryland shall be deemed to refer to the Supreme Court of Maryland….”).
17
respect to other CQE requirements contained at Section § 3–2A–04 of the Courts and
Judicial Proceedings Article) (citing Jones v. State, 336 Md. 255, 261 (1994)).
The Court has also explained that statutes in derogation of the common law, such
as the HCMCA, should be “strictly construed” to avoid altering the common law beyond
what is expressly stated in the statute. See Breslin, 421 Md. at 287 (quotations and
citation omitted).20 In analyzing CQE requirements in particular, the Court has cautioned
that these types of requirements impede a “recognized common law right of action” by
imposing threshold barriers to suit, barriers that could raise “serious” constitutional
questions if given an interpretation that unreasonably impedes such suits. Witte, 369 Md.
at 533.21 Indeed, those constitutional concerns predated the requirements at issue here
(which have since imposed further barriers), and so those concerns must apply with even
greater force today. This means that we must exercise caution in interpreting the CQE
requirements at issue, ensuring that our read of those restrictions is no broader than the
General Assembly intended.
“Most statutes, of course, change the common law, so that principle necessarily bends
20
when there is a clear legislative intent to make a change.” Witte, 369 Md. at 533.
21
Specifically, Article 19 of the Maryland Declaration of Rights provides “[t]hat every
man, for any injury done to him in his person or property, ought to have remedy by the
course of the Law of the Land, and ought to have justice and right, freely without sale,
fully without any denial, and speedily without delay[.]” The Supreme Court of Maryland
cited this constitutional provision and others in interpreting earlier CQE requirements
under Section 3–2A–04(b) of the Courts and Judicial Proceedings Article, and in
cautioning that courts should be wary of construing CQE requirements too broadly. See
Witte, 369 Md. at 533 & n.2.
18
Finally, as we interpret the HCMCA’s provisions, we are also mindful of the
purpose of that act. The HCMCA was enacted to “weed out non-meritorious medical
malpractice claims but not to create roadblocks to the pursuit of meritorious medical
malpractice claims . . . .” Hinebaugh v. Garrett Cnty. Mem’l. Hosp., 207 Md. App. 1, 18
(2012). As such, we have stated that our interpretation of the HCMCA should not go
beyond the legislative intent by erecting roadblocks to meritorious actions:
As the history of the [HCMCA] makes plain, the tort reform objective never has
been to eliminate or limit liability in meritorious medical malpractice cases.
Rather, the objective has been to cull out non-meritorious cases early in the
litigation process so as to reduce the cost of defense, which contributes to the high
cost of malpractice insurance, and to prevent significant verdict awards in cases
that are not medically meritorious but engender great sympathy, which also
contribute to the high cost of malpractice insurance. Thus, in assessing the
meaning of the statutory subsubparagraphs at issue, our interpretation must not be
so broad as to result in the consequence, clearly not intended by the legislature, of
placing roadblocks to recovery in meritorious medical malpractice cases.
DeMuth, 205 Md. App. at 541-42.
Turning to the plain language of the exception at issue, we find that it is not
ambiguous. By its terms, the exception applies to experts who “taught medicine in the
defendant’s specialty or a related field of health care.” Md. Code, Cts. & Jud. Proc. § 3–
2A–02(c)(2)(ii)(2)(B). The natural reading of “taught medicine” is not time-bound. It
refers equally to teaching experience in the recent past and in the distant past. A newly
retired professor, for instance, could be said to have “taught medicine,” just the same as a
professor who taught decades ago. Put another way, the language used in the “taught
medicine” exception is not subject to multiple reasonable interpretations; it is simply
subject to a single broad interpretation. As such, it is not ambiguous. Cf. State Highway
19
Admin. v. Greiner Eng’g Servs. 83 Md. App. 621, 636 (1990) (“The ‘no damages’
provision, broad as it is in scope, is not ambiguous.”) (quoting W. Eng’rs, Inc. v. State By
and Through Rd. Comm’n, 437 P. 2d 216, 218 (Utah 1968)) (internal quotations omitted).
Dr. Elyassi, however, appears to assert that there is an implicit ambiguity in the
statutory language, and he argues that such an ambiguity “emerges” upon closer
inspection. He relies upon Section 3–2A–02(c)(2) as a whole and notes that the board
certification requirement and its exceptions are preceded by the word “and”—meaning
that they exist in addition to, and not apart from, the recency requirement contained
earlier in the statutory language. As such, Dr. Elyassi contends that one possible reading
of the “taught medicine” exception is that it, too, includes the five-year recency
requirement, see Md. Code, Cts. & Jud. Proc. § 3–2A–02(c)(2)(ii)(1)(A), thereby placing
a five-year limit on how long an expert who “taught medicine” can oppose a board
certified health care provider. We disagree.
Put simply, Dr. Elyassi’s alternative reading requires too many logical and
structural leaps to be reasonable. To accept his reading, one must set aside what Section
3–2A–02(c)(2)(ii)(2)(B)’s phrase “taught medicine” says, as well as its implementation
of an exception to the board certification requirement of Section 3–2A–02(c)(2)(ii)(1)(B).
Instead, one must conclude that what “taught medicine” actually means is “taught
medicine . . . within 5 years of the date of the alleged act or omission” à la Section 3–
2A–02(c)(2)(ii)(1)(A). One must also overlook the plain words of Section 3–2A–
02(c)(2)(ii)(1)(B). This provision begins “[e]xcept as provided in subsubparagraph 2[.]”
See Md. Code, Cts. & Jud. Proc. § 3–2A–02(c)(2)(ii)(1)(B). The five-year limit is not
20
expressly contained anywhere in “subsubparagraph 2”—the only way it could appear
there is if we were to read it in by implication. See Md. Code, Cts. & Jud. Proc. § 3–2A–
02(c)(2)(ii)(1)(A).
This we will not do. To refer to a narrower category of teaching experience (such
as only recent teaching experience), the General Assembly would have needed to add
words to the “taught medicine” exception—much as it did elsewhere by employing the
phrase “within 5 years of the date of the alleged act or omission[.]” See Md. Code, Cts. &
Jud. Proc. § 3–2A–02(c)(2)(ii)(1)(A). Certainly, the General Assembly could have done
so. But we cannot add words to a statute to change its meaning, even were we to imagine
a reason for doing so.
Moreover, the omission of a temporal limit on teaching experience here appears to
have been intentional. By including a five-year limit in a different part of the same
statutory section, the General Assembly not only illustrated that the phrase “taught
medicine” is not naturally time-bound, but also demonstrated that it knew how to impose
a time restriction on that phrase when it so desired. See Md. Code, Cts. & Jud. Proc. § 3–
2A–02(c)(2)(ii)(1)(A). The presence of the limit in a different part of the statute suggests
that the omission of the limit from the “taught medicine” exception was a conscious
choice. Indeed, when the bill was vetoed, the Governor’s accompanying letter alleged
certain defects and “watered down” language in the bill’s provisions involving expert
witnesses, essentially flagging this issue for the General Assembly. The Governor’s veto
was overridden, and the bill was enacted into law without any changes to the CQE
requirements.
21
Dr. Elyassi nonetheless argues that the exception as written defies common sense.
He reasons that because the statute was designed to impose heightened CQE
requirements when the defendant is board certified, the exception’s plain language cannot
mean what it says because heightened CQEs requirements will not always be imposed in
practice. Although he does not provide a specific example on appeal, we can think of
one: an expert might satisfy the recency requirement through recent teaching experience,
see Md. Code, Cts. & Jud. Proc. § 3–2A–02(c)(2)(iii)(1)(A), and then need nothing
further in order to satisfy the exception to the board certification requirement. In effect,
the expert’s recent teaching experience could do double duty.
Contrary to Dr. Elyassi’s argument, however, we think this makes sense. The first
part of the statute imposes a general five-year recency requirement, regardless of the
defendant’s board certification. This recency requirement means that every expert must
have sufficiently current experience (clinical, consulting, or teaching) in the same or a
related field. As such, the recency requirement helps to ensure that the expert’s
knowledge is up to date. If the defendant is board certified (and providing care within the
scope of that board certification), the second part of the statute imposes additional
requirements aimed at the credentials of the expert. To oppose a board certified
defendant, an expert needs more than up-to-date knowledge—the expert also needs
sufficiently weighty credentials, either in the form of a relevant board certification or
teaching experience. For many experts (i.e., those who meet the recency requirement
through clinical or consulting experience), this means that they will need further
credentials to meet the board certification requirement. Of course, an expert who satisfies
22
the recency requirement through teaching experience will not need anything further. But
this also makes sense: recent teaching experience could demonstrate both that one’s skills
are up to date, and that one possesses sufficient credentials.22
In sum, the plain language of the “taught medicine” exception is not ambiguous
and does not contain any temporal limit, much less a five-year limit. The General
Assembly demonstrated that it knew how to impose such a limit, but it did not do so here.
And even if we were to find the statutory language ambiguous, we would hesitate to
resolve that ambiguity by bolstering the CQE requirements for attesting experts, without
some clearer indication that this was the General Assembly’s intent. Additional CQE
requirements are threshold barriers, they shrink the pool of available experts, they could
raise serious constitutional problems, and they frustrate one of the goals of the HCMCA
by potentially erecting roadblocks to meritorious claims.
III. THE ARGUMENT THAT TECHNOLOGICAL DEVELOPMENTS COULD RENDER
UNRELATED AN OTHERWISE-RELATED FIELD OF HEALTHCARE IS NOT
PRESERVED.
Next, Dr. Elyassi argues that, even if there is no temporal limit to the “taught
medicine” exception, the attesting expert’s teaching experience here occurred so long ago
that we should not deem it experience in a “related” field within the meaning of Section
22
The facts before us further demonstrate that the statutory language does not defy
common sense. Dr. Kossak had recent clinical experience, and no party asserts that his
knowledge was not up to date or that he was unfamiliar with the specific procedures
employed in treating Dr. Jordan. Indeed, Dr. Kossak employed those same procedures
many times throughout his long clinical practice. Separately, as a former university
professor who taught for approximately two years in a related field, Dr. Kossak also
appears to have sufficient credentials.
23
3–2A–02(c)(2)(ii) of the Courts and Judicial Proceedings Article. That is, Dr. Elyassi
appears to argue that periodontics and oral and maxillofacial surgery should not be
considered related as of the 1970s, when the attesting expert taught periodontics, because
at that time implants did not exist. To make his argument, Dr. Elyassi first assumes that
the appropriate comparison is between periodontics in the 1970s and oral and
maxillofacial surgery today. Building from that assumption, he then presents a novel
theory: that technological advancement could sufficiently change a field of healthcare
(here, periodontics), such that an expert’s experience predating that technology would not
qualify as experience in a “related” field under the HCMCA, at least in cases where that
technology was used.
We begin by reviewing the “related” requirement. See Md. Code, Cts. & Jud.
Proc. § 3–2A–02(c)(2)(ii). We have held that specialties and fields of health care are
“related” if, “there is an overlap in treatment or procedures within the specialties and
therefore an overlap of knowledge . . . among those experienced in the fields or practicing
in the specialties, and the treatment or procedure in which the overlap exists is at issue in
the case.” Hinebaugh, 207 Md. App. at 18; see also DeMuth, 205 Md. App. at 544
(“[T]he word ‘related’ in the sense of associated or connected . . . embraces fields of
health care and board certification specialties that, in the context of the treatment or
procedure in a given case, overlap.”). Specialties and fields of health care may still be
related even if they are “regulated by different boards, require different training regimens,
or concern different aspects of human anatomy or physiology.” DeMuth, 205 Md. App. at
544. The critical aspect of the analysis is whether “the standard of care for [the] treatment
24
would not differ depending upon which specialist was the one to see the [patient] for
treatment.” Id. at 544.
In performing that analysis, we have looked to the specific context of the treatment
of the patient. In Hinebaugh, for instance, we framed the relevant context as “diagnosing,
on a front line basis, [] the medical condition of a patient who had been hit in the face by
another person and is experiencing pain.” 207 Md. App. at 23. In that context, we found
that oral and maxillofacial surgery was not sufficiently related to family medicine. The
former types of providers were not “front line providers” who could attest to the standard
of care for an “initial diagnosis” of facial fractures. Instead, they were specialists who
were typically “brought into a case upon referral or request, usually when a facial fracture
diagnosis has already been made[.]” Id. at 28. In the context of that case, oral and
maxillofacial surgeons necessarily operated under a different standard of care from
family medicine practitioners. We reached this conclusion even though oral and
maxillofacial surgeons and family medicine practitioners use similar procedures and
technologies (for instance, x-rays and CT scans) to diagnose facial fractures, because oral
and maxillofacial surgeons do not regularly diagnose facial fractures “upon initial
presentation of a patient.” Id. at 28.
Likewise, in DeMuth and Nance, we applied similar analyses to reach the opposite
conclusion: that two specialties or fields of health care were related. In DeMuth, we
addressed whether vascular surgery was sufficiently related to orthopedic surgery in the
context of managing vascular complications for orthopedic surgery patients. 205 Md.
App. at 545-46. Although orthopedic surgeons encounter different risks and treat a
25
different variety of ailments from vascular surgeons, we held that the two fields were
sufficiently related, in the context of the case, because “the central standard of care” was
the same across both fields for diagnosing and treating possible vascular complications of
orthopedic surgery. Id. at 546. Similarly, in Nance, we treated nephrology and urology as
related because both fields involved the diagnosis of kidney diseases in an emergency
room setting (meaning, in the context of that case, an expert in one field should be able to
opine as to the standard of care for a practitioner in the other). See Nance v. Gordon, 210
Md. App. 26, 40-41 (2013).
In this case, however, we need not engage in a detailed review of the similarities
and differences between periodontics and oral and maxillofacial surgery. Dr. Elyassi
concedes that (at least since the development of implantology), the two fields of health
care are sufficiently similar here—both types of specialists treat patients in the context in
which Dr. Jordan presented to Dr. Elyassi, pursuant to the same standards of care.
Further, we decline to reach Dr. Elyassi’s novel argument because it was not adequately
presented to nor decided by the circuit court. See Md. Rule 8-131(a) (“Ordinarily, the
appellate court will not decide any other issue [aside from jurisdiction] unless it plainly
appears by the record to have been raised in or decided by the trial court[.]”).23
23
We have taken a similar approach on several occasions where the circuit court did not
(or was not given the opportunity to) decide an issue pressed on appeal. See, e.g., Nouri v.
Dadgar, 245 Md. App. 324, 362-63 (2020) (refusing to reach multiple arguments that
were not decided by the circuit court); Miller-Phoenix v. Baltimore City Bd. of Sch.
Comm’rs, 246 Md. App. 286, 305 n.9 (2020) (refusing to affirm a grant of summary
judgment on an alternative ground because “[t]he Board did not seek summary judgment
on that basis . . . and the circuit court did not consider or rule on it”); Weatherly v. Great
26
“‘[F]airness and judicial efficiency ordinarily require that all challenges . . . be presented
in the first instance to the trial court so that (1) a proper record can be made . . . and (2)
the other parties and the trial judge are given an opportunity to consider and respond . . .
.’” Harris v. State, 251 Md. App. 612, 660 (2021) (quoting Chaney v. State, 397 Md. 460,
468 (2007).
Here, the circuit court did not rule on whether the development of implantology
meant that Dr. Kossak’s experience was not in a “related field.” Nor was the circuit court
given an adequate opportunity to do so. During the hearing before the circuit court, Dr.
Elyassi noted that implants did not exist at the time that Dr. Kossak taught periodontics,
but he never asserted that this meant that Dr. Kossak’s periodontic teaching experience
was not in a related field. Instead, he explained to the circuit court that he merely
intended “to point out that any knowledge, experience, or expertise that can be imputed to
[Dr. Kossak] by virtue of the fact that he taught . . . is wholly inapplicable to the issues in
this case.”24 The issue, said Dr. Elyassi, was that Dr. Kossak never taught the placement
of implants. As such, the circuit court did not base its holding on whether Dr. Kossak’s
teaching experience was in a related field. Instead, the circuit court explained that it was
Coastal Exp. Co., 164 Md. App. 354, 385 (2005) (“Critical to our determination of an
issue on appeal is the trial court’s opportunity to consider the issue.”).
24
He did assert that Dr. Kossak did not teach in the “field of implant dentistry[,]” but also
conceded in the circuit court that this ‘field’ is not a recognized specialty and that there is
no board certification for implantology.
27
dismissing the complaint because, in its view, the “taught medicine” exception to board
certification contained a five-year recency requirement, which Dr. Kossak did not meet.
Moreover, neither Dr. Elyassi nor Dr. Jordan put on any argument or evidence
concerning how the periodontics of the 1970s differed from oral and maxillofacial
surgery—either today or in the 1970s—other than to agree that implants did not then
exist. For instance, neither party discussed the context in which 1970s periodontists saw
patients, or addressed the treatment options that were available to 1970s periodontists to
argue whether such periodontists could opine on the relevant standard of care.25
Additionally, neither party made statutory interpretation arguments in the circuit court
that were germane to the “related field” requirement, or that could have informed a ruling
about how to interpret that requirement with respect to technological changes and to
teaching experience predating those changes.
In short, this issue was never squarely presented to the circuit court, nor was it
decided. Now, on appeal, we are left without the benefit of an adequate record, germane
arguments from the parties, and a decision from the circuit court that could inform our
analysis. We will decline to review this issue. See Md. Rule 8–131(a).
25
We have at times taken judicial notice of present-day specialty descriptions from
authoritative sources. See, e.g., Hinebaugh, 207 Md. App. at 22-24. But we have not
taken notice of historical descriptions of medical specialties in the context of the
HCMCA. And here, the relevant time would be roughly 50 years ago, making judicial
notice even less appropriate. See Faya v. Almaraz, 329 Md. 435, 444 (1993) (courts can
take judicial notice of “matters of common knowledge or capable of certain
verification”); Irby v. State, 66 Md. App. 580, 586 (1986) (judicial notice can be
appropriate “when formal proof is clearly unnecessary”) (quotations and citation
omitted).
28
IV. IN THE ALTERNATIVE, THE CIRCUIT COURT ERRED IN DISMISSING DR.
JORDAN’S COMPLAINT WITH PREJUDICE
Under Section 3–2A–04(b)(1)(i) of the Courts and Judicial Proceedings Article, if
the plaintiff fails to file a valid CQE, then the court must dismiss the action without
prejudice:
[A] claim or action filed after July 1, 1986, shall be dismissed, without
prejudice, if the claimant or plaintiff fails to file a certificate of a qualified
expert with the Director attesting to departure from standards of care, and that
the departure from standards of care is the proximate cause of the alleged
injury, within 90 days from the date of the complaint.
See Md. Code, Cts. & Jud. Proc. § 3–2A–04(b)(1)(i); see also Breslin, 421 Md. at 290(“[F]iling a Certificate of an unqualified expert, in contravention of [Cts. & Jud. Proc.] §
3–2A–02, mandates dismissal without prejudice of the claim or action[.]”); Dunham v.
Univ. of Md. Med. Center, 237 Md. App. 628, 659 (2018) (“[P]ursuant to the plain
language of [Section 3–2A–02], dismissal without prejudice of the underlying claim for
the filing of a non-compliant [CQE] . . . is required.”) (emphasis in original) (quotations
and citation omitted).
Here, the circuit court dismissed Dr. Jordan’s complaint with prejudice for a
purported failure to file a valid CQE, on the theory that the statute of limitations had run
and that a dismissal without prejudice would have had the same effect. Dr. Elyassi argues
that this decision was not error because there would be no practical distinction between
dismissal with or without prejudice here.26 This argument misses the mark, however,
26
Dr. Elyassi did not cite to any authority for his argument that a dismissal with
prejudice was within the circuit court’s power here. We note that, in Reed v. Cagan, 128
29
because the HCMCA does not afford any discretion to dismiss a complaint with prejudice
for the failure to file a valid CQE. See Md. Code, Cts. & Jud. Proc. § 3–2A–04(b)(1)(i).
As such, as an independent ground for reversal, the circuit court erred in dismissing Dr.
Jordan’s complaint with prejudice.
JUDGMENT OF THE CIRCUIT
COURT FOR PRINCE GEORGE’S
COUNTY REVERSED; COSTS TO BE
PAID BY APPELLEES.
Md. App. 641 (1999), this Court heard an appeal from a dismissal under Maryland Rule
2-507(b), which concerns dismissals for failure to obtain jurisdiction over defendants
after 120 days since original process was issued. Like the section of the HCMCA at issue
here, Rule 2-507 only allows for dismissal without prejudice, see Md. Rule 2-507(f), but
this Court affirmed a dismissal with prejudice of claims against a belatedly-served
defendant. Reed, however, did not analyze that issue; it analyzed whether the defendant
was prejudiced by a delay in service and whether that defendant had a right to file a
motion to dismiss before a notice of contemplated dismissal was entered. Reed, 128 Md.
App. at 647-51. As such, and as the Supreme Court of Maryland has explained, Reed
does not teach that a dismissal with prejudice is proper under Maryland Rule 2-507. See
Hariri v. Dahne, 412 Md. 674, 685 (2010). Reed accordingly does not support Dr.
Elyassi’s argument here. Indeed, the Court later clarified that “[t]he plain language of
[Maryland Rule 2-507] expressly provides that the dismissal entered on the docket be
‘without prejudice.’” Hariri, 412 Md. at 684-85.
30