Wilcox v. Orellano

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1420

September Term, 2012

LYDIA G. WILCOX, ET AL.

v.

TRISTAN J. ORELLANO

Krauser, C.J.,
Wright,
White, Pamela J.
(Specially Assigned),

JJ.

Opinion by Krauser, C.J.

Filed: June 24, 2014
Subsection 5-119(b) of the Courts and Judicial Proceedings Article 1 permits a party,

whose medical malpractice “action or claim” has been “dismissed once . . . without

prejudice,” because of that party’s failure to attach a report of an attesting expert to the

certificate of a qualified expert, to re-file that “action or claim,” so long as it is filed within

60 days from the date of dismissal, regardless of whether the statute of limitations has run.

This “savings provision,”2 however, does not apply, under the preceding subsection of

section 5-119, that is, subsection 5-119(a), or the “preclusion provision,” which precludes

the re-filing of a claim or action under the savings provision when the dismissal of the claim

or action is a “voluntary dismissal of a civil action or claim by the party who commenced the

action or claim.”

This appeal requires us to decide whether Lydia Wilcox, appellant, may re-file, under

the “savings provision,” (§ 5-119(b)) her medical malpractice action against Tristan Orellano,

M.D., appellee, when her initial medical malpractice action against Dr. Orellano was

dismissed by a voluntary stipulation of dismissal signed by both sides to the controversy.

The Circuit Court for Prince George’s County concluded that that stipulation of dismissal

amounted to “a voluntary dismissal . . . by the party who commenced the action or claim”

1
Md. Code, Cts. & Jud. Proc. § 5-119 (1974, 2013 Repl. Vol.). All subsequent
citations to the Maryland Code in this opinion are to the Courts and Judicial Proceedings
Article (“CJP”) unless otherwise indicated.
2
To avoid confusion, given that the two relevant provisions of section 5-119 we will
be discussing are distinguishable by only a lower-case letter and, to make matters worse, are
in what is arguably reverse order, as the exception precedes the principle in section 5-119,
we have dubbed section 5-119(b) the “savings provision” and section 5-119(a) the
“preclusion provision.”
under the “preclusion provision” (§ 5-119(a)) and dismissed her re-filed claim. We agree and

shall affirm.

Background

Wilcox was referred to Tristan Orellano, M.D., a general surgeon, after an abnormal

mammogram. A biopsy then performed by Dr. Orellano confirmed that Wilcox had breast

cancer in her right breast. Wilcox thereafter elected to have a lumpectomy,3 and Dr. Orellano

performed that procedure.

During two successive post-operative visits with Dr. Orellano, Wilcox complained to

the doctor of swelling, redness, and discomfort in her right breast at the site of the surgery.

Nonetheless, Dr. Orellano did not prescribe, according to Wilcox, any treatment for those

problems. The swelling in Wilcox’s right breast persisted and, eight months after the

surgery, Wilcox’s oncologist determined that she had developed an infection in her right

breast at the site of the lumpectomy. For the next nine months, she reported daily to a

hospital to have the dressing around the infection changed. But the infection only worsened,

and eventually led to the surgical removal of her right breast.

Following that surgery, Wilcox filed a claim with the Health Care Alternative Dispute

Resolution Office against Dr. Orellano, together with a certificate of a qualified expert, as

3
A “lumpectomy,” or “tylectomy,” is the “surgical removal of a tumor from the
breast.” Stedman’s Medical Dictionary (2001) 476, 860.

2
required by section 3-2A-04(b) of the Health Care Malpractice Claims Statute.4

Unfortunately, she failed to attach to the certificate a report of an attesting expert, as required

by the same statute, and never sought to correct that mistake.

Ultimately, Wilcox waived arbitration of her claim and filed a complaint, in the

Circuit Court for Howard County, against Dr. Orellano, alleging negligence, breach of

contract, and loss of consortium, based on the post-operative care and treatment she had

4
Section 3-2A-04(b) of the Courts and Judicial Proceedings Article (1974, 2013 Repl.
Vol.) states in part:

(1)(I) 1. Except as provided in item (ii) of this paragraph, 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; . . .
.
(ii) In lieu of dismissing the claim or action, the panel chairman
or the court shall grant an extension of no more than 90 days for
filing the certificate required by this paragraph, if:

1. The limitations period applicable to the claim or action has
expired; and

2. The failure to file the certificate was neither willful nor the
result of gross negligence.

***

(3)(I) The attorney representing each party, or the party
proceeding pro se, shall file the appropriate certificate with a
report of the attesting expert attached.

3
received from him. Dr. Orellano answered that complaint and then, three months later,

moved to both strike Wilcox’s certificate of qualified expert and to dismiss Wilcox’s

complaint. Because Wilcox had never filed a report of her attesting expert, the court,

claimed the doctor, was required, under Walzer v. Osborne,5 to dismiss her complaint

without prejudice. But, before a hearing could be held on Dr. Orellano’s motion to dismiss,

a stipulation of dismissal was signed by the attorneys for both sides and filed. It simply

stated: “The parties, by and through their respective attorneys, pursuant to Md. Rule

2-506(a), hereby stipulate and agree to the dismissal without prejudice of this action in its

entirety against [Dr. Orellano].”

Less than two weeks later, Wilcox filed another claim with the Health Care

Alternative Dispute Resolution Office against Dr. Orellano. With that claim she filed both

a certificate of a qualified expert and, for the first time, a report from that expert, as she was

required to do by section 3-2A-04(b). After waiving arbitration again, Wilcox filed a

complaint, not in the Circuit Court for Howard County (where she had filed her original

complaint) but in the Circuit Court for Prince George’s County. In her second complaint, she

once again alleged negligence, breach of contract, and loss of consortium.6

5
In Walzer v. Osborne, the Court of Appeals held, among other things, that, in a
medical malpractice action, the required certificate of a qualified expert is not complete
unless, and until, the report of an attesting expert is attached to the certificate. 395 Md. 563,
587 (2006). If a claimant files a certificate of a qualified expert but fails to file the expert
report “in a timely manner,” the claim must be dismissed without prejudice. Id. at 567.
6
Although Wilcox’s second complaint asserted, as did her first, that Dr. Orellano had
breached the duty of care owed to her with respect to the post-operative care he provided, it

4
Dr. Orellano, in response, filed an answer and, once again, moved to dismiss, but this

time he alleged as grounds for his dismissal request that Wilcox’s claim was now barred by

the applicable statute of limitations. After the Prince George’s County circuit court denied

his motion to dismiss, Dr. Orellano filed two motions for reconsideration. Although the first

motion was denied without a proceeding, a hearing was held on the doctor’s second motion

for reconsideration.

At the conclusion of that hearing, the circuit court found that the savings provision of

section 5-119 “is expressly, by its terms, limited” and that it did not apply where there has

been “a voluntary dismissal of a civil action or claim” by stipulation of the parties. What

Wilcox should have done “to come within the meaning of the statute,” declared the court,

was “to have gone to [the] hearing and had the Court dismiss [her claim].” The court

therefore concluded that, having in effect “voluntarily dismissed” her action, Wilcox was not

entitled to re-file her claim as that claim was now barred by the relevant statute of limitations.

That decision prompted this appeal.

Discussion

Wilcox contends that she was permitted to file her second claim under

section 5-119(b) of the Courts and Judicial Proceedings Article, the “savings provision,”

because her first claim was voluntarily dismissed not by “the party who commenced the

alleged, for the first time, that he had also breached the duty of care with respect to the scope
of the surgical procedure he had performed.

5
action,” but by a voluntary stipulation of dismissal executed by the parties. In short, she

claims that the limitation imposed by the preclusion provision (§ 5-119(a)) on the savings

provision (§ 5-119(b)), which precludes a “voluntary dismissal of a civil action or claim by

the party who commenced the action or claim,” applies only to a unilateral voluntary

dismissal and not one of a bilateral nature, such as a voluntary stipulation. Dr. Orellano

responds that the language of the preclusion provision (§ 5-119(a)) clearly covers a voluntary

dismissal by stipulation. Nor is there any reason, he suggests, to draw a distinction between

unilateral and bilateral voluntary dismissals.

Thus the task before us is to determine the proper construction to be accorded

section 5-119. We begin that task by noting that the “cardinal rule” of statutory construction

“is to ascertain and effectuate [the] legislative intent” in enacting the statute, Mayor of Balt.

v. Chase, 360 Md. 121, 128 (2000), and that “[t]he primary source from which we glean this

intention is the language of the statute itself,” Subsequent Injury Fund v. Herman, 89 Md.

App. 741, 747 (1992) (quoting Mazor v. Dep't of Corr., 279 Md. 355, 360 (1977)). If,

however, “the true legislative intent cannot readily be determined from the statutory language

alone,” we may consider other “recognized indicia” of legislative purpose, including “how

the statute relates to other laws; [and] the legislative history, including the derivation of the

statute, comments and explanations regarding it by authoritative sources during the

legislative process, and amendments proposed or added to it.” Witte v. Azarian, 369 Md.

518, 525–26 (2002).

6
Section 5-119 states:

Civil actions or claims dismissed for failure to file report:

(a)(1) This section does not apply to a voluntary dismissal of a
civil action or claim by the party who commenced the action or
claim.

(2) This section applies only to a civil action or claim that is
dismissed once for failure to file a report in accordance with
§ 3-2A-04(b)(3) of this article.

Commencement of new civil action or claim:

(b) If a civil action or claim is commenced by a party within the
applicable period of limitations and is dismissed without
prejudice, the party may commence a new civil action or claim
for the same cause against the same party or parties on or before
the later of:

(1) The expiration of the applicable period of
limitations;

(2) 60 days from the date of the dismissal; or

(3) August 1, 2007, if the action or claim was
dismissed on or after November 17, 2006, but
before June 1, 2007.

In sum, this statutory section applies only to “a civil action or claim that is dismissed

once” because of the claimant’s failure to attach a report of an attesting expert to the

certificate of qualified expert in a medical malpractice action. If the failure to attach that

report is the reason for the claim’s dismissal, the savings provision (§ 5-119(b)) affords the

claimant relief by permitting her to “commence a new civil action or claim for the same

7
cause against the same party” within 60 days from the date of the dismissal, even if the

statute of limitations has run.

But the preclusion provision (§ 5-119(a)) places limits on this re-filing relief by

rendering the statute inapplicable to a “civil action or claim” that is voluntarily dismissed “by

the party who commenced the action.” Contrary to Dr. Orellano’s contention that the

language of the statute is clear and unambiguous, we believe it is not as clear and

unambiguous as the doctor suggests. Indeed, it is not altogether clear from the plain

language of the statute whether a stipulation of dismissal signed by the party who

commenced the action as well as the opposing party constitutes, beyond peradventure, a

voluntary dismissal “by the party who commenced the action,” or whether this voluntary

dismissal exception to the savings provision is confined to only “unilateral” dismissals by the

party who filed the action.

But that ambiguity evaporates when the preclusion provision (§ 5-119(a)) is read in

conjunction with Maryland Rule 2-506, which defines a voluntary dismissal of a civil action

as follows:

(a) By notice of dismissal or stipulation. Except as otherwise
provided in these rules or by statute, a party who has filed a
complaint . . . may dismiss all or part of the claim without leave
of court by filing (1) a notice of dismissal at any time before the
adverse party files an answer or (2) by filing a stipulation of
dismissal signed by all parties to the claim being dismissed.

8
Thus, Rule 2-506(a) plainly states7 that a party, who has filed a claim, may voluntarily

dismiss that claim in one of two ways: “unilaterally” by dismissing her claim before the

adverse party files an answer or “bilaterally” by filing a stipulation of dismissal signed by all

parties to the claim being dismissed.8 That is to say, a voluntary dismissal by stipulation,

under Rule 2-506(a), is a voluntary dismissal by a “party who has filed a complaint” and

therefore is not entitled to the relief provided by the savings provision (§ 5-119(b)). Hence,

the voluntary dismissal of Wilcox’s first claim by stipulation precludes a renewal of her

claim, if the statute of limitations governing that claim has run.

Nor does the legislative history of section 5-119 suggest we reach a different

conclusion. When Senate Bill 309, which was ultimately codified, with changes, as

“§ 5-119,” was first introduced, it applied to any “civil action” that was “dismissed or

terminated in a manner other than by a final judgment on the merits.” It made no distinction

between voluntary and involuntary dismissals, or between dismissals with prejudice or

without. SB 309 (2007) (first reading).

7
To interpret rules of procedure, we “use the well-established axioms of statutory
construction. When the language of the rule is clear and unambiguous, we must only look
to the basic meaning of the words used. Indeed, we are ‘to give effect to the entire rule,
neither adding, nor deleting, words in order to give it a meaning not otherwise evident by the
words actually used.’” Milburn v. Milburn, 142 Md. App. 518, 532 (2002) (quoting New
Jersey ex rel. Lennon v. Strazella, 331 Md. 270, 274 (1993)).
8
It is true that, because Dr. Orellano had filed an answer to her complaint, Wilcox
could not voluntarily dismiss her claim “unilaterally,” and she needed Dr. Orellano’s
signature on a stipulation of dismissal to dismiss her claim without a court order.

9
Several interested groups, however, voiced concerns about the proposed statute,

pointing out that the plaintiff could, under the proposed statute as introduced, “simply

voluntarily dismiss a complaint at any time and still be able to re-file the complaint,

regardless of any limitations period;”9 could “keep re-filing amended complaints until [the

plaintiff] is able to state a viable cause of action;” 10 or could re-file even if the case “was

dismissed for a just reason or because that plaintiff did not act diligently or promptly.” 11

Presumably, in light of these concerns, Senate Bill 309 was subsequently amended so that

the proposed statute would “not apply to a voluntary dismissal of a civil action by the party

who commenced the action.”12 But there is no indication that the Legislature, with this

amendment, intended to exclude from the proposed statute’s purview only those claims that

were voluntarily and unilaterally dismissed. Rather, by excluding voluntary dismissals “by

the party who commenced the action,” the amendment encompassed both ways in which a

party could voluntarily dismiss, under Rule 2-506(a), her claim.

9
Memorandum from Legislative Committee, Maryland Judicial Conference, to Senate
Judicial Proceedings Committee (Feb. 20, 2007).
10
Letter from Demaune Millard, Director, Baltimore City Office of Government
Relations, to Members of the Senate Judicial Proceedings Committee (Mar. 6, 2007).
11
Testimony in Opposition to Senate Bill 309, Maryland Defense Counsel, Inc.
(Mar. 6, 2007).
12
The statute was further narrowed to apply only to “a civil action or claim that is
dismissed once” for the failure to file a report of an attesting expert during a later, and final,
round of amendments. House Judiciary Committee Amendments to Senate Bill 309 (Third
Reading File Bill), SB 309 (2007).

10
We feel compelled to acknowledge, however, that a dismissal by stipulation of all

parties does not give rise to the same concerns that were raised during the drafting of what

was ultimately codified as “§ 5-119.” Those apprehensions, as noted earlier, focused on a

claimant’s total freedom to voluntarily dismiss a claim or action and then re-file it at any time

and as many times as the claimant wished, until it stated a viable cause of action, regardless

of whether the applicable limitations period had run. Arguably, a stipulation of dismissal,

which requires the consent of both sides to a controversy, mitigates, if not eliminates, those

concerns. Nonetheless, it is clear to us that when section 5-119 is read in combination with

Rule 2-506 — a rule that was in existence at the time of the enactment of section 5-119 13 and

therefore presumably known by those who drafted that section — section 5-119 clearly

encompasses both unilateral and bilateral voluntary dismissals. And the legislative history

offers nothing to indicate that that construction, which is completely consistent with the

well-established axioms of statutory construction,14 is flawed.

13
Rule 2-506(a) was last amended in 2005 and has been in effect in its current form
since January 1, 2006, while section 5-119 was introduced on January 31, 2007, and took
effect on June 1, 2007. Moreover, a stipulation of dismissal signed by all parties to the action
has been considered a voluntary dismissal by the party who filed the action since at least
1956. See Rule 541(a)(2) (1956) (stating that a party “without an order of court . . . may
dismiss his action [or] claim . . . by filing a stipulation of dismissal signed by all parties who
have appeared in the action”).
14
As we explained earlier, those axioms require us to ascertain and effectuate the
Legislature’s intent in enacting the statute by looking “first to the words of the statute,” and
then, if “the legislative intent cannot readily be determined from the statutory language
alone,” by considering other “recognized indicia” of legislative purpose, including “how the
statute relates to other laws; [and] the legislative history, including the derivation of the
statute, comments and explanations regarding it by authoritative sources during the

11
Finally, we wish to mention that, if the bald stipulation filed by the parties had

contained language indicating that Wilcox would be thereafter free to re-file her claim under

the savings provision (§ 5-119(b)), we would certainly feel more pressed to reach a different

result, as did a New York appellate court in dealing with similar legislation. George v. Mt.

Sinai Hospital, 390 N.E.2d 1156 (1979). There, the Court of Appeals of New York

addressed the question of whether the plaintiff could re-file, under New York’s “savings

statute,”15 a civil action after the parties to that action had filed a stipulation of voluntary

dismissal when that statute permitted a plaintiff to commence a new civil “action” within six

months after the first action was “terminated,” provided that the first action was not

“terminated” by “a voluntary discontinuance.”16 N.Y. C.P.L.R. 205(a) (Consol. 1999, 2014

Supp.). And, much like Maryland Rule 2-506(a), which allows “a stipulation of dismissal

signed by all parties to the claim,” to be a voluntary dismissal by the party, the applicable

New York rule deemed “a stipulation in writing signed by the attorneys of record for all

parties” to be a “voluntary discontinuance” by the “party asserting a claim.” N.Y. C.P.L.R.

3217(a)(2) (Consol. 2002).

legislative process, and amendments proposed or added to it.” Witte v. Azarian, 369 Md.
518, 525–26 (2002).
15
See, e.g., Jones v. Brown, 417 N.Y.S.2d 503, 504 (N.Y. App. Div. 1979).
16
The New York savings statute also does not apply to an action that was dismissed
because of a “failure of obtain personal jurisdiction over the defendant,” the “neglect to
prosecute the action,” or “a final judgment upon the merits.” N.Y. C.L.P.R. 205(a)
(Consol. 1999, 2014 Supp.).

12
Although the action at issue was “terminated by means of a voluntary discontinuance,”

the New York appellate court nonetheless upheld the re-filing of that action because the

stipulation of dismissal “specifically stated” that it was “without prejudice to [the] plaintiff's

right . . . to commence any action pursuant to the authority” of the New York savings statute.

George, 390 N.E.2d at 1162. After noting the expansive reading that must be given the

protections provided by a remedial law, such as the statute in question, the New York court

explained that the “patent purpose of this disclaimer [was] to preserve whatever rights [the]

plaintiff would have had to commence a new action pursuant to the statute had the prior

action been terminated by order of dismissal rather than by voluntary discontinuance.” It

then went on to state that it “perceive[d] no reason why this agreement between the parties

should not be given its intended effect.” Id. “Absent some violation of the law or conflict

with interests of the public,” the court continued, “the parties to an action have considerable

freedom to waive strict compliance with procedures which might otherwise delay or preclude

judicial resolution of the merits of a dispute in a particular situation.” Id. But the New York

Court of Appeals warned “where the prior action has been terminated by means of a

voluntary discontinuance pursuant to a stipulation which contains no express statement of

contrary intent, the statute simply does not authorize a subsequent action, regardless of the

actual motives of the parties,” id., which is, in essence, what occurred here.

13
In any event, whether a stipulation of dismissal explicitly providing that it was without

prejudice to the claimant’s right to re-file the same action is not now before us and must be

left for another panel of this Court to decide on another day.

ORDER OF THE CIRCUIT COURT FOR
PRINCE GEORGE’S COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.

14