Powell v. Wurm

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 0782

September Term, 2013

______________________________________

PHILIP POWELL, PERSONAL
REPRESENTATIVE OF THE ESTATE OF
BEATRICE C. POWELL

v.

ALEX WURM

______________________________________

Krauser, C.J.,
Berger,
Sharer, J. Frederick
(Retired, Specially Assigned),

JJ.
______________________________________

Opinion by Krauser, C.J.
______________________________________

Filed: January 29, 2015
The Maryland Health Care Malpractice Claims Act requires a “claimant or plaintiff”

to file, with his or her medical malpractice “claim or action,” “a certificate of a qualified

expert” and a “report” from that expert. Md. Code Cts. & Jud. Proc. § 3-2A-04(b)(1)(i),

(3)(i) (1974, 2013 Repl. Vol.) (“CJP”). Philip Powell, in his capacity as the personal

representative of the Estate of Beatrice Powell, appellant, filed, in the Circuit Court for

Prince George’s County, a medical malpractice action against Alex Wurm, M.D., appellee.

With that action he also filed, as directed by the foregoing section of the Maryland Code,

both a certificate of qualified expert and the report of the Estate’s medical expert.

The principal question before us1 is whether the report of the Estate’s expert

satisfied Maryland law. The circuit court believed that it did not and dismissed the Estate’s

action. We disagree and shall reverse and remand this case for trial.

I.

On August 5, 2009, Dr. Wurm, a radiologist,2 performed an “inferior [vena] cava

filter placement” procedure on the now-deceased Mrs. Beatrice Powell to treat her chronic

pulmonary emboli.3 This surgical procedure involves the insertion of a “filter” into the

1
The Estate also contends that the Prince George’s County circuit court erred in
failing to grant it an extension of time, “for good cause shown,” so that it could supplement
its expert report. Because our resolution of the Estate’s first and principal contention is
dispositive of this appeal, we need not address this claim.
2
A radiologist is a “physician trained in the diagnostic and/or therapeutic use of
x-rays . . . diagnostic ultrasound and magnetic resonance imaging and applicable physics.”
Stedman’s Medical Dictionary (28th ed. 2006) 1624.
3
A “pulmonary embolism” is the “obstruction of pulmonary arteries, usually by
detached fragments of a clot from a leg or pelvic vein.” Stedman’s Medical Dictionary
(2001) 691.
1
“inferior vena cava,” a “vein formed by the union of the two common iliac veins” and

which “empties into the right atrium of the heart.” Stedman’s Medical Dictionary (2001)

414.

During Dr. Wurm’s performance of that procedure, the filter “perforated the wall”

of Mrs. Powell’s inferior vena cava and, as a result of that perforation, the filter was

deposited, not in the inferior vena cava as intended, but in “an extravascular location.”

Consequently, Mrs. Powell had to subsequently undergo additional surgery to remove the

filter and repair the damage to her inferior vena cava.4 Although Mrs. Powell died a year

later, it is not alleged that her death was a consequence of the procedure performed by Dr.

Wurm.

On August 2, 2012, three years after the filter placement procedure in question and

two years after Mrs. Powell’s death, the Estate filed a medical malpractice claim, with the

Health Care Alternative Dispute Resolution Office, against Dr. Wurm, alleging that the

doctor had failed to “exercise appropriate care and technique” during the filter placement

procedure. That failure led, claimed the Powell Estate, to a piercing of the wall of the

inferior vena cava and to the subsequent misplacement of the filter. In accordance with

section 3-2A-04(b) of the Health Care Malpractice Claims Act, the Estate filed with its

malpractice claim a “certificate of qualified expert,” signed by Robert Vogelzang, M.D., a

radiologist, together with Dr. Vogelzang’s report.

4
It is not clear, from the record, whether a new filter was placed in Mrs. Powell’s
inferior vena cava during this subsequent surgery.
2
Then, after waiving arbitration of its claim, the Estate filed a medical malpractice

complaint against Dr. Wurm in the Prince George’s County circuit court. With its

complaint, the Estate filed the certificate of qualified expert and the report from Dr.

Vogelzang. The certificate stated that it was Dr. Vogelzang’s opinion, “to a reasonable

degree of medical probability,” that Dr. Wurm, in performing the inferior vena cava filter

placement, departed “from the standards of care in connection with such medical

procedure” and that that “departure from the standards of care [was] the proximate cause

of [Mrs. Powell’s] injuries.” The “specific departures from the standard of care are set

forth,” indicated the certificate, “in the attached report.”

In that report, Dr. Vogelzang stated:

In my opinion, Dr. Wurm violated the applicable standards of
care in the placement of an inferior vena cava filter in that he
failed to exercise appropriate care and technique and thereby
perforated the wall of the inferior vena cava and deposited the
filter in an extravascular location, thus necessitating the
subsequent surgery to remove the filter and repair the caval
laceration.

Dr. Wurm moved to dismiss the Estate’s malpractice action on the grounds that the

Estate’s medical expert report was legally insufficient. In support of that claim, Dr. Wurm

cited the following language from Walzer v. Osborne: “[T]he attesting expert report must

explain how or why the physician failed . . . to meet the standard of care and include some

details supporting the certificate of qualified expert.” 395 Md. 563, 583 (2006). Since Dr.

Vogelzang’s report, purportedly, “merely restate[d]” the allegations in his certificate and

provided no additional details, the Estate’s expert report, insisted Dr. Wurm, was

inadequate and the Estate’s malpractice claim must therefore be dismissed.

3
In its opposition to that motion, the Estate asserted that there was “no dispute that

Dr. Wurm perforated” Mrs. Powell’s inferior vena cava and that discovery would be

necessary to determine precisely which of Dr. Wurm’s actions or inactions had led to that

perforation. To that opposition, it attached a “revised opinion letter” from Dr. Vogelzang,

in which Dr. Vogelzang opined that Dr. Wurm had “failed to meet the standard of care”

for placing an inferior vena cava filter by neglecting to use a “guidewire,” or using an

“improper guidewire,” or by not injecting “contrast” to confirm the position of the filter.

This revised opinion letter, however, was submitted to the court after the statutory

period for filing a certificate of qualified expert with the attesting expert report attached

had expired. See CJP § 3-2A-04(b)(1)(i)–(ii) (requiring a plaintiff to file a certificate of

qualified expert within 180 days from the date the complaint is filed in the Health Care

Alternative Dispute Resolution Office). Acknowledging the lateness of this submission,

the Estate requested that the circuit court grant it “an extension of time,” for “good cause

shown,” to file its “certificate of a qualified expert,” under section 3-2A-04(b)(5) of the

Act, so that it could supplement Dr. Vogelzang’s original report.5

With no mention of that revised opinion letter or its contents in its written opinion,

the circuit court dismissed the action, concluding that, because Dr. Vogelzang’s report did

not state “how” or “why” Dr. Wurm failed to meet the standard of care and did not contain

any “supplemental information” or “details to support the certificate,” it had “fail[ed] to

5
The request for an extension of time for “good cause shown” contained no
explanation as to the nature of the “good cause” that purportedly excused the Estate’s
belated submission of this letter.
4
comply with the substantive requirements of Walzer,” and was therefore “legally

insufficient.” The insufficiency of the report, in turn, rendered the certificate of qualified

expert “incomplete.”

II.

The Estate contends that its certificate of qualified expert and the attached report

complied with the requirements set forth in the Health Care Malpractice Claims Act. It

points out that the Act does not mandate the contents of the report, but requires only that

the report of the attesting expert be attached to the certificate of qualified expert. It further

asserts that decisions of the Court of Appeals—notably, Walzer v. Osborne, 395 Md. 563

(2006); Carroll v. Konits, 400 Md. 167 (2007); and Kearney v. Berger, 416 Md. 628

(2010)—have consistently suggested that the attesting expert’s report need only contain

“at least some additional information” that “supplement[s]” the certificate to satisfy

statutory requirements. Walzer, 395 Md. at 583. Finally, it states that Dr. Vogelzang’s

report, which opined that Dr. Wurm had perforated Mrs. Powell’s inferior vena cava by

failing to exercise appropriate care and technique, had done exactly that.

Because our determination of whether the Estate’s certificate of its qualified expert

and report of its attesting expert complied with Maryland law is a question of legal

sufficiency, we conduct a de novo review, keeping in mind that the dismissal of a medical

malpractice claim “is only appropriate if, after assuming the truth of the assertions in the

[c]ertificate and report, and all permissible inferences emanating therefrom, the

requirements set forth in the [Act] are not satisfied.” Carroll, 400 Md. at 180 n.11.

5
Our review begins with the text of section 3-2A-04(b) of the Act, and if the words

of that section, when “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.” Walzer, 395 Md. at 572 (internal quotation marks and citation omitted). In

requiring that a medical malpractice claimant file a “certificate of qualified expert” with

his or her claim, the Act states:

(b) Filing and service of certificate of qualified expert—Unless the
sole issue in the claim is lack of informed consent:

(1)(i) 1 . . . 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 . . . 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; . . . .

***

(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.

The Act clearly specifies what the “certificate of a qualified expert” must attest to.

It must state that there was a “departure from standards of care, and that the departure from

standards of care [was] the proximate cause of the [plaintiff’s] alleged injury.”

CJP § 3-2A-04(b)(1)(i). And it must “mention explicitly the name of the licensed

professional who allegedly breached the standard of care.” Carroll, 400 Md. at 196

(internal citations omitted). But, as for the “report of the attesting expert,” the Act only

mandates that such a report be “attached” to the certificate. CJP § 3-2A-04(b)(3)(1). No

mention is made by the Act as to what it should contain.

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There is no dispute that Dr. Vogelzang’s certificate opined that “there was a

departure from the standards of care,” that it stated that such a departure was the proximate

cause of Mrs. Powell’s injuries, and that it identified Dr. Wurm as the negligent physician.

Moreover, the doctor’s report was attached to his certificate. Thus the only question before

us is whether Dr. Vogelzang’s report satisfied the requirements of the Act, in other words,

whether the circuit court was correct in dismissing this case on the grounds that the report

was legally deficient.

As noted, the language of the Act itself states only that the report must be “attached”

to the certificate of the plaintiff’s qualified expert. It does not provide any indication of

what the “report of the attesting expert” must contain. But the imprecision of the report

requirement of the Act has fortunately been, in large measure, remedied by the Court of

Appeals in a series of opinions.

First, in Walzer v. Osborne, 395 Md. 563, 583 (2006), the Court of Appeals avowed

that “the certificate required of the plaintiff is merely an assertion that the physician failed

to meet the standard of care and that such failure was the proximate cause of the patient-

plaintiff’s complaints,” and that the attesting expert report “should contain at least some

additional information and should supplement” the certificate. Specifically, the “expert

report must explain,” said the Court, “how or why the physician failed or did not fail to

meet the standard of care and include some details supporting the certificate of qualified

expert.” Id. Then, in Carroll v. Konits, 400 Md. 167 (2007), and Kearney v. Berger, 416

Md. 628 (2010), the Court of Appeals, in addressing the legal sufficiency of a plaintiff’s

“certificate” in each of those cases, reiterated that the report of the attesting expert should

7
state what the applicable standard of care is and how the defendant physician had departed

from it. Carroll, 400 Md. at 197; Kearney, 416 Md. at 649–50.

Thus it is clear from the foregoing decisions that the report of an attesting expert

must state what the applicable standard of care is and provide some information as to how

or why the defendant physician had not met that standard. Therefore, Dr. Vogelzang’s

report, which was attached to the doctor’s “certificate” and filed by the Estate with its

malpractice claim, must be deemed compliant with the requirements of the Act if it

contained “at least some additional information” and provided details “explaining how or

why the defendant doctor allegedly departed from the standards of care.” Walzer, 395 Md.

at 583.

In our view, Dr. Vogelzang’s report did just that. First, it specified that the

“applicable standards of care” that Dr. Wurm allegedly violated were the “standards of care

in the placement of an inferior vena cava filter” and then asserted that that standard of care

was violated by the doctor’s failure to “exercise appropriate care and technique.” Next, it

stated that, as a consequence of his failure to “exercise appropriate care and technique,”

Dr. Wurm perforated the wall of Mrs. Powell’s inferior vena cava and deposited the filter

in an “extravascular location, thus necessitating . . . subsequent surgery to remove the filter

and repair the caval laceration.”

In light of this additional information, which was not contained in Dr. Vogelzang’s

certificate, we do not find that the doctor’s report merely “duplicates” his certificate, as Dr.

Wurm suggests. Indeed, the report stated the precise nature of the medical procedure that

Dr. Wurm was performing when he purportedly breached the standard of care; the specific

8
error that was committed, that is, the misplacement of the inferior vena cava filter; the

injury that resulted, that is, the perforation of the inferior vena cava; and the future medical

procedure that was necessary to address that injury. In so stating, Dr. Vogelzang’s report

supplemented his certificate by providing additional information regarding both the

applicable standard of care and how Dr. Wurm allegedly departed from it in his treatment

of Mrs. Powell. Hence we conclude that the report was legally sufficient and that the circuit

court erred in dismissing the Estate’s claim on the basis of an insufficient certificate of

qualified expert.

III.

But, even if we were to find that Dr. Vogelzang’s report, by itself, was not legally

sufficient, we could still consider the doctor’s certificate and report together to determine

whether both documents, collectively, satisfied the requirements of the Act. Indeed, the

Court of Appeals has suggested on several occasions that the certificate and the report

should be viewed together. First, and most clearly, Maryland’s highest court observed in

Walzer that the certificate of qualified expert and the report of the attesting expert were not

“intended . . . to constitute two separate and distinct documents.” 395 Md. at 580. Rather,

it was the intention of the General Assembly “for the certificate of qualified expert to

consist of both the certificate and the attesting expert report.” Id. at 579.

Next, in Carroll, the Court of Appeals was asked to consider whether the single

document filed with the plaintiff’s complaint in that case complied with the requirements

of the Act. 400 Md. at 171–73. The “document” at issue, there, was a letter from the

plaintiff’s medical expert summarizing the medical treatment the plaintiff had received and

9
offering several opinions regarding medical errors that might have been made. Id. at 173–

74. Ultimately, the Court found the letter or, as it described it, the “Certificate,” to be

insufficient for two reasons: First, the “Certificate” failed to identify the defendant

physicians, state that the defendants departed from the standards of care, and assert that

such a departure was the proximate cause of the plaintiff’s injury. Id. at 201. Second, and

“[e]qually egregious,” it neglected to state what the standard of care was or how the

defendant physicians had departed from it. Id. at 197. In short, the “Certificate” did not

provide the kind of information that the certificate of qualified expert and the expert’s

report were, together, expected to furnish. See, e.g., Walzer, 395 Md. at 583 (stating that

the certificate of qualified expert should assert “that the physician failed to meet the

standard of care and that such failure was the proximate cause of the patient-plaintiff's

complaints” and that the expert’s report “must explain how or why the physician failed or

did not fail to meet the standard of care and include some details supporting the certificate

of qualified expert”).

Finally, in Kearney, the Court of Appeals once again addressed the sufficiency of a

single document filed by the plaintiff, which it referred to as a “certificate of qualified

expert” or more simply as the “certificate,” and it concluded that the “certificate” was

insufficient, under Walzer, because no report of an attesting expert was attached and the

certificate failed to fill in the gap by explaining how or why the defendant failed to meet

the applicable standard of care. 416 Md. at 647, 650. The Court pointed out that its prior

decisions in Carroll and Walzer “show that a claimant or plaintiff whose certificate fails to

state the applicable standard of care and how the defendant allegedly departed from that

10
standard of care is equivalent to a failure to satisfy the report requirement and, accordingly,

renders the certificate insufficient.” Id. at 649–50. This suggests, to us, that the plaintiff

in Kearney could have satisfied the requirements of the Act (but did not) by filing a

certificate of qualified expert that contained all of the information that would otherwise

have been contained in the combination of the expert certificate and report.

In sum, the Court of Appeals has made clear that the certificate and report of the

plaintiff’s expert, together, make up the “certificate of qualified expert” required by the

Health Care Malpractice Claims Act. Walzer, 395 Md. at 580. Moreover, in Carroll, 400

Md. at 196–97, and Kearney, 416 Md. at 649–50, the Court examined single documents

filed by the plaintiffs, in those cases, to determine whether they fulfilled the requirements

of both the expert certificate and the expert report. Thus we conclude, from those foregoing

decisions, that we are permitted to view the certificate of the Powell Estate’s qualified

expert and the report of the Estate’s attesting expert together and determine whether those

documents do the following: identify the defendant physician; state that the defendant

breached the applicable standard of care; opine that such a departure from the standard of

care was the proximate cause of the plaintiff’s injuries; and provide some details as to what

the standard of care was and how the defendant physician failed to meet it. Because we

may consider those documents together, it would not have doomed the Estate’s complaint

if the report of its attesting expert, by itself, was lacking, so long as that informational

insufficiency was cured by the certificate of qualified expert. Likewise, it would not prove

fatal to the Estate’s complaint if Dr. Vogelzang’s report simply “duplicated” his certificate,

as Dr. Wurm suggests, so long as the certificate itself contained all the required

11
information. The important determination to be made would be whether the Estate’s expert

certificate and report, when viewed as a whole, satisfied all of the Act’s requirements.

IV.

We conclude that the Estate’s report of its attesting expert, Dr. Vogelzang, satisfied

the requirements of the Act by supplementing the doctor’s certificate of qualified expert

and providing details explaining how Dr. Wurm allegedly departed from the applicable

standard of care in his performance of an inferior vena cava filter placement procedure on

Mrs. Powell. Moreover, even if we were to determine that the expert report alone was

informationally insufficient, the report and the certificate together do contain sufficient

information to satisfy the requirements of the Maryland Health Care Malpractice Claims

Act. In sum, either approach leads us to the same result, that is, that the Estate filed, with

its medical malpractice claim, a legally sufficient expert certificate and report.

JUDGMENT OF THE CIRCUIT COURT
FOR PRINCE GEORGE’S COUNTY
REVERSED. CASE REMANDED TO
THAT COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH
THIS OPINION. COSTS TO BE PAID BY
APPELLEE.

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