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Azarian v. Witte9/4/2001
The "attesting expert provision" of the Maryland Health Care Malpractice Claims Act (the "Act") provides that all claimants under the Act must file a "certificate of a qualified expert," more commonly known as "a certificate of merit," in which an expert attests that "a departure from the standard of care" by the defendant health care provider was the proximate cause of the claimant's medical injury. That provision, however, limits who may make such an attestation by stating that an "attesting expert may not devote annually more than 20 percent of the expert's professional activities to activities that directly involve testimony in personal injury claims." It is this limitation that lies at the core of this appeal.
Appellants, Elizabeth and Mark Azarian, ask us to determine whether the Circuit Court for Montgomery County erred in ruling that appellants' expert was in violation of the 20 percent limitation on activities "directly involv testimony in personal injury claims" and that, as a result of the violation, their certificate was invalid. Because a valid certificate is a precondition to maintaining a cause of action for medical malpractice both before the Health Claims Arbitration Office ("HCAO") and the circuit court, the motion for summary judgment of appellee, Jeffrey F. Witte, M.D., was granted, and appellants' claim was dismissed. This appeal is from that dismissal.
Before addressing this issue, however, appellants request that we consider whether the circuit court had the "jurisdiction" to review their certificate in the first place and, if it did, whether appellee's motion for summary judgment, having been previously denied, was properly before that court. And finally, appellants question the constitutionality of the "attesting expert" provision, which they claim is unconstitutionally vague.
For the reasons that follow, we conclude that the circuit court did have the right to review appellants' certificate to determine whether it complied with the "attesting expert" provision of the Act and to grant appellee's second motion for summary judgment. We shall, however, reverse the judgment of the circuit court on the ground that it erred in ruling that appellants' expert had "devot annually more than 20 percent of professional activities to activities that directly involve testimony in personal injury claims" and was thus disqualified from serving as an "attesting expert." And, based on that erroneous conclusion, it incorrectly held that appellants' certificate was invalid and dismissed their claim. Accordingly, we shall reverse the judgment of the circuit court and remand this case to that court for further proceedings. Because this "`case can be properly disposed of on a non-constitutional ground,'" we shall not reach appellants' constitutional claim. Professional Staff Nurses Assoc. v. Dimensions Health Corp., 346 Md. 132, 138 (1997)(quoting State v. Lancaster, 232 Md. 385 (1993)).
BACKGROUND
On May 28, 1998, appellants, Elizabeth and Mark Azarian, filed a medical malpractice claim against appellee, Jeffrey F. Witte, M.D., in the Maryland Health Claims Arbitration Office (the "HCAO"), claiming that Dr. Witte's failure to treat properly Elizabeth's fractured ankle had resulted in, among other things, permanent and substantial neurological damage to that limb. The complaint consisted of two counts: one for malpractice and the other for loss of consortium.
Three weeks later, pursuant to ยง 3-2A-04(b), appellants filed a certificate of merit signed by Lawrence F. Honick, M.D. In that certificate, Dr. Honick certified, among other things, that " ess than twenty percent (20%) of professional activities are devoted annually to
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