Medical Malpractice Recovery Barred
The Case
A recent appellate case entitled Lydia G. Wilcox, et al. v. Tristan J. Orellano focused on two administrative concepts called the “savings provision” and the “preclusion provision.” The savings provision permits a party to re-file the report of an attesting expert to the certificate of a qualified expert so long as it is filed within 60 days of the dismissal date. The preclusion provision prevents the re-filing of a claim under the savings provision when the party that initiated the claim has voluntarily dismissed the claim.
After both the plaintiff, Ms. Lydia Wilcox, and defendant, Dr. Tristan Orellano, signed a voluntary stipulation of dismissal, Ms. Wilcox wanted to re-file her medical malpractice action against defendant, Dr. Tristan Orellano, under the savings provision.
What Happened?
After undergoing a lumpectomy performed by Dr. Orellano, Ms. Wilcox complained of swelling, redness, and discomfort in her right breast at the site of the surgery during two post-operative visits with Dr. Orellano. Eights months after the surgery, Ms. Wilcox’s oncologist determined that she had developed an infection from the procedure, forcing her to report to the hospital daily for the following nine months. The infection only worsened, however, and eventually led to the surgical removal of her right breast. Ms. Wilcox filed a claim with the Health Care Alternative Dispute Resolution Office against Dr. Orellano, but failed to attach the report of an attesting expert to the certificate of a qualified expert.
FYI: Each medical malpractice claim is heard by a three-person panel of arbitrators, including an attorney, a health care provider, and a public member at the Health Care Alternative Dispute Resolution Office. Parties to the case choose the panel from a list of qualified arbitrators supplied by the Director of the Health Care Alternative Dispute Resolution Office. The panel determines who is liable with respect to the claim and, if a health care provider is liable, considers and assesses damages. To reverse or modify the award, the rejecting party must file an appeal with the Circuit Court.
In all medical malpractice cases, the claimant must also file a certificate of qualified expert before the claim can move from the Alterative Dispute Resolution Office to the Circuit Court. The document serves to verify the claim’s merit, for the expert’s professional opinion is offered to substantiate the relevant claim. Ms. Wilcox, unfortunately, never provided the certificate in her claim. Because Ms. Wilcox never filed the report of her attesting expert, the court dismissed her complaint without prejudice. The attorneys of both parties then signed a stipulation of dismissal before a hearing could be held on Dr. Orellano’s motion to dismiss the claim. Ms. Wilcox then attempted to file a complaint again (with the certificate of a qualified expert), but Dr. Orellano alleged that Ms. Wilcox’s claim was now barred by the applicable statue of limitations.
The Special Court of Appeals ruled that Ms. Wilcox could not renew her claim because she had signed a stipulation of dismissal. A stipulation of dismissal requires consent of both sides of the controversy, and must, therefore, be considered voluntary.
(Source: http://www.mdcourts.gov/opinions/cosa/2014/1420s12.pdf)
Who were the Lawyers?
Plaintiff (Wilcox):
Ms. Wilcox’s lawyer was Alan H. Silverberg of Summerfield, Willen, Silverberg, and Limsky, LLC.
Defendant (Orellano):
Dr. Orellano’s lawyer was Douglas K. Schrader, with Wharton, Levin, Ehrmantraut & Klein, who represents physicians and other health care providers in medical malpractice actions.