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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1881 September Term, 2003

THELMA NELSON, et al v. ELIE G. DEBBAS, et al

Hollander, Sharer, Moylan, Charles E., Jr.
(Retired, Specially Assigned)

JJ.

Opinion by Sharer, J. Filed: December 8, 2004

Headnote: Nelson, et al v. Debbas, et al No. 1881, September Term 2003 Argued: September 14, 2004
Medical negligence - Health Care Malpractice Act - Requirement of Certificate of Qualified Expert as condition precedent to maintaining action in circuit court - Certificate was not substantially defective because certifying expert later, in deposition, limited her assertion of violation of the standard of care to just one of the defendants (with whom claimant had settled) - certifying expert testified that other medical experts would testify at trial regarding breach of the standard of care by other defendants - certifying expert's later affidavit, although not required under the facts of this case, bolstered conclusion of adequacy of the certificate. Medical negligence - where defendant hospital asserts that all attending physicians were independent contractors, evidence is sufficient to generate a dispute of material fact to defeat motion for summary judgment - question of apparent authority is one of fact for the jury.

Appellants, Thelma Nelson, Individually, and as Personal

Representative of the Estate of Madeline V. Lyons, and others, filed a medical negligence action against appellees, Elie G. Debbas, M.D., and Fort Washington Hospital, pursuant to the

Maryland Health Care Malpractice Claims Act.1

On motions of

appellees, the Circuit Court for Prince George's County dismissed the action against Elie G. Debbas, M.D., and granted summary judgment in favor of Fort Washington Hospital. Appellants have raised for our review two questions, which we have recast as follows:2 1. Did the trial court err in dismissing appellants' medical negligence suit on the ground that appellants failed to file a Certificate of Qualified Expert, as required by the Maryland Health Care Malpractice Claims Act?

In defendants Daly, M.D. August 29, appeal.
2

1

their First Amended Complaint, appellants additionally named as Michael G. Sidarous, M.D., Hengameh N. Mesbahi, M.D., and Patrick W. The circuit court granted Daly's and Mesbahi's motion to dismiss on 2003. The claim against Dr. Sidarous was resolved prior to this

As set out in appellants' brief, their questions are: Did the trial Court err in dismissing appellant's medical malpractice action against Appellees Debbas and Hospital based upon an erroneous conclusion that the expert who signed the certificate of qualified expert, Ann M. Gordon, M.D., retroactively retracted the Certificate in her deposition testimony even though the record contains a subsequent affidavit by the certifying expert reiterating the opinions that she supposedly rerepudiated [sic]? Did the trial Court err in dismissing the claims against Appellee Hospital on the grounds that there was no actual or apparent agency of Appellee Hospital even though the Decedent regularly used Appellee Hospital, relied on its services, signed into Appellee Hospital, signed all appropriate medical release forms, and spent an entire day in Appellee Hospital's emergency room being cared for by Appellee Hospital's staff?

I.

II.

(subparts omitted).

2.

Was the evidence sufficient to create a dispute of material fact on the question of whether there was an agency relationship between the attending physicians, who administered care to the Decedent, and the Hospital?

For the reasons that follow, we shall reverse the orders of the circuit court. FACTUAL BACKGROUND3 On May 10, 2000, Madeline V. Lyons ("Decedent") visited the emergency room at Fort Washington Hospital ("the Hospital"),

complaining of weakness and fatigue. examined and treated by

At the Hospital, she was

Dr. Hengameh N. Mesbahi, who advised

Decedent to follow up with her primary care physician, Dr. Michael G. Sidarous. On May 12, 2000, Decedent presented to Dr. Sidarous with symptoms similar to those she complained of at the Hospital on May 10. Dr. Sidarous diagnosed Decedent with mild congestive heart

failure, and prescribed medication. He further advised her to return to the Hospital should her symptoms worsen. 2000, Decedent returned to the Hospital, On May 16, of

complaining

excruciating abdominal pain. On both May 10 and May 16, the Hospital required that Decedent complete a consent form, entitled "Conditions of Admission to

3 We rely on the well-pleaded facts as set out in appellants' first amended complaint.

-2-

Emergency

Department

of

Hospital."

The

form

contained

the

following language: MEDICAL CONSENT: I hereby voluntarily consent to such diagnostic procedures and hospital care and to such therapeutic treatment by doctors of the medical staff of Fort Washington Hospital, which, in their judgment becomes necessary while I am an Emergency Department patient or an inpatient in said hospital. Upon her completion of the medical consent on May 16, Decedent was admitted to the Hospital's emergency room. Decedent was first seen by Patrick W. Daly, M.D., an emergency room physician and Director of the Hospital's Emergency Medical Department, in the emergency room shortly after 9:00 a.m. Dr. Daly examined Decedent and ordered certain diagnostic tests, including x-rays. At about 10:45 a.m., Decedent was diagnosed as having free air under the left diaphragm. About one hour later, Dr. Daly requested a surgical consult with Dr. Debbas, Chief of Surgery at the Hospital (who was also then President of the Medical Staff). Dr. Debbas and Dr. Sidarous, Decedent's personal physician, suggested that she undergo a CT scan. The scan, performed promptly, revealed a condition requiring early surgical intervention. At 1:00 p.m., on the order of Dr. Debbas and Dr. Sidarous, Decedent began what would become three hours of blood transfusion. Between the hours of approximately 12:45 p.m. and 6:00 p.m., no constant and ongoing physical monitoring of Decedent occurred.
-3-

At

about

6:30

p.m.

Decedent

was

admitted

to

surgery

and

the

administration of anesthesia was begun. surgery, Decedent went into cardiac

At 8:05 p.m., while in arrest. Attempts to

resuscitate her were unsuccessful, and she died at 9:01 p.m.4 Appellants assert that the delay from the time of discovery of Decedent's condition until the surgery constituted medical

negligence, which was the proximate cause of Decedent's death. PROCEDURAL HISTORY On April 8, 2002, appellants filed a Statement of Claim against Dr. Debbas and the Hospital with the Health Claims

Arbitration Office (HCAO), pursuant to the Maryland Health Care Malpractice Claims Act ("the Act"), Md. Code. Ann., Cts. and Jud. Proc.

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