Fraley et al v. Meritus Medical Center, Inc. et al

Filing 39

MEMORANDUM OPINION granting 34 Defendant Dr. Anwar's Motion to Dismiss. Signed by Judge Richard D. Bennett on 3/31/2021. (ols, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
TAMMIE FRALEY, et al. ,

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Plaintiffs,

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v.

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MERITUS MEDICAL CENTER
INC., et al. ,

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Defendants.
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Civil Action No. RDB-20-1023

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MEMORANDUM OPINION
Plaintiff Tammie Fraley (“Plaintiff” or “Fraley”), serving as Administratrix of the
Estate of Jessica Haynes, and as a personal representative of H.H., a Minor, filed suit on April
20, 2020 against twelve healthcare providers, including Dr. Samina Anwar, a board-certified
neurologist. (ECF No. 1.) The Complaint alleges negligence by all twelve health care provider
defendants and claims that the providers failed to diagnose the decedent, Jessica Haynes, with
a brain abscess. (Id.) On January 8, 2021, Defendant Dr. Anwar filed a Motion to Dismiss
for Failure to State a Claim (ECF No. 33). On March 30, 2021, this Court held an audio
motions hearing 1 in which it heard arguments of counsel related to this pending motion.
Having reviewed the submissions of the parties, heard arguments of counsel, and for the
reasons set forth on the record this Court GRANTED the Defendant Dr. Anwar’s Motion to
Dismiss (ECF No. 33). Accordingly, the Plaintiff’s claims against Dr. Anwar are DISMISSED

This audio hearing was conducted pursuant to Standing Orders 2021-01 and 2021-04 in light of the reduction in
operations due to the COVID-19 pandemic.

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WITHOUT PREJUDICE.

At the hearing, this Court stated it would provide this

supplemental Memorandum Opinion to elaborate on its ruling. 2
BACKGROUND
On June 20, 2018, Plaintiff Fraley filed suit in the Health Care Alternative Dispute
Resolution Office (“HCADRO”), naming fifteen health care providers. (See Ex. A, ECF No.
33-1.) That list did not include Defendant Dr. Anwar. (Id.) On May 31, 2019, the Plaintiff
sought to leave to amend her filing to add Dr. Anwar. (Id.) Attached to her motion for leave
was an unsigned draft of the proposed amended pleading which would have added Dr. Anwar
to the action. (ECF No. 34 at 3; see also Ex. 2, ECF No. 33-1.) On July 22, 2019, Fraley filed
a Certificate of Qualified Expert and a report alleging negligence by Dr. Anwar, but as Dr.
Anwar was still not a named defendant in the suit, the document was never served on her.
(Id.) On March 30, 2020, Fraley filed a binding Election to Waive Arbitration. (Id.)
When Fraley filed suit in this Court on April 20, 2020, naming Dr. Anwar as a
Defendant, summons were issued to all Defendants and were required to be served within 21
days. (ECF No. 2.) However, Dr. Anwar was not served within that period. On December
1, 2020, the Plaintiff moved for renewed summons for Dr. Anwar and for additional time in
which to serve her (although she named the wrong Defendant in that motion and had to
amend such request on December 9, 2020). (ECF No. 25.) By that point, a Scheduling Order
had been issued and discovery was underway—the Plaintiff had even already given her sworn
deposition testimony. Dr. Anwar alleges that on December 18, 2020, her office manager

Also pending at the time of the March 30, 2021 hearing was the Defendants’ Joint Motion for Summary Judgment (ECF
No. 24). For the reasons stated on the record, this motion is now considered WITHDRAWN WITHOUT PREJUDICE,
as such motion is now moot in light of the forthcoming revised scheduling order in this case.

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found the suit papers, without any envelope, on a windowsill outside her office. (Ex. C, ECF
No. 33-3.)
On January 8, 2021, the Defendant Dr. Anwar filed the presently pending Motion to
Dismiss (ECF No. 33) in which she sought dismissal on two bases. First, she contends that
the Plaintiff never filed a claim against her in HCADRO as required by the Maryland
Healthcare Malpractice Claims Act (“HCMCA”), Md. Code Ann., Cts. & Jud. Proc. § 3-2A01 et seq. Second, she contends that the recent service attempt made with respect to this lawsuit
was grossly delayed under Federal Rule of Civil Procedure 4(m) and ineffective under Rules
4(e) and 12(b)(5).
STANDARD OF REVIEW
“The Maryland Court of Appeals has made clear that certain requirements under the
[Maryland Health Care Malpractice Claims Act (“HCMCA”)] . . . are conditions precedent to
the filing of a medical malpractice suit in court, but do not constitute a jurisdictional
limitation.” Elnadi v. Upinder Singh, DDS, PC, No. ELH-12-1762, 2013 WL 1855977, at *2-*3
(D. Md. April 30, 2013). Therefore, this Court analyzes failures to exhaust claims under the
HCMCA as motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). See HanlinCooney v. Frederick Cty., No. WDQ-13-1731, 2014 WL 576373, at *5, *8 (D. Md. Feb. 11, 2014)
(dismissing medical malpractice claim under 12(b)(6) for failure to exhaust claim under
HCMCA). The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency
of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). A complaint
must satisfy the standard of Rule 8(a), which requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Rule 8(a)(2) still requires
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a ‘showing,’ rather than a blanket assertion, of entitlement to relief.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 n.3 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When deciding
a motion to dismiss under Rule 12(b)(6), the Court considers only the complaint and any
attached documents “integral to the complaint.” Sec'y of State for Defence v. Trimble Navigation
Ltd., 484 F.3d 700, 705 (4th Cir. 2007). All well-pleaded allegations in a complaint must be
considered as true, Albright v. Oliver, 510 U.S. 266, 268 (1994) (plurality opinion), and all factual
allegations must be construed in the light most favorable to the plaintiff, see Harrison v.
Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999).
A motion to dismiss for insufficient service of process is permitted by Federal Rule of
Civil Procedure 12(b)(5). Once service has been contested, the plaintiff bears the burden of
establishing the validity of service pursuant to Rule 4. See Norlock v. City of Garland, 768 F.2d
654, 656 (5th Cir. 1985).
ANALYSIS
Under the Health Care Malpractice Claims Act (“HCMCA”), a plaintiff in a medical
malpractice action must file a Statement of Claim and a Certificate of Qualified Expert against
a health care provider in the Health Claims Alternative Dispute Resolution Office
(“HCADRO”) of Maryland as a condition precedent to proceeding with the claim against that
same health care provider in court. Md. Code Ann., Cts. & Jud. Proc. § 3-2A-02; see also Poppell
v. United States, No. RDB-10-3549, 2011 WL 4433577, at *3, n.3 (D. Md. Sept. 21, 2011). A
claimant also must exhaust state arbitration remedies as a precondition to bringing a civil
action on the claim in state or federal court. See Md. Code Ann, Cts. & Jud. Proc. § 3-2A-04;
Rowland v. Patterson, 882 F.2d 97, 97 (4th Cir. 1989). “A malpractice action must be dismissed
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if a plaintiff does not comply with these requirements.” Zeller v. Zhou, PWG-18-2650, 2019
WL 2579412, at *4 (D. Md. June 24, 2019); see also Redding v. Ameriprise Auto & Home Ins.,
DKC-11-3141, 2012 WL 1268327, at *6 (D. Md. Apr. 13, 2012) (holding that a plaintiff’s
failure to satisfy terms of the HCMCA prior to bringing suit “has long been held to require
dismissal without prejudice, regardless of the circumstances.”)
Given the undisputed facts in this case, the Plaintiff’s claims against Dr. Anwar must
be dismissed. On June 20, 2018, the Plaintiff filed a statement of claim in HCADRO against
fifteen defendants, which did not include Dr. Anwar. Almost a year later, the Plaintiff sought
leave to amend her filing to add Dr. Anwar, but as the docket of the HCADRO clearly
provides, no such amendment was ever filed. An unsigned draft attached to the motion
seeking leave to amend did not officially add Dr. Anwar, and the Plaintiff’s contention that
the filing of a Certificate of Qualified Expert and a report alleging negligence by Dr. Anwar
sufficed to meet the requirements of the HCMCA defies statutory interpretation. A clear
prerequisite to filing a suit against a health care provider in this Court is submission of a claim
to HCADRO, Poppell, 2011 WL 4433577, at *3 n.3 (citing Md. Code Ann., Cts & Jud. Proc
§ 3-2A-02), and at the time Fraley filed this suit, she had not filed any such claim against Dr.
Anwar in HCADRO.
Even if Fraley had properly filed a claim against Dr. Anwar in compliance with the
HCMCA, her claims against Dr. Anwar would still be subject to dismissal under Rule 12(b)(5).
Federal Rule of Civil Procedure 4(m) provides that if a defendant is not served within 90 days
after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—
must dismiss the action without prejudice against the defendant or order that service be made
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within a specified time, unless the plaintiff shows good cause for the failure. It is undisputed
that Dr. Anwar was not served in this case until December 18, 2020, nearly eight months after
Fraley filed her suit in this Court on April 20, 2020. By the time Dr. Anwar was served, a
Scheduling Order had been issued and discovery was underway. The Plaintiff had even already
given her sworn deposition. The only explanation for this delay was an oversight by Defense
Counsel, apparently in part due to complications caused by the COVID-19 pandemic. Yet,
mere “inadvertence or neglect of counsel” to timely serve a defendant “will not suffice” for
good cause. Braithwaite v. Johns Hopkins Hosp., 160 F.R.D. 75, 77 (D. Md. 1995). Although this
Court understands that the COVID-19 pandemic has had a notable impact on the functioning
of the legal system, complications caused by the virus cannot account for an eight-month delay
in serving Dr. Anwar.
CONCLUSION
For these aforegoing reasons, and the reasons stated on the record, the Defendant Dr.
Anwar’s Motion to Dismiss (ECF No. 34) was GRANTED. Accordingly, the Plaintiff’s
claims against Dr. Anwar were DISMISSED WITHOUT PREJUDICE.
Dated: March 31, 2021.
___________/s/________
Richard D. Bennett
United States District Judge

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