Davis v. Frostburg Facility Operations, LLC

Shelia Davis et al. v. Frostburg Facility Operations, LLC d/b/a Frostburg Village, No. 12,
September Term, 2017, Opinion by Adkins, J.

HEALTH — MARYLAND HEALTH CLAIMS ACT — CONDITIONS
PRECEDENT: Claimant alleging medical injuries was required to file such claims in the
Maryland Health Care Alternative Dispute Resolution Office (“ADR Office”) pursuant to
the Maryland Health Claims Act. Because the statute of limitations barred Claimant from
filing in the ADR Office, the Court of Appeals allowed only her claims for non-medical
injuries to proceed in the trial court.
Circuit Court for Allegany County
Case No.: 01-C-14-041332
Argued: October 5, 2017
IN THE COURT OF APPEALS

OF MARYLAND

No. 12

September Term, 2017

SHELIA DAVIS et al.

v.

FROSTBURG FACILITY OPERATIONS, LLC
d/b/a FROSTBURG VILLAGE

Barbera, C.J.
Greene
Adkins
McDonald
Watts
Hotten
Getty,

JJ.

Opinion by Adkins, J.

Filed: January 19, 2018
 We must decide, once again, whether claims for negligence and related claims have

alleged a “medical injury” within the meaning of the Health Care Malpractice Claims Act

(“Health Claims Act” or “HCA”). Md. Code (1974, 2013 Repl. Vol.), §§ 3-2A-01, et seq.

of the Courts and Judicial Proceedings Article (“CJP”). Petitioners Shelia Davis and her

husband Robert Davis, sued Frostburg Facility Operations, LLC (“Frostburg”) for injuries

Ms. Davis allegedly sustained while staying at one of Frostburg’s facilities. If the plaintiffs

alleged a medical injury within coverage of the Health Claims Act, they were required to

file those claims in the Health Care Alternative Dispute Resolute Office (“ADR Office”)

as a condition precedent to their action in the Circuit Court for Allegany County. If not,

the plaintiffs were free to file their claim as a non-medical negligence suit in the Circuit

Court.

We issued a writ of certiorari to consider two questions, which we have rephrased

for clarity:1

1. Did the trial court err in dismissing Petitioners’ claims for
failure to first file in the ADR Office?

1
Petitioner presented the following questions in her Petition for Writ of Certiorari:

1. Did the Court of Special Appeals err in holding that
Petitioner was required to file in the Maryland Healthcare
Dispute Resolution Office so that office could make the
initial determination of whether Petitioner’s injuries were
the result of ordinary negligence or medical negligence?

2. Did the Court of Special Appeals err in holding that
Petitioners’ complaint was not sufficient on its face to
survive the granting of a motion to dismiss on the remaining
counts?
 2. Did the trial court properly dismiss the remainder of the
Complaint?
We hold that two of Davis’s counts alleged medical injuries within the HCA, and

the trial court properly dismissed those counts. The remaining negligence count did not

allege a breach of a professional standard of care, and should survive. The counts

sounding in Contract, Consumer Protection, and Loss of Consortium also survive

dismissal.

I. BACKGROUND

Petitioners, Shelia Davis and her husband Robert Davis, filed a Complaint against

Frostburg Facility Operations, LLC (“Frostburg”) in the Circuit Court for Allegany

County. Davis complained of injuries suffered during her stay at Frostburg’s nursing

care facility while recovering from back surgery. Her alleged injuries followed two

separate accidents at Frostburg. First, while she slept, she fell from her bed—allegedly

as a result of Frostburg’s failure to properly secure her mattress to the bed frame. Davis

waited on the floor approximately 45 minutes for a nurse to assist her. When she finally

arrived, the nurse retrieved a mechanical lift and used that to raise Davis off the floor,

intending to return her smoothly to the bed. But, in another mishap—while Davis was

suspended, but not yet over her bed—the lift released and dropped her again onto the

hard surface of the floor.

2
 These events occurred on October 26, 2011. Davis2 filed her Complaint on October

23, 2014—just three days before Maryland’s general statute of limitations would have

barred her claim. CJP § 5-101.3 Frostburg responded with a Motion to Dismiss.

Frostburg argued that Davis’s claims failed as a matter of law because she did not

file her claims in the ADR Office pursuant to CJP § 3-2A-04(a)(1)(i). Frostburg also

moved to dismiss Davis’s claims for breach of contract and violation of the Maryland

Consumer Protection Act (“CPA”) for failure to state a claim for which relief can be

granted. Before the trial court could rule on Frostburg’s motion, Davis filed an Amended

Complaint pursuant to Maryland Rule 2-341. Frostburg renewed its Motion to Dismiss,

contending that Davis failed to remedy the deficiencies in her Complaint. Before the trial

court ruled on Frostburg’s motion, Davis filed a Second Amended Complaint—the subject

of this appeal.

Davis amended her factual allegations to emphasize the non-medical nature of her

claims. Specifically, she alleged that the Frostburg facility also served as a “residence”

during her stay there. She averred that she was not receiving medical services when her

mattress came loose, causing her first fall to the floor, or when she was dropped by the

2
Although both Shelia and Robert Davis filed the Complaint for convenience we
shall refer to the plaintiffs in the singular and simply as “Davis.”
3
The statute of limitations for a claim against a health care provider also expired
just three days after Davis filed her complaint. See Swam v. Upper Chesapeake Med. Ctr.,
397 Md. 528, 534 (2007) (“Section 5–109(a) [of the Courts and Judicial Proceedings
(“CJP”) Article] requires that claims be filed with the Health Care Office within the earlier
of ‘(1) Five years of the time the injury was committed; or (2) Three years of the date the
injury was discovered.’”).

3
nurse in an effort to return Davis to the bed. Regarding the first fall, Davis alleged that she

was “simply lying in bed.” As to the second fall, Davis similarly alleged that her injuries

resulted after the nurse “simply attempt[ed] to return [her] to her bed.” Her Complaint

included six Counts entitled: (1) Negligence; (2) Negligence; (3) Negligence Respondeat

Superior; (4) Breach of Contract; (5) “False Advertising/Consumer Protection;” and (6)

Loss of Consortium.

Count One related solely to Davis’s initial fall from her bed as she slept. She alleged

that Frostburg owed her “the duty to exercise reasonable care in providing a bed to her that

was safe for ordinary use.” Frostburg breached this duty by “negligently and recklessly

failing to properly attach Ms. Davis’s mattress to the bed frame . . . .” Count Two related

solely to her fall from the mechanical lift as the nurse attempted to return her to the bed.

Davis alleged that Frostburg owed her “the duty to exercise reasonable care in providing

mechanical lifts . . . that were safe for ordinary use,” but breached this duty by “negligently

and recklessly providing a mechanical lift that malfunctioned . . . .” Count Three, for

Negligence Respondeat Superior, also related only to Davis’s fall from the mechanical lift.

Davis alleged that Frostburg had a duty “to exercise reasonable care in returning her to her

bed.” The nurse, a Frostburg employee acting in the scope of employment, “negligently

and recklessly released Ms. Davis from the mechanical lift . . . .” Davis also alleged—in

Counts One, Two, and Three—that her injuries did not result from Frostburg’s rendering

or failure to render health care. Arguing that Davis’s claims sounded in medical

malpractice, Frostburg moved to dismiss the Second Amended Complaint because Davis

4
failed to satisfy the “condition precedent” of filing her claims in the ADR Office according

to CJP § 3-2A-04(a)(1)(i).

After the trial judge granted Frostburg’s Motion to Dismiss, Davis timely appealed.

In an unreported opinion, the Court of Special Appeals affirmed the trial court’s decision

to dismiss the entire complaint. Davis v. Frostburg Facility Operations, LLC, No. 540,

2017 WL 383454 (Md. Ct. Spec. App. Jan. 27, 2017). The intermediate appellate court

affirmed dismissal of Davis’s negligence claims and concluded that they alleged a “medical

injury” within the HCA. Id. at *5–6. The Court also affirmed dismissal of Davis’s

remaining claims because they were too closely related to claims subject to the HCA. Id.

at *6–7.

II. DISCUSSION

Davis makes two arguments before this Court. First, she argues that the Complaint

did not set forth claims of medical negligence and, therefore, the trial court improperly

dismissed her Complaint for failure to first file in the ADR Office. Second, Davis contends

that the trial court also improperly dismissed the remaining counts of her Complaint for a

failure to state a claim upon which relief can be granted.

The standard of review of the grant or denial of a motion to dismiss is whether the

trial court was legally correct. RRC Ne., LLC v. BAA Maryland, Inc., 413 Md. 638, 643–

44 (2010). In reviewing the ruling on the motion to dismiss, “we accept all well-pled facts

in the complaint, and reasonable inferences drawn from them, in a light most favorable to

the non-moving party.” Converge Servs. Grp., LLC v. Curran, 383 Md. 462, 475 (2004).

When examining the pertinent facts, the Court limits its analysis to the “four corners of the

5
complaint . . . .” State Ctr., LLC v. Lexington Charles Ltd. P’ship, 438 Md. 451, 497

(2014) (cleaned up).4 The pleader must set forth a cause of action with sufficient

specificity—“‘bald assertions and conclusory statements by the pleader will not suffice.’”

Id. (quoting RRC Ne., 413 Md. at 644).

Frostburg contends that Davis has alleged a breach of a professional standard of

care and should have first filed her claims in the ADR Office as required by CJP § 3-2A-

04(a)(1)(i). The General Assembly enacted this statute as one part of the Health Claims

Act. An analysis of the HCA and the General Assembly’s objective in enacting the

legislation provides a helpful guidepost as we navigate whether the trial court properly

dismissed Davis’s claims.

The General Assembly adopted the Health Claims Act as a process for weeding out

meritless claims and resolving disputes involving medical care. In the mid-1970s,

Maryland’s medical care providers faced a malpractice insurance shortage. See, e.g., St.

4
The Court of Special Appeals explained the use of this new “cleaned up”
parenthetical:

“Cleaned up” is a new parenthetical intended to simplify
quotations from legal sources. See Jack Metzler, Cleaning Up
Quotations, J. App. Prac. & Process (forthcoming 2018),
https://perma.cc/JZR7-P85A. Use of (cleaned up) signals that
to improve readability but without altering the substance of the
quotation, the current author has removed extraneous, non-
substantive clutter such as brackets, quotation marks, ellipses,
footnote signals, internal citations or made un-bracketed
changes to capitalization.

Chassels v. Krepps, __ Md. App. __ n.3, 2017 WL 5989052, at *3 n.3 (Md. Ct. Spec. App.
Dec. 4, 2017).

6
Paul Fire & Marine Ins. Co. v. Ins. Comm’r, 275 Md. 130, 132–33 (1975). The General

Assembly enacted the HCA to encourage insurance carriers to provide coverage for

Maryland physicians. See Attorney General v. Johnson, 282 Md. 274, 280–81 (1978)

overruled on other grounds by Newell v. Richards, 323 Md. 717, 734 (1991). The

legislation created a claim arbitration system requiring all plaintiffs alleging a medical

injury to submit an expert certification of the claim before the case could go forward. See

id. at 277, 279–80. The HCA’s purpose “is to screen malpractice claims, ferret out

meritless ones, and, in theory, thereby lower the cost of malpractice insurance and the

overall costs of health care.” Adler v. Hyman, 334 Md. 568, 575 (1994).

The HCA sets out several requirements for a malpractice plaintiff. A plaintiff

claiming a “medical injury” committed by a “health care provider” and more than $30,000

in damages must first file their claims with the ADR Office. CJP § 3-2A-02(a)(1). The

HCA defines “medical injury” as an “injury arising or resulting from the rendering or

failure to render health care.” Id. § 3-2A-01(g). A “health care provider” means:

a hospital, a related institution as defined in § 19-3015 of the
Health-General Article, a medical day care center, a hospice

5
Md. Code (1982, 2015 Repl. Vol.), § 19-301(o) of the Health-General Article
(“HG”) provides the following definition of a “related institution:”

(1) “Related institution” means an organized institution,
environment, or home that:
(i) Maintains conditions or facilities and equipment
to provide domiciliary, personal, or nursing care
for 2 or more unrelated individuals who are
dependent on the administrator, operator, or
proprietor for nursing care or the subsistence of
daily living in a safe, sanitary, and healthful
environment; and

7
 care program, an assisted living program, a freestanding
ambulatory care facility as defined in § 19-3B-016 of the
Health-General Article, a physician, an osteopath, an
optometrist, a chiropractor, a registered or licensed practical
nurse, a dentist, a podiatrist, a psychologist, a licensed certified
social worker-clinical, and a physical therapist, licensed or
authorized to provide one or more health care services in
Maryland.

Id. § 3-2A-01(f)(1) (footnotes added).

Once filed in the ADR Office, the claim is subject to non-binding arbitration. Id.

§ 3-2A-04. We characterize this arbitration as non-binding because the plaintiff, or any

other party, may unilaterally waive the arbitration requirement after meeting certain

conditions outlined in the statute. Id. § 3-2A-06B.

A plaintiff must also file, within 90 days of initially submitting a claim, an expert

certification of the claim before unilateral waiver is permitted. Id. § 3-2A-04(b)(1)(i). The

claims certification must include a report prepared by the same expert. This requirement

reflects the General Assembly’s desire to root out “nonmeritorious medical malpractice

claims.” D’Angelo v. St. Agnes Healthcare Inc., 157 Md. App. 631, 645 (2004). The

(ii) Admits or retains the individuals for overnight
care.
(2) “Related institution” does not include a nursing facility or
visiting nurse service that is conducted only by or for
adherents of a bona fide church or religious organization,
in accordance with tenets and practices that include
reliance on treatment by spiritual means alone for healing.
6
HG 19-3B-01(c) defines a “freestanding ambulatory care facility” as “(1) [a]n
ambulatory surgical facility; (2) [a] freestanding endoscopy facility; (3) [a] freestanding
facility utilizing major medical equipment; (4) [a] kidney dialysis center; or (5) [a]
freestanding birthing center.”

8
expert certification requirement can also assist the parties in evaluating the merits of health

claims and defenses. Walzer v. Osborne, 395 Md. 563, 583–84 (2006).

Once the expert certification is filed, either party can make a speedy exit from the

ADR process. CJP § 3-2A-06B(b)(1). Indeed, most claimants elect to proceed to circuit

court after satisfying compliance with the expert certification and report requirement.7 See

A. Thomas Pedroni & Ruth F. Vadi, Mandatory Arbitration or Mediation of Health Care

Liability Claims?, 39 Md. B. J. 54, 56 (Mar./Apr. 2006) (“The vast majority of current

medical malpractice cases go directly to circuit court in this system.”). Despite this

unilateral waiver provision, the General Assembly, in passing the HCA, sought to

maximize the number of claims submitted to binding arbitration. Id. (citing Carrion v.

Linzey, 342 Md. 266, 287 (1996)).

We first considered the scope of the HCA, and whether a claim must be submitted

to arbitration in Cannon v. McKen, 296 Md. 27 (1983).8 Cannon suffered severe injuries

while at her dentist’s office. Dr. McKen owned the building that housed his dental practice.

7
If no party elects to unilaterally waive arbitration, the arbitration process continues.
Cases continuing into arbitration are decided by a panel consisting of: an attorney, a health
care provider, and a public member. Md. Code (1974, 2013 Repl. Vol.), § 3-2A-04(c) of
the Courts and Judicial Proceedings Article. Panel members are selected at random from
a listing of qualified arbitrators maintained by the Director of the ADR office. Id. § 3-2A-
04. If the parties accept the panel’s decision or award, it becomes binding and final. Id.
§ 3-2A-05(h). Either party can, in the alternative, contest the award by filing an action in
circuit court within 30 days. Id. § 3-2A-06(a).
8
This Court also issued a decision regarding the scope of the HCA in Oxtoby v.
McGowan, 294 Md. 83 (1982). That case, however, examined whether claims arising from
medical injuries before the effective date of the HCA also fell within the scope of the Act.
Id. at 90–92. We held that the HCA did not apply to such claims. Id. at 99.

9
As Cannon sat in an examination chair, a large piece of x-ray equipment fell off the wall

upon which it was mounted and struck her in the head and face. Cannon filed several

claims against Dr. McKen. Id. at 29.

Specifically, Cannon alleged:

Defendant McKen had contracted for the design and
construction of structural improvements to his residence to be
used as a dental office. This office included a dental chair
and/or x-ray equipment wall attachment, which equipment was
used by plaintiff Gloria Cannon on or about October 28, 1978
in her capacity as a dental patient of defendant McKen.

Id. Regarding the standard of care, Cannon asserted that Dr. McKen “owed a duty to

exercise reasonable care in offering equipment in his dental office for safe and secure use

by his patients.” Id. Dr. McKen breached this duty of care in that:

[T]he condition of the dental chair and/or x-ray equipment wall
attachment was not safe for use by plaintiff Gloria Cannon, on
or about October 28, 1978. While the plaintiff was sitting in
this dental chair, a part of the chair and/or x-ray wall
attachment broke loose and fell on her, striking her on the face
and head. Plaintiff also relies on the doctrine of res ipsa
loquitur.

Id.

We found ambiguity in CJP § 3-2A-01(f)’s definition of “medical injury” and

proceeded to set out the necessary characteristics of a medical claim covered by the HCA.

Id. at 32. The trial judge defined “medical injury” in the context of health care:

I have defined health care as meaning once you establish the
relationship of patient and health care provider; once you
establish that relationship, in my judgment, does it make any
difference how there is a breach. They could slip on a floor or
trip over the chair, or it may be inadequate lighting, or they can
drop you from the operating table or do a lot of things. Once

10
 you establish that relationship in my judgment it has to be
arbitrated.

Id. at 37. We rejected this interpretation of the statute as overly broad, and instead held

that the HCA only covers those claims that “arise or result from the breach of a

professional’s duty to exercise the appropriate care required of a health care provider in a

professional capacity.” Id.

We remanded Cannon’s claims for further pleading in the trial court. The pleadings

were “too sparse to allow a determination whether Mrs. Cannon’s injury arose because of

the defendant’s breach of his professional duty owed her or because of a breach of duty

which he may have owed her as a premises owner or in some other non-professional

capacity.” Id. at 37–38. Likewise, Dr. McKen had not succeeded in showing that the

plaintiff had alleged a breach of a professional duty. We relied upon the long-held rule

that, where a cause of action depends on satisfaction of a condition precedent, the plaintiff

“must allege performance of such condition or show legal justification for

nonperformance.” Id. at 38 (citing Engle v. Mayor & City Council of Cumberland, 180

Md. 465 (1942)).

We again examined the scope of the HCA in Nichols v. Wilson, 296 Md. 154 (1983).

Nichols involved claims that greatly differed from the plaintiff’s claims in Cannon.

Nichols sued Dr. Wilson for injuries suffered by her daughter. The younger Nichols went

to Dr. Wilson for a suture removal procedure. Alleging that Dr. Wilson slapped her

daughter across the face with an open palm, Nichols filed a three-count complaint for

assault and battery, negligence, and intentional infliction of emotional distress. Id. at 155

11
n.2. We reiterated our understanding of the coverage of the HCA: “[I]t is only those claims

for damages where there has been a violation of the health care provider’s professional

duty to exercise care which are within the [Health Claims] Act.” Id. at 161. The

Legislature did not intend for the HCA to cover the intentional torts of assault and battery

or intentional infliction of emotional distress, even if such actions occurred while a

physician rendered health care.9 Id.

The Court took a more expansive view of the HCA’s jurisdiction in Jewell v.

Malamet, 322 Md. 262 (1991), involving allegations of assault during a medical exam.

There the plaintiff alleged that she suffered injuries from intentional torts committed by a

physician who sexually battered and assaulted her during a medical examination. Id. at

267–69. The plaintiff did not file her claim in the ADR Office, but instead proceeded

directly to the trial court. The defendant physician contended that the allegedly injurious

conduct was part of a legitimate medical examination and the dispute required further

investigation of the professional standard of care. Id. at 275. Determining whether a

claim falls under the HCA depends on “the factual context in which the tort was

allegedly committed.” Id. at 271–72 (emphasis added). Ultimately, we ruled for the

physician, dismissing the complaint—because we could not conclude “that the claims set

out were not for medical injury . . . .” Id. at 274–75.

9
We qualified our holding by noting “[w]e do not mean hereby to indicate that all
intentional torts of a professional nature are not covered by the [Health Claims] Act as
there may well be many such acts that would be so covered.” Nichols v. Wilson, 296 Md.
154, 161, n.5 (1983). At that time, we did not expand upon which claims “would be so
covered.”

12
 The plaintiff fared no better in Goicochea v. Langworthy, 345 Md. 719 (1997),

another physician case. Following a hernia examination conducted by Dr. Goicochea,

Langworthy complained of persistent pain and discomfort in his groin area. Id. at 722. He

sued Dr. Goicochea for assault and battery. The trial court dismissed the complaint after

clarifying that the plaintiff’s factual allegations failed to demonstrate that the plaintiff’s

claims arose from conduct during the provision of medical care and fell beyond the HCA.

Id. at 723. We reiterated that the proper initial forum for a claim “depends upon the factual

context in which the tort was allegedly committed.” Id. at 728. If a claimant’s injury

“resulted from conduct completely lacking in medical validity in relation to the medical

care rendered, the [HCA] is inapplicable, and the action may proceed without first resorting

to arbitration.” Id. We affirmed dismissal because the plaintiff had failed to plead any

factual basis upon which the trial court could properly conclude that the physician’s actions

had “no conceivable medical validity.” Id. at 729.

Injury in a hospital setting does not always dictate that a claim will be covered by

the HCA. In Afamefune v. Suburban Hosp., Inc., 385 Md. 677, 679–80 (2005), we

examined whether filing in the ADR Office was mandated when a psychiatric patient

claimed negligence against a hospital after she suffered an assault, rape, or attempted rape

by another patient at the hospital. We concluded it was not—because the plaintiff’s claims

did not allege either a breach of a professional standard of care or that her injuries occurred

during the rendering of medical care. Id. at 694. We also rejected the hospital’s overbroad

argument that the HCA should apply simply because the plaintiff was under the care of a

medical provider when she was injured. We reaffirmed our earlier cases holding that—for

13
the HCA to apply—the cause of an injury must have been “‘a breach by the defendant in

his, her or its professional capacity, of the duty to exercise . . . professional expertise or

skill’ in rendering or failing to render medical care.” Id. at 695 (quoting Cannon, 296 Md.

at 36) (cleaned up).

A plaintiff suing a hospital also successfully bypassed the Health Claims Office in

Swam v. Upper Chesapeake Med. Ctr., Inc., 397 Md. 528 (2007). This hospital visitor

alleged that she was stuck by a hypodermic needle when she placed her hand on a counter

in a waiting room adjacent to an operating room, while waiting for her parent who was in

surgery. Id. at 531–32. Although the Swam opinion primarily examined whether filing in

the ADR Office tolled Maryland’s three-year statute of limitations on civil actions

generally, we also considered whether the plaintiff suffered a “medical injury” within the

HCA. Id. at 535–39. We held that the plaintiff’s injuries fell outside of the HCA because

the complaint alleged negligence relating “to the disposal of medical waste and not to

medical treatment.” Id. at 539. Once again, this Court emphasized the importance of the

factual context of the plaintiff’s allegations when determining whether the plaintiff’s

claims were subject to the HCA. Id. at 537.

These cases, in sum, instruct that for the HCA to apply, a plaintiff must allege a

breach of a professional duty of care during the rendering of medical care. See, e.g.,

Afamefune, 385 Md. at 695. When applying this test, the Court looks to the factual

circumstances and context of a plaintiff’s claims, not merely to the type of claim or the

character of the defendant. See, e.g., Goicochea, 345 Md. at 728.

14
 A Theory Permeating Frostburg’s Argument

Permeating several of Frostburg’s arguments is its theory—asserted as a matter of

law—that the proper forum for filing “close” claims—that is, claims that might involve

allegations of medical malpractice—is the ADR Office. Frostburg cites Swam to support

this “rule of law.” In Swam, the plaintiff filed her claims first in the ADR Office. After

filing the certificate and report of an expert, the plaintiff elected to waive arbitration and

the ADR Office transferred her case to the trial court. The defendant moved for summary

judgment on the ground that the complaint before the trial court was time barred by the

statute of limitations for civil actions. Swam, 397 Md. at 533. On appeal, we explained

that “the proper forum for the filing of a borderline medically-related claim may not always

be apparent.” Id. at 541. We referenced the ADR Office’s authority to decide close claims

not—as Frostburg asserts—as a restriction on a trial court’s ability to do the same, but in

recognition of the difficulty a plaintiff might face in selecting the proper forum. With the

understanding that it might not always be apparent that a plaintiff can file in circuit court,

we held that the initial filing in the ADR Office tolled the three-year general statute of

limitations. Id. at 544.

Frostburg’s “close case” theory also ignores Cannon, which instructs that trial

courts can assess a complaint and determine whether a plaintiff should have first filed in

the ADR Office. Because the complaint in Cannon did not clearly allege claims beyond

the HCA, we remanded for further pleading. 296 Md. at 38–39. Our decision to remand

gave the trial court another opportunity to assess whether the plaintiff alleged a “medical

injury” within the HCA.

15
 The cases discussed above are inconsistent with Frostburg’s proposed rule that all

“close cases” must be submitted to the ADR Office. We conclude that a trial judge has the

discretion, and the capability, to decide whether a complaint sets forth a breach of a

professional standard of care such that it must be filed in the ADR Office.

Davis’s Claims

Davis alleged that she was negligently injured as a result of Frostburg’s negligence

on two separate occasions: when she fell from her bed, and when she was dropped while

staff attempted to return her to the bed. Frostburg contends that each of these injuries stem

from a breach of a professional duty of care. Davis alleged three counts of negligence that

we discuss in turn.

Count One—Negligence

In Count One of her Complaint, Davis alleged that she was sleeping and not

receiving any medical services when the mattress on her bed detached and caused her to

fall. In Maryland, a plaintiff must prove four elements to prevail in a claim of negligence:

1) the defendant owed the plaintiff a duty to conform to a certain standard of care; 2) the

defendant breached this duty; 3) actual loss or damage to the plaintiff; and 4) the

defendant’s breach of the duty proximately caused the loss or damage. See, e.g., Schultz

v. Bank of America, N.A., 413 Md. 15, 27 (2010). Our cases interpreting the HCA require

consideration of whether a plaintiff has alleged a breach of a professional standard of care.

Accordingly, our examination of the applicability of the HCA turns on an analysis of

Davis’s allegations regarding Frostburg’s duty of care.

16
 Unlike the plaintiffs in Jewell and Goicochea, who both alleged that their injuries

occurred during medical treatment or examinations, Davis alleged that she was merely

asleep when she fell. The plaintiff in Jewell alleged an injury during a medical examination

conducted by a rheumatologist. 322 Md. at 267–69. We required the plaintiff to file in the

ADR Office because the parties disputed the nature of the allegedly harmful conduct. Id.

at 274–75. The plaintiff argued that the doctor’s actions amounted to sexual assault and

battery, yet the doctor contended that the actions were part of a legitimate medical

examination. Id. In Jewell, we approved of a trial court’s conclusion that the ADR Office

should weigh whether “there has been a violation of [the] doctor’s duty to exercise care.”

Id. at 271 (emphasis added). The plaintiff in Goicochea also contended that he was injured

following a medical examination. 345 Md. at 722. We also required submission to the

ADR Office in Goicochea because “the plaintiff allege[d] that he . . . was injured by a

health care provider during the rendering of medical treatment or services . . . .” Id. at 728.

Davis did not allege that her fall from the bed resulted from the rendering of medical

care. As alleged, no medical professional was even present at the time the injury occurred.

Thus, her alleged injuries differed from Jewell and Goicochea in that both of those

plaintiffs’ claims required a trier of fact to consider a professional standard of care. Here,

though, Davis’s first count does not require the fact finder to understand any professional

standard of care. Claims merely for ordinary negligence fall beyond the scope of the HCA.

Swam, 397 Md. at 539.

In Jewell and Goicochea, we also observed that expert testimony would be

necessary to help the juries decide whether the defendants’ conduct fell outside the scope

17
of normal medical treatment. Frostburg does not explain—and we do not see—how an

expert medical witness would be helpful in this case to explain why a mattress would

detach itself from a bed frame.

To be sure, Davis’s appeal differs in at least one respect from several of our previous

cases considering the applicability of the HCA: she did not allege the commission of any

intentional torts. See Nichols, 296 Md. at 155 n.2 (battery and intentional infliction of

emotional distress); Jewell, 322 Md. at 267–69 (sexual battery and assault); Goicochea,

345 Md. at 722 (assault and battery). But see Afamefune, 385 Md. at 680–81 (negligence);

Swam, 397 Md. at 539 (negligence). Instead, Davis sued for negligence, breach of contract,

and violations of the CPA. Frostburg contends that the absence of an alleged intentional

tort brings Davis’s claims within the HCA. We do not agree. Just as the allegations of

intentional torts did not remove the claims from coverage under the HCA in Jewell and

Goicochea, allegations of non-medical negligence will not automatically bring a claim

within the Act. Id.

For these reasons, the trial court and the Court of Special Appeals erred in holding

that Count One of Davis’s Complaint set forth a claim within the HCA.

Count Two—Negligence

In Count Two of Davis’s Complaint, she alleged that Frostburg negligently and

recklessly provided “a mechanical lift that malfunctioned and released [her] before [she]

was over the bed, causing [her] to be dropped from the height of the bed back to the floor.”

Frostburg again contends that Davis has alleged a medical injury which would bring her

claims under the umbrella of the HCA.

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 We apply the same principles discussed supra to determine whether Davis alleged

a medical injury in Count Two. Davis attempted to label her claims as ordinary negligence

by declaring the “injuries alleged herein did not result from the Defendant’s rendering of

healthcare or failing to render healthcare.” But in Goicochea, we rejected a plaintiff’s

attempt to characterize claims—by mere labeling—in a way that would avoided application

of the HCA. Goicochea, 345 Md. at 729 (“A plaintiff may not remove a medical

malpractice action from the ambit of the statute simply by adding the adjectives ‘malicious’

or ‘willful.’”). Unlike Nichols, in which the plaintiff claimed to have been slapped by a

physician during a medical procedure, Davis did not set forth claims that in “no way” can

be read as within the Act. Jewell, 322 Md. at 274 (quoting Nichols, 296 Md. at 161).

Just as the claims in Jewell and Goicochea required a detailed consideration of

medical standards of care—particularly medical procedures—we conclude that Davis’s

claims regarding her fall from the mechanical lift also require a detailed examination of

what can only be described as medical procedures. Davis’s Complaint alleges that the

nurse informed her that Frostburg was a “no-lift facility.” Frostburg’s status as a “no-lift

facility,” the meaning of that term, and its impact on patient care, requires an examination

of professional standards of care similar to the claims in Jewell and Goicochea. Davis

alleged that Frostburg “negligently and recklessly” provided a mechanical lift “that

malfunctioned.” Here too, an examination of medical procedures regarding the proper

operation of the lift—and whether the nurse properly followed these procedures—will be

necessary to decide the veracity of this claim. These circumstances are indistinguishable

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from Jewell and Goicochea. Therefore, Davis’s claims in Count Two of her Complaint

should have been filed in the ADR Office.

Count Three—Negligence Respondeat Superior

Respondeat superior is “a means of holding employers . . . vicariously liable for the

tortious conduct of an employee acting within the scope of his/her employment.” Serio v.

Baltimore Cty., 384 Md. 373, 397–98 (2004). A successful respondeat superior claim,

will impose joint and several liability on the employer for the tortious conduct of an

employee. See, e.g., S. Mgmt. Corp. v. Taha, 378 Md. 461, 481 (2003). To be considered

within the scope of employment, the employee’s acts “must have been in furtherance of

the employer’s business and authorized by the employer.” Id. Count Three alleges that

Frostburg “negligently and recklessly” released Davis from the mechanical lift. According

to the Complaint, Frostburg’s employee had “never operated” the mechanical lift used on

the night of her injuries.

Count Three can fare no better than Count Two—because proof of the employee

nurse’s negligence in operating the mechanical lift is a prerequisite to proving a claim for

respondeat superior. See, e.g., Barclay v. Briscoe, 427 Md. 270, 282–83 (2012).

Therefore, Davis’s third count of negligence respondeat superior should have been filed

in the ADR Office before filing in the Circuit Court. The Court of Special Appeals properly

affirmed dismissal of Davis’s respondeat superior claim.

Closely Related Claims

According to the intermediate appellate court, Davis’s remaining claims—for

breach of contract (Count Four), Consumer Protection Act violation (Count Five) and Loss

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of Consortium (Count Six)—were too closely related to the negligence claims, which that

Court concluded were subject to the HCA. Davis, 2017 WL 383454 at *6–7.10 The Petition

for Writ of Certiorari framed the second issue in the following way:

“Did the Court of Special Appeals err in holding that
Petitioners’ Complaint was not sufficient on its face to survive
the granting of a motion to dismiss on the remaining counts?”

But this question mischaracterizes the holding from the Court of Special Appeals. The

intermediate appellate court affirmed dismissal of the entire Complaint relying solely on

the grounds that the remaining claims were too closely related to those subject to the HCA.

Id. at *7. We need only address, then, whether this “closely related” rationale for dismissal

is valid.

We agree with the Court of Special Appeals and its conclusion that, generally,

claims closely related to a claim subject to arbitration under the HCA should also be filed

in the ADR Office to avoid piecemeal litigation. See Nichols, 296 Md. at 158–59

(Consistent with the principle of the efficient administration of justice and to avoid

piecemeal litigation, if one count is subject to arbitration, all closely related claims must

also be submitted to the ADR Office). As explained in Nichols, situations in which a

plaintiff might maintain actions in a trial court and the ADR Office were undesirable

10
Presumably, the Circuit Court dismissed Count Six, Loss of Consortium, for the
same reason. Because we have revived one of Davis’s negligence claims, we also hold
that Davis’s loss of consortium claim may go forward. See Deems v. W. Maryland Ry. Co.,
247 Md. 95, 115 (1967) (“[W]hen either husband or wife claims loss of consortium by
reason of physical injuries sustained by the other as the result of the alleged negligence of
the defendant, that claim can only be asserted in a joint action for injury to the marital
relationship.”).

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because they could result in dueling or inconsistent results—and force medical providers

to defend two actions originating from the same conduct. Id.

But Davis can no longer maintain her professional negligence claims in the ADR

Office because her injuries occurred in 2011, and the three-year statute of limitations has

expired. See CJP § 5-109(a) (“An action for damages for an injury arising out of the

rendering of or failure to render professional services by a health care provider . . . shall be

filed within . . . [t]hree years of the date the injury was discovered.”); Swam, 397 Md. at

534 (recognizing the same). Thus there is no potential for piecemeal litigation if we allow

Davis to pursue her remaining claims at the trial court. Accordingly, we hold that the Court

of Special Appeals improperly dismissed these claims.11

III. CONCLUSION

In sum, we hold that Count One of Davis’s Complaint did not allege a medical injury

within the HCA, while Counts Two and Three did allege a medical injury. Our decision

to dismiss Davis’s lawsuit as it relates to the medical professional negligence—Counts

Two and Three—and only revive the non-medical Counts—One, Four, Five, and Six—

presents no danger of piecemeal resolution of her controversy. Her only viable negligence

claim, as of our decision today, is for injuries stemming from Frostburg’s ordinary

negligence in failing to properly secure a mattress to a bed frame.

11
We do not consider the sufficiency of Davis’s pleading on the claims sounding in
Contract or Consumer Protection. These issues should be addressed in the trial court on
remand.

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 Accordingly, we reverse the Court of Special Appeals as to Counts One, Four, Five

and Six, and hold that these Counts may proceed in Circuit Court. We affirm as to Counts

Two and Three.

JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED IN
PART AND REVERSED IN PART; CASE
REMANDED TO THAT COURT WITH
DIRECTIONS TO REVERSE IN PART
THE JUDGMENT OF THE CIRCUIT
COURT FOR ALLEGANY COUNTY
AND REMAND THE CASE TO THAT
COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH
THIS OPINION. COSTS IN THIS
COURT AND THE COURT OF SPECIAL
APPEALS TO BE PAID BY
PETITIONERS AND RESPONDENT
EQUALLY.

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