Legal Opinions - U.S. District Court, Maryland: October 6, 2008

Daily Record, The (Baltimore), Oct 6, 2008

U.S. District Court, Maryland

Civil Procedure

Conflict of laws

BOTTOM LINE: District court granted psychiatrist's motion to dismiss malpractice suit where Maryland law applied and patient failed to file a required claim with that state's Health Care Alternative Dispute Resolution Office.

CASE: Lewis v. Waletzky, USDMD No. 07 CV 2154 (decided Aug. 12, 2008) (Judge Messitte).

FACTS: Dr. Jeremy Waletzky was a psychiatrist, licensed to practice in Maryland, whose practice was based in Chevy Chase. From approximately October 2000 until January 2005, Katherine Lewis was his patient.

During the course of treatment, despite the fact that he never diagnosed any serious mental disorder, Dr. Waletzky prescribed Lewis several psychotropic medications, including antidepressants, stimulants, and antipsychotic and/or neuroleptic drugs. Lewis, who then resided in the District of Columbia, filled those prescriptions at pharmacies located in the District.

When Lewis began to complain of adverse side effects from the antipsychotic drugs, she discontinued using them. Immediately thereafter, however, she suffered, for the first time in her life, an anxiety attack. When she advised Dr. Waletzky, he instructed Lewis to resume taking the antipsychotic drugs and wrote an additional prescription to address the side effects.

Even after taking the new prescription, however, Lewis continued to suffer from side effects, including extreme jaw tension, teeth clenching, and anxiety. In fact, after she subsequently withdrew completely from the antipsychotic drugs, her side effects persisted and worsened. Ultimately, Lewis was diagnosed with Tardive Dyskinesia/Dystonia a permanent neurological disorder.

After moving to Minnesota, Lewis filed suit in federal district court alleging that the drugs Dr. Waletzy prescribed were inappropriate for her condition. Additionally, she accused Dr. Waletzky of failing to conduct adequate physical examinations, including performing necessary laboratory work, and failing to properly inform her about the risks of Tardive Dyskinesia/Dystonia or other risks associated with the use of antipsychotic drugs.

Dr. Waletzky filed a motion to dismiss the complaint on the ground the Lewis failed to file her claim with the Maryland Health Care Alternative Dispute Resolution Office, in compliance with CJP [section]3-2A-01, et seq.

The district court granted Dr. Waletzy's motion to dismiss, without prejudice.

LAW: In an action based upon diversity of citizenship, a district court must apply the substantive law of the state in which it sits, including that state's choice of law rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

Generally speaking, Maryland adheres to the lex loci delicti rule in analyzing choice of law problems with respect to causes of action sounding in tort. See Erie Ins. Exch. V. Heffernan, 925 A.2d 636, 648-49 (Md. 2007). Under that rule, the law of the state where the tort or wrong was committed applies. See Lab Corp. of Am. v. Hood, 911 A.2d 841, 844 (Md. 2006).

Where the events giving rise to a tort action occur in more than one state, the court must apply "the law of the State where the injury -- the last event required to constitute the tort -- occurred." Heffernan, 925 A.2d at 649. Similarly, [section]377 of the First Restatement of Conflict of Laws states that "[t]he place of the wrong is in the state where the last event necessary to make an actor liable for an alleged tort takes place."

Here, because Lewis' alleged injuries occurred in the District of Columbia -- where she filled all her prescriptions, took the prescribed drugs, and subsequently developed deleterious side effects -- under strict application of Maryland's doctrine of lex loci delecti, the law of the District of Columbia would ordinarily be applied, pursuant to Lab Corp. of Am., 911 A.2d at 849, which extended the public policy exception to lex loci delicti to tort causes of action.

Under that exception, the law of Maryland will be applied if application of the law of the place of the injury violates a "clear, strong, and important Maryland public policy." Id. at 849-51.

The Maryland Health Claims Act reflects Maryland's strong public policy that medical malpractice claims alleging damages in excess of a certain jurisdictional amount should be subject to arbitration and other prerequisites prior to being litigated in court. See Group Health Assoc. v. Blumenthal, 453 A.2d 1198, 1204 (Md. 1983).

Although the Act has been amended to allow a plaintiff to unilaterally waive the Act's arbitration requirement, it still requires a potential plaintiff to file a claim and a certificate of qualified expert with Maryland's Health Care Alternative Dispute Resolution Office (HCADRO) and to follow specific procedures for waiver of arbitration prior to filing the claim in state or federal court. See Tranen v. Ariz, 500 A.2d 636, 639 (Md. 1985); CJP [section][section]3-2A-04(a) & (b)(1), 3-2A-06B.