Claim For Fraud Involving IVF Was Claim For Medical Malpractice: In its unreported opinion filed on December 7, 2022, the Court of Special Appeals of Maryland ((“Maryland Appellate Court”) stated: “We start with the fact that the medical community now recognizes infertility as a disease … Medical treatment is precisely what appellant sought from SGF – the retrieval of Ms. Zheng’s eggs through a medical/surgical procedure and the treatment of those eggs by a medical procedure conducted by medical professionals – a physician and a nurse. If, as alleged, they bolluxed up the procedure and then lied about what they did, or did not do, with the result that the procedure was unsuccessful, a medical injury occurred. The case thus squarely falls within the scope of Courts Article, § 3-2A-04(a), requiring that a claim based on what allegedly occurred be filed first with the Director of the Health Care Alternative Dispute Resolution Office, which was not done. That statute is clear and means what it says. It “creates a condition precedent to the institution of a court action” and is “a mandatory framework for the resolution of health claims.””
Medical malpractice claims in Maryland are governed by Code, Courts Article, Title 3, Subtitle 2A. The crux of that statute is § 3-2A-04(a), which requires that “a person having a claim against a health care provider for damage due to a medical injury shall file the claim with the Director [of the Health Care Alternative Dispute Resolution Office].”
§ 3-2A-04(a) states that a health care provider includes “a freestanding ambulatory care facility as defined in § 19-3B-01 of the Health-General Article.” Section 19-3B-01(c) defines “freestanding ambulatory care facility” as including “an ambulatory surgical facility.” Section 19-3B01(b), in turn, defines “ambulatory surgical facility” as: “any center, service, office facility, or other entity that (i) Operates exclusively for the purpose of providing surgical services to patients requiring a period of postoperative observation but not requiring hospitalization and in which the expected duration of services would not exceed 24 hours following admission; and (ii) seeks reimbursement from payors as an ambulatory surgery center.”
The Maryland Appellate Court stated in the case it was deciding: “SGF therefore qualifies as an ambulatory surgical facility and therefore is a health care provider. We are comfortable in that assumption both from what is in the record regarding SGF and the fact that neither side argued otherwise … Medical treatment is precisely what appellant sought from SGF – the retrieval of Ms. Zheng’s eggs through a medical/surgical procedure and the treatment of those eggs by a medical procedure conducted by medical professionals – a physician and a nurse. If, as alleged, they bolluxed up the procedure and then lied about what they did, or did not do, with the result that the procedure was unsuccessful, a medical injury occurred. The case thus squarely falls within the scope of Courts Article, § 3-2A-04(a), requiring that a claim based on what allegedly occurred be filed first with the Director of the Health Care Alternative Dispute Resolution Office, which was not done.”
“Failure to comply with that requirement requires that the case be dismissed, as it was by the Circuit Court. We shall affirm that judgment.”
Source Zheng, et al. v. Shady Grove Fertility (SGF), No. 563 September Term, 2022.
If you or a family member suffered harm as a result of fertility treatments in Maryland or elsewhere in the United States, you should promptly find a Maryland medical malpractice attorney or a medical malpractice attorney in your U.S. state who may investigate your fertility malpractice claim for you and represent you or your family member in a fertility medical malpractice case, if appropriate.
Visit our website or call us toll-free in the United States at 800-295-3959 to find IVF medical malpractice attorneys in your state who may assist you.
Turn to us when you don’t know where to turn.