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Salvagno v. Frew9/3/2004
Dr. Ralph T. Salvagno, Michael Fitzgerald, and the Altizer-Salvagno Center for Surgery at Robinwood appeal from an order of the Circuit Court for Washington County nullifying and vacating a decision of the Health Claims Arbitration Office (the "HCAO"). Appellants ask two questions, which we have slightly reworded:
I. Did the circuit court err by denying appellants' motion to dismiss?
II. Did the circuit court err by vacating the order of the HCAO?
For the reasons below, we shall remand the case to the circuit court with instructions to remand the claim to the HCAO for arbitration.
Overview of the Health Care Malpractice Claims Act
The Health Care Malpractice Claims Act (the "Act"), embodied in Md. Code (1974, 2002 Repl. Vol.), §§ 3-2A-01 through 3-2A-09 of the Courts and Judicial Proceedings Article ("C.J."), was enacted in 1976 in response to the malpractice insurance crisis. Carrion v. Linzey, 342 Md. 266, 274-75, 675 A.2d 527 (1996). The primary feature of the Act was to "`require the submission of certain [medical malpractice] claims to an arbitration panel for initial ascertainment of liability and damages before resort [could] be had to a court of law for final determination.'" Id. at 276 (quoting Attorney Gen. v. Johnson, 282 Md. 274, 277, 385 A.2d 57 (1978)). The purpose of the Act was to "screen malpractice claims, ferret out meritless ones, and, in theory, . . . lower the cost of malpractice insurance and the overall costs of health care." Adler v. Hyman, 334 Md. 568, 575, 640 A.2d 1100 (1994). In short, medical malpractice claims are to be submitted to "mandatory arbitration as a pre-condition to any court action." Watts v. King, 143 Md. App. 293, 306, 794 A.2d 723 (2002).
"All claims, suits and actions" in which damages of more than $5,000 are sought against a health care provider for medical injury allegedly suffered by a claimant are subject to the Act. C.J. § 3-2A-02(a)(1). Claims filed with the Director of the HCAO are referred to a panel of three arbitrators. See C.J. § 3-2A-03. In any action for damages filed under the Act, the health care provider is not liable for the payment of damages unless it is established that the care given by the health care provider is not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.
C.J. § 3-2A-02(c).
Except when the issue is solely the lack of informed consent, a claimant must file with the Director a certificate of a qualified expert "attesting to departure from standards of care" and that the departure was "the proximate cause of the alleged injury." C.J. § 3-2A-04(b)(1)(i). Failure to file such a certificate "shall" result in dismissal of the claim without prejudice. Id. To dispute liability, a defendant must file a certificate "attesting to compliance with standards of care," or that the departure was not the proximate cause of the alleged injury, within one hundred twenty days from the date the claimant "served the certificate of a qualified expert . . . on the defendant." C.J. § 3-2A-04(b)(2). Ordinarily, the claimant's certificate must be filed within ninety days from the date of the claim, but an extension of time to file a certificate of a qualified expert "shall be granted for good cause shown." C.J. § 3-2A-04(b)(1)(i) and (5).
The arbitration panel determines whether the health care provider is liable and, if so, "consider , itemize , assess , and apportion " the appropriate damages, and incorporates into the award an assessment of costs, incl
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