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Lerman v. Heemann11/29/1996
distinction between potential liability and actual liability. There are many instances where an alleged tortfeasor is potentially liable. In some cases, evidence of that potential liability may be so strong as to make judgment against the party a virtual certainty. Notwithstanding this, no court would enter judgment against a tortfeasor in the absence of a claim being brought against the tortfeasor.
The short answer to Dr. Lerman's arguments is that Dr. Heemann did make a claim against Dr. Lerman. The claim was made by a motion, and his right to make the claim in this manner is fully authorized by the provisions of Maryland Rule 2-614. His claim, therefore, was not "potential, unasserted and unperfected."
The appellant asserts that reading Rule 2-614 to allow a judgment for contribution without the necessity of filing a cross-claim would "eviscerate Rule 2-331(d) governing cross-claims." This is untrue. Although there are situations, such as those here presented, in which a cross-claim proves to be unnecessary, there are many situations where a defense counsel would be extremely imprudent if he or she failed to file a cross-claim. This was cogently explained by Judge Powers, for this Court, in Murphy, (supra) , 13 Md. App. at 507-08:
Crossclaims among alleged joint tort-feasors have their greatest efficacy in those stages of a trial before it is determined which of multiple defendants will be exposed to a jury verdict. Pendency of a crossclaim can prevent a co-defendant's premature exit from the case by a successful demurrer to the plaintiff's declaration, by a summary judgment against the plaintiff, by a separate settlement with the plaintiff, or by a directed verdict during trial as to the plaintiff's right to recover against him. However, unless a crossclaim seeks some separate affirmative relief, or indemnification, as distinguished from contribution, it virtually loses its raison d'etre when the parties to it are equally exposed to a jury determination of the liability or non-liability of each. See Maryland Rule 314.[ ] Those defendants who are held liable to the plaintiff are also liable to each other in contribution, with or without a crossclaim, and those defendants who are held not liable to the plaintiff are not liable at all.
(Footnote in original omitted.)
II. ISSUE 2
Before making a claim for contribution under Maryland Rule 2-614, was Dr. Heemann required to submit his claim against Dr. Lerman to the HCAO for arbitration?
Section 3-2A-02 of the Courts Article governs what claims must be filed before the HCAO prior to maintaining a circuit court action. It reads:
Exclusiveness of Procedures
(a) Claims and actions to which subtitle applicable. -- (1) All claims, suits and actions, including cross-claims, third-party claims, and actions under Subtitle 9 of this title,[ ] by a person against a health care provider for medical injury allegedly suffered by the person in which damages of more than the limit of the concurrent jurisdiction of the District Court are sought are subject to and shall be governed by the provisions of this subtitle.
(2) An action or suit of that type may not be brought or pursued in any court of this State except in accordance with this subtitle.
(3) Except for the procedures stated in ยง 3-2A-06(f) of this subtitle, an action within the concurrent jurisdiction of the District Court is not subject to the provisions of this subtitle.
(b) Statement of amount of damages. -- A claim filed under this subtitle and an initial pleading filed in any subsequent action may not contain a statement of the amount of damages sought o
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