Marousek v. Sapra5/7/1991
Four questions are presented on this appeal, by Barbara A. Marousek, appellant, from the judgment of the Circuit Court for Baltimore County dismissing, for lack of subject matter jurisdiction over the case, appellant's medical malpractice complaint against Indu T. Sapra, appellee. They are:
1. Did the Circuit Court err in ruling that it lacked subject matter jurisdiction over this action?
2. Is Dr. Sapra estopped to challenge the proceedings in Health Claims Arbitration and the jurisdiction of the circuit court by her election to waive arbitration?
3. Did the Health Claims Arbitration Office retain jurisdiction over the initial Health Care Malpractice Claim for the purposes of ruling on the "Motion for Reconsideration and to Correct Award"?
4. Is the claim barred by the principle of res judicata?
For the reasons to be set forth hereinafter, we agree with appellant; hence, we will reverse and remand to the circuit court for further proceedings.
Appellee performed an abdominal hysterectomy on appellant, who subsequently required additional surgery. Believing that the initial surgery was performed negligently, appellant filed a complaint against appellee, with the Health Claims Arbitration Office. She alleged that appellee's negligence in performing the abdominal hysterectomy caused her to develop a vesico-vaginal fistula, necessitating the additional surgery. Although she filed her claim on April 25, 1988, she did not file a certificate of qualified expert until July 29, 1988, 94 days later. Maryland Cts. & Jud.Proc.Code Ann., § 3-2A-04(b)(1) required the filing of such certificate be filed within 90 days of the date of the filing of the complaint. Therefore, in addition to answering appellant's complaint, appellee moved to dismiss, citing appellant's failure timely to file the certificate.
The Panel Chairman, relying on Robinson v. Pleet, 76 Md. App. 173, 544 A.2d 1, cert. denied, 313 Md. 689, 548 A.2d 128 (1988), on February 9, 1989, granted appellee's
motion. See § 3-2A-05(c) ("The attorney member of the panel shall be chairman and he shall decide all prehearing procedures including issues relating to discovery and motions in limine.") Undaunted, on February 20, 1989, appellant filed a Motion for Reconsideration And To Correct Award, pursuant to § 3-2A-05(h). After appellee had filed a memorandum in opposition to that Motion, but before the panel chairman had ruled, appellant, on April 5, 1989, gave notice of rejection of the award and filed an action to nullify, along with a complaint, in the Circuit Court for Baltimore County. See § 3-2A-06(b).
As she had done in the Health Claims Arbitration Office, and for the same reasons, appellee moved to dismiss appellant's complaint. In her opposition to the motion to dismiss, appellant requested either that the case proceed on the merits or that the court remand it to the Health Claims Arbitration Office for ruling on the motion for reconsideration. Following a hearing, on June 5, 1989, the court dismissed appellant's complaint. Thereafter, on July 1, 1989, appellant noted her appeal from that judgment to this Court.
On July 14, 1989, while appellant's appeal was pending, the panel chairman granted appellant's motion for reconsideration. In doing so, he relied on the recent amendment of § 3-2A-04(b) by Chapter 688, Laws 1989, effective July 1,
1989. Appellee filed a motion with the Health Claims Arbitration Office asking the panel chairman to stay his ruling, arguing that he lacked jurisdiction to grant the Motion for Reconsideration. Satisfied with the ruling, ap
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