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Jewell v. Malamet3/25/1991
I
Some fifteen years ago the General Assembly of Maryland created an elaborate scheme for the arbitration of medical malpractice claims. It is set out in the Maryland
Code (1974, 1989 Repl.Vol.) of the Courts and Judicial Proceedings Article as subtitle 2A of title 3 under the heading "Health Care Malpractice Claims" (the Act). Starting in § 3-2A-01 with definitions, the Act, in succeeding sections through § 3-2A-09, covers the exclusiveness of its procedures; the establishment of a Health Claims Arbitration Office, headed by a Director; the procedure for filing claims, the appointment of arbitrators and their immunity from suit; the arbitration of a claim; judicial review by an aggrieved party; waiver of arbitration; award of costs and counsel fees; and the effect of advance payment.
We traced the history of the Act in Attorney General v. Johnson, 282 Md. 274, 280-281, 385 A.2d 57 (1978), appeal dismissed, 439 U.S. 805, 99 S.Ct. 60, 58 L.Ed.2d 97 (1978). In Oxtoby v. McGowan, 294 Md. 83, 86, 447 A.2d 860 (1982), we noted, "In general, the Act requires certain medical malpractice claims to be submitted to an arbitration panel for initial ascertainment of liability and damages before resort may be had to a court of law for final determination." We emphasized that
he Act, however, does not take away the subject matter jurisdiction of a circuit court to hear and render judgments in cases involving claims which fall within the Act.
Id. at 91, 447 A.2d 860. We quoted the observation of Johnson, 282 Md. at 283-284, 385 A.2d 57, that
" his statute, which in essence requires that malpractice disputes be submitted to nonbinding arbitration" creates "a condition precedent to the institution of a court action . . . ."
Oxtoby, 294 Md. at 91, 447 A.2d 860. We warned:
But the General Assembly has forcefully expressed in § 3-2A-02(a) its intent that this condition precedent be
satisfied. ("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.")
Id.
In Cannon v. McKen, 296 Md. 27, 459 A.2d 196 (1983), we divined the legislative intent. It seemed patent to us that, by enacting the statute, the Legislature was "reacting to a medical malpractice insurance 'crisis.'" Id. at 34, 459 A.2d 196. It was, therefore, clear to us that
the Legislature intended to include in the scope of the Act only those claims for damages done to or suffered by a person originating from, in pertinent part, the giving of or failure to give health care.
Id. It was our view that
the Legislature did not intend that claims for damages against a health care provider, arising from non-professional circumstances where there was no violation of the provider's professional duty to exercise care, to be covered by the Act. It is patent that the Legislature intended only those claims which the courts have traditionally viewed as professional malpractice to be covered by the Act.
Id. We held that
the Act covers only those claims for damages arising from the rendering or failure to render health care where there has been a breach by the defendant, in his professional capacity, of his duty to exercise his professional expertise or skill.
Id. at 36, 459 A.2d 196. W
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