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Salvagno v. Frew6/10/2005
Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ.
This is a medical malpractice action arising from surgery performed on plaintiff, William Frew's, right ankle. The claim, as it reached the Circuit Court for Washington County, was based solely on the alleged lack of informed consent. The claim had previously been dismissed by the Health Claims Arbitration Office (HCAO) because Frew had not identified an expert witness, presumably to testify as to what advice was required and whether the failure to give it constituted a departure from the applicable standard of care.
Frew treated the dismissal as an award for the defendants, rejected it, and filed a petition to nullify it and a Complaint. Though it made no prediction as to any likely success, the Circuit Court concluded that Frew could, if he wished, choose to rely on what he hoped would be favorable testimony from the defendant physician, so it nullified the HCAO award and set the case in for further judicial proceedings. Although that ruling obviously did not constitute a final judgment in the matter, the defendants noted an appeal to the Court of Special Appeals, urging that the ruling was immediately appealable because it exceeded the subject matter jurisdiction of the Circuit Court. The intermediate appellate court accepted jurisdiction of the appeal, concluded that the Circuit Court was correct in its substantive ruling, but decided that the case should be remanded to HCAO, rather than proceed in the Circuit Court. See Salvagno v. Frew, 158 Md. App. 315, 857 A.2d 506 (2004).
We shall vacate the judgment of the Court of Special Appeals. The ruling of the Circuit Court was not immediately appealable. The intermediate appellate court should have dismissed the appeal as not allowed by law.
BACKGROUND
Maryland Code, § 3-2A-04 of the Cts. & Jud. Proc. Article (CJP), requires a person who wishes to pursue a claim against a health care provider for damages due to medical injury to file the claim with the Director of HCAO. The scheme envisioned by that subtitle of the Code is that, subject to waiver by any party, settlement or abandonment by the claimant, or dismissal on procedural or other limited grounds, such a claim will be submitted to non-binding arbitration before a panel consisting of an attorney, a health care provider, and a person who is neither an attorney nor a health care provider. One of the pre-conditions to proceeding to arbitration, or waiver, is provided by CJP § 3-2A-04(b). That section requires that, unless the sole issue presented in the claim is the lack of informed consent, the claim is subject to dismissal without prejudice unless, within a certain time deadline or extensions thereto, the claimant files with the Director a certificate from a qualified expert that attests (1) to the defendant's departure from standards of care, and (2) that the departure was the proximate cause of the alleged injury.
On March 16, 2000, Mr. Frew and his wife filed a claim with HCAO against three health care providers - Ralph T. Salvagno, Altizer-Salvagno Center for Joint Surgery at Robinwood, and Michael Fitzgerald. The only allegation in the Statement of Claim was that, on March 26, 1997, Dr. Salvagno performed an operative procedure on Frew, at which time a tourniquet was improperly applied, and that, as a result of the improper application of the tourniquet and the performance of the surgery, Frew sustained injuries to his right calf and right foot. The sole basis of the claim was negligence in performing the procedure and failing to follow up complaints of pain. No particular negligence was alleged against anyone other than Dr. Salvagno.
The initial cl
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