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Salvagno v. Frew6/10/2005
aim contained two counts - one by Mr. Frew for negligence, and a loss of consortium claim by him and his wife. For convenience, we shall hereafter refer to the claimants collectively as Frew. In October, 2000, Frew filed an amended claim with HCAO, adding, as Count Three, a claim of lack of informed consent - that the defendants performed surgery on Mr. Frew's right ankle without properly obtaining his informed consent and that, as a direct and proximate result, he was injured.
Frew apparently had difficulty obtaining an expert's certificate attesting to the defendants' actionable negligence in the performance of the surgery, and, on or about June 6, 2001, after several extensions had been granted, the HCAO Director dismissed the negligence claim for failure to meet the requirement of CJP § 3-2A-04(b). That left only the alleged lack of informed consent count and the pendent loss of consortium claim, as to which an expert's certificate was not required.
CJP § 3-2A-05(c) provides that the attorney member of the arbitration panel shall act as chair of the panel and shall decide all prehearing procedures, including issues relating to discovery and motions in limine. Section 3-2A-05(a)(1) requires that all issues of law be referred to the panel chair. On December 3, 2001, the panel chair issued a scheduling order that set a deadline of February 1, 2002 for Frew to name his expert witnesses. The defendants were to name their expert witnesses by March 15, 2002, and June 21, 2002 was established as the end of discovery. The arbitration hearing was scheduled for July 22, 23, and 24, 2002.
When Frew failed to name his expert witnesses by the February 1 deadline, the defendants filed a motion to dismiss the claim or, in the alternative, a motion for summary judgment. They argued in their motion that, under this Court's decision in Sard v. Hardy, 281 Md. 432, 379 A.2d 1014 (1977), expert medical testimony was required in order to prove a claim based on lack of informed consent and that, without such a witness, Frew could not establish a prima facie case. Frew responded that he had served certain interrogatories on Dr. Salvagno seeking information relevant to whether Frew might need an expert witness and that Salvagno had not provided sufficient information for him to make that determination. He added that, although he might eventually need an expert witness, the law did not require that "the experts need to be established at the cut-off of Plaintiff's designation." Frew asked for a 30-day extension to supply an expert witness designation but asserted that Salvagno's "admissions" would suffice to establish the standard of care.
That response was not persuasive to the panel chair, who, by Order dated April 18, 2002, dismissed without prejudice the lack of informed consent and loss of consortium claims because of Frew's failure to designate an expert witness. The panel chair concluded, in relevant part:
"In view of Sard [v. Hardy, supra], without an expert witness, the Claimants cannot make a prima facie case for lack of informed consent. I find no merit in the Claimants argument that the Health Care Provider, Dr. Salvagno, should in essence be the Claimants' expert witness. The cases cited in Claimants' Memorandum in Support of Opposition to Motion for Summary Judgment would appear to indicate that an adverse party may be called as a witness and interrogated on cross-examination both as to facts and as to expert opinion - in addition to - and not instead of - their own expert witness."
CJP § 3-2A-06(a) permits a party to reject an award for any reason. In order to do so, however, the rejecting party must, within 30 days after the award is served on the re
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