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Salvagno v. Frew6/10/2005
jecting party or within 10 days after denial of a timely application for modification or correction of the award, (1) file a notice of rejection with the HCAO Director, and (2) file an action in court to nullify the award. Frew's immediate response to the panel chair's order was a motion for reconsideration, which, on May 16, was denied. Frew filed a notice of rejection with the HCAO Director and a petition in the Circuit Court for Frederick County to nullify the award. He averred that he had a right to rely on the defendants' admissions "as to the particulars of informed consent" and that the panel chair exceeded her authority in dismissing his claim. Accompanying the Petition to Nullify, in conformance with Maryland Rule 15-403, was a two-count Complaint that tracked the amended HCAO claim - Count I charging lack of informed consent and Count II being a loss of consortium claim - along with a request for jury trial.
Five days later, Frew moved to transfer the action to the Circuit Court for Washington County, noting that the action was filed in Frederick County in the mistaken belief that Hagerstown was in that county and that proper venue lay in Washington County. In the absence of any objection, the case was transferred pursuant to the request.
The defendants moved to deny the Petition to Nullify and to dismiss the Complaint. In their response to the petition, they asserted that the panel chair did not exceed her authority. In their motion to dismiss, they averred that arbitration was a precondition to any court action and that, by failing to name an expert witness, Frew had effectively failed to arbitrate his claim. In making that argument, they relied principally on Bailey v. Woel, 302 Md. 38, 485 A.2d 265 (1984) and Watts v. King, 143 Md. App. 293, 794 A.2d 723 (2002). After a non-evidentiary hearing, the Circuit Court, on May 12, 2003, filed an opinion and order granting Frew's petition to nullify the award, vacating the panel chair's order dismissing the claim, and denying the defendant's motion to dismiss. The court concluded that, with a claim based solely on lack of informed consent, Frew was not required to produce a certificate from an expert and that Sard v. Hardy did not "impose a necessary requirement upon Plaintiffs to present expert testimony in order to meet their burden of proof as to the materiality of the risk from [Frew's] perspective." It held that the panel chair's dismissal of the claim "with no opportunity to present the case, was premature." Accordingly, the court ordered that a scheduling conference be set by the Assignment Office, indicating thereby that the case would remain in the Circuit Court for further proceedings.
The defendants noted an immediate appeal. Though tacitly recognizing that there was no final judgment in the case, they relied on Watts v. King, supra, 143 Md. App. 293, 794 A.2d 723 for the proposition that the order was nonetheless immediately appealable. In Watts, the Court of Special Appeals concluded that an immediate appeal would lie from an interlocutory order that is beyond the jurisdiction of the lower court and that, in a health care malpractice action that the law requires be submitted in the first instance to arbitration in conformance with CJP ยงยง 3-2A-01 through 3-2A-09, the Circuit Court has no jurisdiction until that requirement is satisfied.
The Court of Special Appeals in this case did not address the appealability of the Circuit Court order but apparently accepted the defendant's argument that an immediate appeal would lie where the order appealed from was allegedly outside the lower court's jurisdiction. It concluded, however, that the Circuit Court was correct in vacating the panel chair's dismissal of th
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