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Salvagno v. Frew6/10/2005
specifically makes the Maryland Rules relating to discovery applicable to proceedings under the subtitle, and that Maryland Rule 2-433 permits a court, upon a plaintiff's failure to provide discovery, to dismiss an action. Moreover, unlike the situation in Munzer, the order here did assess costs - they were split equally between the parties - and it was filed with the HCAO Director.
When Munzer was decided, the term "award" was not defined, either in the statute or in the Maryland Rules implementing the statute. In 1997, we revised the rules relating to health claims arbitration and, in the process, adopted Maryland Rule 15-402(b), which defines "award" as "a final determination of a health care malpractice claim by an arbitration panel or by the panel chair." (Emphasis added). Unquestionably, the order by the panel chair dismissing Frew's claim constituted a final determination of that claim. There was nothing left before HCAO, especially when Frew's motion for reconsideration was denied. Whether the order was right or wrong, authorized or unauthorized, it clearly disposed of the claim and thus constituted an award in favor of the defendants. It was therefore subject to rejection by Frew and an action in court to nullify it.
One question raised in Munzer and addressed by the intermediate appellate court in this case - what ultimate relief should be granted - still lingers. The effect of vacating the judgment of the Court of Special Appeals and directing that court to dismiss the appeal would leave the case pending in the Circuit Court, which would be inconsistent with the approach taken in Munzer. When Munzer was decided in 1985, the law did not permit a waiver of the arbitration procedure unless all parties agreed. It was thus clear, at that time, that, subject to a limited and undefined right of a panel chair to make certain kinds of summary dispositions, each party had a statutory right to have the claim resolved on its merits, either as a matter of fact or as a matter of law, by an arbitration panel, and, as the Munzer court noted, the plaintiff in that case asked, as alternative relief in the Circuit Court, that the case be remanded to the arbitration panel. If a claim was improperly dismissed by a panel chair, the appropriate course of action was to have the matter remanded to HCAO so that the statutorily mandated arbitration could occur.
In 1995, the General Assembly, through the enactment of CJP § 3-2A-06B, permitted a claimant or any defendant, unilaterally, to waive arbitration and permit the case to be resolved initially in the Circuit Court. Section 3-2A-06B(b) provides that a waiver by a claimant may be made "at any time after filing the certificate of qualified expert required by § 3-2A-04(b) of this subtitle." If, as here, no such certificate is required in the particular case, the waiver may be made prior to the time that a certificate otherwise would be due. Unlike in Munzer, Frew did not ask that the case be remanded to HCAO for any further proceeding; when the panel chair dismissed his claim, he filed a Complaint in the Circuit Court and asked for a jury trial. We shall treat that as an election to waive arbitration before an HCAO panel. Section 3-2A-06B(b) requires that a waiving claimant file a written waiver with the HCAO Director and serve a copy on all other parties. That was done. A copy of the Complaint that effected the waiver was delivered to the Director of HCAO and was served on the other parties, as required. There is no occasion, therefore, to cause the matter to be remanded to HCAO.
JUDGMENT OF COURT OF SPECIAL APPEALS VACATED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO DISMISS APPEAL; COSTS IN THIS COURT AND IN COURT OF SPECIAL AP
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