Alfred Munzer, M.D., P.A. v. Ramsey

• Decision Date: 01 September 1984
• Docket Number: No. 1309,1309
• Citation: Alfred Munzer, M.D., P.A. v. Ramsey, 492 A.2d 946, 63 Md.App. 350 (Md. App. 1984)
• Parties: ALFRED MUNZER, M.D., P.A., et al., v. Herschel N. RAMSEY, et al. ,
• Court: Court of Special Appeals of Maryland

Page 350

63 Md.App. 350

492 A.2d 946

ALFRED MUNZER, M.D., P.A., et al., v. Herschel N. RAMSEY, et al.

No. 1309, Sept. Term, 1984.

Court of Special Appeals of Maryland.

May 21, 1985.

Albert D. Brault, Rockville (Janet S. Zigler and Brault, Graham, Scott & Brault, Rockville, on brief), for appellants.

Tracy Mulligan, Rockville (Glenn H. Carlson, Washington, D.C., on brief), for appellees.

Argued before WEANT, GARRITY and ADKINS, JJ.

ADKINS, Judge.

In the Circuit Court for Montgomery County, appellees and cross-appellants Herschel Ramsey and Eunice Ramsey filed a notice of rejection of a health claims arbitration panel award in favor of appellant and cross-appellee Dr. Alfred Munzer. They also filed a declaration against Dr. Munzer to nullify the award. The circuit court, concluding that it lacked jurisdiction over the case because there was no panel award, remanded the matter "to Health Claims Arbitration" and further ordered "that the original Panel reconvene for action consistent with [its] opinion."

The parties now present seven questions as to the correctness of the circuit court's action. They seem to agree (although not necessarily for the same reasons) that there was, indeed, no award. What they disagree about is the result that should flow from that circumstance. Dr. Munzer contends that the circuit court should have dismissed the action without remand. This, he believes, would terminate the controversy finally in his favor. The Ramseys, on the other hand, argue that the remand was appropriate. They strongly contend, however, that on remand their claim against Dr. Munzer must be decided only after a full evidentiary hearing, and not in a summary fashion. This contention, it seems, may have been pre-empted by legislation enacted during the 1985 session of the General Assembly. Before we address these legal issues, we shall place this case in its factual and procedural context.

Proceedings Below

In 1980, the Ramseys filed a medical malpractice claim with the Health Claims Arbitration Office. They sued Dr Munzer and four other health claim providers: three other doctors and a hospital. ¹ A health claims arbitration panel was appointed. On September 23, 1983, after a hearing before the panel chairman, the chairman, acting alone, signed an order granting summary judgment in favor of Dr. Munzer. The order provided "that there be entered a finding of no liability in favor of the Health Care Provider Alfred Munzer, M.D." No costs were determined or assessed. Although copies of the order were delivered to the parties by the panel chairman, the order was never sent to the director of the Health Claims Arbitration Office.

The four other health care providers who remained subject to the Ramseys' claim went before the arbitration panel in April 1984. On April 3, the case was settled and a line of dismissal was entered on April 17. No award was entered following the line of dismissal and, obviously, no copy of an award was delivered to the director.

Within thirty days after the filing of the line of dismissal, the Ramseys filed their notice of rejection of award and their declaration in the circuit court. The "award" they sought to nullify was the 1983 summary judgment order in Dr. Munzer's favor. Furthermore, their declaration prayed that either the circuit court nullify the award and remand the case to the panel or that it vacate the award and permit trial on the merits against Dr. Munzer.

Dr. Munzer responded with a motion to dismiss or to strike. Essentially, he argued that the trial court lacked subject matter jurisdiction because the panel had never entered an award, and because the Ramseys had not filed a timely action to nullify the panel chairman's order granting summary judgment. The Ramseys replied that since "no valid 'award' has been issued in respect to Dr. Munzer, the matter should be remanded to the Health Claims Arbitration Office for appointment of a new panel of arbiters."

Although much of the argument below dealt with the panel chairman's authority to grant summary judgment, the circuit court, in its opinion and order, did not address that issue. ² Nor did it discuss Dr. Munzer's contention that the Ramseys' circuit court action should have been filed within thirty days of the panel chairman's September 23, 1983, summary judgment order. Instead, it held that because no award (either following the 1983 summary judgment or following the 1984 dismissal of the remaining four claims) had ever been entered by the panel or delivered to the director, there was nothing for the Ramseys to reject or nullify. For that reason, the court concluded that it lacked jurisdiction and, as we have seen, remanded the case to the arbitration process.

Was There An Award?

We agree with the circuit court that no arbitration award was ever made.

Section 3-2A-05 of the Courts and Judicial Proceedings Art. provides in pertinent part:

(d) The arbitration panel shall first determine the issue of liability with respect to a claim referred to it. If the arbitration panel determines that the health care provider is not liable to the claimant or claimants the award shall be in favor of the health provider....

(e) The award shall include an assessment of costs, including the arbitrator's fees.

(f) The arbitration panel shall make its award and deliver it to the Director within 1 year from the date on which all defendants have been served. The Director shall cause a copy of it to be served on each party.

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(h) Subject to § 3-2A-06, the award of the panel shall be final and binding on all parties. After the time for either rejecting or modifying the award has expired the Director shall file a copy of the award with the circuit court having proper venue ... and the court shall confirm the award. Upon confirmation the award shall constitute a final judgment.

As these provisions make clear, the arbitration process is to be completed by an award that resolves the issues of liability and damages and assesses the costs of arbitration. Next, it must be delivered to the director, ³ who in turn must serve it on each party. We deem the provisions to be mandatory. See Tranen v. Aziz, 59 Md.App. 528, 534-35, 476 A.2d 1170, cert. granted, 301 Md. 471, 483 A.2d 754 (1984). For at least two reasons, the panel chairman's summary action of September 23, 1983, did not comply with these strictures.

First, no award embodying the order granting summary judgment was ever delivered to the director. Thus, there was no public or formal record of the chairman's action. It remained in his files, but so far as the record shows, it was not entered on any public record, such as the director's docket. COMAR 01.03.01.04. Until the formal action of delivery, the chairman was free to change his mind and to modify or revise his order. See State v. Dowdell, 55 Md.App. 512, 515, 464 A.2d 1089 (1983). Moreover, absent delivery to the director and his service on the parties, the time within which other actions must be taken (rejection or nullification under § 3-2A-06(a) and (b) and confirmation under § 3-2A-05(h)) never began to run. In short, there is no "award" within the meaning of the statute until notice of the final action at the arbitration level is delivered to the director and by him served on the parties.

Failure to comply with these statutory provisions is not the omission of some unimportant and unnecessary act, such as a failure to serve notice of rejection on arbitration panel members. See Mitcherling v. Rosselli, 61 Md.App. 113, 484 A.2d 1060 (1984). Nor is it a mere technical failure to affix a correct caption on a document that in all other respects complies with statutory requirements. Osherhoff v. Chestnut Lodge Inc., 62 Md.App. 519, 490 A.2d 720 (1985). See also, Brothers v. Sinai Hospital, 63 Md.App. 235, 492 A.2d 656 (1985). Rather, it is a failure to comply with a mandatory statutory provision that goes to the very heart of the health claims arbitration scheme. That failure prevents the establishment of any public record of the award, and prevents the triggering of the time required for such fundamental actions as rejection or nullification. Also, if all parties were satisfied with the chairman's decision, the absence of a properly entered and delivered award would prevent the chairman's decision from ever ripening into a final judgment. § 3-2A-05(h). An "award" that has this effect, or non-effect, is simply not the "award" contemplated by the statute.

It may be that the chairman intended to see that a final award was made, in accordance with statutory requirements, after disposition of the claims against the four health care providers other than Dr. Munzer. Such an entry of "final judgment" after the disposition of all claims would be consistent with (indeed, might be required by) the procedure mandated by Md.Rule 2-602. That rule, applicable to a court proceeding in which there are multiple claims or multiple parties, precludes the entry of an appealable final judgment as to any claim or party until "entry of judgment that adjudicates all the claims and the rights and liabilities of all the parties" unless certain conditions have been met. The Code of Maryland Regulations advises that "[e]xcept as otherwise provided in the Act and these regulations, the Maryland Rules of Procedure govern all proceedings under the Act." COMAR 01.03.01.02. Neither the Act nor the regulations provide that Rule 2-602 shall not apply to arbitration panel proceedings. But if we assume, arguendo, that the rule is applicable, the fact remains that no final "judgment" or "award" was ever made. After the April 1984 settlement of the four remaining claims, no attempt to enter an award occurred, nor was anything delivered to the director. As a consequence, there was no award in this case.

Second, as § 3-2A-05(e) explicitly states "[t]he award shall include an assessment of costs, including the arbitrator's fees." This mandatory...