Cherry v. Brothers

• Decision Date: 01 September 1985
• Docket Number: No. 128,128
• Citation: 306 Md. 84,507 A.2d 613
• Court: Maryland Court of Appeals
• Parties: Joel M. CHERRY, Ray Brodie, Jr., Nelson M. Stone, and Sinai Hospital v. SEYMOUR BROTHERS et al. ,

Page 84

306 Md. 84

507 A.2d 613

Joel M. CHERRY, Ray Brodie, Jr., Nelson M. Stone, and Sinai Hospital v. SEYMOUR BROTHERS et al.

No. 128, Sept. Term, 1985.

Court of Appeals of Maryland.

May 2, 1986.

Craig B. Merkle (Donald L. DeVries, Jr. and Semmes Bowen & Semmes, on brief), Baltimore, for appellant Ray Brodie Jr.

Jefferson V. Wright (Miles & Stockbridge, on brief), Baltimore, for appellant Nelson M. Stone.

Pattie G. Zimmerman (Smith, Somerville & Case, on brief), Baltimore, for appellant Sinai Hosp.

Marc Seldin Rosen (Whiteford, Taylor & Preston, on brief), Baltimore, for appellant Joel M. Cherry.

Richard P. Neuworth (Leslie L. Gladstone and Leslie L. Gladstone, P.A., on brief), Baltimore, for appellees.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ.

COUCH, Judge.

Here appellants question whether an improperly captioned notice of action to nullify a Health Claims Arbitration award satisfies the statutory procedures of the Health Care Malpractice Act if it is factually determined that appellants "were in no manner prejudiced" by the error. Since, in our view, appellees' filing of the notice of action to nullify fully complied with statutorily prescribed procedures for invoking judicial review, we need not address the role, if any, the prejudicial effect of noncompliance plays in this statutory scheme. We affirm the decision of the Court of Special Appeals solely on the basis that appellees actually complied with all legislative directives for judicial review.

The parties agree on the factual and procedural scenario out of which this matter arises. In May of 1982 Seymour and Bernyce Brothers, appellees herein, initiated a medical malpractice claim against Joel M. Cherry, M.D., Nelson N. Stone, M.D., Ray Brodie, Jr., M.D. and Sinai Hospital, appellants herein, pursuant to the Health Care Malpractice Act (hereinafter the "Act"). ¹ The matter was heard by an arbitration panel on February 20 and 21, 1984. The panel ruled in favor of each of the health care providers on all counts.

Dissatisfied with this outcome, the Brothers sought judicial review in the Circuit Court for Baltimore City. To reject the arbitral award and institute a court action to nullify, they made various filings with the court and in the Health Claims Arbitration Office (hereinafter HCAO).

On March 20, 1984, well within the prescribed time limits, ² the Brothers filed a Notice of Rejection of Award and a Notice of Action to Nullify Award in the HCAO. Each of these original papers bore the caption "Before the Health Claims Arbitration Office of Maryland--HCA No.:82-139."

The docket entries for the Circuit Court for Baltimore City reflect that on the same date appellees there filed a "Notice to nullify award, notice of rejection, Motion to vacate decision by arbitration panel, Points and Authorities, Declaration, and Prayer for a Jury Trial." An examination of the record reveals that the "notice to nullify award" and the "notice of rejection" docketed in the circuit court were actually photocopies of the Notice of Action to Nullify Award and the Notice of Rejection of Award which were filed with the HCAO.

Seizing on the fact that the original Notice of Action to Nullify Award was filed in the HCAO rather than in the circuit court, appellants Cherry and Stone filed a "Motion Raising Preliminary Objection Or, In The Alternative, Motion To Dismiss Or, In The Alternative, Motion Ne Recipiatur," asserting that no court action had been properly commenced pursuant to § 3-2A-06(b) and Rule BY2a. A hearing on the motion was conducted wherein the circuit court held that despite the photocopy filed in the circuit court, the alleged defect warranted dismissal of the claim as to all appellants. Consequently, the action was dismissed on all counts, and the arbitration award in favor of the health care providers was confirmed. See § 3-2A-05(h).

Appeal was taken to the Court of Special Appeals which reversed the circuit court and remanded the case. Brothers v. Sinai Hospital, 63 Md.App. 235, 492 A.2d 656 (1985). We granted the health care providers' petition for certiorari and now affirm the Court of Special Appeals. Since the only error alleged is the Brothers' noncompliance with § 3-2A-06 and Rule BY2a, our review is conducted within those confines. ³

Time and again, this Court has indicated that a party must comply with all procedural requirements of the Act to secure judicial review of an adverse arbitration award. Tranen v. Aziz, 304 Md. 605, 500 A.2d 636 (1985); Oxtoby v. McGowan, 294 Md. 83, 447 A.2d 860 (1982); Attorney General v. Johnson, 282 Md. 274, 385 A.2d 57, appeal dismissed, 439 U.S. 805, 99 S.Ct. 60, 58 L.Ed.2d 97 (1978). More specifically, we have held that compliance with the procedures to invoke judicial review as set forth in § 3-2A-06 is a condition precedent to the maintenance of a medical malpractice court action. Tranen v. Aziz, 304 Md. at 614, 500 A.2d at 640. Conversely, noncompliance with § 3-2A-06 and its corresponding Maryland Rule, BY2, warrants dismissal of the court action. Id. Thus the resolution of this appeal turns on whether the filing of a photocopy of the Notice of Action to Nullify, with its HCAO caption, constituted compliance with § 3-2A-06 and Rule BY2.

In § 3-2A-06, subsection (b) addresses the action to nullify. It states in pertinent part:

"(b) Action to nullify award.--At or before the time specified in subsection (a) for filing and serving a notice of rejection, the party rejecting the award shall file an action in court to nullify the award and shall file a copy of the action with the Director. Failure to file this action timely in court shall constitute a withdrawal of the notice of rejection. Subject to the provisions of subsection (c), the procedures applicable to the action including the form and necessary allegations in the initial pleading shall be governed by the Maryland Rules."

Rule BY2a, which speaks to the filing of the notice of action to nullify and its content, states:

"An action to nullify an award rendered by an arbitration panel determining a health care malpractice claim shall be commenced by filing notice of the action with the clerk of a court within 30 days after the award is served upon the party rejecting the award, or within ten days after disposition of a timely application to the panel to modify or correct the award, whichever is later. The notice shall identify the award and state that it is being rejected by the party filing the notice." ⁴

Despite appellants' assertions to the contrary, we find the Brothers' notice to be in full compliance with § 3-2A-06(b) and Rule BY2a. As we stated in Tranen v. Aziz, 304 Md. at 613-14, 500 A.2d at 640, the successful institution of an action to nullify is a two step process:

"First, a notice of the action must be filed with the clerk of the court within 30 days after the award is served on the rejecting party. Rule BY2. The notice must identify the award and indicate that it is being rejected by the party filing the notice. Not only is it filed in court but a copy is filed on the Director. The second step, under Rule BY4, is the filing of a declaration setting forth the allegations to be proved entitling the aggrieved party to relief. In order to perfect his standing in court so as to be entitled to judicial resolution of the claim, the aggrieved party must follow both steps within the prescribed time period." ⁵

Here, as in Tranen, it is not disputed that the second requirement was met. The controversy centers around the first. While acknowledging that the circuit court received a paper entitled "Notice of Action to Nullify" within the time limit, appellants contend that the fact that this document was a miscaptioned photocopy is a fatal defect rendering its tender something short of a proper filing.

Preliminarily we note that the contents of the notice fully complied with Rule BY2. The notice identifies the award and indicates that it has been rejected.

In regard to the filing of a photocopy, we point out that we have been unable to find any provision in either the Act or the Md.Rules ⁶ prohibiting the use of a photocopy to institute a court action or conversely, requiring the filing of a typewritten original. ⁷ In the absence of any such provision, we are unable to conclude that appellees were required under the Act to file an original of their typewritten Notice of Action to Nullify with the circuit court.

Similarly, the Act and the BY rules do not speak to the proper caption form to be used on a notice; nor do the Md.Rules which were in effect in March of 1984. ⁸ Without any legislative directive mandating a particular caption, we decline to hold the Health Claims Arbitration caption used in the instant case a fatal defect requiring automatic dismissal. Instead, at the direction of § 3-2A-06(b) ⁹ and COMAR 01.03.01.02, ¹⁰ we turn to the Md.Rules for assessing the gravity of this error. At the time appellees filed their notice, Rule 320 a 4 was in effect. It stated, "The court at every stage of the proceedings shall disregard any error or defect in process, pleadings or record which does not affect the substantial rights of the parties."

The miscaption on the notice did not affect the substantial rights of the parties. Appellants freely admit that they were not misled. Brothers v. Sinai Hospital, 63 Md.App. at 238, 492 A.2d at 658. The notice alerted them to the Brothers' intent to reject the arbitration award and commence a court action to nullify. In other words, the notice performed its function. Hence, the trial court should have disregarded the defect or, alternatively, allowed amendment of the notice since Maryland has adopted a liberal policy in permitting amendments so that causes of action may be determined on the merits. See Crowe v. Houseworth, 272 Md. 481, 325 A.2d 592 (1974); Osheroff v. Chestnut Lodge, 62 Md.App. 519, 490 A.2d 720 (1985).

Lastly, app...