Robinson v. Pleet

• Citation: 544 A.2d 1,76 Md.App. 173
• Decision Date: 01 September 1987
• Docket Number: No. 1650,1650
• Parties: Minnie L. ROBINSON v. Sylvan PLEET, et al. ,
• Court: Court of Special Appeals of Maryland

Page 173

76 Md.App. 173

544 A.2d 1

Minnie L. ROBINSON v. Sylvan PLEET, et al.

No. 1650, Sept. Term, 1987.

Court of Special Appeals of Maryland.

July 14, 1988.

Certiorari Denied Oct. 11, 1988.

Nicholas D. Dale, Bethesda (Louis A. Ebersold, Rockville, on the brief), for appellant.

Charles N. Ketterman (Susan A. Polis and Donahue, Ehrmantraut & Montedonico, Chartered, on the brief), Baltimore, for appellees.

Argued before BISHOP, ALPERT and ROBERT M. BELL, JJ.

ALPERT, Judge.

Minnie L. Robinson, the claimant and the appellant herein, filed a medical malpractice claim with the Health Claims Arbitration Office ("HCAO"). She named as defendants the following health care providers: Dr. Sylvan Pleet, Dr. Sylvan Pleet, P.A., Howard S. Freundlich, D.D.S. and Dr. Howard S. Freundlich, P.A. Her claim was dismissed by the chairperson of the arbitration panel for failure to file a certificate of qualified expert as required by § 3-2A-04(b)(1) of the Courts & Judicial Proceedings Article of the Maryland Annotated Code.

Under that provision of the Code, a claim filed after July 1, 1986

shall be dismissed, without prejudice, if the claimant fails to file a certificate of a qualified expert with the Director attesting to departure from standards of care, and that the departure from standards of care is the proximate cause of the alleged injury, within 90 days from the date of the complaint.

Cts. & Jud. Proc. § 3-2A-04(b)(1) (1987 Cum.Supp.). ¹ Subsection (b)(5), however, also provides that "[a]n extension of the time allowed for filing a certificate of a qualified expert under this subsection may be granted for good cause shown."

Appellant's claim was filed on November 3, 1986. More than five months later, on April 27, 1987, one of the defendants, Dr. Sylvan Pleet, moved to dismiss the arbitration claim because the certificate of qualified expert had not been filed within the appropriate time period. The chairperson of the panel dismissed the claim without prejudice on May 11, before appellant was able to respond to the motion. Appellant belatedly filed an opposition to the motion to dismiss on May 13, and included with it the required certificate. On the 20th of May appellant also filed a motion for reconsideration of the dismissal. On May 27, the HCAO Director entered an award in favor of the appellees. The decision to affirm the dismissal was sent by letter on June 1, 1987. Subsequently, on June 18, appellant filed a complaint with the Circuit Court for Baltimore County, seeking to nullify and vacate the arbitration award. On November 10, 1987, Judge Edward A. DeWaters, Jr. granted appellees' motion to dismiss and cited (according to the docket entry) § 3-2A-04(b)(1), the certificate requirement, as grounds for the dismissal.

Appellant does not dispute that counsel failed to file the certificate of qualified expert within the applicable 90-day period. She contends that her claim was nonetheless erroneously dismissed and raises the following questions for our review:

I. Did the Court err in dismissing the case?

II. Is the requirement of the certificate of qualified expert in health care malpractice cases unconstitutional?

III. Did the Court err in failing to vacate the award of the Health Claims Arbitration Office?

I.

A. Dismissal on substantive grounds.

Preliminarily, appellant asserts that, despite the dismissal for noncompliance with the statute, she should nonetheless be able to proceed to trial since her failure to comply was unintentional. She argues that she should be allowed access to the courts since she cannot refile her claim with the HCAO inasmuch as the statute of limitations has run and since she "has demonstrated that the claim has prima facie merit by filing the expert's certificate [albeit a late filing]." Essentially, her argument is that the purpose of the Health Claims Act is to discourage frivolous claims and that because she has now demonstrated the prima facie merit of her case by filing the certificate, her failure to comply with the prerequisites of the statute should not prevent her from filing suit in circuit court. We disagree with her view as to the late filing of the certificate.

It is well-settled that the submission of malpractice disputes to the HCAO is a "condition precedent to the institution of a court action." See 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); Bailey v. Woel, 55 Md. App. 488, 462 A.2d 91 (1983), aff'd, 302 Md. 38, 485 A.2d 265 (1984). In Johnson, the Court of Appeals upheld the constitutionality of the Health Claims Act and held that "the statute merely requires that malpractice claims be submitted to nonbinding arbitration before suit may be filed." Johnson, 282 Md. at 287, 385 A.2d 57 (footnote omitted). In Bailey, the claimants presented no evidence before the arbitration panel, and when their case was dismissed by the panel, they filed suit in circuit court. Both this Court and the Court of Appeals held that a claimant who presents no evidence to the panel has not satisfied the condition precedent necessary to bring suit in circuit court; he has not in reality "submitted his claim" to arbitration.

The dismissal of appellant's claim for failure to comply with the Act similarly prevented appellant from satisfying the condition precedent necessary to file suit in court. A dismissal, whether it occurs because the claimant refused to present any evidence or because she failed to comply with the statutory procedure necessary to maintain her claim, prevented the arbitration panel from hearing the merits of the claim. As the Court of Appeals noted in Bailey : "[This] Court in Johnson interpreted the Act as requiring a thorough dispute resolution process...." 302 Md. at 42, 485 A.2d 265 (emphasis added). The claim asserted by appellant never proceeded to any dispute resolution process, and this failure was a result of appellant's own failure to comply with a clear directive of the Act.

Wyndham v. Haines, 305 Md. 269, 503 A.2d 719 (1986), relied upon by appellant, is inapposite. In Wyndham, the claimants presented their case to an arbitration panel but the claim was dismissed at the conclusion of the claimants' case because "the claimants had failed to establish a prima facie case of either of their causes of action." Id. at 271, 503 A.2d 719. Accordingly, judgment was entered in favor of the health care provider. The claimants properly rejected the award and filed an action in circuit court to vacate and nullify the arbitration award. On motion of the health care provider, the trial court dismissed the action because:

Plaintiffs failed to properly submit their claim to Health Claims Arbitration because they failed to produce enough testimony at the arbitration hearing to establish a prima facie case of liability.

Id. at 272-73, 503 A.2d 719. The Court of Appeals reversed and held that the Wyndhams' failure to present a prima facie case of liability was not the equivalent of a failure to arbitrate under Bailey. Id. Unlike the parties in Wyndham, however, appellant never presented the merits of her case to the arbitrators.

B. Dismissal upon judicial review

Casting her argument in a different light, appellant seems to contend that because the proceedings conducted in the circuit court are "... a new, separate, and distinct proceeding ...," Osheroff v. Chestnut Lodge, 62 Md.App. 519, 525, 490 A.2d 720, cert. denied, 304 Md. 163, 497 A.2d 1163 (1985), she must be allowed to proceed to trial on the merits, and that "she is punished by the circuit court solely for an unintentional failure at arbitration." Had the claim reached the merits before the arbitration panel and had there been an award based on the merits, then trial de novo would have been conducted in the circuit court in accordance with the principles set forth in Hahn v. Suburban Hospital, 54 Md.App. 685, 461 A.2d 7 (1983), if appropriate post-arbitration procedures were followed. Under the facts herein, however, appellant clearly is not entitled to that same de novo proceeding. The fact that the requisite certificate is on file before the circuit court does not resuscitate the claim that died in Health Claims Arbitration. Certainly, appellant was entitled to and did in fact receive judicial review of the panel chairman's action by compliance with § 3-2A-06. The chairman could have been wrong but was not. On this point, dismissal by the circuit court was appropriate. Judge Rodowsky, speaking for the Court of Appeals in Oxtoby v. McGowan, 294 Md. 83, 447 A.2d 860 (1982), said:

The [Health Claims Arbitration] Act ... does not take away the subject matter jurisdiction of a circuit court to hear and render judgments in cases involving claims which fall within the Act. "[T]his statute, which in essence requires that malpractice disputes be submitted to nonbinding arbitration" creates "a condition precedent to the institution of a court action...." Attorney General v. Johnson, 282 Md. 274, 283-84, 385 A.2d 57, 63, appeal dismissed, 439 U.S. 805, 99 S.Ct. 60, 58 L.Ed.2d 97 (1978). But the General Assembly has forcefully expressed in § 3-2A-02(a) its intent that this condition precedent be satisfied. ("An action or suit of that type may not be brought or pursued in any court of this State except in accordance with this subtitle.") While an arbitration panel operating under the Act is not an administrative agency, see Johnson, supra, 282 Md. at 285, 385 A.2d at 63, the legislative mandate that the arbitration procedure under the Act be followed as a precondition to invoking the general jurisdiction of a court is analogous to the doctrine of exhaustion of administrative remedies. Where the General Assembly has provided a special form of remedy and has established a statutory procedure before an administrative agency for a special kind of case, a litigant must ordinarily pursue that form of remedy and not bypass the...