Salvagno v. Frew, 859

• Decision Date: 03 September 2004
• Docket Number: No. 859,859
• Citation: 857 A.2d 506,158 Md. App. 315
• Parties: Ralph T. SALVAGNO et al. v. William M. FREW et al.
• Court: Court of Special Appeals of Maryland

857 A.2d 506

158 Md. App. 315

Ralph T. SALVAGNO et al. v. William M. FREW et al.

No. 859, Sept. Term, 2003.

Court of Special Appeals of Maryland.

September 3, 2004.

Frederick W. Goundry, III of Frederick, for appellant.

Mark E. Herman of Baltimore, for appellee.

Argued before DAVIS, KENNEY, DEBORAH S. EYLER, JJ.

KENNEY, Judge.

Dr. Ralph T. Salvagno, Michael Fitzgerald, and the Altizer-Salvagno Center for Surgery at Robinwood appeal from an order of the Circuit Court for Washington County nullifying and vacating a decision of the Health Claims Arbitration Office (the "HCAO"). Appellants ask two questions, which we have slightly reworded:

I. Did the circuit court err by denying appellants' motion to dismiss?

II. Did the circuit court err by vacating the order of the HCAO?

For the reasons below, we shall remand the case to the circuit court with instructions to remand the claim to the HCAO for arbitration.

Overview of the Health Care Malpractice Claims Act

The Health Care Malpractice Claims Act (the "Act"), embodied in Md.Code (1974, 2002 Repl.Vol.), §§ 3-2A-01 through 3-2A-09 of the Courts and Judicial Proceedings Article ("C.J."), was enacted in 1976 in response to the malpractice insurance crisis.¹Carrion v. Linzey, 342 Md. 266, 274-75, 675 A.2d 527 (1996). The primary feature of the Act was to "`require the submission of certain [medical malpractice] claims to an arbitration panel for initial ascertainment of liability and damages before resort [could] be had to a court of law for final determination.'" Id. at 276, 675 A.2d 527 (quoting Attorney Gen. v. Johnson, 282 Md. 274, 277, 385 A.2d 57 (1978)). The purpose of the Act was to "screen malpractice claims, ferret out meritless ones, and, in theory, ... lower the cost of malpractice insurance and the overall costs of health care." Adler v. Hyman, 334 Md. 568, 575, 640 A.2d 1100 (1994). In short, medical malpractice claims are to be submitted to "mandatory arbitration as a pre-condition to any court action." Watts v. King, 143 Md.App. 293, 306, 794 A.2d 723 (2002).²

"All claims, suits and actions" in which damages of more than $5,000 are sought against a health care provider for medical injury allegedly suffered by a claimant are subject to the Act. C.J. § 3-2A-02(a)(1). Claims filed with the Director of the HCAO are referred to a panel of three arbitrators. See C.J. § 3-2A-03. In any action for damages filed under the Act,

the health care provider is not liable for the payment of damages unless it is established that the care given by the health care provider is not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.

C.J. § 3-2A-02(c).

Except when the issue is solely the lack of informed consent, a claimant must file with the Director a certificate of a qualified expert "attesting to departure from standards of care" and that the departure was "the proximate cause of the alleged injury." C.J. § 3-2A-04(b)(1)(i). Failure to file such a certificate "shall" result in dismissal of the claim without prejudice. Id. To dispute liability, a defendant must file a certificate "attesting to compliance with standards of care," or that the departure was not the proximate cause of the alleged injury, within one hundred twenty days from the date the claimant "served the certificate of a qualified expert ... on the defendant." C.J. § 3-2A-04(b)(2). Ordinarily, the claimant's certificate must be filed within ninety days from the date of the claim, but an extension of time to file a certificate of a qualified expert "shall be granted for good cause shown." C.J. § 3-2A-04(b)(1)(i) and (5).

The arbitration panel determines whether the health care provider is liable and, if so, "consider[s], itemize[s], assess[es], and apportion[s]" the appropriate damages, and incorporates into the award an assessment of costs, including the arbitrators' fees. C.J. §§ 3-2A-05(e) and (f)(1). If no party rejects the award, it becomes "final and binding," is filed in the appropriate circuit court, and constitutes a final judgment when confirmed by that court. C.J. § 3-2A-05(i). Any party, however, can reject the award "for any reason" by filing a "notice of rejection" with the Director of the HCAO and the arbitration panel and, also, an "action to nullify" the award in an appropriate circuit court within thirty days "after the award is served on the rejecting party." C.J. § 3-2A-06(a) and (b).

A party may elect to have the case tried by a jury. C.J. § 3-2A-06(b)(2). Prior to the trial, the circuit court may modify, correct, or vacate an award. C.J. § 3-2A-06(c). If the circuit court finds, for example, that the "arbitrators exceeded their powers," it "shall vacate the award, and trial of the case shall proceed as if there had been no award." C.J. §§ 3-224(b)(3) and 3-2A-06(c). If not vacated, the award is admissible as evidence at trial. C.J. § 3-2A-06(d). It is presumed to be correct and the "burden is on the party rejecting it to prove that it is not correct." Id.

FACTUAL AND PROCEDURAL BACKGROUND

The complaint alleges that Dr. Ralph Salvagno, while performing surgery on William Frew's right ankle on March 26, 1997, improperly applied a tourniquet. The result was an "injury to the right calf and lost sensation to the right foot." In March 2000, William and his wife, Debra, ("claimants"), filed a two-count statement of claim with the HCAO, alleging negligence ("Count I") and loss of consortium ("Count II"). On April 11, 2000, the claimants requested an extension of time for filing a certificate of a qualified expert (the "certificate"), which the Director granted, extending the time to September 17, 2000. On August 29, 2000, the claimants requested "an additional ninety (90) days within which to secure" the certificate. The Director granted an extension to November 1, 2000.

On October 31, 2000, the claimants filed an amended statement of claim, adding a count for lack of informed consent ("Count III"). They also requested another extension of time to file the certificate, averring:

1. Claimants have had this case reviewed by an expert.

2. Claimants' initially retained experts indicated that claimants' claim [had] merit, but claimants' specialist who has reviewed the case commented on the case in such a manner that claimants' counsel was directed to file the Amended Complaint alleging lack of informed consent, a change in theory of the case.

3. Under such a theory, claimants would not need a certificate.... However, claimants did not wish to foreclose any theory of recovery.

4. Consequently, claimants will need additional time to secure an expert opinion to provide a second look at claimants' Count One [negligence] cause of action.

5. Claimants have been proceeding with due diligence in their quest to move this case along.

Wherefore ..., claimants request an additional extension of time within which to file an expert's certificate as to Count One.

The Director extended the time to January 10, 2001.

On December 7, 2000, appellants filed a motion to dismiss Count III, which the Director denied.³ Appellants filed another motion to dismiss on May 7, 2001, requesting that Counts I and II be dismissed because the claimants had "failed to file [the] certificate ... on or before January 10, 2001." On June 6, 2001, the Director dismissed Count I.

The chairperson of the arbitration panel (the "chairperson") issued the following scheduling order on December 3, 2001:

February 1, 2002 Claimants to name expert witnesses March 15, 2002 Appellants to name expert witnesses April 15, 2002 Claimants to name rebuttal witnesses June 21, 2002 Discovery cut-off June 24, 2002 Pretrial telephone conference July 22-24, 2002 Arbitration hearing On February 11, 2002, appellants filed a "Motion to Dismiss or, in the Alterative, Motion for Summary Judgment." Relying on Sard v. Hardy, 281 Md. 432, 379 A.2d 1014 (1977), appellants argued that Counts II and III should be "dismissed or judgment entered" because the claimants had not designated an expert witness and could not "make a prima facie case of lack of informed consent (nor the derivative claim of loss of consortium) without an expert witness." The claimants responded that, because appellants had not provided "thorough[] and complete[]" answers to interrogatories, they had not "secured information necessary to ascertain whether an expert [was] needed." The claimants averred:

4. The information elicited or sought to be elicited from the answers to interrogatories is relevant for the purposes of determining whether [claimants] needed an expert or whether the [appellants'] admissions would be sufficient to provide the evidence needed to go forward.

* * *

6. While cases have indicated expert testimony is needed, there is no indication that the experts need to be established at the cut-off of [claimants'] designation.

7. [Appellants'] admissions are sufficient and can be sufficient enough to establish the standard of care.

8. Until it is known to [claimants] that [claimants] will not be able to establish through [appellants'] admissions or through the course of discovery from other sources in this case as to the standard of care and the breach thereof, then [claimants] would [not] need to address the issue of [claimants'] experts.

The claimants again requested that the "designation period for supplying expert designation be extended thirty days."

Following a hearing on appellants' motion, the chairperson filed an order dismissing without prejudice Counts II and III, finding:

1. The claimants have been granted three extensions of time by the HCAO Director, and in essence, a fourth extension of time by the [chairperson's] Scheduling Order requiring that an expert witness be designated on or before February 1, 2002. This claim was filed in March 2000, and

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