Wimmer v. Richards

• Decision Date: 01 September 1987
• Docket Number: No. 1108,1108
• Citation: 75 Md.App. 102,540 A.2d 827
• Parties: Richard WIMMER, et ux. v. George J. RICHARDS, et al. ,
• Court: Court of Special Appeals of Maryland

Page 102

75 Md.App. 102

540 A.2d 827

Richard WIMMER, et ux. v. George J. RICHARDS, et al.

No. 1108, Sept. Term, 1987.

Court of Special Appeals of Maryland.

May 5, 1988.

David B. Ginsburg (William J. Blondell, Jr., Baltimore, and Cynthia E. Young, Annapolis, on the brief), for appellants.

S. Marc Land (Roy L. Mason and Donahue, Ehrmantraut & Montedonico, Chartered, on the brief for appellee, George J. Richards, Jr., M.D.), Timothy L. Mullin, Jr. (Mark D. Gately and Miles & Stockbridge on the brief for appellee, Richards, Hirschfeld & Associates, P.A.), (Ward B. Coe, III, Harry S. Johnson, Carol Z. Zuckerman and Whiteford, Taylor & Preston on the brief for appellee, Greater Baltimore Medical Center), Baltimore, for appellees.

Argued before MOYLAN, GARRITY and ROSALYN B. BELL, JJ.

ROSALYN B. BELL, Judge.

Richard and Gwendolyn Wimmer, husband and wife, appeal from a decision by the Circuit Court for Baltimore County dismissing their claim against appellees, George J. Richards, M.D., Richards, Hirschfeld and Associates, P.A., and the Greater Baltimore Medical Center, Inc. The court based its decision on appellants' failure to comply with the Health Care Malpractice Claims Act, Md. Cts. & Jud. Proc. Code Ann. § 3-2A-06 (1974, 1984 Repl.Vol. & 1987 Cum.Supp.). On appeal, we address the following issue "1. Was dismissal of appellants' action by the circuit court arbitrary and capricious, and therefore an abuse of discretion, when all parties, arbitration panel chairman, and circuit court have received copies of all pleadings, but the Health Claims Arbitration Office did not docket appellants' Notice of Rejection of Award?"

Since the case was disposed of on motions to dismiss, we must assume the truth of all well-pleaded facts in the complaint, as well as inferences which may reasonably be drawn from those well-pleaded facts. Columbia Real Estate Title Ins. Co. v. Caruso, 39 Md.App. 282, 283-84, 384 A.2d 468 (1978). ¹ From that point of view, the facts were substantially as follows.

This appeal arises out of a Health Claims' arbitration proceeding filed by appellants against appellees, as health care providers. ² The panel chairman rendered an award on liability in favor of appellees based on their respective motions to dismiss. Pursuant to the Health Care Malpractice Claims Act, the Director of the Health Claims Arbitration Office (HCAO) mailed copies of the award to all of the parties. Appellants received their copy of the award on February 2, 1987. To obtain and perfect judicial review of the award, appellants mailed a Notice of Rejection of Award and other pleadings ³ to the HCAO, the circuit court and appellees. According to the certificates of service, these pleadings were mailed by appellants on February 26, 1987. Appellees, the circuit court, and the panel chairman received appellants' Notice of Rejection within the 30-day time period prescribed by § 3-2A-06(a) of the Health Care Malpractice Claims Act. The other pleadings, not at issue here, were received at the same time. While the HCAO did receive appellants' pleadings, including the Notice of Rejection, in a timely manner, the HCAO either misplaced or misfiled the pleadings as they did not appear on its docket. ⁴ Upon learning that the HCAO failed to docket the filing of the Notice of Rejection of Award, appellants sent them second copies of each document previously mailed. All the documents were docketed March 19, 1987, two weeks after the 30-day time period had run, with a notation "(copy of original 2-26-87)."

Appellees filed motions to dismiss based on appellants' failure to file their Notice of Rejection of Award with the HCAO within the statutory period. Appellees argued that strict compliance with the Health Care Malpractice Claims Act was required, and that appellants should have physically delivered the documents instead of merely placing them in the mail. Appellants do not claim that mailing the documents satisfied the filing requirements, but rather that the HCAO received and later misplaced or misfiled the documents. The trial court made no finding as to whether the HCAO actually did receive the documents. The circuit court granted appellees' motions to dismiss and appellants filed this appeal.

--The Maryland Health Care Malpractice Claims Act--

The Maryland Health Care Malpractice Claims Act (the Act), provides the exclusive procedure by which a malpractice claim against a health care provider is initiated. A claimant must submit his claim to an arbitration panel. Thus, proceeding to arbitration is a condition precedent to instituting a malpractice action in court. Ott v. Kaiser-Georgetown Community Health Plan, Inc., 309 Md. 641, 526 A.2d 46 (1987). The arbitration panel determines the issue of liability with respect to the claim. If the panel determines that the health care provider is liable, damages are assessed, itemized and apportioned. § 3-2A-05(e). The arbitration panel's decision becomes final and binding on the parties if neither party seeks to reject or modify it within the statutory time limits. § 3-2A-05(i).

Section 3A-2A-06 of the Act specifies procedures for seeking judicial review ⁵ if either party is unsatisfied with the arbitration panel's decision. The court proceeding is called an "action to nullify arbitration award." See Rules BY1-BY5. Before instituting the court action, a party must give notice that he or she is rejecting the arbitration panel's determination. Section 3-2A-06(a) of the Act, which governs the procedures to follow to reject a health claims arbitration award, provides in pertinent part:

"(a) Rejection of award.--A party may reject an award for any reason. A notice of rejection must be filed with the Director and the arbitration panel and served on the other parties or their counsel within 30 days after the award is served upon the rejecting party, or, if a timely application for modification or correction has been filed within 10 days after a disposition of the application by the panel, whichever is greater."

Md.Cts. & Jud.Proc. Code Ann. § 3-2A-06(a) (1974, 1984 Repl.Vol., 1987 Cum.Supp.).

The Maryland Rules supplement the Act, making an action to nullify an arbitration award a two-step process. First, the rejecting party must file notice of the action to nullify with the clerk of the court. Rule BY2(a). Second, a "declaration" must be filed by the aggrieved party (the claimant before the HCAO). Rule BY4(a). ⁶

--The Applicable Standard of Compliance--

Appellees contend that strict compliance with all procedural requirements of the Act is required to secure judicial review of an adverse arbitration award. They claim that appellants' failure to file a notice of rejection of award with the Director of HCAO, as evidenced by the missing docket entry, warranted dismissal of the action by the court. Appellants, on the other hand, argue that the HCAO did receive the required documents; therefore, there was actual compliance with § 3-2A-06(a). Alternatively, if we do not hold there was actual compliance, appellants contend that their "substantial compliance" with § 3-2A-06(a) merits judicial review of their medical malpractice claim.

In the last several years, decisions of health claims arbitration panels have precipitated a burgeoning of litigation and appellate review. A significant number of cases have dealt with the procedure litigants must follow to perfect an appeal of an arbitration award and the applicable standard of compliance.

In two early cases, Bishop v. Holy Cross Hospital, 44 Md.App. 688, 410 A.2d 630 (1980) and Schwartz v. Lilly, 53 Md.App. 318, 452 A.2d 1302 (1982), the claimants attempted to by-pass arbitration by filing their complaints with the circuit court before submitting them to the HCAO. Bishop, 44 Md.App. at 689, 410 A.2d 630; Schwartz, 53 Md.App. at 319, 452 A.2d 1302. We held in both cases that dismissal was warranted based on the litigants' failure to utilize the arbitration process as required by the Act. Bishop, 44 Md.App. at 692, 410 A.2d 630; Schwartz, 53 Md.App. at 324, 452 A.2d 1302. Tranen v. Aziz, 59 Md.App. 528, 476 A.2d 1170 (1984), aff'd, 304 Md. 605, 500 A.2d 636 (1985), further tightened the standard of compliance by requiring litigants not only to submit the malpractice dispute to arbitration but also to follow the special statutory procedures prescribed by the Act. In Tranen, appellants failed to file both a rejection of award and an action to nullify award ⁷ as required by § 3-2A-06. This Court held that strict compliance with the statutory scheme established for appeals of medical malpractice arbitration awards was required. Tranen, 59 Md.App. at 535, 476 A.2d 1170. The Court of Appeals affirmed our decision, restating the necessity for strict compliance. Tranen, 304 Md. 605, 614, 500 A.2d 636. ⁸

Erosion of the strict compliance standard announced in Tranen began in Mitcherling v. Rosselli, 61 Md.App. 113, 484 A.2d 1060 (1984), aff'd 304 Md. 363, 499 A.2d 476 (1985). In that case, the appellant-claimant failed to send a Notice of Rejection to each of the members of the arbitration panel in violation of § 3-2A-06(a). ⁹ This Court affirmed the refusal by the circuit court to dismiss the appeal, holding that the claimant had "substantially complied" with the statutory provisions. ¹⁰ Mitcherling, 61 Md.App. at 121, 484 A.2d 1060. We also noted that technical irregularities will not be permitted to deprive a party of an opportunity to assert his or her legal rights when the other party has not been prejudiced. Mitcherling, 61 Md.App. at 121, 484 A.2d 1060. The Court of Appeals held that filing the notice with the Director constituted literal compliance and thus expressly declined to reach the question of substantial compliance. Mitcherling, 304 Md. 363, 367, 499 A.2d 476 (1985).

That same year, this Court decided two more cases consistent with the "substantial compliance" standard. In the first case, Osheroff v. Chestnut Lodge, Inc., 62...