Elliott v. Cher, Muher, Lowen, Bass, Quartner, P.A.

CATHELL, Judge. Appellants, Letitia and Shedrick Elliott, appeal from the dismissal of their petition for judicial review of a decision by a ³³⁶ Health Claims Arbitration Panel by the Circuit Court for Baltimore City (Byrnes, J., presiding). We shall affirm the trial court’s dismissal. The Facts This case concerns the relationship between the Health Care Malpractice Claims statute, Md.Code (1974, 1995 Repl.

Vol.), §§ 3-2A-01 to 3-2A-09 of the Courts and Judicial Proceedings Article (CJ), and the Maryland Rules regarding judicial review of an administrative agency’s decisions, Maryland Rules 7-201 to 7-210. The Health Care Malpractice Claims statute requires that “[a]ll claims, suits, and actions ... by a person against a health care provider for medical injury allegedly suffered by the person in which damages of more than the limit of the concurrent jurisdiction of the District Court are sought” be heard by an arbitration panel. CJ § 3-2A-02. The parties may agree to waive arbitration of the claim and proceed directly to the circuit court.

See CJ § 3-2A-06A. In the case sub judice, appellants, alleging that Richard Bass, M.D., made an incorrect diagnosis and was negligent, filed a claim against Dr. Bass and Scher, Muher, Lowen, Bass, Quartner, P.A., appellees, with the Director of the Health Claims Arbitration Office. Prior to the arbitration proceeding, appellants conducted discovery by way of interrogatories. Due to appellees’ incomplete answers, appellants moved for a default judgment at numerous times during the proceedings.

The arbitration panel chairperson denied appellants’ motions for a default judgment. The arbitration hearing was held from October 30, 1995 to November 2, 1995. The panel ruled in favor of appellees. On November 21, 1995, appellants filed a Notice of Rejection and Action to Nullify.

This case, case number 95325033/ CL204831, is apparently pending in the circuit court and is in no way involved in this appeal. In addition, appellants filed a separate case, i.e., a petition for judicial review of the decision of the arbitration panel, pursuant to Maryland Rule 7-202, which regulates appeals from administrative agencies; only ³³⁷ this last case and petition is at issue in this appeal. Appellants brought this separate action averring procedural irregularities before the panel- — i.e., the panel abused its discretion in declining to grant a default judgment to appellants based upon appellees’ repeated discovery abuses. A hearing on appellants’ petition for judicial review of the decision of the arbitration panel was held on April 26, 1996.

After hearing from appellants’ counsel only, Judge Byrnes dismissed appellants’ petition. Judge Byrnes stated: I appreciate the passion and the eloquence with which you place this matter before me. And were it standing in isolation, it would be a very interesting issue, but I think the result would probably be the same which is that you would be required to follow the statutory scheme for health claims which is to go before this Court on behalf of your client and seek health claim relief. You have already done that and that is where the statute tells you you must find your relief.

I can’t give it to you independently of the ... statutory authority. And that’s really what you seek. ... I recognize that you have presented a potential cause for interest we’ll say at the trial court level that you believe there’s been a foul tainting of the process which should disentitle the health care provider of the presumption that they get by law. The question you’re presenting is where is ... that issue joined.

Is it joined in a separate proceeding which could in some fashion conflict with what we’ll call the main proceeding, or should it be resolved within the main proceeding. And I have little doubt — I have some little doubt, but not big enough doubt to conclude as I’ve said that this must be dismissed because you are confined by statute to the remedy there provided. Discussion Appellants assert two questions on appeal: ³³⁸ 1. Did the Circuit Court for Baltimore City commit error by dismissing the [appellants’] “Method (7-202) And Early Memoranda (7-207)” without a hearing?[ 1 ] 2.

Did the Panel Chairman abuse his discretion by failing to fashion a remedy to alleviate the prejudice to the [appellants] as a result, of the Providers’ (i) disobedience to the [Maryland Rules] and (ii) disobedience to two Direct Orders? We shall not address appellants’ second question. If we were to affirm the trial court’s dismissal of appellants’ petition for judicial review, the second question would become moot. Conversely, if we were to reverse the trial court, we would not review the actions of the panel chairperson because the issue was not raised below nor did the trial court render a decision as to whether the panel chairperson abused his discretion. “[T]he appellate court will not decide an[ ] ... issue unless it plainly appears by the record to have been raised in or decided by the trial court____” Md. Rule 8-131(a).

We reformulate appellants’ question and present it as the following issue: Whether a claimant, who alleges to have been aggrieved by discovery abuses during an arbitration proceeding conducted pursuant to the Health Care Malpractice Claims statute, may seek judicial review of the arbitration panel chairperson’s decision regarding discovery sanctions pursuant to Maryland Rule 7-202. We hold that such a claimant may not obtain judicial review pursuant to Maryland Rule 7-202 and shall affirm the trial court. We explain. Chapter 200, title seven of the Maryland Rules provides a procedure for review of administrative agency decisions.

Maryland Rule 7-201 provides: ³³⁹ (a) Applicability. — The rules in this Chapter govern actions for judicial review of an order or action of an administrative agency, where judicial review is authorized by statute. (b) Definition.- — As used in this Chapter, “administrative agency” means any agency, board, department, district, commission, authority, commissioner, official, the Maryland Tax Court, or other unit of the State or of a political subdivision of the State. Appellants argue that they are entitled to judicial review pursuant to chapter 200, title seven of the Maryland Rules, because the Health Claims Arbitration Office is an administrative agency. While the Health Claims Arbitration Office may or may not be an administrative agency, the critical question is whether the health claims arbitration panel, whose chairperson rendered the decision that appellants ask us to review, is an administrative agency.

We hold that it is not and explain. In Attorney Gen. 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), overruled in part, Newell v. Richards, 323 Md. 717, 728-35 , 594 A.2d 1152 (1991), the plaintiffs asserted that Maryland’s Health Care Malpractice Claims statute was unconstitutional. In a declaratory judgment action, they argued that the statute was “constitutionally infirm as impermissibly vesting judicial power in a nonjudicial body in violation of separation of powers principles, as abridging the rights of access to the courts and of trial by jury, and as denying to malpractice claimants the equal protection of the laws.” Id. at 277, 385 A.2d 57 . The Court of Appeals held that the statute was constitutional.

In addressing the plaintiffs’ contention that “the Act vest[ed] judicial power in an administrative agency contrary to the mandates of the Maryland Constitution,” id. at 283 , 385 A.2d 57 , the Court stated: We think ... that this statute, which in essence requires that malpractice disputes be submitted to nonbinding arbitration as a condition precedent to the institution of a court action, does not in any fashion impermissibly transgress the ³⁴⁰ separation of powers doctrine. To conclude otherwise would be to embrace “the erroneous notion that all adjudication is judicial,” and to overlook two crucial facts present here relevant to the exercise of. judicial power: that the parties are in no way bound by the award of the arbitration panel and that the panel itself cannot enforce its award. While the [plaintiffs] protest that the statute vests judicial power in an administrative agency, we observe preliminarily that it is clear that such a formulation of the Act’s consequences is inaccurate, for the simple reason that the entity assertedly performing the judicial function — the arbitration panel, and not the Health Claims Arbitration Office— is not an administrative agency in the traditional sense____ Since the arbitrators are obviously not a part of the executive unit created by the Act, it becomes plain that the unit so created — the Health Claims Arbitration Office— exercises no judicial function whatever.[ 2 ] Id. at 283-86 , 385 A.2d 57 (emphasis added; footnote omitted); see also Weidig v. Crites, 323 Md. 408, 410 , 593 A.2d 1094 (1991) (“Health claims arbitration is not a judicial proceeding, nor is it an administrative proceeding.”). While the Court of Appeals has indicated that some administrative law principles may be applicable to arbitration proceedings under the Health Care Malpractice Claims statute, it has forcefully emphasized that an arbitration panel acting pursuant to the statute is not an administrative agency.

In Oxtoby v. McGowan, 294 Md. 83 , 447 A.2d 860 (1982), the plaintiffs brought medical malpractice and wrongful death actions in the circuit court. At trial, the plaintiffs asserted ³⁴¹ that the injury to the deceased occurred prior to the effective date of the Health Care Malpractice Claims statute and that, therefore, they were not required to submit the claims to an arbitration panel prior to filing suit. The verdict of the circuit court was in favor of the defendant. On appeal, the plaintiffs contended that the injury occurred after the effective date of the statute, and, therefore, they were required to submit their claim to arbitration prior to initiating suit in the circuit court.

They further argued that, because the claim was never submitted to an arbitration panel, the circuit court lacked jurisdiction to hear their claims. The Court of Appeals held that the