Golub v. Spivey

KARWACKI, Judge. This case commenced with the filing of a claim in the Health Claims Arbitration Office (HCAO) under the provisions of the Health Care Malpractice Claims Act. Md.Code (1974, 1984 RepLVol., 1986 Supp.), §§ 3-2A-01 to 3-2A-09 of the Courts and Judicial Proceedings article. 1 Following an arbitration award of $150,000 in favor of the appellee, Shelia D. Nagle Spivey, against the appellant, David D. Golub, M.D., Dr. Golub took steps to reject the award in compliance with procedures delineated in § 3-2A-06 and Rule BY2. Mrs. Spivey then filed a declaration in the Circuit Court for Baltimore City pursuant to Rule BY4.

The case was tried before a jury whose verdict agreed with the award of the arbitration panel. Dr. Golub appeals from the judgment entered pursuant to that verdict. FACTS On July 25, 1979, Mrs. Spivey (Ms. Nagle at that time) was sent by her personal physician to Dr. Golub, a radiologist, for an intravenous pyelogram, a procedure permitting study of a patient’s kidney function. Although the pyelogram administered by Dr. Golub revealed inflammation and dysfunction of the left kidney, Dr. Golub erroneously reported a negative finding, i.e., a normal pyelogram.

In reliance on Dr. Golub’s inaccurate report, Mrs. Spivey’s treating physicians failed to provide the immediate care required by her condition. The condition went untreated until the spring of 1980 when Mrs. Spivey visited a urologist. The urologist conducted tests which disclosed that Mrs. Spivey had suffered permanent damage to her left kidney due to an untreated infection. ¹⁵¹ Mrs. Spivey filed a claim with the Director of the HCAO in August 1980. In addition to Dr. Golub, other health care providers named as defendants in the statement of claim were Richard Berkowitz, M.D., and George N. Karkar, M.D. An arbitration panel consisting of an attorney, a health care provider, and a lay person was appointed pursuant to § 3-2A-04(c) to (e).

On September 9, 1983, three days before the scheduled start of the arbitration hearing, Mrs. Spivey filed a motion in limine seeking to preclude Dr. Golub from presenting expert testimony at the hearing. Previously, on February 17, 1983, the panel chairman had issued an order requiring all counsel in the case to provide the names of experts to each other by July 15, 1983. The other two defendant health care providers each provided the names of two experts by that date, but Dr. Golub did not identify any experts. The panel granted Mrs. Spivey’s motion in limine over Dr. Golub’s objection that he intended to call the experts named by the other defendant health care providers.

The panel also denied Dr. Golub’s request for a continuance. A hearing was conducted before the arbitration panel on September 15 and 16, 1983. At the beginning of the hearing, Mrs. Spivey voluntarily dismissed Dr. Berkowitz and Dr. Karkar as defendants. Dr. Golub admitted liability at the hearing, and at its conclusion on September 16, the arbitration panel rendered an award against Dr. Golub in the amount of $150,000.

In accordance with § 3-2A-05(g), written notice of the award was delivered to the Director of the HCAO, who mailed copies of it to counsel for all parties on October 24, 1983. On November 18, 1983, Dr. Golub filed a Notice of Rejection with the Director of the HCAO pursuant to § 3-2A-06(a). At the same time he also filed a Notice of Action to Nullify Award in the Circuit Court for Baltimore City, in compliance with § 3-2A-06(b)(l) and Rule BY2. Copies of both notices were mailed to counsel for Mrs. ¹⁵² Spivey on November 17, 1983, according to the attached certificates of service.

The attorneys for Mrs. Spivey did not receive either notice and did not learn of their filing until December 22, 1983, when one of them checked the docket at HCAO after Mrs. Spivey had inquired of him as to when she could expect payment of the arbitration award. On December 23, 1983, 35 days after Dr. Golub’s Notice of Action to Nullify Award was filed, Mrs. Spivey filed a declaration in the Circuit Court for Baltimore City. In response to that declaration, Dr. Golub filed a Motion Raising Preliminary Objection and a Motion Ne Recipiatur or to Strike. The basis for both motions was Mrs. Spivey’s failure to file her declaration within 30 days after the filing of Dr. Golub’s Notice of Action to Nullify Award, as required by Rule BY4 a.l.

Dr. Golub also filed a Motion to Vacate Award in which he challenged the propriety of the panel’s decisions granting Mrs. Spivey’s motion in limine prior to the arbitration hearing and refusing to grant Dr. Golub’s request for a continuance. Although the certificates of service attached to each of the three motions filed by Dr. Golub indicate that they were mailed to counsel for Mrs. Spivey on January 9, 1984, those documents, like the previously filed notices, were not received. It was not until February 10, 1984, when Mrs. Spivey’s attorneys received a copy of Judge Thomas Ward’s order granting Dr. Golub’s motions, that they became aware of the filing of those motions. Mrs. Spivey immediately filed a motion to set aside Judge Ward’s order, citing a lack of notice as to the filing of the three motions.

Mrs. Spivey’s motion was supported by an affidavit by two of her attorneys attesting to their lack of notice of the three motions granted by Judge Ward as well as of Dr. Golub’s Notice of Rejection and Notice of Action to Nullify Award. On September 7, 1984, Judge Ward conducted a hearing concerning Mrs. Spivey's motion to set aside his earlier order granting Dr. Golub’s three preliminary motions. In a memorandum opinion filed November 14, 1984, Judge Ward ¹⁵³ vacated his order. Judge Ward found that Dr. Golub was not prejudiced by Mrs. Spivey’s filing of her declaration five days late, thereby rejecting the basis for Dr. Golub’s Motion Raising Preliminary Objection and Motion Ne Recipiatur.

In a separate order filed the same day, Judge Ward denied Dr. Golub’s Motion to Vacate Award. A jury trial was conducted in the Circuit Court for Baltimore City (John N. Maguire, J., presiding) on November 4 and 5, 1985. Dr. Golub again admitted liability at the trial, but he presented an expert who testified on the issues of causation and damages. The jury returned a verdict of $150,000 in favor of Mrs. Spivey.

Dr. Golub presents three questions for our consideration: I. Whether the Circuit Court erred in denying Dr. Golub’s preliminary defenses to the declaration when the declaration was not timely filed in accordance with the Health Care Malpractice Claims Act and the Maryland Rules of Procedure?

II

Whether the Circuit Court erred in denying Dr. Golub’s Motion to Vacate Award in the face of improprieties in the arbitration proceeding?

III

Whether the Circuit Court erred in permitting prejudicial cross-examination of Dr. Golub’s expert witness? I. Under the Health Care Malpractice Claims Act, a party who is dissatisfied with an arbitration panel’s award may reject the award and institute an action in court. In order to do so, the rejecting party must comply with certain procedures set forth in § 3-2A-06. The first requirement, which must be completed within 30 days after the award has been served upon the rejecting party (or within 10 days after disposition of an application to modify the award, whichever is greater), is the filing of a notice of rejection of the award with the Director of the HCAO and the arbitration panel. § 3-2A-06(a).

At or before the time specified ¹⁵⁴ for filing of the notice of rejection, the rejecting party must also file notice of an action to nullify the award with the clerk of a circuit court. § 3-2A-06(b)(l); Rule BY2 a. That notice should “identify the award and state that it is being rejected by the party filing the notice.” Rule BY2 a. Copies of the notice of rejection and the notice of an action to nullify must be mailed to the other parties to the arbitration proceeding or their counsel. § 3-2A-06(a); Rule BY2 b. Both the Court of Appeals and this Court have recognized the mandatory nature of the statutory procedures for instituting a court action to review a health claims arbitration award.

E.g., Cherry v. Brothers, 306 Md. 84, 88 , 507 A.2d 613 (1986); Tranen v. Aziz, 304 Md. 605, 614 , 500 A.2d 636 (1985); Osheroff v. Chestnut Lodge, 62 Md.App. 519, 524-25 , 490 A.2d 720 , cert. denied, 304 Md. 163 , 497 A.2d 1163 (1985); Tranen v. Aziz, 59 Md.App. 528, 534-35 , 476 A.2d 1170 (1984), aff'd, 304 Md. 605 , 500 A.2d 636 (1985). Compliance with the procedures set forth in § 3-2A-06 has been held to be a condition precedent to maintenance of a court action. Tranen v. Aziz, supra, 304 Md. at 614 , 500 A.2d 636 ; Osheroff v. Chestnut Lodge, supra, 62 Md.App. at 525 , 490 A.2d 720 . The Court of Appeals discussed those procedures in Tranen v. Aziz, supra, 304 Md. at 612 , 500 A.2d 636 : Both the notice of rejection provision (“notice of rejection must be filed,” § 3-2A-06(a) (emphasis supplied)) as well as the action to nullify provision (“the party rejecting the award shall file an action in court to nullify the award,” § 3-2A-06(b) (emphasis supplied)) are posed in imperative terms.

More important, the statutory context of these directives plainly shows that compliance with them is mandatory and that noncompliance mandates dismissal. The purpose of the legislative scheme is clear upon careful analysis. The notice of rejection serves as the final step in the arbitration procedure by which the award may be held non-binding and the claim held open for judicial resolution. The action to nullify, on the other ¹⁵⁵ hand, is the exclusive step by which the aggrieved party may initiate proceedings in court.

Once the aggrieved party files notice of an action to nullify in a circuit court, subsequent proceedings are governed by the Maryland Rules. § 3-2A-06(b)(l); Osheroff v. Chestnut Lodge, supra, 62 Md.App. at 523 , 490 A.2d 720 . Rule BY4 a.l. states that “the plaintiff shall file and serve a declaration” within 30 days after notice of the action to nullify is filed. Rule BY3 designates the parties: “The party making the claim against the health care provider shall be the plaintiff in the action and the health care provider shall be the defendant.” Thus, in this case Mrs. Spivey was responsible for filing a declaration in court even though Dr. Golub rejected the arbitration award and sought to have it nullified. Dr. Golub maintains that Mrs. Spivey’s failure to file her declaration within the 30-day period prescribed by Rule BY4 a.l. requires dismissal of the court action and automatic nullification of the arbitration award regardless of the circumstances.

We disagree. We believe that where a claimant who is not the aggrieved party fails to file a declaration in a timely manner, the trial judge is vested with discretion to excuse that violation of the rule if the circumstances surrounding the claimant’s noncompliance with the time limit justify that action. The 30-day limit for filing a declaration does not appear in the provisions of the Health Care Malpractice Claims Act; rather, it appears in Rule BY4, which comes into play only after notice of an action to nullify has been filed in a circuit court. This Court has observed: [T]he statute is strictly construed so as to effectuate the legislative purpose of screening malpractice claims before they reach the courts.

Upon completion of the arbitration process and the filing of the correct and timely notice of rejection with the parties and court, the statutory screening process is terminated. All further proceedings are conducted in court and regulated, as are all other civil ¹⁵⁶ cases, by the Maryland Rules. Although judicial review of the HCAO actions might be regarded as a continuation of the arbitration proceeding, it is not. Rather, it is a new, separate, and distinct proceeding.

It is litigation. Osheroff v. Chestnut Lodge, supra, 62 Md.App. at 525 , 490 A.2d 720 (emphasis in original), quoted in Wyndham v. Haines, 305 Md. 269, 276 , 503 A.2d 719 (1986). Thus, we will be guided in our analysis of the effect of the rule violation in the instant case by the construction previously placed upon noncompliance with other rules prescribing time limits for the litigation process. First, we note that Rule BY4 a.l., even though couched in mandatory language (“Within 30 days ... the plaintiff shall file ... a declaration.”), does not indicate what sanction is to be applied in the event of noncompliance.

A similar problem was presented in People’s Counsel v. Public Service Comm’n, 52 Md.App. 715 , 451 A.2d 945 (1982), cert. denied, 295 Md. 441 (1983), where the People’s Counsel failed to file a memorandum of law within the 30-day period prescribed by Rule B12, governing appeals from administrative agencies. We there stated: In some instances, the applicable rules either require or expressly permit an extreme sanction for violation of the procedural requirements which they or other rules establish. See, for example, Maryland Rules 835, 1035, B5. In other cases, the rules provide either no specific sanction or offer a range of alternative