Lockshin v. Semsker

HARRELL, Judge. The Circuit Court for Montgomery County held in this litigation, among other things, that the plain meaning of Md.Code, Courts & Judicial Proceedings Article 1 § 3-2A- ²⁶³ 09(a) (1974, 2006 RepLVol), which states that the monetary cap on non-economic damages for health care malpractice claims appearing in § 8-2A-09(b) applies “to an award under § 3-2A-05 of this subtitle or a verdict under § 3-2A-06 of this subtitle,” is that the cap is inapplicable to claims for which arbitration is waived pursuant to §§ 3-2A-06A or 3-2A-06B. The latter provisions provide the procedures for mutual and unilateral waiver of arbitration, respectively. Appellants/Cross-Petitioners (Norman A. Lockshin, M.D., P.A., and Dr. Michael Albert) urge this Court to reach a different conclusion under the plain meaning of the statute or, alternatively, to find ambiguity in the language of § 3-2A-09(a) and to examine the legislative history of the statute, which they maintain supports the conclusion that the General Assembly intended the non-economic damages cap to apply to all health care malpractice claims, not just those that are arbitrated.

Appellees/Petitioners (the Estate of Richard H. Semsker, Barbara S. Semsker, Meryl Semsker, ancl Julia Semsker), on the other hand, maintain that the Circuit Court correctly determined the plain meaning of § 3-2A-09(a). For reasons we shall explain, although we agree with the Circuit Court’s conclusion that the language in § 3-2A-09(a) is plain, unlike the Circuit Court, we hold that the plain meaning of that language provides that the cap on non-economic damages applies to all health care malpractice claims, including those, like the present case, for which arbitration has been waived under § 3-2A-06B. I. The Statutory Scheme Governing Health Care Malpractice Claims As it illuminates and informs our later analysis, it is desirable to frame early in this opinion the relevant statutory scheme in which the question at hand is enmeshed. Subtitle 3-2A of the Courts and Judicial Proceedings Article governs nearly all claims brought by plaintiffs against health care providers for medical injuries alleged to have been suffered by the plaintiffs at the hands of the providers. § 3-2A-02(a)(1).

The subtitle establishes the Health Care Alternative ²⁶⁴ Dispute Resolution Office (the “HCADRO”) and empowers it to create panels consisting of attorneys, health care providers, and members of the public to serve, prior to litigation, as arbiters of health care malpractice claims. §§ 3-2A-03 (a) and (c). Under this arbitration scheme, a plaintiff must file initially his or her claim, along with a certificate of a qualified expert attesting to the alleged departure by the defendant(s) from standards of care and causation of the plaintiffs injury by such departure, with the Director of the HCADRO, who then refers the claim to an arbitration panel. §§ 3-2A-04(a)(1)®, -04(b)(1)®, and -05(a)(1). The arbitration panel reviews pertinent documents, takes testimony from the parties and their respective experts, determines the liability of the defendant or defendants, if any, 2 assesses costs of the arbitration, and issues an award. § 3-2A-05(b)-(f). Following the panel’s award determination, any party may apply to the arbitration panel to modify or correct its award as to liability, damages, or costs. § 3-2A-05(h).

Under § 3-2A-06(a), a party “may reject an award or the assessment of costs under an award for any reason” by notifying the Director, the arbitration panel, and the other parties to the dispute, and by filing an action in the Circuit Court to nullify the award or assessment of costs. §§ 3-2A-06(a) and (b)(1). Upon proper rejection of the arbitration ²⁶⁵ panel’s award, any party may elect to have the case tried by a jury in the Circuit Court; if no party elects timely a trial by jury, the case is heard before a judge. § 3-2A-06(b)(2). At the close of the trial and upon timely request, the trier of fact “shall by special verdict or specific findings itemize by category and amount any damages assessed for incurred medical expenses, rehabilitation costs, and loss of earnings.” § 3-2A-06(f)(l). 3 The special verdict shall itemize separately any damages for any future expenses, costs, and losses. Id.

If a verdict includes any such itemized damages for expenses, costs, and losses, “a party may object to the damages as ²⁶⁶ excessive on the ground that the plaintiff has been or will be paid, reimbursed, or indemnified to the extent and subject to the limits stated in § 3-2A-05(h)----” 4 Id. If, after reception of evidence on the objection at a hearing, the court finds that the damages are excessive on the grounds stated in § 3-2A-05(h), it may grant a new trial as to such damages or may deny a new trial if the plaintiff agrees to a remittur of the excess. § 3-2A-06(f)(3)(i). ²⁶⁷ The arbitration process, however, may be avoided in the main. Under § 3-2A-06A, at any time prior to the hearing of a claim by the HCADRO, the parties “may agree mutually to waive arbitration of the claim.” § 3-2A-06A(a). If the parties so agree, “the provisions of [§ 3-2A-06A] then shall govern all further proceedings on the claim.” Id.

Where a case is subject to the provisions of § 3-2A-06A based on mutual waiver of arbitration, the statute provides that “the procedures of § 3-2A-06(f) of this subtitle shall apply.” § 3-2A-06A(e). In addition to mutual waiver under § 3-2A-06A, arbitration of a claim through the HCADRO “may be waived by the claimant or any defendant in accordance with” § 3-2A-06B after the filing of the certificate of qualified expert required by § 3-2A-04(b). §§ 3-2A-06B(a) and (b)(1). If arbitration is waived unilaterally in this fashion, “the provisions of [§ 3-2A-06B] shall govern all further proceedings on any claim .... ” § 3-2A-06B(a). As with mutual waiver of arbitration under § 3-2A-06A, where a case is waived unilaterally out of arbitration, the statute provides that “the procedures of § 3-2A-06(f) of this subtitle shall apply.” § 3-2A-06B(h).

Of particular importance to the present case, § 3-2A-09, entitled “Limitation of noneconomic damages,” provides a cap on non-economic damages applicable “to an award under § 3-2A-05 of this subtitle or a verdict under § 3-2A-06 of this subtitle for a cause of action arising on or after January 1, 2005.” § 3-2A-09(a). Subsection (b) establishes the amount of the cap, stating that “an award or verdict under this subtitle for noneconomic damages for a cause of action arising between January 1, 2005, and December 31, 2008, inclusive, may not exceed $650,000.” § 3-2A-09(b)(l)(i). The limitation on non-economic damages contained in § 3-2A-09(b)(l)(i) increases by $15,000 yearly, beginning on 1 January 2009. § 3-2A-09(b)(l)(ii). In general, the cap applies “in the aggregate to all claims for personal injury and wrongful death arising from the same medical injury, regardless of the number of claims, claimants, plaintiffs, beneficiaries, or defendants.” § 3-2A-09(b)(2)(i).

The statute further provides that, where ²⁶⁸ “there is a wrongful death action in which there are two or more claimants or beneficiaries, whether or not there is a personal injury action arising from the same medical injury, the total amount awarded for noneconomic damages for all actions may not exceed 125% of the limitation established under paragraph (1) of this subsection, regardless of the number of claims, claimants, plaintiffs, beneficiaries, or defendants.” § 3-2A-09(b)(2)(ii). Regarding the limitation on non-economic damages, § 3-2A-09 states that a jury “may not be informed of the limitation under” § 3-2A-09(b). § 3-2A-09(c)(l). If the jury awards an amount for non-economic damages exceeding the limitation, the statute provides that “the court shall reduce the amount to conform to the limitation.” § 3-2A-09(c)(2). In a case in which there is a personal injury action and a wrongful death action, “if the total amount awarded by the jury for noneconomic damages for both actions exceeds the limitation under [§ 3-2A-09(b)], the court shall reduce the award in each action proportionately so that the total award for noneconomic damages for both actions conforms to the limitation.” § 3-2A-09(c)(4).

Lastly, § 3-2A~09(d) provides that a “verdict for past medical expenses shall be limited to: (i) [t]he total amount of past medical expenses paid by or on behalf of the plaintiff; and (ii) [t]he total amount of past medical expenses incurred but not paid by or on behalf of the plaintiff for which the plaintiff or another person on behalf of the plaintiff is obligated to pay.” § 3-2A-09(d)(l).

II

The Present Case In late 1998, Richard H. Semsker, a 44-year-old Rockville attorney, visited the dermatology offices of Norman A. Lock-shin, M.D., P.A. (“Lockshin, P.A.”), a medical group operating under the trade name Derm Associates, P.C., in Silver Spring, upon referral from his internist, Dr. Lawrence Marcus. Semsker was seen by Dr. Norman A. Lockshin, who removed a cyst and wrote to Dr. Marcus that Semsker had a dark brown 6 millimeter nevus 5 on his back that should be excised. ²⁶⁹ According to Semsker, neither Dr. Marcus nor Dr. Lockshin informed him of the presence of the nevus. In September 2004, Semsker returned to Lockshin, P.A. to have cysts on his upper back examined and to undergo a full body skin check.

He was examined by Dr. Michael Albert, a dermatologist employed by Lockshin, P.A., who documented two benign cysts, an atypical nevus on Semsker’s upper right back, and a 1.3 centimeter congenital nevus on his lower back (the same nevus that had grown from 6 millimeters when Dr. Lockshin examined it in 1998). Dr. Albert recommended removal of the cysts and the atypical nevus, but recommended only regular monitoring of the congenital nevus, rather than its removal. As recommended, the upper-back cysts and atypical nevus were removed. On 3 August 2006, shortly after Semsker’s wife, Barbara, noticed that the nevus Dr. Albert had not recommended be removed had changed color, Semsker returned to Lockshin, P.A., where the nevus was excised by Dr. Benjamin Lockshin.

Shortly afterward, it was determined that the nevus had turned into a malignant melanoma which had metastasized to dozens of lymph nodes in Semsker’s groin and lower abdomen. Radiation and other treatment failed to halt further metastasis. On 30 March 2007, Semsker and his wife filed with the Director of the HCADRO a claim under § 3-2A-04(a)(l)(i) for medical malpractice against Dr. Albert (Semsker’s dermatologist); Lockshin, P.A. under its business name Derm Associates, P.C. (Dr. Albert’s employer); Dr. Norman Lockshin; Dr. Kendall Hash (another employee of Lockshin, P.A.); and Dr. Marcus (Semsker’s internist), alleging misdiagnosis of his cancer.

Mr. and Mrs. Semsker elected to waive arbitration pursuant to § 3-2A~06B(b)(l) on 19 June 2007, and, one day later, filed in the Circuit Court for Montgomery County a complaint for medical malpractice. In the plaintiffs’ Joint Pretrial Statement and a Supplement thereto, it was stipulated that they were claiming “the maximum allowable” under the non-economic damages cap, “which is $812,500.” 6 ²⁷⁰ On 15 October 2007, while the case was pending in the Circuit Court, Semsker passed away due to his cancer. On 19 December 2007, Mrs. Semsker filed a Second Amended Complaint, converting the case to a wrongful death and survival action on behalf of Semsker’s estate (for which she is the personal representative) and adding the Semskers’ two adult daughters, Meryl and Julia Semsker, as plaintiffs. Prior to trial, the remaining Semskers dismissed voluntarily and with prejudice all claims against Dr. Hash.

The trial was conducted before a jury beginning on 3 November 2008. At trial, the. Semskers introduced, without objection, evidence of $415,781 in incurred medical expenses. 7 On the final day of trial, following the conclusion of the evidence, the Semskers reached a joint tortfeasor settlement with Dr. Marcus in the amount of $1 million and granted Dr. Marcus a standard non-Swigert joint tortfeasor release. 8 The purpose of the joint tortfeasor release was to provide an automatic credit to any non-settling defendants who were held liable ultimately to the Semskers in the present case, thus protecting Dr. Marcus from all future claims against him for contribution from non-settling joint tortfeasors. The release described the credit as “an automatic reduction of any future verdict or judgment against any non-settling tortfeasor” of “all ²⁷¹ damages ... recoverable” by the Semskers “to the extent of the pro rata share[ ] of [Dr. Marcus] or pro tanto, whichever is greater.” On 14 November 2008, the jury returned a special verdict in favor of the Semskers, finding Dr. Albert liable individually for medical malpractice.

In its verdict, the jury awarded the Semskers $5,805,000 in compensatory damages, which included a total of $3 million in non-economic damages, allocated as follows: $1 million to Semsker’s estate, $1 million to Mrs. Semsker, and $500,000 to each of the Semskers’ daughters. 9 The verdict was applied by stipulation to Dr. Albert’s employer, Lockshin, P.A., on a respondeat superior basis. 10 On 18 November 2008, the Semskers moved the Circuit Court for entry of judgment on the entire jury verdict, specifically requesting that the court not apply the § 3-2A-09 cap on non-economic damages. The court entered judgment on the jury verdict on 19 November 2008. Subsequently, the defendants found liable by the jury, Dr. Albert and Lockshin, P.A. (collectively “the Physicians”), urged the court in a timely motion to apply the cap on non-economic damages contained in § 3-2A-09(b) to the verdict, to reduce the award for past medical expenses to account for those expenses that had been written off, and to conform the verdict to the evidence.

The court, in that moment being of the view that the cap on non-economic damages applied to the case, reduced the cumulative non-economic damages by the sum of $2,177,500, ie., from $3 million to a total of $812,500, the cap limit for non-economic damages in wrongful death health care malpractice cases with multiple claimants, and entered revised judgments on that amount on 26 November 2008. 11 The court also reduced the ²⁷² award for past medical expenses from $500,000 to $415,871 in order to conform to the evidence presented at trial. The Semskers moved the Circuit Court, on 1 December 2008, to alter or amend the judgment, arguing that the cap on non-economic damages did not apply to unarbitrated claims. The Physicians filed motions requesting a new trial, remittur, and revision of the judgments based on application of the pro rata reduction called for by the release between the Semskers and Dr. Marcus. On' 20 April 2009, the Circuit Court issued an order and opinion holding that, under the purportedly clear language of § 3-2A-09(a), the cap on non-economic damages contained in § 3-2A-09 did not apply to the present case because it involved an unarbitrated claim, denying the Physicians’ motion for á new trial or remittur, and revising the judgment to reflect Dr. Marcus’s pro rata joint tortfeasor contribution.

In addition, the court, assuming hypothetically that the cap applied to unarbitrated claims, held that any pro rata reduction based on the joint tortfeasor settlement should be calculated prior to application of the cap, and that the Semskers could recover for past medical expenses that had been written off by Mr. Semsker’s health care providers due to the Physicians’ failure to adduce at trial any evidence of such “write-offs.” On 24 April 2009, the Circuit Court entered four judgments 12 in favor of the Semskers, in accordance with its 20 April order and opinion, effectively reinstating the amount of the award granted by the jury in its special verdict. 13 The Semskers and the Physicians petitioned this Court for a writ of certiorari, prior to final action on an appeal to the ²⁷³ Court of Special Appeals. We granted their petitions, 409 Md. 413 , 975 A,2d 875 (2009), to consider the following questions: (1) Whether the Circuit Court erred in holding that the cap on non-economic damages in health care malpractice claims contained in § 3-2A-09 does not apply to health care malpractice claims in which arbitration has been waived under §§ 3-2A-06A or 3-2A-06B? (2) Whether the Circuit Court erred in holding that, if the cap does apply to claims in which arbitration has been waived, the court should apply a pro rata joint tortfeasor reduction prior to applying the limitation on non-economic damages? (3) Whether the Circuit Court erred in holding that § 3-2A-09(d)(l) does not mandate a reduction of the verdict to exclude past medical expenses that were not, and will not be paid by or on behalf of, the patient, where the Physicians failed to offer evidence of those expenses at trial?

As the issues are solely questions of statutory interpretation, and, thus, questions of law, our review is non-deferential. See Harvey v. Marshall, 389 Md. 243, 257 , 884 A.2d 1171, 1179 (2005); Davis v. Slater, 383 Md. 599, 604 , 861 A.2d 78, 80-81 (2004); Liverpool v. Baltimore Diamond Exchange, Inc., 369 Md. 304, 310 , 799 A.2d 1264, 1267 (2002).

III

Applicability of the Cap to Unarbitrated Health Care Malpractice Claims Basing its decision on what it believed to be the plain meaning of § 3-2A-09(a), the Circuit Court held that the non-economic damages cap of § 3-2A-09 did not apply to the present unarbitrated case because § 3-2A-09(a), which states that the cap is applicable to awards under § 3-2A-05 and verdicts under § 3-2A-06, makes no reference to §§ 3-2A-06A or 3-2A-06B, the “separate and distinct” sections governing waiver of arbitration. Although finding the language in § 3-2A-09(a) plain in its meaning, the trial court nevertheless reviewed the purpose and legislative history of § 3-2A-09(a), concluding (1) that its interpretation of § 3-2A-09(a) did not ²⁷⁴ conflict with the statute’s purpose paragraph 14 because the statute as interpreted “does impose a single restriction on awards applicable to both wrongful death and survival actions in certain medical malpractice claims,” and (2) that applying the cap to unarbitrated claims would “essentially reinstate the language of § 3-2A-09 that was specifically deleted and amended by the General Assembly when it enacted the final version of the bill.” 15 We agree with the Circuit Court that the language of § 3-2A-09(a) is pláin. For reasons we shall explain, however, we disagree as to the plain meaning of that language and hold that the plain meaning of the reference in § 3-2A-09(a) to “a verdict under § 3-2A-06” includes verdicts in cases that arrive in a Maryland courthouse following a waiver of arbitration pursuant to §§ 3-2A-06A or 3-2A-06B. A. Pertinent Principles of Sound Statutory Construction The cardinal rule of statutory interpretation is to ascertain and effectuate the real and actual intent of the Legislature.

Bd. of Educ. v. Zimmer-Rubert, 409 Md. 200, 214 , 973 A.2d 233, 241 (2009); In re Najasha B., 409 Md. 20, 27 , 972 A.2d 845, 849 (2009). A court’s primary goal in interpreting statutory language is to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by the statutory provision under scrutiny. Anderson v. Council of Unit Owners, 404 Md. 560, 571 , 948 ²⁷⁵ A.2d 11, 18 (2008); People’s Ins. Counsel Div. v. Allstate Ins.

Co., 408 Md. 336, 351 , 969 A.2d 971, 979-80 (2009); Barbre v. Pope, 402 Md. 157, 172 , 935 A.2d 699, 708 (2007); Dep’t of Health & Mental Hygiene v. Kelly, 397 Md. 399, 419-20 , 918 A.2d 470, 482 (2007); Gen. Motors Corp. v. Seay, 388 Md. 341, 352 , 879 A.2d 1049, 1055 (2005). To ascertain the intent of the General Assembly, we begin with the normal, plain meaning of the language of the statute. Zimmer-Rubert, 409 Md. at 214 , 973 A.2d at 241 ; Allstate, 408 Md. at 351 , 969 A.2d at 980 ; Anderson, 404 Md. at 571 , 948 A.2d at 18 ; Allen v. State, 402 Md. 59, 76 , 935 A.2d 421, 431 (2007); Barbre, 402 Md. at 172 , 935 A.2d at 708 ; Kelly, 397 Md. at 420 , 918 A.2d at 482 .

If the language of the statute is unambiguous and clearly consistent with the statute’s apparent purpose, our inquiry as to legislative intent ends ordinarily and we apply the statute as written, without resort to other rules of construction. Zimmer-Rubert, 409 Md. at 214-15 , 973 A.2d at 241-42 ; In re Najasha, B., 409 Md. at 27, 972 A.2d at 849 ; Allstate, 408 Md. at 351 , 969 A.2d at 980 ; Anderson, 404 Md. at 572 , 948 A.2d at 19 ; Barbre, 402 Md. at 174 , 935 A.2d at 708-09 ; Kelly, 397 Md. at 419 , 918 A.2d at 482 . We neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute, and we do not construe a statute with “forced or subtle interpretations” that limit or extend its application. Lonaconing Trap Club, Inc. v. Dep’t of Env’t, 410 Md. 326, 339 , 978 A.2d 702, 709 (2009); Liverpool, 369 Md. at 316-17 , 799 A.2d at 1271 (2002); Curran v. Price, 334 Md. 149, 172 , 638 A.2d 93, 105 (1994); Amal.

Cas. Ins. Co. v. Helms, 239 Md. 529, 535 , 212 A.2d 311, 316 (1965). We, however, do not read statutory language in a vacuum, nor do we confíne strictly our interpretation of a statute’s plain language to the isolated section alone.

Anderson, 404 Md. at 572 , 948 A.2d at 19 ; Drew v. First Guar. Mori. Corp., 379 Md. 318, 327 , 842 A.2d 1, 6 (2003); Blondell v. Balt. City Police Dep’t, 341 Md. 680, 691 , 672 A.2d 639, 645 (1996); Comptroller v. John C. Louis Co., 285 Md. ²⁷⁶ 527, 538, 404 A.2d 1045, 1052-53 (1979).

Rather, the plain language must be viewed within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute. Anderson, 404 Md. at 572 , 948 A.2d at 19 ; Comptroller v. Phillips, 384 Md. 583, 591 , 865 A.2d 590, 594 (2005); Harvey, 389 Md. at 290 , 884 A.2d at 1199 ; Blondell, 341 Md. at 691 , 672 A.2d at 645 . We presume that the Legislature intends its enactments to operate together as a consistent and harmonious body of law, and, thus, we seek to reconcile and harmonize the parts of a statute, to the extent possible consistent with the statute’s object and scope. Harvey, 389 Md. at 290 , 884 A.2d at 1199 ; Liverpool, 369 Md. at 316-17 , 799 A.2d at 1271 ; Curran, 334 Md. at 172 , 638 A.2d at 104 ; John C. Louis Co., 285 Md. at 538-39 , 404 A.2d at 1053 .

Where the words of a statute are ambiguous and subject to more than one reasonable interpretation, or where the words are clear and unambiguous when viewed in isolation, but become ambiguous when read as part of a larger statutory scheme, a court must resolve the ambiguity by searching for legislative intent in other indicia, including the history of the legislation or other relevant sources intrinsic and extrinsic to the legislative process. In re Najasha B., 409 Md. at 27, 972 A.2d at 849 ; Allstate, 408 Md. at 351 , 969 A.2d at 979-80 ; Anderson, 404 Md. at 572 , 948 A.2d at 19 ; Barbre, 402 Md. at 173 , 935 A.2d at 709 ; Kelly, 397 Md. at 419-20 , 918 A.2d at 482 . In resolving ambiguities, a court considers the structure of the statute, how it relates to other laws, its general purpose, and the relative rationality and legal effect of various competing constructions. In re Najasha B., 409 Md. at 27, 972 A.2d at 849 ; Liverpool, 369 Md. at 316-17 , 799 A.2d at 1271 ; Chesapeake Charter, Inc. v. Bd. of Educ., 358 Md. 129, 135 , 747 A.2d 625, 628 (2000); Curran, 334 Md. at 172 , 638 A.2d at 104 .

In every case, the statute must be given a reasonable interpretation, not one that is absurd, illogical, or incompatible with common sense. Zimmer-Rubert, 409 Md. at 214 , 973 ²⁷⁷ A.2d at 241; Anderson, 404 Md. at 571 , 948 A.2d at 18 ; Barbre, 402 Md. at 172 , 935 A.2d at 708 . B. What is the Plain Meaning of § 3-2A-09(a)? Section 3~2A-Q9(a) provides that the non-economic damages cap for health care malpractice claims is applicable “to an award under § 3- -2A 05 of this subtitle or a verdict under § 3-2A-06 of this subtitle.” § 3-2A~09(a).

Subsection (a) makes no mention of § 3-2A-06A or § 3--2A-06B, the sections governing the procedures for waiving arbitration. The Semskers contend, and the Circuit Court found, that the omission of such mention from subsection (a) of the arbitration provisions of §§ 3-2A-Q6A and 3-2A-06B must mean that, where arbitration has been waived, the cap on non-economic damages does not apply. They are mistaken. A health care malpractice claim may arrive in a Maryland circuit court in four distinct ways.

First, the claim may be fully arbitrated under the procedures of § 3-2A-05 and require nothing more from the court than confirmation of the award. § 3-2A-05. Alternatively, under § 3-2A-06, the claim may proceed through the arbitration procedures of § 3-2A-05, the award may be rejected by one of the parties in accordance with § 3-2A-06(a), and the rejecting party may file an action in a circuit court to nullify the award and proceed to trial. §§ 3-2A-Q6(a) and (b). The third and fourth avenues into court for a health care malpractice claim are through waiver of arbitration under §§ 3-2A-06A or 3-2A-06B, either mutually by both sides or unilaterally by the plaintiff or any defendant, respectively, and the filing of a claim in a circuit court. It is obvious that a claim following the first path, full arbitration under § 3-2A-05, will result in “an award under § 3-2A-05 of this subtitle,” and the cap on non-economic damages contained in § 3-2A-09 will apply.

It is equally clear and undisputed that, where an arbitration award issues and a party rejects the award under § 3~2A~06(a), electing instead to proceed to trial on the claim, the resulting verdict ²⁷⁸ constitutes “a verdict under § 3-2A-06” and the cap is applicable. The question we must resolve in this case is whether the reference in § 3-2A-09(a) to “a verdict under § 3-2A-06 of this subtitle” encompasses resultant verdicts reached via the other two avenues for resolution of health care malpractice claims, namely, those resulting from cases that arrive in court following either mutual or unilateral waiver of arbitration under §§ 3-2A-06A or 3-2A-06B, respectively. Sections 3-2A-06A and 3-2A-06B address solely the procedures for waiving arbitration in health care malpractice claims. Due to their limited scope in outlining the procedures for waiving arbitration, the sections make no mention of verdicts, nor do they address court procedures following waiver of arbitration.

Both sections, however, provide explicitly that, “[i]n any case subject to this section, the procedures of § 3-2A-06(f) of this subtitle shall apply.” §§ 3-2A-06A(e) and 3-2A-06B(h). Thus, where a case has been waived properly out of arbitration under §§ 3-2A-06A or 3-2A-06B and proceeds to trial in a circuit court, the claim is subject to the procedures of § 3-2A-06(f), which provides for itemization of the jury’s verdict into specific categories, the filing of an objection to the jury’s verdict based on its excessive nature, and the court’s consideration and resolution of any objection. § 3-2A-06(f). It is clear that, if a verdict is returned under the procedures of § 3-2A-06(f), it constitutes “a verdict under § 3-2A-06 of this subtitle.” Despite the Circuit Court’s reasoning and the Semskers’ argument that the verdict obtained in the present case was “a verdict under § 3-2A-06B,” there can be no such verdict; where arbitration is waived, according to the specific commands of §§ 3-2A-06A(e) and 3-2A-06B(h), the only verdict in a health care malpractice case is one obtained in accordance with the procedures of § 3-2A-06(f) and, thus, “a verdict under § 3-2A-06 of this subtitle.” Regardless of whether the verdict