McClurkin v. Maldonado

COUCH, Judge. This appeal arises from the litigation of a medical malpractice claim under the Health Care Malpractice Claims Act, Maryland Code (1974, 1984 Repl.Vol.), Courts & Judicial Proceedings Article, Title 3, Subtitle 2A, before the Health Claims Arbitration Office (HCAO). We granted certiorari to determine whether a panel chairman, acting alone and before a panel was appointed, may dismiss a claim for failure to comply with a discovery order. ²²⁷ I The Facts On July 6, 1983, Josepha McClurkin, the appellant, filed a claim with the director of the HCAO against Dr. Ciro A. Montanez and Dr. Benjamin Maldonado, Jr., the appellees. § S-^A-lMia). 1 Both doctors filed timely responses pursuant to § 3-2A-04(a) and they filed, at the same time, requests for discovery. § 3-2A-05(b)(2). A panel chairman, attorney Joseph Carey, was selected under the procedure contained in § 3-2A-04(b), (c), and (d). 2 In December of 1983, when McClurkin had not responded to the discovery requests, both doctors filed motions to compel discovery under the authority of Md.Rule 422(a)(2) (now Rule 2-432(b)), which were granted by Mr. Carey.

Ms. McClurkin then moved for an extension of time to answer the discovery requests, and this, too, was granted. On March 2, 1984, discovery still was not completed. A motion to dismiss for failure to complete discovery was filed and on March 21, 1984, Mr. Carey, acting alone and before a panel was appointed, granted the motion; the claim was dismissed by him without prejudice. Because the order dismissing the case failed to include a disposition of costs, see § 3-2A-05(e), the Director of the HCAO returned the order to Mr. Carey.

On April 9, 1984, an order dismissing the claim was filed, directing Ms. McClurkin to pay the costs. On May 10, 1984, Ms. McClurkin filed a motion to reconsider, modify or vacate the panel ²²⁸ chairman’s order. Responses in opposition were filed by both doctors. On June 1, 1984, Ms. McClurkin finally answered the discovery requests of the doctors by filing a Response to the Request for Production of Documents, Answers to Interrogatories, Curriculum Vitae, and Medical Records.

On June 6, 1984, the panel chairman, again acting alone, filed an Opinion and Order denying Ms. McClurkin’s motion to vacate or reconsider, but no award was ever entered on the HCAO docket. On June 18, the Director of the HCAO informed Ms. McClurkin by letter that she had ten days to appeal from the panel chairman’s “Award.” In light of Mr. Carey’s ruling and the Director’s letter, Ms. McClurkin filed a notice of action in the Circuit Court for Prince George’s County to nullify the panel chairman’s order. She relied on § 3-2A-06(b). She also filed in that circuit court a motion to vacate the final decision or award by the chairman, see § 3-2A-06(c), arguing that the panel chairman had the authority to reconsider his order dismissing the claim.

Summary judgment motions were filed by the doctors alleging that McClurkin failed to fulfill a condition precedent to the circuit court action because she failed to submit her claim to non-binding arbitration before the HCAO. The matter came on for a hearing before Judge Jacob Levin and he granted the motions for summary judgment. Ms. McClurkin appealed this judgment to the Court of Special Appeals and pursuant to our own motion we issued certiorari in order to determine whether a panel chairman has the authority to dismiss a claim. McClurkin v. Maldonado, 303 Md. 20 , 491 A.2d 586 (1985).

II The Issue The issues presented by the parties focus on the panel chairman’s authority to reconsider his dismissal of the claim. We perceive the issue to be more elementary: ²²⁹ “Whether the panel chairman, acting alone and before a panel was appointed, has the authority to dismiss a claim for failure to comply with a discovery order.” If the answer to this question is “No,” then there was no award in the arbitration proceeding and the circuit court should not have proceeded. Rather, it should have noticed any such defect on its own motion. We have made it clear that the Act “creates a condition precedent to the institution of a court action____” Oxtoby v. McGowan, 294 Md. 83, 91 , 447 A.2d 860, 865 (1982), citing Attorney General v. Johnson, 282 Md. 274, 283-84 , 385 A.2d 57, 63 , appeal dismissed, 439 U.S. 805 , 99 S.Ct. 60 , 58 L.Ed.2d 97 (1978).

There we said: “While an arbitration panel operating under the Act is not an administrative agency, ... the legislative mandate that the arbitration procedure under the Act be followed as a precondition to invoking the general jurisdiction of a court is analogous to the doctrine of exhaustion of administrative remedies. Where the General Assembly has provided a special form of remedy and has established a statutory procedure before an administrative agency for a special kind of case, a litigant must ordinarily pursue that form of remedy and not bypass the administrative official____ So strong is this public policy that this Court will, sua sponte, vacate judgment and order an action dismissed where the litigants have not followed the special statutory procedure____ The public policy embodied in the Act is equally as strong as the public policy involved in the legislative creation of administrative procedures to be followed prior to invoking judicial review of agency action____ Compliance with the Act’s precondition to court suit may not be avoided by express agreement of the parties or by mere oversight, at least prior to final judgment and final determination of all direct appeals.” Oxtoby, supra, 294 Md. at 91-92 , 447 A.2d at 865 (citations omitted). Thus we can review whether the panel chairman acted within his authority in ordering the dismissal of the ²³⁰ claim regardless of whether this issue was raised in and decided by the lower court. See Md.Rule 885.

Ill Chairman’s Authority At the time of the order of dismissal by the chairman, § 3-2A-05 of the Act stated in pertinent part: “(a) Issues to be referred by Director to panel. — All issues of fact and law raised by the claim and response shall be referred by the Director to the arbitration panel. (b) Application of other sections and Maryland Rules (2) Except for the provisions of Maryland Rule 400(a) relating to time for the completion of discovery, the provisions of Chapter 400 of the Maryland Rules (Depositions and Discovery) are applicable to proceedings under this subtitle. All discovery in any action under this subtitle shall be completed within 270 days from the date on which all defendants have been served. (c) Chairman of panel. — The attorney member of the panel shall be chairman and he shall decide all prehearing procedures including issues relating to discovery.

(f) Delivery of award to Director; service of copies. —The arbitration panel shall make its award and deliver it to the Director in writing within 1 year from the date on which all defendants have been served. The Director shall cause a copy of it to be served on each party. (h) Confirmation of award. — Subject to § 3-2A-06, the award of the panel shall be final and binding on the parties. After the time for either rejecting or modifying the award has expired the Director shall file a copy of the award with the circuit court having proper venue, as provided in Title 6, Subtitle 2 of this article and the court ²³¹ shall confirm the award.

Upon confirmation the award shall constitute a final judgment.” Appellees contend that the authority to dismiss as the sanction for a failure timely to produce information in discovery was conferred on the chairman, acting alone, by § 3-2A-05(c), under which the chairman “shall decide all prehearing procedures including issues relating to discovery.” Section 3-2A-05(b)(2) makes “applicable to proceedings” under the Act “the provisions of Chapter 400 of the Maryland Rules” (now Chapter 400, “Discovery,” of Title 2, “Civil Procedure-Circuit Court”). Former Md.Rule 422b provided that if a party failed to obey an order requiring him to provide discovery, “the court may make such orders in regard to the failure as are just,” including, in subsection (3), “[a]n order ... dismissing the action____” This incorporation of the discovery rules into the Act requires an analogy to be drawn between either the chairman or the entire panel under the Act and the circuit judge under the Rule. In our opinion, for purposes of exercising this power of dismissal at the time the chairman acted in the instant case, this analogy is to the entire panel, and not simply to the panel chairman. This is because such a dismissal from the arbitration process is an award.

The Court of Special Appeals has addressed whether a panel chairman, acting alone, has authority under the statutes set forth above to enter an award by way of a summary judgment on limitations grounds and has held that the chairman has no such authority. See Stifler v. Weiner, 62 Md.App. 19 , 488 A.2d 192 , cert. denied, 304 Md. 96 , 497 A.2d 819 (1985). There Judge Wilner explained for the court: “The health claims arbitration act was carefully crafted to provide a balanced decision-making tribunal. Unless, pursuant to § 3-2A-04(e), the parties agree on a single arbitrator, the panel must consist of three arbitrators: an attorney, a health care provider, and a member from the ²³² general public who is neither an attorney nor a health care provider. §§ 3-2A-03, 3-2A-04.

Section 3-2A-05(a) mandates that “[a ]ll issues of fact and law raised by the claim and response shall be referred by the Director to the arbitration panel.” (Emphasis added.) Section 3-2A-05(d) continues that “[t]he arbitration panel shall first determine the issue of liability with respect to a claim referred to it.” (Emphasis added.) See, in general, Attorney General v. Johnson, [supra ]. These provisions are clear beyond doubt. A claim submitted to arbitration is to be decided by the panel, not by the chairman. All issues of fact and law are to be referred to and decided by the panel.

Section 3-2A-05(c), permitting the chairman to decide “prehearing procedures including