Salvagno v. Frew

WILNER, J. This is a medical malpractice action arising from surgery performed on plaintiff, William Frew’s, right ankle. The claim, as it reached the Circuit Court for Washington County, was based solely on the alleged lack of informed consent. The claim had previously been dismissed by the Health Claims Arbitration Office (HCAO) because Frew had not identified an expert witness, presumably to testify as to what advice was required and whether the failure to give it constituted a departure from the applicable standard of care. 1 Frew treated the dismissal as an award for the defendants, rejected it, and filed a petition to nullify it and a Complaint. Though it made no prediction as to any likely success, the Circuit Court concluded that Frew could, if he wished, choose to rely on what he hoped would be favorable testimony from the defendant physician, so it nullified the HCAO award and set the case in for further judicial proceedings.

Although that ruling obviously did not constitute a final judgment in the matter, the defendants noted an appeal to the Court of Special Appeals, urging that the ruling was immediately appealable because it exceeded the subject matter jurisdiction of the Circuit Court. The intermediate appellate court accepted jurisdiction of the appeal, concluded that the Circuit Court ⁶⁰⁹ was correct in its substantive ruling, but decided that the case should be remanded to HCAO, rather than proceed in the Circuit Court. See Salvagno v. Frew, 158 Md.App. 315 , 857 A.2d 506 (2004). We shall vacate the judgment of the Court of Special Appeals.

The ruling of the Circuit Court was not immediately appealable. The intermediate appellate court should have dismissed the appeal as not allowed by law. BACKGROUND Maryland Code, § 3-2A-04 of the Cts. & Jud. Proc.

Article (CJP), requires a person who wishes to pursue a claim against a health care provider for damages due to medical injury to file the claim with the Director of HCAO. The scheme envisioned by that subtitle of the Code is that, subject to waiver by any party, settlement or abandonment by the claimant, or dismissal on procedural or other limited grounds, such a claim will be submitted to non-binding arbitration before a panel consisting of an attorney, a health care provider, and a person who is neither an attorney nor a health care provider. One of the pre-conditions to proceeding to arbitration, or waiver, is provided by CJP § 3-2A-04(b). That section requires that, unless the sole issue presented in the claim is the lack of informed consent, the claim is subject to dismissal without prejudice unless, within a certain time deadline or extensions thereto, the claimant files with the Director a certificate from a qualified expert that attests (1) to the defendant’s departure from standards of care, and (2) that the departure was the proximate cause of the alleged injury.

On March 16, 2000, Mr. Frew and his wife filed a claim with HCAO against three health care providers — Ralph T. Salvagno, Altizer-Salvagno Center for Joint Surgery at Robinwood, and Michael Fitzgerald. The only allegation in the Statement of Claim was that, on March 26, 1997, Dr. Salvagno performed an operative procedure on Frew, at which time a tourniquet was improperly applied, and that, as a result of the improper application of the tourniquet and the performance of the ⁶¹⁰ surgery, Frew sustained injuries to his right calf and right foot. The sole basis of the claim was negligence in performing the procedure and failing to follow up complaints of pain. No particular negligence was alleged against anyone other than Dr. Salvagno.

The initial claim contained two counts — one by Mr. Frew for negligence, and a loss of consortium claim by him and his wife. For convenience, we shall hereafter refer to the claimants collectively as Frew. In October, 2000, Frew filed an amended claim with HCAO, adding, as Count Three, a claim of lack of informed consent — that the defendants performed surgery on Mr. Frew’s right ankle without properly obtaining his informed consent and that, as a direct and proximate result, he was injured. Frew apparently had difficulty obtaining an expert’s certificate attesting to the defendants’ actionable negligence in the performance of the surgery, and, on or about June 6, 2001, after several extensions had been granted, the HCAO Director dismissed the negligence claim for failure to meet the requirement of CJP § 3-2A-04(b).

That left only the alleged lack of informed consent count and the pendent loss of consortium claim, as to which an expert’s certificate was not required. CJP § 3-2A-05(c) provides that the attorney member of the arbitration panel shall act as chair of the panel and shall decide all prehearing procedures, including issues relating to discovery and motions in limine. Section 3-2A-05(a)(l) requires that all issues of law be referred to the panel chair. On December 3, 2001, the panel chair issued a scheduling order that set a deadline of February 1, 2002 for Frew to name his expert witnesses.

The defendants were to name their expert witnesses by March 15, 2002, and June 21, 2002 was established as the end of discovery. The arbitration hearing was scheduled for July 22, 23, and 24, 2002. When Frew failed to name his expert witnesses by the February 1 deadline, the defendants filed a motion to dismiss the claim or, in the alternative, a motion for summary judgment. They argued in their motion that, under this Court’s ⁶¹¹ decision in Sard v. Hardy, 281 Md. 482 , 379 A.2d 1014 (1977), expert medical testimony was required in order to prove a claim based on lack of informed consent and that, without such a witness, Frew could not establish a prima facie case.

Frew responded that he had served certain interrogatories on Dr. Salvagno seeking information relevant to whether Frew might need an expert witness and that Salvagno had not provided sufficient information for him to make that determination. He added that, although he might eventually need an expert witness, the law did not require that “the experts need to be established at the cut-off of Plaintiffs designation.” 2 Frew asked for a 30-day extension to supply an expert witness designation but asserted that Salvagno’s “admissions” would suffice to establish the standard of care. That response was not persuasive to the panel chair, who, by Order dated April 18, 2002, dismissed without prejudice the lack of informed consent and loss of consortium claims because of Frew’s failure to designate an expert witness. The panel chair concluded, in relevant part: “In view of Sard [v. Hardy, supra], without an expert witness, the Claimants cannot make a prima facie case for lack of informed consent.

I find no merit in the Claimants argument that the Health Care Provider, Dr. Salvagno, should in essence be the Claimants’ expert witness. The cases cited in Claimants’ Memorandum in Support of Opposition to Motion for Summary Judgment would appear to indicate that an adverse party may be called as a witness ⁶¹² and interrogated on cross-examination both as to facts and as to expert opinion — in addition to- — -and not instead of— their own expert witness.” CJP § 3-2A-06(a) permits a party to reject an award for any reason. In order to do so, however, the rejecting party must, within 30 days after the award is served on the rejecting party or within 10 days after denial of a timely application for modification or correction of the award, (1) file a notice of rejection with the HCAO Director, and (2) file an action in court to nullify the award. Frew’s immediate response to the panel chair’s order was a motion for reconsideration, which, on May 16, was denied.

Frew filed a notice of rejection with the HCAO Director and a petition in the Circuit Court for Frederick County to nullify the award. He averred that he had a right to rely on the defendants’ admissions “as to the particulars of informed consent” and that the panel chair exceeded her authority in dismissing his claim. Accompanying the Petition to Nullify, in conformance with Maryland Rule 15-403, was a two-count Complaint that tracked the amended HCAO claim — Count I charging lack of informed consent and Count II being a loss of consortium claim — along with a request for jury trial. Five days later, Frew moved to transfer the action to the Circuit Court for Washington County, noting that the action was filed in Frederick County in the mistaken belief that Hagerstown was in that county and that proper venue lay in Washington County.

In the absence of any objection, the case was transferred pursuant to the request. The defendants moved to deny the Petition to Nullify and to dismiss the Complaint. In their response to the petition, they asserted that the panel chair did not exceed her authority. In their motion to dismiss, they averred that arbitration was a precondition to any court action and that, by failing to name an expert witness, Frew had effectively failed to arbitrate his claim.

In making that argument, they relied principally on Bailey v. Woel, 302 Md. 38 , 485 A.2d 265 (1984) and Watts v. King, 143 Md.App. 293 , 794 A.2d 723 (2002). ⁶¹³ After a non-evidentiary hearing, the Circuit Court, on May 12, 2003, filed an opinion and order granting Frew’s petition to nullify the award, vacating the panel chair’s order dismissing the claim, and denying the defendant’s motion to dismiss. The court concluded that, with a claim based solely on lack of informed consent, Frew was not required to produce a certificate from an expert and that Sard v. Hardy did not “impose a necessary requirement upon Plaintiffs to present expert testimony in order to meet their burden of proof as to the materiality of the risk from [Frew’s] perspective.” It held that the panel chair’s dismissal of the claim “with no opportunity to present the case, wras premature.” Accordingly, the court ordered that a scheduling conference be set by the Assignment Office, indicating thereby that the case would remain in the Circuit Court for further proceedings. The defendants noted an immediate appeal. Though tacitly recognizing that there was no final judgment in the case, they relied on Watts v. King, supra, 143 Md.App. 293 , 794 A.2d 723 for the proposition that the order was nonetheless immediately appealable.

In Watts , the Court of Special Appeals concluded that an immediate appeal would lie from an interlocutory order that is beyond the jurisdiction of the lower court and that, in a health care malpractice action that the law requires be submitted in the first instance to arbitration in conformance with CJP §§ 3-2A-01 through 3-2A-09, the Circuit Court has no jurisdiction until that requirement is satisfied. The Court of Special Appeals in this case did not address the appealability of the Circuit Court order but apparently accepted the defendant’s argument that an immediate appeal would lie where the order appealed from was allegedly outside the lower court’s jurisdiction. 3 It concluded, however, that the Circuit Court was correct in vacating the panel chair’s dismissal of the claim. That, in turn, was based on its conclusion ⁶¹⁴ that, in a lack of informed consent case, while it may not be prudent to do so, the plaintiff may rely on the defendant’s admissions “to prove those aspects of the claims that required expert testimony.” Salvagno v. Frew, supra, 158 Md.App. at 331 , 857 A.2d at 515 . The court noted, however, that, because as a result of the dismissal, the arbitration never proceeded, there was no actual “award” to be nullified.

In that regard, it equated an “award” with a resolution of the claim on its merits. On that premise, and relying on Manzano v. Southern Md. Hospital, 347 Md. 17 , 698 A.2d 531 (1997), the court concluded that the case should be remanded to HCAO to proceed to arbitration. We granted the defendants’ petition for certiorari to consider whether, in a medical malpractice case based solely on the alleged lack of informed consent, the plaintiff (1) is required to produce expert testimony in order to establish a prima facie case, and (2) if so, whether the plaintiff may rely on the testimony of the defendant physician to meet that requirement. Unfortunately, we shall be unable to decide that issue, as the case is not properly before us and was not properly before the Court of Special Appeals.

DISCUSSION The Court of Special Appeals, directly or implicitly, made two procedural determinations that require review. First, in line with its holding in Watts v. King, supra, 143 Md.App. 293 , 794 A.2d 723 , it at least tacitly accepted the defendants’ argument that an immediate appeal lies from an interlocutory order or other ruling that allegedly is beyond the jurisdiction of the lower court and that a