Teimourian v. Spence

BISHOP, Judge. “The best laid schemes o’mice and men gang aft a-gley.” —Translation from Robert Burns’ To a Mouse [1785]. On April 21, 1981, a panel under the Health Claims Arbitration Act (H.C.A.A.), Md.Cts. & Jud.Proc.Code Ann., Title 3, sub-title 2A (1984 repl.vol.) awarded appellee, Rose Mary Spence, $100,000.00 and her and her husband, appellee, John D. Spence, $5,096.00 plus costs against appellants, Dr. Bahman Teimourian and Bahman Teimourian, M.D., chartered. I. On June 30, 1981, appellants filed a notice of rejection of award with the H.C.A.A. Office and filed in the Circuit Court for Prince George’s County a notice of action to nullify the award. On July. 15, 1981, appellees filed a notice of rejection of award with the H.C.A.A. Office and filed a notice of action to nullify award in the Circuit Court for Harford County.

Appellees limited their rejection and action to nullify to the damage issue only. On July 31, 1981, in accordance with Maryland Rule BY4, appellees filed a declaration in the Circuit Court for Harford County, (Law No. 11 670), naming appellants as defendants. As required by Maryland Rule BY4 a 2, appellees attached to their declaration a true test copy of appellant’s notice of action to nullify award, which had been filed in the Circuit Court for Prince George’s County. On August 13, 1984, appellants filed a motion raising preliminary objection based on prejudicial conduct of the arbitrators and lack of venue.

The attack on venue was supported by appellant Teimourian’s affidavit that neither of the defendants worked, lived, practiced medicine or regularly did business in Harford County. On December 22, 1981, the Circuit Court for Harford County granted defend ⁷⁷ ant’s motion on the venue issue and transferred the case to the Circuit Court for Montgomery County, where it was designated as Law No. 59762. No ruling was made by either court on the prejudicial conduct issue. After the usual pre-trial activities were completed, a trial date of April 21, 1983, was set by the Circuit Court for Montgomery County.

Meanwhile, on December 14, 1982, the appellant’s notice of action to nullify award, which had been filed in Prince George’s County, became subject to Maryland Rule 530, Dismissal for Lack of Jurisdiction or Prosecution. After complying with the requirements of notification to the parties, the Clerk of the Circuit Court for Prince George’s County dismissed the case for “want of jurisdiction in accordance with Maryland Rule 530 d.” Dismissal under this rule may be for either lack of jurisdiction or lack of prosecution. On March 7, 1983, appellees dismissed Montgomery County Law No. 59762, the case that had been initiated by their filing of a declaration in Harford County and which had been removed upon the motion of the appellants to Montgomery County. Pleading and discovery were close to completion, and the case had been set for trial on April 21, 1983, forty-five days after the date of dismissal.

Exactly thirty one days thereafter the Director of the Health Claims Arbitration Office, at the urging of appellees, filed in the Circuit Court for Montgomery County a petition for confirmation of the April 21, 1981 award in the amount of $105,096.00. The Clerk of the Circuit Court for Montgomery County docketed this as a new action and assigned to it Law No. 63616. Appellants filed an opposition to this petition on April 7, 1983, and, on April 8, 1983, filed a petition for declaratory relief, in which they prayed that the court deduce: A. That the Maryland Rule 530 dismissal resulted in a dismissal of all causes of action against the appellants; ⁷⁸ B. That the cumulative effect of the filing of a notice of action to nullify award, a notice of rejection and a subsequent dismissal of the Circuit Court proceedings connected therewith vitiates the Arbitration Award. C. That the action of the Director of the Health Claims Arbitration Office in seeking to enforce the award is illegal; D. Alternatively that the appellees’s line of dismissal effectively caused a dismissal of all causes of action against the defendants.

E. Alternatively, that the action appellees dismissed is still pending and appellees are required to prosecute that action. After oral argument the court (Latham, J.) dismissed appellants’ petition for declaratory relief, signed an order confirming the Arbitration Panel award, and granted judgment in accordance with the award. Appellants ask whether the trial judge erred in confirming the Health Claims Arbitration Office award and in granting judgments in favor of the appellees.

II

The court ruled that appellees had the right to dismiss Law No. 59762, the case in which they had filed their declaration in accordance with Maryland Rule BY4 a 2, which provides: “If the plaintiff filed the notice of action, the declaration shall be filed in the court where the notice of action was filed. If the defendant filed the notice of action, the plaintiff may file the declaration in any court having venue. If the notice of action was filed in a different court, the plaintiff shall file a certified copy of the notice of action with the declaration. Unless removed pursuant to Rule 542 the action shall proceed in the court where the declaration is filed.” The court went on to state that there was no action on behalf of the appellants to nullify that was “still alive and ⁷⁹ well in this Court or in any other court in the State of Maryland.” Obviously the court concluded that the Rule 530 dismissal terminated any rights appellant had to a circuit court jury trial of the issues raised before the Health Claim Arbitration Panel.

The controlling statutory provisions from Maryland Courts and Judicial Proceedings Code Annotated, follow: Section 3-2A-05: “(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 shall confirm the award. Upon confirmation the award shall constitute a final judgment.” Section 3-2A-06. Judicial Review. “(a) Rejection of award. — A party may reject an award for any reason.

A notice of rejection must be filed with the Director and the arbitration panel and served on the other parties or their counsel within 90 days after the award is served upon the rejecting party, or, if a timely application for modification or correction has been filed within 30 days after a disposition of the application by the panel. (b) Action to nullify award. — At or before the time specified in subsection (a) for filing and serving a notice of rejection, the party rejecting the award shall file an action to nullify the award and shall file a copy of the action with the Director. Failure to file this action timely in court shall constitute a withdrawal of the notice of rejection. Subject to the provisions of subsection (c) 1 the ⁸⁰ procedures applicable to the action including the form and necessary allegations in the initial pleading shall be governed by the Maryland Rules.

If any party to the proceeding elects to have the case tried by a jury in accordance with the Maryland Rules, it shall be tried by a jury. Otherwise, the case shall be tried by a judge.” Maryland Rule BY applies to an action to nullify an award under the Health Claims Arbitration Act. Under Maryland Rule BY2, Commencement of Action, we find: “a. Filing of Notice — Content.

An action to nullify an award rendered by an arbitration panel determining a health care malpractice claim shall be commenced by filing notice of the action with the clerk of a court within 90 days after the award is served upon the party rejecting the award, or within 30 days after disposition of a timely application to the panel to modify or correct the award, whichever is later. The notice shall identify the award and state that it is being rejected by the party filing the notice, b. Service and Proof of Service. A copy of the notice shall be served on all other parties to the arbitration proceeding.

Service and proof of service of the notice and of all subsequent papers in the action requiring service shall be in the manner prescribed by Rule 306.* 2 ” Rule BY3 requires that: “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.” Also pertinent to the facts of this case is Rule BY4 — Procedure. ⁸¹ “a. Filing of Declaration. 1. Time. Within 30 days after the filing of the notice of action, the plaintiff shall file and serve a declaration.” “2.

Court. If the plaintiff filed the notice of action, the declaration shall be filed in the court where the notice of action was filed. If the defendant filed the notice of action, the plaintiff may file the declaration in any court having venue. If the notice of action was filed in a different court, the plaintiff shall file a certified copy of the notice of action with the declaration.

Unless removed pursuant to Rule 542 3 the action shall proceed in the court where the declaration is filed.” Section b of this rule provides that except for deletion of the ad damnum of the declaration, all proceedings, including discovery and trial, shall be governed by the Maryland Rules of Procedure. In Attorney General v. Johnson, 282 Md. 274, 278-281 , 385 A.2d 57 (1978) the Court succinctly set out the procedure required under the Health Claims Arbitration Act: “We have already noted the general thrust of the Act — that medical malpractice claims be submitted to arbitration as a pre-condition to court action — and we now outline in greater detail the mode envisioned by the statute for the accomplishment of the arbitration process and any subsequent court litigation. All malpractice claims against health care providers seeking damages of more than $5,000 are subject to the provisions of the Act, § 3-2A02(a), and must be initially filed, as must the responses to them, with the Health Claims Arbitration Office, § 3-2A04(a) created by the statute ‘as a unit in the Executive Department.’ § 3-2A03(a). The office, acting through its director, see § 3-2A03(a), refers all ⁸² issues raised to a three-member arbitration panel, § 3-2A05(a), chosen at random from lists of qualified persons prepared and maintained by the director, §§ 3-2A03(c) & 3-2A04(b); the panel for each claim is to be composed of an attorney, a health care provider, and a member of the general public. §§ 3-2A03(c) and 3-2A04(d).

The arbitration