Salvagno v. Frew
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In the Circu it Court for W ashington County Case No. 21-C-02-14637-OT IN THE COURT OF APPEALS OF MARYLAND No. 105 September Term, 2004 ______________________________________ RALPH T. SALVAGNO, M.D., ET AL. v. WILLIAM M. FREW, ET AL. ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: June 10, 2005 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 Cou nty, was based solely on the alleged lack of informed consent. The claim had previously been dismissed b y 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 C omplaint. T hough it m ade no pr ediction 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 H CAO a ward 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 was correct in its substantive ruling, but decided that the case should be remanded to HCAO, rather than proceed in the Circuit C ourt. See Salvagno v. Frew, 158 Md. A pp. 315, 857 A .2d 506 (2004). We shall vacate th e judgme nt of the C ourt of Sp ecial Appeals. The ruling of the Circuit Court w as not im media tely appea lable. The interm ediate appe llate court should have 1 As a result of subsequent legislation, the Health Claims Arbitration Office has been renamed the Health Claims Alternative Dispute Resolution Office. We shall use the former name o r its acronym (HCA O). 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 o n proced ural or other lim ited ground s, such a claim will be submitted to non-binding arbitration before a panel consisting of an a ttorney, a health care provider, and a person who is neither an attorney nor a health care provider. One of the pre-con ditions to proceeding to arbitration, or waiver, is provided by CJP § 3-2A-04(b). That section requires that, unless the sole issue presented in th e claim is the la ck of info rmed con sent, 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 ex pert that attests (1) to the defendant s dep arture from standards o f care, and (2) that the departure was the prox imat e cau se of the a llege d injury. On March 16, 2000, Mr. Frew and his wife filed a claim with HCAO against three health care prov iders R alph T. Sa lvag no, A ltizer-Sa lvag no C ente r for Join t Sur gery a t Robinwood, and Michael Fitzgerald. T he only allegatio n in the State ment of C laim was th at, on March 26, 1997, Dr. Salvagno performed an operative procedure on Frew, at which time -2- a tourniquet was improperly applied, and that, as a result of the improper application of the tourniquet and the performance of the 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 th an Dr. S alvagn o. The initial claim contained two cou nts 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 T hree, a claim of lack of informed consent that the defendants performed surgery on Mr. Frew s rig ht ankle without p roperly obtainin g his inform ed conse nt and that, as a dire ct and p roxima te result, h e was in jured. Frew apparently ha d difficulty obta ining an ex pert s certificate attesting to the defendants actionable negligence in the performance of the surgery, and, on or about June 6, 2001, after several extension s 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 exp ert s cert ificate w as not re quired . CJP § 3-2A-05(c) provides that the attorney mem ber of the a rbitration pan el shall act as chair of the panel an d shall decid e all prehearing procedu res, including issues relating to discovery and motions in limine. Section 3-2A-05(a)(1) requires that all issues of law be -3- referred to the pa nel cha ir. 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 defenda nts were to name th eir 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 su mmary judgmen t. They argued in their motion that, under this Court s decision in Sard v. Hardy, 281 Md. 432, 379 A.2d 1014 (1977), ex pert medic al testimony w as 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 Plaintiff s design ation. 2 Frew asked 2 One of the interroga tories asked: If you contend tha t Plaintiff s injuries were caused by a known risk or complication, or recognized risk or complication to the professional services rendered to Plaintiff, state the risk or complication, whether it was accepted, recognized or known to the professional community at large, whether it was communicated to the Plaintiff, and if so, when, and by whom, whether the communication was oral or in writing, and if written, attach a copy. Salvagno refused to answer that interrogatory. His response was: Health Care Provider objects to this Interrogatory on the grounds that it calls for an expert opinion. Testifying experts have not yet been (contin ued...) -4- for a 30-day extension to supply an expert witness de signation but asserted that Salvag no 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 p art: 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 fin d no mer it 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 Summa ry Judgment would appear to indicate that an adverse party may be called as a witness and interrogated on cross-exam ination both as to facts and as to expert opinion in addition to and not instead of the ir own expert w itness. CJP § 3-2A-06(a) permits a party to reject an award for any reason. In o rder 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 o f rejection w ith the HCAO Direc tor, and (2) file an action in court to nullify the award. Frew s immediate response to th e panel chair s order was a motion for reconsideration, which, on May 16, was denied. Frew filed a notice of rejection 2 (...continued) determine d. Once te stifying experts h ave been identified, C laimants w ill be permitted to depos e and se ek such inform ation fr om tho se expe rts. -5- 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 N ullify, in conform ance with Maryland Rule 15403, 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 reques t for jury tria l. 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 tha t county and th at proper venue lay in Washington County. In the absenc e of an y objectio n, the ca se was transfe rred pu rsuant to the requ est. The defendants moved to deny the Petition to Nullify and to dismiss the C omplaint. In their response to the petition, they asserted that the panel chair did not exceed her auth ority. In their motion to dismiss, they averred that arbitration was a pre condition to any court action and that, by failing to name an expert witness, Frew had effectively faile d 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 (20 02). After a non-evidentiary hearing, the Circuit Court, on May 12, 2003, filed an opinion and order granting Frew s petition to nu llify the award, vacating the panel chair s order dismissing the claim, and denying the defendant s m otion to dismiss. The cou rt concluded -6- that, with a claim based solely on lack of inform ed conse nt, Frew w as not requ ired to produce a certificate fro m an exp ert 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 cha ir s dismissal of the claim with no oppor tunity to pr esent th e case, w as prem ature. Acc ordingly, 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 appealab le. In Watts, the Court o f Special A ppeals con cluded tha t an imme diate appeal w ould lie from an interlocutory order that is beyond the jurisdiction of the lower cou rt and that, in a health care malpractice action that the law requires be submitted in the first instanc e 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 appea lability of the Circuit Court order but apparently accepted the defendant s argument that an immedia te appeal would lie where the order appealed from was allegedly outside the lower court s -7- 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 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 admission s to prove those aspe cts of the claim s that req uired ex pert testim ony. Salvagno v. Frew, supra, 158 Md. App. at 331, 857 A.2d at 515. The court noted, howe ver, 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.2 d 531 (19 97), the cou rt concluded that the case should be remanded to HCAO to proceed to arbitration. We granted the defend ants petition for certiorari to consider w hether, in a medical malpractice case based solely on the alleg ed lack of informed consent, the plaintiff (1) is required to produce expert testimony in order to establish a prima fac ie case, and (2 ) if so, whether the plaintiff m ay rely o n the testimony of the defendant physician to meet that requireme nt. Unfortunately, we shall be unable to decide that issue, as the case is not proper ly before us and was n ot prop erly befo re the C ourt of Specia l Appe als. DISCUSSION 3 We note that Frew did not challenge the immediate appealability of the order but instead argu ed, on the m erits, that the Circ uit Court did have jurisdiction to vacate the panel chair s dismissal of the claim. -8- The Court of Special A ppeals, direc tly or implicitly, made tw o procedural determinations that require re view. First, in line with its ho lding in Watts v. King, supra, 143 Md. App. 29 3, 794 A .2d 723, it at least tacitly accepted the defendants argument that an immedia te appeal lies from an interlocu tory order or oth er ruling that a llegedly is beyond the jurisdiction of the lower court and that a decision by a Circuit Court to entertain a medical malpractice action that is subject to the arbitration regime established by CJP, title 3, subtitle 2A is jurisdictionally def icient. Second, it concluded that [t]he dism issal of a case prior to the liability determinatio n is, in effect, a non-de cision, beca use there is n o award to vacate pursuant to [CJP] § 3-2A-06(c). Salvagno v. Frew, 158 Md. at 334, 857 A.2d at 517. That conclusion followed what the c ourt had sa id in Alfred Munzer, M.D., P.A. v. Ramsey, 63 Md. App. 350, 492 A.2d 94 6 (1985). It was on that basis that the court insisted that the case be remanded to HCAO rather than remain for adjudication in the Circuit Court. We disagree with both of those conclusions. Appealab ility We dealt most recently with the appealability issue in Maryland State Board of Education v. Bradford, Md. , A.2d (2005). We no ted there that, although there is, indeed, a line of cases, commencing with Gottschalk v. Mercantile Trust Co., 102 Md. 521, 62 A. 810 (1906) and extending through Waters v. Smith, 277 Md. 189, 352 A.2d 793 (1976), in which this Court h as indicated that an immediate appeal will lie from an -9- interlocutory order that exceeds the jurisdiction of the lower court, we have in more recent times discarded that view. Rather, we have made clear that the right to seek appellate review of a trial court s ruling ordinarily must await the entry of a final judgment that disposes of all claims against all parties, and that there are only three exceptions to that final judgment requireme nt: appeals fro m interlocu tory orders spec ifically allowed by statute; imme diate appeals permitted under Maryland Rule 2-602; and appeals from interlocutory rulings allowed under the c ommo n law coll ateral order doctrine. We noted in Bradford that in Gruber v. Gruber, 369 M d. 540, 547 , 801 A.2d 1013, 10 17 (2002 ), we held f latly that a trial court s order denying a challenge to its jurisdic tion is a n onapp ealable interloc utory ord er. We further observed in Bradford that a contrar y approach w ould be w holly inconsistent with the very purpose of the final judgment rule, which is to avoid piecemeal appeals that create inefficiencies in both the appellate and trial courts: The mere allegation that a clearly interlocutory ord er is jurisdictiona lly deficient shou ld not serve to halt proceedings in the trial court wh ile an appellate court considers whether the allegation has merit. Maryland State Board of Education v. Bradford, supra, Md. at , A .2d at . The wisdom of that app roach is apo dictic in this case. On May 12, 2003, the Circuit Co urt directed that the case, inv olving a cla im of only $25,000, proceed. Two years later, the case is still in limbo because of these appeals f ourteen m onths in the Court o f Special A ppeals and six months, counting from the granting of certiorari, in this Court, all because of a questionab le allegation regarding the Circuit Court s jurisdiction to nullify the HCAO award -10- and proc eed on the Comp laint. 4 Was There An Award? In Alfred Munzer, M.D., P.A. v. Ramsey, supra, 63 M d. App . 350, 49 2 A.2d 946, a claim was made against five health care providers, and an arbitration panel was appointed to hear the claim. Prior to any arbitration, the chairman of the panel, acting alone, signed an order granting summ ary judgmen t in favor of one of the providers, upon concluding that 4 We have made clear that a court s actions cannot be assailed for lack of subject matter jurisdiction unless that jurisdiction is lacking in a fundamental sense. First Federated Co m. Tr. v. Comm r, 272 M d. 329, 3 34, 322 A.2d 5 39, 543 (1974 ). Fundamental jurisdiction, we have held, refers to the power to act with regard to a subject ma tter which is c onferred b y the sovereign authority whic h organize s the court, and is to be s ought fo r in the gene ral nature of its powers, o r in authority spec ially conferred. Pulley v. Sta te, 287 Md. 406, 416, 412 A.2d 1244, 1249 (1980) (quoting Cooper v. Reynolds Lessee, 77 U.S . (10 W all.) 308 , 316, 19 L. Ed. 9 31, 932 (1870 )). Thus, a court has fu ndamental jurisdiction w hen it has power to ren der a judgment ov er a class of cases w ithin w hich a p articular one fa lls, First Federated Co. Tr. v. Comm r, supra, 272 Md. at 335, 322 A.2d at 543, and the fact that a statutory provision directs a court . . . to decide a case in a particular way, if certain circumstances are shown, does not create an issue going to the court s . . . subject matter jurisdiction. Board of License Comm. v. Corridor, 361 M d. 403, 4 17, 761 A.2d 9 16, 923 (2000 ). In Oxtoby v. McGowan, 294 Md. 83, 91, 447 A.2d 860, 864-65 (1982), we explained that the Circuit Courts do possess fundamental subject matter jurisdiction over claims that fall under the Health Care Malpractice Claims Act and that, although the statute places a precondition on the invocation or exercise of that jurisdiction, it does not take awa y the subject m atter jurisdiction o f a circuit cou rt to hear and render judg ments in cases involving claims which fall within the Act. Any contrary holding in Schwartz v. Lilly, 53 Md. App. 318, 452 A.2d 1302 (1982) and Watts v. King, supra, 143 Md. App. 293, 794 A.2d 723 is disapproved. The simple fact is that there was no fundamental jurisdictional impediment to the Circuit Court s action in this case. -11- there was no liability on the part of that provider to the claimant. No costs were assessed and, although c opies of the order we re sent to the p arties, the original order was never delivered to the HCAO Director. The case against the other providers proceeded bu t was eventually settled a nd, as a r esult of the settle ment, d ismisse d. No award of any kind was made with re spect to them. The claimant then rejected the award in favor of the one provider and filed an action in Circuit Co urt seeking , in the alternativ e, either nullifica tion or a rem and to the p anel to proceed with th e arbitra tion. The Circuit Court concluded that there was no award to nullify and that it had no jur isdiction in the matter, and it ordered the case remanded to HCAO. The Court of Special Appeals believed likewise and directed that the Circuit Court action be dismissed without prejudice, to permit the arbitration to proceed. In reaching that conclusion, the Court of Special Appeals did not resolve whether the panel chair had the authority to enter a summary judgment, and, indeed, it confirmed an earlier holding in Stifler v. Weiner, 62 Md. A pp. 19, 4 88 A.2 d 192 ( 1985) , cert. denied, 304 Md. 96, 497 A.2d 819 (1985), that a panel chair did have authority to enter summary awards in certain situations. Rather, it held that, whether the panel chair was right or wrong, no award was ever mad e. An aw ard, i t said , mus t not only resolve th e issu es of liabi lity and damages but also assess the costs of arbitration and be delivered to the H CAO D irector. In the Munzer case, there was no assessment of costs and, as noted, the order was never delivered to the Director. Until tha t was don e, the court ad ded, the ord er was en tirely -12- interlocutory and subject to change by the panel chair. The case before us is quite different, in part because of changes in the legal landscape. For one thing, as we have observed, it is now clear that the panel chair may resolve issues of law and decide all prehearing procedures including issues relating to discovery. CJP § 3-2A-05(a)(1) and (c). The dismissal ordered here was a sanction f or what th e panel ch air believed was the f ailure to prov ide discovery as required in her scheduling order. In that regard, we note that CJP § 3-2A-02(d) makes the Maryland Rules applicable to all practice and procedure issues arising under this subtitle, that CJP § 3-2A-05(b)(2) specifically makes the Maryland Rules relating to discovery applicable to proceedings under the subtitle, and that Maryland R ule 2-433 permits a court, upon a plaintiff s fa ilure to provid e discovery, to dismiss an action. Moreover, unlike the situation in Munzer, the order here did assess costs they w ere split e qually be tween the parti es and it was f iled with the HC AO D irector. When Munzer was decided, the term award was not d efined, eithe r in the statute or in the Maryland Rules implementing the statute. In 1997, w e revised the rules relating to health claims arbitration and, in the process, adopted Maryland Rule 15-402(b), which defines award as a final determination of a he alth care malpractice claim by an arbitration panel or by the p anel chair . (Emphasis added). Unquestionably, the order by the panel chair dismissing F rew s claim constituted a final determination of that claim. There was nothing left before HCAO, especially when Frew s motion for reconsideration was denied. Whether the order was right or wrong, authorized or unauthorized, it clearly disposed of the -13- claim and thus constitu ted an aw ard in favor of the defe ndants. It was there fore subje ct to rejection by Frew and an action in court to nullify it. One question raised in Munzer and addressed by the intermed iate appellate c ourt in this case what ultimate relief should be granted still lingers. The effect of vacating the judgment of the Court of Special Appeals and directing that court to dismiss the appeal would leave the case pending in the Circuit Court, which would be inconsistent with the approach taken in Mun zer. When Munzer was dec ided in 198 5, the law did not permit a waiver of the arbitra tion proced ure unless a ll parties agreed. It was thus clear, at that time, that, subject to a limited and undefined right of a panel chair to make certain kinds of summary dispositions, each party had a statutory right to have the claim resolved on its merits, either as a matter of fact or as a matter of law, by an arbitration panel, and, as the Munzer court noted , the plaintiff in th at case aske d, as alternative relief in the C ircuit Court, that the case be remanded to the arbitration panel. If a claim was improperly dismissed by a panel chair, the appropriate course of action was to have the matter remanded to HCAO so that the s tatutorily m andate d arbitra tion cou ld occu r. In 1995, the Gen eral A ssem bly, through the enactment of CJP § 3-2A-06B, permitted a claimant or a ny defenda nt, unilaterally, to wa ive arbitration and permit the case to be resolved initially in the Circuit C ourt. Section 3-2A- 06B (b) p rovides that a waiver b y a claimant may be made at an y time after filing the certificate of qualified expe rt required by § 3-2A-04(b) of this subtitle. If, as here, no such certificate is required in the particular -14- case, the waiver may be made prior to the time that a certificate otherwise would be due. Unlike in Munzer, Frew did not ask that the case be remanded to HCAO for any further proceeding; when the pan el chair dismissed his claim , he filed a C omplaint in the Circuit Court and asked for a jury trial. We shall treat that as an election to w aive arbitration before an HCA O pane l. Section 3-2A-06B(b) requires that a waiving claimant file a written waiver with the HCAO Director and serve a copy on all other parties. That was done. A copy of the Complaint that effected the waiver was delivered to the Director of HCAO and was served on the other parties, as required. There is no occasion, therefore, to cause the matter to be remanded to HCAO. JUDGMENT OF COURT OF SPECIAL APPEAL S VACATED; CA SE REMANDED TO THAT COUR T WITH INSTRU CTIONS TO DISM ISS APPEAL; COSTS IN THIS COURT AND IN COURT OF SPECIAL APPEALS TO BE PAID BY PE TITIONERS. -15-
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