Maryland Health Claims Arbitration Act Resource Guide

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1 Robert C. Murphy Courts of Appeal Building 361 Rowe Boulevard Annapolis, Maryland Web: mdcourts.gov/lawlib Maryland Health Claims Arbitration Act Resource Guide This resource guide is comprised of selected sources on the Maryland Health Claims Arbitration Act. The publications listed are all available at the. This guide is intended to be a starting point for research on this topic. I. PRIMARY SOURCES: A. Annotated Code of Maryland Courts & Judicial Proceedings (CJ) 3-2A-01 through 3-2A-09 Health Care Malpractice Claims Insurance (IN) Reporting Medical Malpractice Claims or Actions B. Maryland Rules of Procedure Rules through $ Health Claims Arbitration C. Code of Maryland Regulations D. Case Law COMAR through.17 Health Care Alternative Dispute Resolution Office St. Paul Fire and Marine Insurance Co. v. Insurance Commission 275 Md. 130, 339 A.2d 291 (1975), Considered the birth of Health Claims Arbitration. Attorney General v. Johnson, 282 Md. 274, 385 A.2d 57 (1978), Constitutionality of the Act. Davison v. Sinai Hospital of Baltimore, 462 F. Supp 778 (1978), Compliance with this act applicable to actions in federal court. Oxtoby v. McGowan, 294 Md. 83, 447 A.2d 860 (1982), Application of Act only to medical injuries occurring on or after effective date July 1,

2 Schwartz v. Lilly, 53 Md.App. 318, 452 A.2d 1302 (1982), Initial jurisdiction of medical malpractice claims exclusively belongs to Health Claims Arbitration Office. Cannon v. McKen, 296 Md. 27, 459 A.2d 196 (1983), Statute does not apply to claims for damages in non-professional situations. Stifler v. Weiner, 62 Md.App. 19, 488 A.2d 192 (1985), Summary disposition of claim must be made by the entire panel. Long v. Rothbaum, 68 Md.App 569, 514 A.2d 1223 (1986), Common law claims arising from professional health care relationships are subject to arbitration. Smith Labs., Inc. v. Teuscher, 310 Md. 676, 531 A.2d 300 (1987), Arbitration is not required as a condition of a civil action for a products liability claim. Chew v. Meyer, 72 Md. App. 132, 527 A.2d 828 (1987), Employee s loss of job was not a medical injury within this statute. Ott v. Kaiser Georgetown Health Plan, 309 Md. 641, 526 A.2d 46 (1987), Medical malpractice claimant, who rejects arbitration award, must file notice of action and complaint to nullify in same court. Newman v. Reilly, 314 Md. 364, 550 A.2d 959 (1988), Power of Board to impose sanctions for conduct before panel. State of Maryland Central Collection Unit v. Gettes, 321 Md. 671, 584 A.2d 689 (1991), State may collect costs assessed against provider who prevailed on merits in arbitration. Jewell v. Malamet, 322 Md. 262, 587 A.2d 474 (1991), Determination of jurisdiction in cases involving intentional tort lies in factual context in which tort committed. Newell v. Richards, 323 Md. 717, 594 A.2d 1152 (1991), Limitations of action on "discovery" provision of act. Weidig v. Crites, 323 Md. 408, 593 A.2d 1094 (1991), Non-health care provider not required to submit to arbitration. Mancuso v. Giant Food, Inc., 327 Md. 344, 609 A.2d 332 (1992), Pharmacists are not "health care providers" subject to this statute. Reed v. Campagnolo, 332 Md. 226, 630 A.2d 1145 (1993), Wrongful birth and lack of informed consent. Adler v. Hyman, 334 Md. 568, 640 A.2d 1100 (1994), Physicians medical malpractice insurer is "corporate" person and subject to mandatory arbitration. Carrion v. Linzey, 342 Md. 266, 675 A.2d 527 (1996), Can instruct jury of panel composition and that panel s decision need not be unanimous. Goodwich v. Nolan, 343 Md. 130, 680 A.2d 1040 (1996), Discovery rules applicable and mandamus relief inappropriate. 2

3 Elliott v. Scher, 114 Md. App. 334, 689 A.2d 1289 (1997), The Health Care Malpractice Claims statute is not administrative agency and therefore, party may not appeal award rendered by panel under rules governing appeals from administrative agency decisions. Giocochea v. Langworthy, 345 Md. 719, 694 A.2d 474 (1997), Act requires submission of malpractice claims to arbitration before maintaining tort action in circuit court. Lerman v. Heeman, 347 Md. 439, 701 A.2d 426 (1997), Physicians post trial motion for contribution not subject to mandatory arbitration. Manzano v. Southern Md. Hosp., 347 Md. 17, 698 A. 2d 531 (1997), A medical malpractice claimant must submit claim to non-binding arbitration before filing action in a circuit court, otherwise court must dismiss action. Larson v. Penninsula Regional Medical Center, 993 F. Supp. 373 (D. Md. 1998), Arbitration panel chairman may grant extension of time to allow late filing for good cause shown. Blundon V. Taylor, 364 Md. 1, 770 A.2d 658 (2001), Procedural rules do not allow pleadings to be filed via facsimile; they require actual delivery before the time period expires. Estate of Alcalde v. Deaton Specialty Hosp. Home, Inc., 133 F. Supp. 2d 702 (D. Md. 2001), Court would not dismiss plaintiff s qualified expert under the Maryland Health Care Malpractice Claims Act because the expert was not a medical doctor. The expert in the case had extensive experience with the deaf and expertise in sign language in medical settings. Watts v. King, 143 Md. App. 293, 794 A. 2d 723 (2002) Unless waived according to Health Care Medical Claims Act, all claims must be submitted to mandatory arbitration as a pre-condition to any court action. Witte v. Azarian, 369 Md. 518, 801 A.2d 160 (2002) Activities that can be calculated in determining the time spent by an expert on testimony in personal injury claims are identified. D Angelo v. St. Agnes Healthcare, Inc., 157 Md. App. 631, 853 A.2d 813 (2004) Purpose of the certificate of qualified expert is to weed out nonmeritorious medical malpractice claims. Navarro-Monzo v. Washington Adventist Hospital, 380 Md. 195, 844 A. 2d 406 (2004) An extension of time to file a certificate of qualified expert is granted for good cause. Nelson v. Debbas, 160 Md. App. 194, 862 A.2d 1083 (2004). Certificate of qualified expert that applied to all defendants was not invalidated by expert s deposition testimony that she would testify at trial with respect to only one of physicians. Afamefune V. Suburban Hospital, Inc., 385 Md. 677, 870 A.2d 592 (2005). Statute does not apply to negligence action against hospital by patient arising from alleged assault and rape of patient by another patient. Mayo-Parks v. United States, 384 F. Supp. 2d 818 (D. Md. 2005). Qualified witness certificate required by Maryland law is required for claims brought in U.S. District Court in Maryland. Salvagno v. Frew, 388 Md. 605, 881 A.2d 660 (2005). Filing a complaint after Health Claims Arbitration Resolution Office (HCAO) dismissed claim acted as an election to waive arbitration. Osborne v. Walzer, 167 Md. App., 460, 893 A. 2d 653 (2006). Failure to attach the report of attesting expert to the certificate of qualified expert does not require dismissal of the medical 3

4 malpractice claim or action. Walzer v. Osborne, 395 Md. 563, 911 A.2d 427 (2006). The claimant is required to file an attesting report with a certificate of qualified expert in support of the medical malpractice complaint. Carroll v. Konits, 400 Md. 167, 929 A.2d 19 (2007). The certificate of a qualified expert must contain two statements: 1) that the defendant-physician departed from standard of care, and 2) that such a departure was the cause of plaintiff s injury. Swam v. Upper Chesapeake Med. Ctr., Inc., 397 Md. 528, 919 A.2d 33 (2007). A claim must involve rendering of, or failure to render, professional services. Barber v. Catholic Health Initiatives, Inc., 180 Md. App. 409, 951 A.2d 857 (2008). Though the certificate did not specifically name each physician and health care provider, by using the term health care providers coupled with the use of et al clearly referred to plaintiff s statement of claim filed with Health Claims Arbitration Office which identified each physician and hospital. Kinsey v. Women s Surgery Center, LLC., 584 F. Supp. 2d 746 (D. Md. 2008). The amount of time an expert devotes to testimony in personal injury actions is not required in the Certificate of Merit. Failure to file proper Certificate of Merit is subject to mandatory sanction of dismissal without prejudice. Kearney v. Berger. 182 Md. App. 186, 957 A.2d 682 (2008). The filing of a certificate and report of qualified expert under the HCMC statute operates as a condition precedent, which can not be waived. Lewis v. Waletzky, 576 F. Supp. 2d 732 (D. Md. 2008). The law of the state where the tort or wrong was committed applies. Medical malpractice claims in excess of a certain jurisdictional amount are subject to arbitration prior to being litigated Finding Aid: Maryland Digest 2d under Health -- Malpractice, Negligence, or Breach of Duty -- Actions and Proceedings under Hospitals, Liability of under Physicians and Surgeons -- Negligence and Malpractice II. SECONDARY SOURCES: A. Maryland Attorney General Opinions 61 Op. Att y Gen. 175 (1976), Mandatory arbitration system for all medical malpractice claims created in this Act is legally sufficient and constitutional. 67 Op. Att y Gen. 7 (1982), Out-of-state lawyers, not admitted to practice in Maryland, may not be admitted pro-hac vice as counsel in arbitration of a health care malpractice claim. B. Commissions and Task Forces Medical Malpractice Insurance Study Committee Report to the President of the Senate and the Speaker of the House: January 6, Martin S. Becker, Chair. Md Y3.Ma 25:2/B/

5 C. Treatises Medical Malpractice Claims Arbitration : SB 436 (1976) : Reports, Testimony, Correspondence, etc. Md Y3.Me 48:2/L/976 Final Report of the Medical Malpractice Task Force: January Harry J. McGuirk, Chair. Md Y3.Ma 25:2/M/1983 Report and Minutes of the Governor s Commission for Health Care Providers Professional Liability Insurance. George W. Liebmann, Chair. Md Y3.He 44:2/L/ Report of the Joint Executive Legislative Task Force on Medical Malpractice Insurance. James Macgill, Chair. Md Y3.Ma 27:2/M/1985 Limitation on non-economic damages in personal injury actions: partial Committee Bill File : SB 558, Chapter 639, Laws of Maryland 1986: Court and Judicial Proceedings Article, Sec thru Md Y3Da 15:2/C/1986 Final Report. Governor s Task Force on Medical Malpractice and Health Care Access. Raymond G. Thieme, Chair. Y3.ME 45 :2/T/2004 Harney s Medical Malpractice. Richard M. Patterson. Charlottesville, Va. : Lexis Law Publishing, KF H Maryland Health Claims Arbitration Decisions and Materials. Rockville, MD: HCA Decisions and Materials, KFM 1399.M34 M37 Maryland Tort Law Handbook. Richard M. Gilbert. Mathew Bender & Company, Inc KFM 1395.G (also thru Lexis) Medical Malpractice and Managed Care Law in Maryland. Marcus Z. Shar, et al. Baltimore, MD : MICPEL, KFM S (new) Medical Malpractice in Maryland. J. Mark Coulson, et al. Eau Claire, WI : National Business Institute, KFM M Medical Malpractice Settlement Strategies. Paul D. Bekman, et al. Eau Clair, WI : National Business Institute, KFM M Selected Issues in Medical Malpractice Baltimore, MD : MICPEL, KFM S Statute of Limitations and Medical Malpractice Tort Reform. Roy L. Mason. Baltimore, MD : MICPEL, KFM M Torts, Damages and Medical Malpractice Reform. Robert R. Michael, et al. Baltimore, MD : MICPEL, KFM M D. Legal Periodical Articles Medical Malpractice and the Maryland Legislature. Harry J. McGuirk and F. Thomas Rafferty. 6 University of Maryland Law Forum 9 (1976). 5

6 Symposium, The Medical Malpractice Crisis. 36 Maryland Law Review 3 (1977). The Constitutionality of Medical Malpractice Mediation Panels: A Maryland Perspective. Mathew Zimmerman. 9 University of Baltimore Law Review 75 (1979). The Health Care Malpractice Claims Statute: Maryland s Response to the Medical Malpractice Crisis. Kevin G. Quinn. 10 University of Baltimore Law Review 74 (1980). Health Claims Arbitration: Will it work?. John F. King and George W. Shadoan. 14 Maryland Bar Journal 4 (February, 1981). Health Claims Arbitration - The View From the Panel Chair. William I. Weston. 14 Maryland Bar Journal 6 (June, 1981). Maryland Health Claims Arbitration System, as viewed by Delegate Joseph E. Owens, Walter Tabler and Marvin Ellin. Eileen Ursic. 12 University of Baltimore Law Forum 14 (Winter, ). Health Claims Arbitration in Maryland: The Experiment has Failed. James Kevin MacAlister and Alfred L. Scanlan, Jr. 14 University of Baltimore Law Review 481 (1985). Blasting the Cap: Constitutional Issues Arising from Maryland s Limitation of Non-Economic Damages in Personal Injury Claims. James R. Andersen. 16 University of Baltimore Law Review 327 (1987). From Legislature to Litigation: The Real Medical Malpractice Crisis. Patti G. Zimmerman. 18 University of Baltimore Law Forum 22 (Fall, 1987). Judicial Review of Health Claims Arbitration Awards: Practice and Pitfalls. Timothy L. Mullin, Jr. 17 University of Baltimore Law Review 433 (1988). Medical Malpractice Dispute Resolution in Maryland. Sandra S. Thurston. 1 Courts, Health Science and the Law 81 (July, 1990). Jones v. Speed: Redefining Medical Injury in Medical Malpractice Claims? Judith C. Ensor. 2 Maryland Journal of Contemporary Legal Issues 1 (1991). Recent Decision: The Maryland Court of Appeals: Denying Trial Courts the Power to Grant Sua Sponte Transfers. Harry N. Malone. 55 Maryland Law Review 752 (1996). Recent Developments: Maryland General Assembly: Delegates Deliver a Deathblow to Maryland s Health Claims Arbitration System. Terry L. Trimble. 55 Maryland Law Review 893 (1996). Recent Decisions: The Maryland Court of Appeals: Preventing Medical Malpractice Claimants from Evading the Certificate of Merit Requirement Under the Health Care Malpractice Claims Act. Peter Stackpole. 57 Maryland Law Review 925 (1998). Recent Development: Witte v. Azarian: The Court of Appeals of Maryland Indentified Activities to be Calculated in Determining the Percentage of a Medical Expert s Professional Time Directly Involving Testimony. Bryan C. Hughes. 33 University of Baltimore Law Forum 41 (Summer/Fall 2002). 6

7 Mediation in Maryland Medical Negligence Cases. 37 Maryland Bar Journal 46 (July/August, 2004). Easing the Medical Malpractice Crisis: Restricting the Creation of Duty through an Implied Doctor- Patient Relationship. 7 Journal of Health Care Law & Policy 363 (2004). Mandatory Arbitration or Mediation of Health Care Liability Claims? A.T. Pedroni, et al. 39 Maryland Bar Journal 54 (March/April, 2006). Symposium, Beyond the New Medical Malpractice Legislation: New Opportunities, Creative Solutions, and Best Practices for Patient Safety, Tort Reform and Patient Compensation. 9 Journal of Health Care Law and Policy 217 (2006). E. Maryland Law Encyclopedia (MLE) 18 M.L.E. Physicians, Surgeons, & Health Care Providers 18 21, 32 (2008) * * * * * * * * * * * * * * * * * * * * * * * * Legislation Creating and Amending the Maryland Health Claims Arbitration Act Created Health Claims Arbitration Office (hereafter referred to as HCAO). SB 436, Ch.235. Changing the time period which a party must object to the inclusion of an arbitrator on the list that is submitted in a health care malpractice claim proceeding; and changing the time which a party may strike from the list unacceptable names of arbitrators. HB 384, Ch Extending to 20 days the time which the Director of HCAO is required to submit to the parties list of arbitraton panel candidates a copy of the provisions of the code relating to judicial review of Health Care Malpractice Claims decisions. HB 444, Ch Providing that a party who rejects an award made by an arbitration panel of a health care malpractice claim shall file a notice of that rejection with the Director a copy of the action instituted in court to nullify the award; it is required that the Clerk of the Court file with the Director of the HCAO a copy of the verdict in the case. HB 386, Ch Providing that in the absence of malice or bad faith, members of the HCA panel are immune from suit for acts and decisions made within the scope and during the tenure of their authority. HB 1085, Ch Provides that discovery proceedings in a health care malpractice claim be completed within 270 days from the date which all defendants have been served and that with regard to other matters relating to discovery the provisions of the Maryland Rules Chapter 400 apply; requires an arbitration panel to make and deliver its award within 1 year from the date which all defendants have been served; authorizes the director or panel chairman to alter the discovery on report time limitations; limits the application of the Act to claims after July 1, SB 604, Ch

8 Grants additional powers to the Director of the HCAO; amends certain provisions pertaining to the appointment of an arbitration panel and procedural provisions for an action brought under the Health Care Malpractice Act; allows for the collection of legal fees without prior approval of the arbitration panel or court, except if the fee is in dispute. SB 985, Ch Requiring that all issues of law be referred by the Director of the HCAO to the arbitration panel chairman and that all issues of fact be referred by the Director to the arbitration panel; and allowing the Director to rule on issues of law when a panel chairman has not been appointed. SB 866, Ch. 104 Altering the jurisdiction to exclude District Court action and eligibility requirements for members of the panels: requiring the filing of a certificate of a qualified expert within 90 days from date of complaint and providing for the admissibility of health care provider and hospital records as evidence. SB 559, Ch.640. Adding 2 consumer members to the Commission on Medical Discipline; requiring hospitals and medical societies to report complaints against physicians to the Commission; providing civil immunity to persons who report; requiring hospitals to establish a credentialing process for physicians and a risk management program. SB 560, CH Permitting a modification or remittitur in medical injury awards under designated circumstances; providing for the admissibility in a judicial proceeding of an unmodified arbitration award for a medical injury under specified circumstances; prohibiting specified claims of subrogation; requiring the Insurance Commissioner to adopt rules and regulations relating to insurer security procedures under conditions; creating a Tort and Insurance Reform Oversight Committee. HB 1593, Ch Repealing a provision that requires jury commissioners to send specified jury lists to the Director of the HCAO periodically; authorizing a jury commissioner or a clerk of a court to make current jury lists available to the Director upon request. HB 461, Ch Extending from one to two years the time period within which the biographical statements of persons on specified health claims arbitration lists must have been updated prior to delivery. SB 147, Ch. 26. Establishing the retroactive effect of specified provisions of law relating to waiver of arbitration proceedings under the Health Care Malpractice Claims Act regardless of when the claim rose. HB 944, Ch. 97. Creating a State Board of Physician Quality Assurance: requiring the Board to perform a preliminary investigation of allegations of grounds for medical discipline; authorizing the Board to take appropriate and immediate action as necessary; requiring that the Board refer specified cases to the Medical and Chirurgical Faculty; requiring the Board to suspend or revoke a license if the licensee is convicted or pleads guilty or nolo contendere to a crime of moral turpitude. SB 508, Ch.109. Requiring the Director of the HCAO to forward to the Commission on Medical Discipline, or its successor, copies of specified certificates of qualified experts filed with the Director; and clarifying when the Director is required to forward copies of a claim to the Commission on Medical Discipline, or its successor, and the Medical and Chirurgical Faculty of Maryland. SB 305, Ch

9 Authorizing the Director of the HCAO to require the attendance of an appropriate alternate arbitration panel member at arbitration proceedings. SB 538, Ch Requiring the State Board of Medical Examiners to mail a blank Health Claims Arbitration Panel Data Sheet to a licensed physician with a license renewal notice. SB 602, Ch Requiring that a copy of an action to nullify an award by a health claims arbitration panel be forwarded to the Commission on Medical Discipline of Maryland or its successor by the clerk of the court in which the action is filed. HB 27, Ch Requiring claimants and defendants to serve certificates of qualified experts on all other parties to the claim or their attorneys of record; specifying that the deadline for defendants to file and serve such certificates runs from the date of service by claimants; authorizing discretion in the making of specified strikes; eliminating the applicability of a specified transcript provision; specifying the circumstances for the filing of a copy of an award with the circuit court. SB 304, Ch Making dismissal, without prejudice, of a claim filed in the HCAO on or after July 1, 1989 discretionary if the claimant fails to file a certificate of a qualified expert; establishing that adjudication of such a claim filed in favor of a claimant on the issue of liability is discretionary without a certificate of a qualified expert; requiring that an extension of time for filing that certificate be granted for good cause shown. HB 776, Ch Altering the definition of health care provider relating to health claims arbitration to include psychologists and licensed certified social workers. HB 764, Ch Consolidating provisions of law that concern specified immunities from liability, limitations on liability, and prohibited actions. HB 206, Ch Allowing any party to reject an assessment of costs under an award made by a health care malpractice claim arbitration panel; specifying the procedures to reject an assessment of costs under an award providing that the Director of the HCAO need not be named as a party to an action to reject an or the assessment of costs under an award; and requiring a court to reassess arbitration costs if the court vacates an assessment of those costs. HB 1147, Ch. 25. Creating a new subtitle governing small employer group health plans; establishing health insurance reforms including adjusted community rating, guaranteed issue of health benefit plans, limitation of preexisting condition provisions, and plan portability; establishing enrollment procedures; imposing specified requirements on plan carriers; creating the Maryland Health Care Access and Cost Commission and the Advisory Committee on Practice Parameters; specifying a comprehensive standard health benefit plan. HB 1359,Ch. 9. Establishing the Health Claims Arbitration Fund; providing that the Fund shall consist of specified filing fees and be used to pay the fees of health claims arbitrators; requiring the Director of the HCAO to administer the Fund and to make a specified payment to the State Comptroller; requiring specified parties to make a reimbursement to the Fund; providing for the status of the Fund and the disposition of unspent portions of the Fund. HB 1411, Ch Providing that a claimant or any defendant may waive arbitration of a claim before the HCAO under certain circumstances; providing for certain procedures to waive arbitration of a health care malpractice claim. HB 1049, Ch Updated : December 17,

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