Elliott v. Cher, Muher, Lowen, Bass, Quartner, P.A.

689 A.2d 1289, 114 Md. App. 334, 1997 Md. App. LEXIS 38
CourtCourt of Special Appeals of Maryland
DecidedMarch 3, 1997
DocketNo. 919
StatusPublished
Cited by1 cases

This text of 689 A.2d 1289 (Elliott v. Cher, Muher, Lowen, Bass, Quartner, P.A.) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elliott v. Cher, Muher, Lowen, Bass, Quartner, P.A., 689 A.2d 1289, 114 Md. App. 334, 1997 Md. App. LEXIS 38 (Md. Ct. App. 1997).

Opinion

CATHELL, Judge.

Appellants, Letitia and Shedrick Elliott, appeal from the dismissal of their petition for judicial review of a decision by a [336]*336Health Claims Arbitration Panel by the Circuit Court for Baltimore City (Byrnes, J., presiding). We shall affirm the trial court’s dismissal.

The Facts

This case concerns the relationship between the Health Care Malpractice Claims statute, Md.Code (1974, 1995 Repl. Vol.), §§ 3-2A-01 to 3-2A-09 of the Courts and Judicial Proceedings Article (CJ), and the Maryland Rules regarding judicial review of an administrative agency’s decisions, Maryland Rules 7-201 to 7-210. The Health Care Malpractice Claims statute requires that “[a]ll claims, suits, and actions ... by a person against a health care provider for medical injury allegedly suffered by the person in which damages of more than the limit of the concurrent jurisdiction of the District Court are sought” be heard by an arbitration panel. CJ § 3-2A-02. The parties may agree to waive arbitration of the claim and proceed directly to the circuit court. See CJ § 3-2A-06A.

In the case sub judice, appellants, alleging that Richard Bass, M.D., made an incorrect diagnosis and was negligent, filed a claim against Dr. Bass and Scher, Muher, Lowen, Bass, Quartner, P.A., appellees, with the Director of the Health Claims Arbitration Office. Prior to the arbitration proceeding, appellants conducted discovery by way of interrogatories. Due to appellees’ incomplete answers, appellants moved for a default judgment at numerous times during the proceedings. The arbitration panel chairperson denied appellants’ motions for a default judgment.

The arbitration hearing was held from October 30, 1995 to November 2, 1995. The panel ruled in favor of appellees. On November 21, 1995, appellants filed a Notice of Rejection and Action to Nullify. This case, case number 95325033/ CL204831, is apparently pending in the circuit court and is in no way involved in this appeal. In addition, appellants filed a separate case, i.e., a petition for judicial review of the decision of the arbitration panel, pursuant to Maryland Rule 7-202, which regulates appeals from administrative agencies; only [337]*337this last case and petition is at issue in this appeal. Appellants brought this separate action averring procedural irregularities before the panel- — i.e., the panel abused its discretion in declining to grant a default judgment to appellants based upon appellees’ repeated discovery abuses.

A hearing on appellants’ petition for judicial review of the decision of the arbitration panel was held on April 26, 1996. After hearing from appellants’ counsel only, Judge Byrnes dismissed appellants’ petition. Judge Byrnes stated:

I appreciate the passion and the eloquence with which you place this matter before me. And were it standing in isolation, it would be a very interesting issue, but I think the result would probably be the same which is that you would be required to follow the statutory scheme for health claims which is to go before this Court on behalf of your client and seek health claim relief.
You have already done that and that is where the statute tells you you must find your relief. I can’t give it to you independently of the ... statutory authority. And that’s really what you seek.
... I recognize that you have presented a potential cause for interest we’ll say at the trial court level that you believe there’s been a foul tainting of the process which should disentitle the health care provider of the presumption that they get by law.
The question you’re presenting is where is ... that issue joined. Is it joined in a separate proceeding which could in some fashion conflict with what we’ll call the main proceeding, or should it be resolved within the main proceeding. And I have little doubt — I have some little doubt, but not big enough doubt to conclude as I’ve said that this must be dismissed because you are confined by statute to the remedy there provided.
Discussion
Appellants assert two questions on appeal:
[338]*3381. Did the Circuit Court for Baltimore City commit error by dismissing the [appellants’] “Method (7-202) And Early Memoranda (7-207)” without a hearing?[1]
2. Did the Panel Chairman abuse his discretion by failing to fashion a remedy to alleviate the prejudice to the [appellants] as a result, of the Providers’ (i) disobedience to the [Maryland Rules] and (ii) disobedience to two Direct Orders?

We shall not address appellants’ second question. If we were to affirm the trial court’s dismissal of appellants’ petition for judicial review, the second question would become moot. Conversely, if we were to reverse the trial court, we would not review the actions of the panel chairperson because the issue was not raised below nor did the trial court render a decision as to whether the panel chairperson abused his discretion. “[T]he appellate court will not decide an[ ] ... issue unless it plainly appears by the record to have been raised in or decided by the trial court____” Md. Rule 8-131(a).

We reformulate appellants’ question and present it as the following issue:

Whether a claimant, who alleges to have been aggrieved by discovery abuses during an arbitration proceeding conducted pursuant to the Health Care Malpractice Claims statute, may seek judicial review of the arbitration panel chairperson’s decision regarding discovery sanctions pursuant to Maryland Rule 7-202.

We hold that such a claimant may not obtain judicial review pursuant to Maryland Rule 7-202 and shall affirm the trial court. We explain.

Chapter 200, title seven of the Maryland Rules provides a procedure for review of administrative agency decisions. Maryland Rule 7-201 provides:

[339]*339(a) Applicability. — The rules in this Chapter govern actions for judicial review of an order or action of an administrative agency, where judicial review is authorized by statute.
(b) Definition.- — As used in this Chapter, “administrative agency” means any agency, board, department, district, commission, authority, commissioner, official, the Maryland Tax Court, or other unit of the State or of a political subdivision of the State.

Appellants argue that they are entitled to judicial review pursuant to chapter 200, title seven of the Maryland Rules, because the Health Claims Arbitration Office is an administrative agency. While the Health Claims Arbitration Office may or may not be an administrative agency, the critical question is whether the health claims arbitration panel, whose chairperson rendered the decision that appellants ask us to review, is an administrative agency. We hold that it is not and explain.

In Attorney Gen. v. Johnson, 282 Md. 274, 385 A.2d 57, appeal dismissed, 439 U.S. 805, 99 S.Ct. 60, 58 L.Ed.2d 97 (1978), overruled in part, Newell v. Richards, 323 Md. 717, 728-35, 594 A.2d 1152 (1991), the plaintiffs asserted that Maryland’s Health Care Malpractice Claims statute was unconstitutional.

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Bluebook (online)
689 A.2d 1289, 114 Md. App. 334, 1997 Md. App. LEXIS 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elliott-v-cher-muher-lowen-bass-quartner-pa-mdctspecapp-1997.