Close

Waiving Arbitration Under Maryland Malpractice Law

Maryland has complex laws that govern medical malpractice lawsuits. You cannot simply file a malpractice case in court and get a trial.

Before you are permitted to file a medical malpractice lawsuit in Maryland, you must first file a claim in the Health Care Alternative Dispute Resolution Office (“HCADRO”).

Maryland Courts and Judicial Proceedings Code Ann. § 3-2A-01, et seq. (the “Health Claims Act”) governs the filing of medical malpractice claims in this state. “All claims, suits, and actions … by a person against a health care provider for medical injury allegedly suffered by the person … are subject to and shall be governed by the provisions of [the Health Claims Act]. Md. COURTS AND JUDICIAL PROCEEDINGS Code Ann. § 3-2A-02(a)(1).

This is said to be “mandatory arbitration” for medical injury malpractice lawsuits.

In reality, few disputes are resolved in HCADRO. After the plaintiff produces the appropriate expert reports, she can “waive out” of Health Claims and file her lawsuit in Circuit Court.

Are you sure your case is a medical malpractice case? All medical injuries are subject to the statute. A “medical injury” is defined as an “injury arising or resulting from the rendering or failure to render health care.” Id. at § 3-2A-01(g).

Not every injury inflicted upon a patient due to negligence amounts to malpractice. But if you are unsure if it is a medical injury, you had better assume it is a medical injury or you are on a fast path to disaster.

  • This malpractice statute is a different animal entirely than the Uniform Arbitration Act
  • A 17-year-old story in Baltimore Sun that helps explain why this medical malpractice arbitration process does not work
  • Remember that plaintiffs claiming a “medical injury” by a “health care provider” with damages exceeding $30,000 must first file with the HCAO.

Here is the relevant statute to waive out of Health Claims.

Maryland Courts and Judicial Proceedings Code Ann. § 3-2A-06B and

§ 3-2A-06B. Waiver of arbitration after filing a certificate of a qualified expert

  1. In general. Arbitration of a claim with the Health Care Alternative Dispute Resolution Office may be waived by the claimant or any defendant in accordance with this section, and the provisions of this section shall govern all further proceedings on any claim for which arbitration has been waived under this section.
  2. Waiver by claimant.
    1. Subject to the time limitation under subsection (d) of this section, any claimant may waive arbitration at any time after filing the certificate of qualified expert required by § 3-2A-04(b) of this subtitle by filing with the Director a written election to waive arbitration signed by the claimant or the claimant’s attorney of record in the arbitration proceeding.
    2. The claimant shall serve the written election on all other parties to the claim in accordance with the Maryland Rules.
    3. If the claimant waives arbitration under this subsection, all defendants shall comply with the requirements of § 3-2A-04(b) of this subtitle by filing their certificates at the Health Care Alternative Dispute Resolution Office or, after the election, in the appropriate circuit court or United States District Court.
  3. Waiver by defendant.
    1. Subject to the time limitation under subsection (d) of this section, any defendant may waive arbitration at any time after the claimant has filed the certificate of qualified expert required by § 3-2A-04(b) of this subtitle by filing with the Director a written election to waive arbitration signed by the defendant or the defendant’s attorney of record in the arbitration proceeding.
    2. The defendant shall serve the written election on all other parties to the claim in accordance with the Maryland Rules.
    3. If a defendant waives arbitration under this subsection, the defendant shall comply with the requirements of § 3-2A-04(b) of this subtitle by filing the certificate at the Health Care Alternative Dispute Resolution Office, or, after the election, in the appropriate circuit court or United States District Court.
  4. Time for filing.
    1. A waiver of arbitration by any party under this section may be filed not later than 60 days after all defendants have filed a certificate of qualified expert under § 3-2A-04(b) of this subtitle.
    2. Any waiver of arbitration after the date specified in paragraph (1) of this subsection shall be in accordance with the provisions of § 3-2A-06A of this subtitle.
  5. Effect of election. After filing, the written election shall be binding upon all parties.
  6. Filing of complaint; service; dismissal.
    1. Within 60 days after the filing of an election to waive arbitration by any party, the plaintiff shall file a complaint and a copy of the election to waive arbitration in the appropriate circuit court or the United States District Court.
    2. After filing the complaint, the plaintiff shall serve a summons and a copy of the complaint upon all defendants or the attorney of record for all parties in the health claims arbitration proceeding.
    3. Failure to file a complaint within 60 days of filing the election to waive arbitration may constitute grounds for dismissal of the complaint upon:
      1. A motion by an adverse party; and
      2. A finding of prejudice to the adverse party due to the delay in the filing of the complaint.
  7. Joinder of additional health care providers. — After the filing of an election to waive arbitration under this section, if a party joins an additional health care provider as a defendant in an action, the party shall file a certificate of qualified expert required by § 3-2A-04(b) of this subtitle with respect to the additional health care provider.
  8. Procedure. In any case subject to this section, the procedures of § 3-2A-06(f) of this subtitle shall apply.
  9. Neutral case evaluation.
    1. If the parties mutually agree to a neutral case evaluation, the circuit court or United States District Court, to which the case has been transferred after the waiver of arbitration, may refer the case to the Health Care Alternative Dispute Resolution Office not later than 6 months after a complaint is filed under subsection (c) of this section.
      1. On receipt of the case, the Director shall send to the parties a list of six attorneys who:
        1. Meet the qualifications listed in § 3-2A-03(c)(3) of this subtitle; and
        2. Have tried at least three healthcare malpractice cases.
      2. Each party may strike two names from the list.
      3. If the claim is against more than one health care provider, whether directly by a claimant or as a result of a third-party claim, the health care providers claimed against shall be treated as a single party and shall exercise their strikes jointly.
      4. If there is more than one claimant, the claimants shall be treated as a single party and shall exercise their strikes jointly.
      5. If multiple claimants or multiple healthcare providers fail to agree on their strikes or fail to return their strike list to the Director within the time specified in paragraph (vi) of this subsection, the Director shall make the strikes on their behalf.
      6. The strikes shall be submitted to the Director within ten days after delivery of the list.
      7. The Director shall appoint an evaluator from the unstricken names on the list.
    3. Upon appointment, the evaluator shall schedule a neutral case evaluation session to be held within 45 days after the appointment to pursue the neutral case evaluation of the claim or to resolve any issues to which the parties agree to stipulate before trial.
    4. Within 10 days after the neutral case eval
      uation session, the evaluator shall notify, in writing, the Director and the circuit court or United States District Court of the results of the neutral case evaluation.
      1. During the neutral case evaluation period, the circuit court or United States District Court shall continue to have jurisdiction to rule on any motions or discovery matters.
      2. The neutral case evaluation may not interfere with the scheduled trial.
      1. The evaluator shall be paid in accordance with § 3-2A-03(d) of this subtitle.
      2. Unless otherwise agreed by the parties, the cost of neutral case evaluation, which may not exceed $ 300 per case, shall be divided equally between the parties.

How Do I Contact the Health Claims Arbitration Office?

The Maryland Health Claims Alternative Dispute Resolution Office is at 6 St Paul St #1501, Baltimore, MD 21202. The phone number is (410) 767-8200. The Executive Director of that office is Harry Chase.

What If You Do Not Waive Out of Health Claims Arbitration Office?

A three-person panel of arbitrators would decide your malpractice claim. The panel’s three members are a lawyer, a healthcare provider, and a public member. The Panel would decide the case and give a compensation award if it found the healthcare provider negligent. Practically, you can still get a jury trial after losing in Health Claims. So, the cost of trying the same case twice is a real disincentive to allowing your case to be decided by this medical malpractice arbitration process.

Does Filing a Claim in Health Claim Arbitration Protect the Statute of Limitations?

Filing a claim in health claims arbitration in Maryland does give you protection from an expiring statute of limitations. Under §5-109(d), filing an action with the Health Claims Arbitration Office has the same effect upon the statute of limitations as filing a complaint with the circuit court.

Contact Us