§
3-2A-04. Filing
claim; appointment of arbitrators
(a)(1)(i) A person having a claim against a health
care provider for damage due to a medical injury
shall file the claim with the Director and, if the
claim is against a physician, the Director shall
forward copies of the claim to the State Board of
Physicians.
(ii) The Director shall cause a copy of the
claim to be served upon the health care provider
by the appropriate sheriff in accordance with
the Maryland Rules.
(iii) The health care provider shall file a
response with the Director and serve a copy on
the claimant and all other health care providers
named therein within the time provided in the
Maryland Rules for filing a responsive pleading
to a complaint.
(iv) The claim and the response may include a
statement that the matter in controversy falls
within one or more particular recognized
specialties.
(2) A third-party claim shall be filed within 30
days of the response of the third-party claimant
to the original claim unless the parties consent
to a later filing or a later filing is allowed
by the panel chairman or the court, as the case
may be, for good cause shown.
(3) A claimant may not add a new defendant after
the arbitration panel has been selected, or 10
days after the prehearing conference has been
held, whichever is later.
(4) Until all costs attributable to the first
filing have been satisfied, a claimant may not
file a second claim on the same or substantially
the same grounds against any of the same
parties.
(b) Unless the sole issue in the claim is lack of
informed consent:
(1)(i) 1. Except as provided in item (ii) of
this paragraph, a claim or action filed after
July 1, 1986, shall be dismissed, without
prejudice, if the claimant or plaintiff fails to
file a certificate of a qualified expert with
the Director attesting to departure from
standards of care, and that the departure from
standards of care is the proximate cause of the
alleged injury, within 90 days from the date of
the complaint; and
2. The claimant or plaintiff shall serve a copy
of the certificate on all other parties to the
claim or action or their attorneys of record in
accordance with the Maryland Rules; and
(ii) In lieu of dismissing the claim or action,
the panel chairman or the court shall grant an
extension of no more than 90 days for filing the
certificate required by this paragraph, if:
1. The limitations period applicable to the
claim or action has expired; and
2. The failure to file the certificate was
neither willful nor the result of gross
negligence.
(2)(i) A claim or action filed after July 1,
1986, may be adjudicated in favor of the
claimant or plaintiff on the issue of liability,
if the defendant disputes liability and fails to
file a certificate of a qualified expert
attesting to compliance with standards of care,
or that the departure from standards of care is
not the proximate cause of the alleged injury,
within 120 days from the date the claimant or
plaintiff served the certificate of a qualified
expert set forth in paragraph (1) of this
subsection on the defendant.
(ii) If the defendant does not dispute
liability, a certificate of a qualified expert
is not required under this subsection.
(iii) The defendant shall serve a copy of the
certificate on all other parties to the claim or
action or their attorneys of record in
accordance with the Maryland Rules.
(3)(i) The attorney representing each party, or
the party proceeding pro se, shall file the
appropriate certificate with a report of the
attesting expert attached.
(ii) Discovery is available as to the basis of
the certificate.
(4) A health care provider who attests in a
certificate of a qualified expert or who
testifies in relation to a proceeding before an
arbitration panel or a court concerning
compliance with or departure from standards of
care may not devote annually more than 20
percent of the expert's professional activities
to activities that directly involve testimony in
personal injury claims.
(5) An extension of the time allowed for filing
a certificate of a qualified expert under this
subsection shall be granted for good cause
shown.
(6) In the case of a claim or action against a
physician, the Director shall forward copies of
the certificates filed under paragraphs (1) and
(2) of this subsection to the State Board of
Physicians.
(7) For purposes of the certification
requirements of this subsection for any claim or
action filed on or after July 1, 1989:
(i) A party may not serve as a party's expert;
and
(ii) The certificate may not be signed by:
1. A party;
2. An employee or partner of a party; or
3. An employee or stockholder of any
professional corporation of which the party is a
stockholder.
(c)(1) Within 20 days after the filing of the
claimant's certificate of a qualified expert, or, in
a case in which lack of informed consent is the sole
issue, within 20 days after the filing of the
defendant's response, the Director shall deliver to
each party the names of 6 persons chosen at random
from the attorney categorical list prepared by him
pursuant to
§ 3-2A-03(c) of this subtitle, together with a
brief biographical statement as to each of these
persons.
(2) No later than 20 days after receiving notice
of the scheduled hearing, the Director shall
deliver to each party the names of 6 persons
chosen at random from each of the remaining
categorical lists prepared by him pursuant to
§ 3-2A-03(c) of this subtitle, together with
a brief biographical statement as to each of
these persons. If the claim or the response
states that the matter falls within one or more
recognized specialties, the Director, if
practicable, shall include persons in the
specialty on the list from the health care
provider category. Before delivering each list,
the Director shall inquire of the persons
selected and assure himself that they do not
have a personal or economic relationship with
any of the parties or their counsel, or any
cases in which they are a party before the
arbitration office, that can form the basis of
any partiality on their part. If, in the
judgment of the Director, a person selected has
such a relationship with a party, his name shall
be replaced by another chosen at random.
(3) The biographical statements sent to the
parties under this subsection shall have been
updated within 2 years.
(d)(1) Within 15 days after delivery of the list, a
party may object in writing stating the reasons
therefor to the inclusion of any arbitrator on the
list. If the Director finds a reasonable basis for
the objection, he shall replace the name of the
arbitrator with the name of another arbitrator.
Within 30 days after delivery of the initial list
or, if an arbitrator is replaced, within 30 days
after delivery of the replacement list, each party
shall strike from the list in each category any name
or names that are unacceptable and return a copy of
the list with his strikes to the Director. Upon
motion of either party, the panel chairman, for good
cause shown and in conjunction with the Director,
shall require that subsequent strikes be made in a
lesser period of time. A party may not strike more
than two names in any category.
(2) If:
(i) 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;
(ii) There is more than one claimant, the
claimants shall be treated as a single party and
shall exercise their strikes jointly;
(iii) Within the time period specified in
paragraph (1) of this subsection, multiple
claimants or multiple health care providers fail
to agree on their strikes in any category, they
shall notify the Director of their disagreement,
and the Director may make the strikes on their
behalf with respect to that category; and
(iv) Any party fails to return a copy of the
list with his strikes within the time period
specified in paragraph (1) of this subsection,
the Director may make the strikes for that
party.
(e)(1) The Director shall compare the lists returned
to him and the lists from which he has stricken
names pursuant to subsection (d) of this section,
and shall select the first mutually agreeable person
in each category as the arbitrators.
(2) The Director shall establish by regulation
procedures for selection of alternates to serve
in place of arbitrators unable to serve after
appointment. Procedures for the selection of
alternate arbitrators shall provide that
alternate arbitrators are chosen at random from
the categorical lists prepared by the Director
under
§ 3-2A-03(c) of this subtitle, and may not
be confined to time limitations in subsection
(d)(1) of this section. The Director may require
the attendance of an appropriate alternate at
any proceeding under this subtitle.
(f)(1) The parties may, within the time for
returning their lists to the Director, agree in
writing upon a single arbitrator. In that event,
they shall advise the Director in writing of their
choice, and the one arbitrator shall constitute the
arbitration panel.
(2) The Director shall prepare a separate list
of qualified attorneys willing to serve as
single arbitrators.
(g) An arbitrator shall have the immunity from suit
described under
§ 5-615 of this article.