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(a) Arbitration of a claim within the [HCADRO] 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.

Md. Cts. & Jud. Procs. Code Ann. § 3-2A-06B(a)

(emphasis added). Because the action was waived under § 3-2A-06B, there was no “verdict under § 3-2A-06” to trigger the applicability of § 3-2A-09, the Semskers argued, and so the new cap statute did not apply. In response to these arguments, the Defendants insisted that it was inconceivable that the General Assembly deliberately drafted the new cap to exclude virtually all medical malpractice claims from its application. Because the 2004 Special Session was called by Gov. Ehrlich at a time of perceived “crisis,” the Defendants and their amicus curiae argued that the trial court in Semsker should construe § 3-2A-09(a) to apply broadly to all medical malpractice actions, in spite of the language of § 3-2A-09(a). Oral argument on the motions was held April 9, 2009,

before the Honorable John W. Debelius III. Less than two weeks later, on April 20, 2009, Judge Debelius issued his ruling, in the form of a thorough 20-page Memorandum and Order. Applying the “plain meaning rule” to § 3-2A-09, Judge Debelius concluded:

Under the “Plain Meaning Rule,” if the language of a statute is clear and unambiguous, the court “ordinarily” need not look beyond the statute’s provisions and the analysis is at an end. Opert v. Criminal Injuries, 403 Md. 587, 593 (2008). Te language of § 3-2A-09(a) is clear and unambiguous. It identifies the type of cases to which § 3-2A-09 applies, and the case at bar is not one of them.

Semsker, supra, slip op. at 8. Nevertheless, the trial court

proceeded farther, to examine the “legislative history” of § 3-2A-09(a) as reflected in the enrolled version of House Bill 2:

Of interest, however, is the change in the wording of the pertinent section regarding applicability of the statute, § 3-2A-09(a), between the [First and Second Reader] of the bill (HB 2) and the final enacted version. In the [First and Second Reader] of HB 2, the provision read as follows:

Tis section applies to a judgment under this Subtitle for a cause of action arising on or after January 1, 2005.

Tis language was broad enough to encompass both medical malpractice claims which are arbitrated and those in which arbitration is waived. Tis language, however, was deliberately and specifically amended in the final enacted version of HB 2 to read as follows:

Tis section applies to an award under § 3-2A-05 of this Subtitle or a verdict under § 3-2A-06 of this Subtitle for a cause of action arising on or after January 1, 2005.

Te court is not aware of the reasoning behind the change in wording, but the amendment of the Trial Reporter / Summer 2009 11

“application of section” provision between the [Second Reader] and the final enacted version had the effect of narrowing the ambit of the statute from general application to all medical malpractice actions to application to only certain medical malpractice actions. It seems that, in the case at bar, the Defendants would have this court essentially reinstate the language of § 3-2A-09 that was specifically deleted and amended by the General Assembly when it enacted the final version of the Bill. . . .

Speaking for our Court of Appeals in a case which considered the application of a sexual offender registration statute, after reviewing the changes made by the General Assembly in between draft versions of a bill and the final enacted version, Judge Battaglia said:

[W]here the legislature has “explicitly raised, considered and then explicitly jettisoned” particular statutory phrasing or framework, this Court must consider the statute as is, without adding to or deleting from the express language provided therein. . . .

Te State argued that “it is inconceivable that the General Assembly intended to exclude sex offenders of the most serious classification based on their out-of- state convictions.” Nevertheless, the General Assembly managed to do just that by redacting the references to out-of-state convictions from the definitions of “sexually violent offense” and “sexually violent predator.” Graves v. State, 364 Md. 329, 335 (citing Garnett v. State, 332 Md. 571, 585-87).

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