Extension Following Dismissal
In response to Walzer, the legislature
enacted a savings statute. See Md. Cts.& Jud. Proc. Code Ann. § 5-118. The sec- tion “applies only to a civil action or claim that is dismissed once for failure to file a report in accordance with § 3-2A- 04(b)(3).”Id., § 5-118(a)(2). The statute provides that if a civil action or claim was commenced within the applicable period of limitations and was dismissed without prejudice, “the party may com- mence a new civil action or claim for the same cause against the same party or parties on or before the later of: (1) the expiration of the applicable period of limitations; (2) 60 days from the date of the dismissal; or (3) August 1, 2007, if the action or claim was dismissed on or after November 17, 2006, but before June 1, 2007.” Id., § 5-118(b).
Walzer Strategy
Cases Within 90 Days After the Statement of Claim Has Been Filed With HCADRO If the Statement of Claim has been
filed with the HCADRO within the past 90 days, simply file the CQE and at- tached expert report with the HCADRO. See Md. Cts. & Jud. Proc. Code Ann. § 3-2A-04(b)(1)(i) (2006).
Cases Where the Statement of Claim Has Been Filed in the Past 91-180 Days, and the Statute of Limitations Has Run Simply file the certificate of qualified
expert and attached report with the HCADRO. See Md. Cts. & Jud. Proc. Code Ann. § 3-2A-04(f)(1)(ii) (2006). No request is necessary, and good cause need not be shown. The extension of time is automatic. McCready Memorial Hospital v. Hauser, supra. It would be the defendant’s option to file a motion to dismiss, and bear the burden of proving that the plaintiffs’ failure to file the CQE was willful or grossly negligent. Id.
If the Statement of Claim Has Been Filed More than 90 Days Ago, and the Statute of Limita- tions Has Not Run There are two options: (1) re-file the
Statement of Claim with HCADRO, waive arbitration, and move to consoli- date with the pending court case, or (2) file a motion requesting an extension of time, based upon the “good cause” ex- tension provisions in §§ 3-2A-04(b)(5) and 3-2A-05(j). The question is where the motion should be filed, and who has authority to grant the extension, par- ticularly if arbitration has been waived and the case is pending in court. The statute is unclear regarding the
question of who has the authority to grant a “good cause” extension. The “good cause” extension provision in § 3- 2A-04(b)(5) does not directly state who has the authority to grant the extension. The “good cause” extension provision contained in § 3-2A-05(j), however, expressly states that “the Director or the panel chairman” may grant the exten- sion. The court of appeals apparently reads both provisions as empowering the Director or panel chairman to grant “good cause” extensions. See Navarro- Monzo, 380 Md. at 204-05, 844 A.2d at 412 (“[I]n § 3-2A-04(b)(5) [the statute] has provided that an extension without any fixed statutory limit shall be granted by the Director or panel chairman for good cause shown. And finally, in § 3- 2A-05(j), it has allowed either of those persons to lengthen the time for filing the certificate, again without any fixed limitation.”) (emphasis in original); McCready, 330 Md. at 508, 624 A.2d at 1255 (“The Statute’s ‘good cause’ extension provisions are found in §§ 3- 2A-04(b)(5) and 3-2A-05(j). These two provisions permit either the Director or a panel chair to grant an extension to file an expert’s certificate upon a showing of ‘good cause.’”) (emphasis supplied). In contrast, the “automatic extension” provision in § 3-2A-04(b)(1)(ii) states that “the panel chairman or the court shall grant an extension.” “Court” is defined to mean “a circuit court for a county.” Md. Cts. & Jud. Proc. Code
18 Trial Reporter
Ann. § 3-2A-01(c) (2006). The “good cause” extension provisions fail to state expressly that the “court” has authority to grant a good cause extension. The question arises regarding who
has the authority to grant “good cause” extensions when arbitration has been waived, and the claim is pending in court. The statutory good cause provi- sions, and court of appeals’ cases, would suggest that the Director still has the authority. The “good cause” statutory provisions do not grant the author- ity to the court. However, in Webster v. Simmonds, the plaintiff merely filed a “Line” with the Director, attaching the expert’s report, while the case was pending in the United States District Court. Apparently, the plaintiff neither requested, nor received, any good cause extension from the Director. Rather, the Plaintiff argued that there was good cause for an extension, and the United States District Court agreed. This case supports an argument that a court may authorize a “good cause” extension. See also Salvagno v. Frew, 388 Md. 605, 616 n. 4, 881 A.2d 660, 666 n. 4 (2005) (“Circuit courts do possess fundamental subject matter jurisdiction over claims that fall under the Health Care Malpractice Claims Act….”). Furthermore, dicta in an opinion
from the Court of Special Appeals sug- gests that the Director loses jurisdiction once arbitration is waived and the case transferred:
Once the claimant, in accordance with § 3-2A-06B(b)(1), has filed a certificate of merit and a written election to waive arbitration with the Director of the HCAO, the transfer of that case by HCAO to the circuit court is simply a ministerial function. It does not imply that the HCAO has made any determination as to the merits of that certificate. Indeed, upon the proper filing of waiver of arbitration, all further proceedings before the HCAO, including discovery, cease. It is
(Continued on page 20) Summer 2007
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