Title 01 — Subtitle 03. Health Care Alternative Dispute Resolution Office

“Act” means Courts and Judicial Proceedings Article, §§3-2A-01—3-2A-09, Annotated Code of Maryland, as amended from time to time.

“Arbitration panel” means the arbitrators selected in accordance with the Act and these regulations to determine a health care malpractice claim.

“Attorney” means a member of the Maryland Bar.

“Award” means a final decision under the Act, whether in favor of the claimant or defendant.

“Certificate of merit” means the formal verification by a qualified expert of a medically meritorious claim or defense to a claim.

“Chairman” means the attorney member of the arbitration panel.

County.

“Court” means a circuit court for a county.

“Director” means the Director of the Health Care Alternative Dispute Resolution Office.

“Health care provider” has the meaning stated in Courts and Judicial Proceedings Article, §3-2A-01(e), Annotated Code of Maryland.

“Party” includes the counsel of record for a party.

“Prehearing conference” means the conference that the chairman has with all parties at least 60 days before a hearing date.

Each claim made under the Act shall be filed with the Director on the claim form that the Director shall provide, including any narrative attachments.

Each claim is to be accompanied by a personal information certification that includes the claimant's:

A claim may not be processed further without the personal information certification required under §A(2) of this regulation.

A claim or a defense is substantiated by the filing of a certificate of merit within the time provided and as more fully described by Courts and Judicial Proceedings Article, §3-2A-04(b)(1) and (2), Annotated Code of Maryland.

A copy of the certificate of merit shall be served on each opposing party at the same time it is filed with the Director.

Each new claim or counter claim shall be accompanied by a filing fee of $40.

Each defendant's answer shall be accompanied by a filing fee of $25.

A docket number is assigned to each claim when a new claim is filed.

Subject to strike-period restrictions, a claim becomes a public record open during business hours for inspection.

The Director shall compile and keep a current record of arbitration panel candidates. The Director may not submit to the parties any candidate's name whose biographical statement is more than 2 years old.

The Director's records are divided into the following three categories:

If feasible, each category of the Director's records or lists is to be divided into geographical areas based on the county in which the candidate resides or is willing to serve.

The Director shall compile a separate list of attorneys who are qualified and willing to serve as single arbitrators.

Within 20 days after the time for filing a response the Director shall prepare an initial list of attorney panel candidates that contains the names of six individuals. These candidates shall be selected randomly from individuals residing, when possible, in counties in which a court would have venue under Courts and Judicial Proceedings Article, Title 6, Subtitle 2, Annotated Code of Maryland. If there are not a sufficient number of names from that county in which venue lies to permit random selection, the names shall be selected from neighboring counties, or from other individuals who are willing to serve where venue lies.

The health care provider and public member lists are selected in similar fashion, except that the list of health care providers, if practicable, includes one or more health care providers from any specialty designated by any party to the action.

The Director shall contact every individual on each initial list to determine the following:

The name of an individual who is disqualified from serving will be removed from the list and will be replaced with the name of another individual randomly selected from the appropriate category and qualified according to §B(3) of this regulation.

If a panel candidate knowingly fails to disclose a relationship with a party, the Director shall remove the name of the candidate from the records and, in the case of an attorney or health care provider, shall report the circumstances to the disciplinary unit of the appropriate licensing agency whenever the Director considers it appropriate.

Within 20 days after the time for filing a response, the Director shall deliver to each party identical lists of chairman candidates from the attorney category, prepared by the Director pursuant to §B of this regulation, including a brief biographical statement on each chairman candidate, and a copy of Courts and Judicial Proceedings Article, §§3-2A-01—3-2A-07, Annotated Code of Maryland.

The Director shall deliver to each party identical lists of panel candidates from the general public and health care provider categories prepared by the Director not later than 20 days pursuant to §B of this regulation including a brief biographical statement on each panel candidate.

In this regulation, “party” means, with respect to multiple claimants or multiple health care providers, all claimants, acting jointly, or all defendant health care providers, acting jointly, as the case may be.

Within 15 days after delivery of the list of panel candidates to a party, the party may object in writing, stating the reason for objection to inclusion of a panel candidate. If a prospective health care provider panelist is the same individual as either party intends to use as a witness in the case, that fact shall be disclosed within the 15-day period or the witness may not be used at the hearing. If the panel candidate is removed from the list a replacement may be made with the name of another individual selected according to §B of this regulation. Within 30 days, or in a lesser period of time if so ordered by the chairman in conjunction with the Director upon a motion of a party, after delivery of the initial or replacement list, the parties shall return to the Director a copy of the list from which the names of not more than two panel candidates from each category may have been stricken.

The parties, at any time before the beginning of the hearing, may submit to the Director a written agreement selecting a single arbitrator or an agreed upon arbitrator in any category.

The Director shall make the strikes for a party on failure of the party to return a list, and for multiple claimants or defendant health care providers on notice that parties cannot agree on strikes in a particular category.

Within 10 days after party selections of the panel candidates are received, the Director shall compare the lists, including those returned to the Director and those from which the Director has made strikes, and shall select the first mutually agreeable individual in each category.

The Director shall notify each panel candidate selected by mailing a consent and agreement form to the candidate. Within 5 days after receiving the notice, the panel candidate shall sign and return to the Director the consent and agreement form.

After a panel candidate files a written acceptance to serve, a candidate may not refuse to serve without filing with the Director a written statement of good cause showing that serving as an arbitrator would constitute an unreasonable burden or undue hardship.

The Director may remove a panel member for good cause shown at least 15 days after giving notice of and reason for this intention. The panel member may submit a written statement of why there should not be such a removal and the Director shall consider any statement submitted by the panel member.

If a vacancy occurs in the chairman's position on an arbitration panel that has not begun hearings on the claim, the vacancy will be filled by a substitute panelist. The Director shall select as the substitute the next mutually agreeable individual from the list of attorney candidates. A party may withdraw a previously made strike so as to facilitate the Director's appointment of a substitute. Otherwise, the parties may agree upon any qualified individual, or a new list is made and delivered to all parties.

If a vacancy occurs on an arbitration panel that has begun or completed hearings on the claim, but has not made an award, the claim is heard by a new arbitration panel, unless each party agrees in writing to the remaining panelists making the award or to a substitute panelist being selected by the Director. Otherwise a new list is delivered to all parties for striking of names.

The Director shall keep three categorized lists of alternate arbitrators consisting of individuals who have served on not less than three cases and have rendered at least one award in favor of a claimant and one in favor of a defendant or, in the case of a health care provider, one who has served on at least one case in which there has been an award in favor of a claimant in which the health care provider concurred.

Except as provided in §G(2) of this regulation, a party or counsel may not communicate directly with an arbitration panel candidate or member concerning the claim.

A party or counsel shall communicate with a member of the arbitration panel only by either of the following means:

An individual aware of any communication with a panel candidate or member in violation of §G(1) or (2) of this regulation immediately shall notify the Director. If, after investigation, the Director determines that the communication has prejudiced a hearing, the Director shall require selection of a new arbitration panel or a new panel member, if the parties do not agree to continue without the affected panelist.

The chairman shall decide all issues of law.

The panel, in its entirety, shall decide all issues of fact.

Decide all prehearing procedures including issues relating to discovery;

Contact all parties within 2 months of appointment to determine a schedule for completion of discovery and a tentative hearing date, in accordance with Regulations .09C and .11A(1) of this chapter, and issue a scheduling order to all parties and the Director;

Keep all parties, the panel, the court reporter, and the Director informed of the selected hearing date, postponements, or cancellations, and adjust the schedule as necessary to accommodate the panel; and

Invoke, when necessary, the authority, powers, and directions as would be exercised normally by a circuit court judge in order to preserve the orderly progress of the case, except for contempt citations.

At the prehearing conference, the parties shall consider all of the following:

Each party is expected to be prepared fully for a useful discussion of, and authorized fully to make commitments with respect to, all problems likely to arise in the proceedings. Preparation should include advance study of all relevant material and advance information communication between participants, including requests for additional information, to the extent that it appears feasible and desirable.

The chairman shall set the time and place for all hearings. However, unless all parties agree otherwise, a hearing will be held only in a county in which a court would have venue under Courts and Judicial Proceedings Article, Title 6, Subtitle 2, Annotated Code of Maryland.

The chairman may postpone a hearing on request of a party for good cause shown, or on the panel's own motion.

The chairman may continue or recess a hearing from time to time as necessary.

The chairman shall give each party at least 15 days notice of a hearing. However, this provision does not apply to resumption of a hearing that has been continued according to §A(3) of this regulation, if reasonable notice of the resumption has been given. Appearance at the hearing by a party waives any objection the party may have to any defect concerning the notice requirement unless the objection is specifically reserved.

The chairman shall also give public notice of the hearing. This requirement is complied with by filing a notice of the hearing at the office of the Director at least 2 days before the hearing.

The arbitration panel is not bound by the technical rules of evidence.

Properly authenticated hospital records and the records of treating health care providers are admissible without the necessity of calling the physician, subject to reasonable notice, and the right of the opposing party to depose.

A party may not produce testimony from more than two experts in a designated specialty unless the chairman, for good cause shown, permits additional experts.

Evidence of any advance payment under Courts and Judicial Proceedings Article, §3-2A-08(a), and Article 48A, §482(c), Annotated Code of Maryland, is not admissible until after the arbitration panel determines the issue of liability.

Each party has the right to be represented by counsel at any phase of the proceedings under the Act. If a party appears without counsel, the arbitration panel, if it has not done so previously, will on the record advise the party of the complexity of health care claims and suggest consideration of retaining counsel. A party who elects not to retain counsel may proceed without counsel. An attorney appearing in a representative capacity shall file with the Director a notice of appearance.

On written request of a party for an interpreter, the panel shall first determine the need for an interpreter and, if needed, the panel shall provide the interpreter. The cost of the interpreter is considered a cost of the proceedings. A request for an interpreter shall be made not less than 30 days in advance of the hearing date.

At the hearing, each party has the right to be heard, to present evidence material to the controversy, and to cross-examine witnesses.

The chairman or the panel may issue subpoenas for attendance of witnesses and for production of records and other evidence.

The chairman or the panel or any party may petition the court to enforce a subpoena. All provisions of law that may compel an individual under subpoena to testify apply to proceedings under the Act.

On request of a party, or on the panel's own motion, the arbitration panel shall administer the oath to a witness.

Any panel member may question a witness.

Witness fees are as provided for a witness in circuit courts of this State.

Hearings before the Arbitration Panel.

Corrections and changes may not be made on the official transcript unless one of the following occurs:

After presentation of all evidence, an arbitration panel may order the parties to file briefs.

The hearing shall close after presentation of all evidence or, if briefs are ordered, on the final date set for submission of briefs, or counsel's arguments on the briefs.

An arbitration panel may reopen the hearing on written request of a party for good cause shown, or on the panel's own motion, at any time before the arbitration panel files its award.

If the arbitration panel determines that a health care provider is liable, the panel shall then consider and determine the amount of damages in accordance with §C of this regulation, and, subject to Courts and Judicial Proceedings Article, §§11-108 and 11-109, Annotated Code of Maryland, causes of action arising on or after July 1, 1986. Evidence of advance payments pursuant to Article 48A, §482A(c), Annotated Code of Maryland, is admissible at this stage of the proceeding.

The panel shall determine:

If advance payment has been made under Courts and Judicial Proceedings Article, §3-2A-08(a), and Article 48A, §482A(c), Annotated Code of Maryland, the arbitration panel shall subtract the amount of advance payments made to a claimant on behalf of a provider from the total damages calculated to be owed by the provider to the claimant under §C of this regulation.

The award of damages shall be adjusted as follows:

An arbitration panel shall determine the responsibility for paying the arbitration costs, and may apportion the costs among any of the parties, in specific fractional or percentage figures.

Arbitration panel members are entitled to the following remuneration for time spent in transaction of arbitration duties:

In addition to the remuneration set forth in §D(2) of this regulation, each member of an arbitration panel is entitled to receive reimbursement for expenses incurred in transaction of the panel's business, according to the standard travel regulations adopted by the Board of Public Works.

Not more than 1 year after the last defendant was served, and within 10 days after the close of the hearing, the arbitration panel shall submit to the Director a written award, or the results of an application for modification, that concisely states the following information:

The Director shall cause a copy of the award or the application for modification result and the arbitration costs amount to be mailed to each party not less than 15 days after receipt from the panel.

At any time that a claim is open, the parties who agree on a settlement may submit the written settlement agreement to the Director or to the chairman.

An arbitration panel may incorporate a settlement agreement in its award. However, a settlement agreement does not affect a party not participating in the agreement and does not prevent a panel determination of the issues involving those nonparticipating parties.

An arbitration panel shall determine the amount of arbitration costs incurred before settlement, and may apportion the costs among the parties unless the settlement provides for payment of the costs. If there is not a full panel, the chairman shall make this decision.

If an arbitration panel finds that a party has acted in bad faith in asserting or defending a claim, it may require that party, or the party's attorney, or both, to pay the adverse party's costs, reasonable expenses, including attorneys' fees, or any portion of them, as a part of the award.

Only if a legal fee is in dispute will it be approved by the arbitration panel, or by the court to which an appeal is taken.

Within 20 days after an award is mailed to a party, the party may apply to the arbitration panel for modification of the award.

Each other party shall be given notice of the application for modification stating that the party may file an objection to the application within 10 days after receiving the notice.

An arbitration panel may modify its award for any of the following purposes:

An arbitration panel shall modify its award according to a court order made under Courts and Judicial Proceedings Article, §3-222(d), Annotated Code of Maryland.

A modified award includes, as a separate item, an assessment of the amount of additional arbitration costs incurred in determination of the issue modifying the award.

Within 20 days after an application for award modification is referred to the arbitration panel, the panel shall submit to the Director the following:

The Director shall cause a copy of the arbitration panel's modification determination and the cost amount to be served on each party within 15 days after receipt of it.

Subject to §B(2) of this regulation, a party may reject an award or the assessment of costs under an award by filing with the Director and serving on each other party a notice of rejection.

A rejecting party shall also file with the court an action to nullify the award or the assessment of costs under an award. Failure to file this action, within the time period in §A of this regulation, constitutes a withdrawal of any notice of rejection.

Subject to the time limitations in §D of this regulation, a claimant may waive arbitration, at any time after filing the certificate of merit in accordance with Regulation .03F of this chapter, by filing a written election to waive arbitration with the Director.

The claimant shall serve the written election to waive arbitration on all parties in accordance with Maryland Rules of Procedure.

If the claimant waives arbitration under this regulation, all defendants shall comply with Regulation .03F of this chapter by filing their certificate of merit either with the Health Care Alternative Dispute Resolution Office or in the appropriate circuit court or United States District Court.

Subject to the time limitations in §D of this regulation, a defendant may waive arbitration at any time after the claimant has filed a certificate of merit in accordance with Regulation .03F of this chapter by filing a written election to waive arbitration with the Director.

The defendant shall serve the written election to waive arbitration on all parties in accordance with the Maryland Rules of Procedure.

If the defendant waives arbitration under this regulation, all defendants shall comply with Regulation .03F of this chapter by filing their certificates of merit either with the Health Care Alternative Dispute Resolution Office or in the appropriate circuit court or United States District Court.

A written election to waive arbitration under this regulation, filed by a party, may not be filed later than 60 days after all defendants have filed a certificate of merit in accordance with Regulation .03F of this chapter.

A written election to waive arbitration filed after this date shall be in accordance with Regulation .16 of this chapter.

Within 60 days of the filing of a written election to waive arbitration by a party, the claimant shall file a complaint and a copy of the election to waive arbitration in the appropriate circuit court or United States District Court.

After filing the complaint, the claimant shall serve a summons and a copy of the complaint on all parties.

Failure to file a complaint within 60 days of filing the written election to waive arbitration may be grounds for dismissal of the complaint, if: