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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1806 September Term, 1994

JOHN A. LANGWORTHY v. JUVENAL R. GOICOCHEA

Bishop, Alpert, Wenner, JJ.

Opinion by Bishop, J.

Filed:

September 5, 1995

On December 22, 1993, appellant, John A. Langworthy, filed a claim with the Health Claims Arbitration Office of Maryland

("HCAO") against appellee, Juvenal R. Goicochea, M.D.

On April 11,

1994, Langworthy filed a complaint for assault and battery against Goicochea in the Circuit Court for Montgomery County. claimed $300,000 in damages. Langworthy

On April 14, 1994, the HCAO granted

Langworthy a ninety-day extension to file a certificate of merit of qualified expert. Langworthy failed to file the requisite On April

certificate and the HCAO dismissed Langworthy's claim.

22, 1994, Goicochea filed a motion to dismiss Langworthy's circuit court action, asserting that the court lacked jurisdiction because Langworthy had failed to arbitrate his claim before the HCAO. circuit court granted Goicochea's motion. The

Langworthy filed a On

motion for reconsideration which the circuit court denied. August 11, 1994, Langworthy filed an amended

complaint.

Subsequently, Goicochea filed a motion to strike the amended complaint, which the circuit court granted. Issues Langworthy presents numerous issues, which we rephrase and consolidate into a single issue: Did the trial court properly

dismiss Langworthy's complaint for lack of jurisdiction? Facts

- 2 In his original complaint, Langworthy made the following allegations: 1. On November 27, 1992, . . . against Plaintiff's will and without the Plaintiff's consent, the Defendant intentionally assaulted and battered Plaintiff's left inguinal area with the full force of Defendant's left forefinger for approximately five (5) minutes. 2. This assault and battery by the Defendant has inflicted a permanently painful injury in Plaintiff's left groin. 3. This assault and battery was aggravated by Defendant's malice to physically hurt the Plaintiff. 4. On November 27, 1992, Plaintiff had verbally contracted with Defendant for Defendant to provide Plaintiff with a routine hernia examination and surgical consultation for two hundred dollars ($200.00). As a licensed general surgeon in the State of Maryland, the Defendant intentionally violated this contract by Defendant's intentionally hurting and permanently injuring Plaintiff's left groin as described in paragraphs 1-3 above. Wherefore, Plaintiff sues Defendant in the amount of three hundred thousand dollars . . . for the permanent physical pain and suffering inflicted by Defendant . . . . The circuit court ruled that, pursuant to Maryland law, "compliance with the Health Claims Malpractice Act is a condition precedent to court action[,]" and dismissed the complaint. The court stated:

It is clear to the Court from a review of case law that [Langworthy's] cause of action should first be submitted to arbitration before the [HCAO]. In Jewell v. Malamet, 322 Md. 262 (1991), a case factually similar to the one at bar, the Court held that in the

- 3 absence of a concession that the conduct complained of had no conceivable validity as part of the examination being conducted, the Court could not conclude, as a matter of law, the allegations were not subject to the Act. Similarly, in the instant case the Court cannot determine that Langworthy's allegations suffice to take the complaint outside the Act. In the typical case when the Circuit Court determines that the [HCAO] should first hear a case, the Circuit Court should stay the proceedings before it pending the outcome of arbitration. However, in the instant case the Health Claims Arbitration Office dismissed [Langworthy's] action for his failure to file a Certificate of Merit of a Qualified Expert. * * *

In the instant case, [Langworthy's] failure to file the required Certificate of Merit under Section 3-2A-04 is fatal to his case. Because the Health Claims Arbitration Office dismissed [Langworthy's] case for his noncompliance, it is clear that [Langworthy] has not exhausted his administrative remedies. It would be inappropriate for the Circuit Court to stay this action when the Health Claims Arbitration Office has dismissed the case for failure to follow the proper procedures. Discussion Langworthy contends that the circuit court has jurisdiction to hear his case because his complaint alleges assault and battery and therefore his claim is not within the scope of the Health Claims Malpractice Act ("the Act"). The Act requires that

[a]ll claims, suits, and actions, including cross claims, third-party claims, and actions under Subtitle 9 of this title, by a person against a health care provider for medical injury allegedly suffered by the person in

- 4 which damages of more than the limit of the concurrent jurisdiction of the District Court are sought are subject to and shall be governed by the provisions of this subtitle. Md. Cts. & Jud. Proc. Code Ann.,

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