UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHARLES H. ROANE,
Plaintiff-Appellant,

v.
                                                                  No. 99-1023
WASHINGTON COUNTY HOSPITAL;
A. F. ABDULLAH,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CA-98-3191-CCB)

Submitted: July 20, 1999

Decided: September 10, 1999

Before WILLIAMS and MURNAGHAN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Sharon N. Horner, Richmond, Virginia; Mark A. Cronin, CRONIN &
SCARDINO, Fort Washington, Pennsylvania, for Appellant. Michael
I. Joseph, GODARD, WEST & ADELMAN, Rockville, Maryland;
Frederick W. Goundry, III, VARNER, KASLICK & GOUNDRY,
Frederick, Maryland, for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Charles H. Roane appeals from the district court's order transfer-
ring his medical malpractice action to the state court pursuant to the
language in his waiver of arbitration limiting that waiver to the state
court. On appeal, he contends that the language in the waiver of arbi-
tration does not limit his right to sue the Defendants in federal court.
We find that the plain language of the Maryland statute does not
allow such a forum selection clause, and, therefore, vacate the district
court's order and remand the case to the district court for further pro-
ceedings.

In April 1996, Roane filed a complaint in the United States District
Court for the District of Maryland, in which he alleged that Washing-
ton County Hospital and Dr. A. F. Abdullah committed medical mal-
practice and caused serious injury to Roane's right arm during carpal
tunnel surgery. After the Defendants moved to dismiss the complaint
based on Roane's failure to submit his claim for arbitration pursuant
to the Maryland Health Care Malpractice Claims Statute, Md. Cts. &
Jud. Proc. Code Ann. §§ 3-2A-01 to 3-2A-09 (Michie 1998), Roane
voluntarily dismissed the complaint.

Roane then filed a claim with the Maryland Health Claims Arbitra-
tion Office. Subsequently, the parties filed an"election to waive arbi-
tration." The election states: "Pursuant to Md. Cts. & Jud. Proc. Code
Ann. § 3-2A-06A, all the parties hereto, through their attorneys,
mutually agree to waive arbitration of this matter to the Circuit Court
for Washington County, Maryland."

Roane refiled his malpractice complaint in the district court, based
upon diversity jurisdiction. The Defendants moved to dismiss the
complaint or, in the alternative, to transfer the case to the state court.
The Defendants asserted that the "election to waive arbitration" states

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that arbitration is waived so that claims could be filed in the Circuit
Court for Washington County; it is not valid for filing claims in fed-
eral court. Following a conference call to discuss the issue, the district
court granted the Defendants' motions and transferred the case to the
Circuit Court for Washington County. Roane appeals.

The Maryland Health Care Malpractice Claims Statute requires that
all malpractice claims alleging damages in excess of $20,000 be sub-
ject to arbitration and be initially filed with the Health Claims Arbi-
tration Office. See id. §§ 3-2A-02(a), 3-2A-04(a). Arbitration is a
condition precedent to filing a malpractice action. See Davison v.
Sinai Hosp. of Baltimore, Inc., 462 F. Supp. 778 (D. Md. 1978), aff'd,
617 F.2d 361 (4th Cir. 1980); see also Woods v. Holy Cross Hosp.,
591 F.2d 1164, 1169 n.7 (5th Cir. 1979).

The Arbitration Statute provides that the parties may agree to
waive arbitration. See Md. Cts. & Jud. Proc. Code Ann. § 3-2A-06A.
Here, the parties "mutually agree[d] to waive arbitration of this matter
to the Circuit Court for Washington County, Maryland." The Defen-
dants argue, and the district court found, that by limiting the waiver
to the Circuit Court for Washington County, Maryland, the parties
waived their right to file the complaint in the United States District
Court, and instead selected the forum for litigation of the malpractice
action.

However, § 3-2A-06A(a) of the Maryland Health Care Malpractice
Claims Statute provides in part that "the parties may agree mutually
to waive arbitration of the claim, and the provisions of this subsection
then shall govern all further proceedings on the claim." Section 3-2A-
06A(c)(1) then provides that "[w]ithin 60 days after filing the election
to waive arbitration, the plaintiff shall file a complaint and a copy of
the election to waive arbitration with the circuit court or United States
District Court." Because § 3-2A-06A(a) does not allow parties to opt
out of the provisions of § 3-2A-06A, and because subsection (c) pro-
vides that following waiver of arbitration, the complaint may be filed
in the state court or the federal court, we find that forum selection
provision of the waiver was ineffective to limit Roane's malpractice
action to state court. Accordingly we vacate the district court's order
and remand this case to the district court to conduct further proceed-
ings. We dispense with oral argument because the facts and legal con-

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tentions are adequately presented in the materials before the court and
argument would not aid the decisional process.

VACATED AND REMANDED

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