Afamefune v. Suburban Hospital, Inc.

BELL, C.J. We granted certiorari in this case to decide whether the Maryland Health Care Malpractice Claims Act, Maryland Code (1974, 2002 Repl.Vol.) §§ 3-2A-01 through 3-2A-09 of the Courts and Judicial Proceedings Article (“the Act”) 1 ap ⁶⁸⁰ plies when a hospital patient, alleging that she was assaulted and raped by another patient, sues the hospital for negligence in failing to provide for her security while hospitalized. If it does, then the claim must be filed with the Health Claims Arbitration Office; if it does not, the claim is appropriately filed in the Circuit Court. Appellant Sophia Afamefune, individually, and as next friend and mother of Stephanie Afamefune, the other appellant, Stephanie, (collectively “the appellants”), filed, in the Circuit Court for Montgomery County, a complaint sounding in negligence against Suburban Hospital, Inc., the appellee. Pointing out that claims for medical injury, as a condition precedent to filing an action in court, must be submitted to non-binding arbitration by being filed with the Health Claims Arbitration Office and arguing that the appellant’s claims were for medical injury, the appellee moved to dismiss the appellants’ complaint.

Agreeing with the appellee, the trial court granted its motion. For reasons hereinafter to be set forth, we shall reverse the judgment of the Circuit Court. I. Stephanie, a fourteen year old minor, was, on September 26, 2001, admitted as a patient at Suburban Hospital for injuries sustained when she jumped from a moving automobile. 2 On October 2, 2001, while a patient on the psychiatric ward, being treated for depression, she was assaulted and ⁶⁸¹ raped or attempted to be raped by a male patient. The appellants filed a complaint in the Circuit Court for Montgomery County against the appellee.

In the complaint, they alleged that the appellee breached the duties it owed Stephanie “to exercise reasonable care for her protection and ... to protect her from being assaulted and raped,” resulting in “severe physical and emotional pain and suffering which may be permanent” and which has required and will continue to require medical attention, with the necessary financial expenditures and anticipated financial losses. 3 The appellee filed a motion to dismiss and argued in support of the motion the appellants’ failure to file their claims pursuant to the Maryland Health Care Malpractice Claims Act, with the Health Claims Arbitration Office. 4 The Circuit Court granted the ⁶⁸³ appellee’s motion and dismissed the appellants’ complaint, with prejudice and without leave to amend. Noting that “the Health Claims Arbitration Act was designed to cover health care providers, and that generally has been given a rather broad perspective,” the Court reasoned: “It cannot be ignored that Suburban is a medical facility, and would come under the general umbrella of health care providers. “That statute is designed for the purpose of bringing these matters to a preliminary matter of resolution before it comes to court, and I am satisfied that the language mandates that this — even though it is a hospital and the theory of recovery is negligence as opposed to medical malpractice, which is medical negligence — I feel that the defendant’s argument is the stronger of the two. That it should be dismissed for failure to have been pursued in the proper fashion of the Health Claims Arbitration Act.” The Appellants noted an appeal to the Court of Special Appeals. Prior to any proceedings in the intermediate appellate court, on our own motion, we issued the writ of certiorari, see 372 Md. 684 , 814 A.2d 570 (2003), to consider this important issue of public interest. ⁶⁸⁴ II.

It is well settled that, “[a]bsent a waiver by the parties, the Health Care Malpractice Claims Act requires the submission of malpractice claims against health care providers to an arbitration proceeding as a condition precedent before maintaining a tort action in the circuit court.” Goicochea v. Langworthy, 345 Md. 719, 725 , 694 A.2d 474, 477 (1997). See Goodwich v. Nolan, 343 Md. 130, 151 , 680 A.2d 1040, 1050 (1996); Jewell v. Malamet, 322 Md. 262, 265 , 587 A.2d 474, 475-76 (1991); Tranen v. Aziz, 304 Md. 605, 612 , 500 A.2d 636, 639 (1985); Bailey v. Woel, 302 Md. 38, 41 , 485 A.2d 265, 266 (1984); Oxtoby v. McGowan, 294 Md. 83, 91 , 447 A.2d 860, 864-865 (1982); Attorney General v. Johnson, 282 Md. 274, 283-284 , 385 A.2d 57, 63 , appeal dismissed, 439 U.S. 805 , 99 S.Ct. 60 , 58 L.Ed.2d 97 (1978). See also Newell v. Richards, 323 Md. 717, 727-734 , 594 A.2d 1152, 1157-1161 (1991). The claims against health care providers to which the Act pertains are only those in which medical injuries are alleged.

See § 3-2A-01(f), 5 defining “medical injury” to “mean[ ] injury arising or resulting from the rendering or failure to render health care.” This Court has considered, and explained, this definition of “medical injury” 6 and concluded: ⁶⁸⁵ “LT]he legislature did not intend that claims for damages against a health care provider, arising from non-professional circumstances where there was no violation of the provider’s professional duty to exercise care, to be covered by the Act. It is patent that the legislature intended only those claims which the courts have traditionally viewed as professional malpractice to be covered by the Act.” Cannon v. McKen, supra, 296 Md. at 34, 459 A.2d at 200. See Nichols v. Wilson, 296 Md. at 161, 460 A.2d at 61 (“it is only those claims for damages where there has been a violation of the health care provider’s professional duty to exercise care which are within the Act”); Brown v. Rabbitt, 300 Md. 171, 175 , 476 A.2d 1167, 1169 (1984). Our consideration and explanation were in the context of the rendering of medical services or treatment.

In Goicochea v. Langworthy, supra, and Nichols v. Wilson, supra, there were allegations that, while providing the medical treatment sought, the health care provider committed intentional torts on the patient. In Goicochea v. Langworthy, supra, the allegation that the doctor, during a hernia examination, “intentionally assaulted and battered [the plaintiffs] left inguinal area with the full force of his left forefinger for approximately five minutes,” 345 Md. at 723 , 694 A.2d at 476 , was found “insufficient to remove [the plaintiffs] claim from the coverage of the Health Care Malpractice Claims Act.” Id. at 729 , 694 A.2d at 479 . The allegation in Nichols v. Wilson, supra, that, while on the operating table, prepared for the removal of sutures, the defendant doctor ‘Vithout provocation ... intentionally, violently, maliciously, wantonly and recklessly struck with his hand the left cheek of [the plaintiff],” causing permanent injury, pain and mental anguish, 296 Md. at 155, 460 A.2d at 58, which “clearly sounds in traditional assault and battery terms and alleges an intentional, malicious, wanton and reckless act,” id. at 161, 460 A.2d at 61, was held by this Court ⁶⁸⁶ not to be within the Act, “even though such action took place during the rendering of health care.” Id. We were careful to point out that not all intentional torts were automatically excluded, opining, instead, that “there may well be many [intentional torts] that would be so covered.” Id. at 161 n. 5, 460 A.2d at 61 n. 5.

The complaint in Brown v. Rabbitt, supra, alleged a breach of express and implied warranties made to the plaintiff and on which the plaintiff relied, in connection with a tubal ligation procedure. Concluding that such an action was covered by the Act — “[t]his is clearly a claim involving the appellee’s professional expertise and thus is subject to mandatory arbitration, notwithstanding the fact that the action is brought for breach of warranty,” 300 Md. at 176 , 476 A.2d at 1170 -, the Court stated the critical question as being “whether the claim is based on the rendering or failure to render health care and not on the label placed on the claim.” Id. at 175 , 476 A.2d at 1169 . The complaint in Cannon v. McKen, supra, sounded in negligence, strict liability in tort and breach of warranty. 296 Md. at 28-29, 459 A.2d at 197. The causes of action arose out of the injury to the plaintiff, a dental patient, incurred when, while “sitting in [the defendant dentist’s] dental chair, a part of the chair and/or x-ray wall attachment broke loose and fell on her, striking her on the face and head.” Id. at 29, 459 A.2d at 198.

Although conceding that “[a] much closer situation may develop where the injury occurs during treatment when equipment, being used in that treatment, malfunctions and causes the injury,” id. at 36, 459 A.2d at 201, the Court held: “[T]he Act covers only those claims for damages arising from the rendering or failure to render health care where there has been a breach by the defendant, in his professional capacity, of his duty to exercise his professional expertise or skill. Those claims for damages arising from a professional’s failure to exercise due care in non-professional situations such as premises liability, slander, assault, etc., ⁶⁸⁷ were not intended to be covered under the Act and should proceed in the usual tort claim manner.” Id. at 36-37, 459 A.2d at 201. We made clear, however, that the burden is on the pleader to: “allege sufficient facts to make clear the theory upon which the alleged liability is based. It is a basic rule of law that where a cause of action is dependent upon a condition precedent, plaintiff must allege performance of such condition or show legal justification for nonperformance.

If the [complaint] fails to contain such allegations, defendant can object by [motion to dismiss] or plea.” Id, at 38, 459 A.2d at 202. Noting that the complaint alleged the plaintiffs status as a dental patient using the dental chair and/or x-ray equipment wall attachment at the time that she was injured, the Court found the pleadings “too sparse to allow a determination whether [the plaintifffs injury arose because of the defendant’s breach of his professional duty owed her or because of a breach of duty which he may have owed her as a premises owner or in some other non-professional capacity.” Id. at 37-38, 459 A.2d at 202. J&well v. Malamet also addressed the pleading requirement, in the process clarifying the holding in Nichols v. Wilson with respect to when intentional torts alleged to have been committed by health care providers during the rendering of medical care are covered by the Act. In that case, the plaintiff alleged that a physician had “intentionally, wrongfully, willfully, maliciously and violently” assaulted, battered and sexually abused her by fondling her vaginal and breast areas during two musculoskeletal examinations. 322 Md. at 267-269 , 587 A.2d at 477 .

Noting that “ ‘the factual context in which the tort was allegedly committed,’ ” id. at 272 , 587 A.2d at 479 , is critical, after analyzing our cases and the allegations in the complaint before it, the Court concluded: “Unlike Nichols, the claims here as alleged do not support a view that ‘in no way can it be read that the Legislature intended them to be within the Act.’ In the face of the ⁶⁸⁸ allegations, we cannot say, as a matter of law, that the claims as set out were not for medical injury allegedly suffered by Jewell.” Id. at 274 , 587 A.2d at 480 . In explanation, we detailed the Court’s attempt at oral argument to obtain a concession from the physician’s counsel “that the conduct complained of had no conceivable validity as part of the examination being conducted.” Id. at 275 , 587 A.2d at 481 . It was in the absence of such a concession, “that we [were] unable to conclude, as a matter of law, that the allegations as voiced are not subject to the Act.” Id. The Jewell v. Malamet holding and analysis were extensively discussed and explicated in Goicochea v. Langworthy, supra.

Addressing the pleading requirement, the Court explained: “Consequently, under Jewell , the determination of the proper initial forum for cases involving allegations of intentional torts committed by health care providers depends upon the factual context in which the tort was allegedly committed. Where a plaintiff alleges that he or she was injured by a health care provider during the rendering of medical treatment or services, the Act is implicated, regardless of whether the claim sounds in negligence or intentional tort. When confronted with such a claim, the trial court must determine if the plaintiffs factual allegations remove the claim from the Act’s coverage. If the complaint sets forth facts showing that the claimed injury was not inflicted during the rendering of medical services, or that the injury resulted from conduct completely lacking in medical validity in relation to the medical care rendered, the Act is inapplicable, and the action may proceed without first resorting to arbitration. “Under our holding in Jewell , however, if the trial court is unable to conclude that the allegations remove the claim from the Act’s coverage, the court should not exercise jurisdiction over the claim until a malpractice claim is filed with the HCAO.

The HCAO initially will determine if the ⁶⁸⁹ claim alleges a ‘medical injury’ and is therefore subject to the Act.” 345 Md. at 728-29 , 694 A.2d at 479 . In the instant case, we observe that it is alleged that Stephanie was assaulted and raped, or attempted to be raped, in her hospital room while a psychiatric patient on the appellee’s premises, but, at the time of the assault, no active or direct health care was being rendered by any health care provider. Moreover, it is not alleged that a health care provider committed the assault. To the contrary, the allegation is that it was committed by another-a male — of the appellee’s psychiatric patients.

Nor is there an allegation, and it is inconceivable that there could be one, that the assault was itself a part of the course of treatment that Stephanie was receiving for depression. 7 The appellee argues that the Circuit Court correctly ruled that the appellants’ claim against it was covered by the Act and, therefore, that their complaint, because it was not filed initially in the Health Claims Arbitration Office, was properly dismissed. Specifically, it says, the appellants did not meet their obligation to show in their complaint that the Act does not apply. The appellee concedes that the complaint sufficiently alleged the hospital-patient relationship, also that the assault was committed by another patient and that the appellee owed Stephanie a duty to protect her from such assaults; however, it maintains that “[wjhat is missing ... are factual allegations that would take the Appellant’s claims against her health care provider that arose during the course of a hospital-patient relationship outside the scope of the Act.” 8 It proffers, in that regard: ⁶⁹⁰ “In order to determine if Suburban was negligent in ‘[p]ermit[ting] an adult male patient to walk into [Appellant’s] room which was in close proximity to the nurse’s station,’ or ‘[f]ail[ing] to provide adequate security for [Apellant’s] well-being,’ a jury would have to address various issues involving the professional competence and judgment of agents and employees of Suburban. There is no way a jury can determine whether Suburban failed to meet the common law tort standard of acting as a reasonably prudent person under the circumstances without addressing the following issues: • Was it reasonable to place a minor female psychiatric patient such as the Appellant on Suburban’s psychiatric unit? • Assuming the assaulting patient was also a patient on the psychiatric unit, was it reasonable to place that individual on Suburban’s psychiatric unit? • Did the patient who allegedly committed the assault say or do anything that would have or should have indicated to Suburban’s staff that he posed a threat to the Appellant or anyone else? • Was the adult patient who allegedly assaulted the Appellant appropriately evaluated, diagnosed and treated? ⁶⁹¹ • Was the Appellant appropriately evaluated, diagnosed and treated? • Was the condition and diagnosis of the adult patient who allegedly assaulted the Appellant such that Suburban’s staff, in the exercise of their professional judgment, should have taken certain steps to ensure that he not come into contact with the Appellant? • Considering the conditions of the patients involved, was there appropriate supervision and surveillance provided by Suburban’s staff?” Appellee’s brief at pages 13-14.

In addition to those of our cases as we have reviewed, the appellee relies on Long v. Rothbaum, 68 Md.App. 569 , 514 A.2d 1223 (1986) and Roberts v. Suburban Hospital, 73 Md. App. 1 , 532 A.2d 1081 (1987). Long v. Rothbaum was an action against health care providers, Franklin Square Hospital and Taylor Manor, for false imprisonment, intentional infliction of emotional distress and violation of constitutional rights, pursuant to 42 U.S.C. § 1983 . The factual basis for the action, as revealed by the complaint, can be stated simply. The plaintiff was taken to Franklin Square Hospital by Toll Facilities’ police, who believed that the plaintiff was suicidal.

When he attempted to leave, the doctors and other agents of the hospital “restrained him, subsequently drugged him and still later caused him to be admitted involuntarily to a mental health facility,” 68 Md.App. at 571 , 514 A.2d at 1224 , for the accomplishment of which they executed illegal documents — Physicians’ Certificates that did not comply with the procedure prescribed by COMAR 10.21.01.03, id. at 576 , 514 A.2d at 1226 ,—and handcuffed and transported him to “an asylum.” 68 Md.App. at 571 , 514 A.2d at 1224 . Having been delivered to the “asylum,” Taylor Manor, where he remained for 7 days, “through the actions of doctors and other agents of Taylor Manor, he was illegally involuntarily admitted, without his consent kept at Taylor Manor, subjected to unlawful procedures and other wrongful actions.” Id. at 572 , 514 A.2d at 1224 . ⁶⁹² Cognizant that the critical question is the basis for the claim, whether it is based on the rendering or failure to render health care, rather than how the claim is labeled, id. at 575 , 514 A.2d at 1226 , quoting Brown v. Rabbitt, 300 Md. at 175 , 476 A.2d at 1169 , the intermediate appellate court rejected the plaintiffs argument “that intentional torts simply are not ‘medical injuries,’ ” id. at 573, 514 A.2d at 1225 , and focused on the allegations of the complaint. It concluded: “The complaint shows that Long was brought to Franklin Square Hospital because he was thought to be a suicide risk. He was kept there involuntarily because the health care providers at that hospital were attempting to treat him for that problem.

His claimed false imprisonment, from which the asserted emotional distress arose, was caused by those health providers who executed Physicians’ Certificates for mentally disordered that are required for involuntary