Brown v. Rabbitt

¹⁷³ COUCH, Judge. For the third time in little over a year we are called upon to determine whether a claim against a health care provider is covered by the Health Care Malpractice Claims Act 1 (the Act). During this space of time we decided Cannon v. McKen, 296 Md. 27 , 459 A.2d 196 (1983), and Nichols v. Wilson, 296 Md. 154 , 460 A.2d 57 (1983). We issued the writ of certiorari here, on our own motion, to the Court of Special Appeals, in order to make clear what has been viewed as unclear by our decisions in Cannon and Nichols .

The facts giving rise to this controversy are set forth in the declaration filed in this case. The appellant, Vivian Brown, sued Robert W. Rabbitt, a medical doctor, in the Circuit Court for Prince George’s County. Her declaration contained two counts, the first being titled “Breach of Express Warranties,” and the second as “Breach of Implied Warranties.” Count II incorporated by reference all allegations contained in Count I and adopted them. The allegations make clear that the appellant was a paying patient of Dr. Rabbitt, and was admitted to a hospital on his instructions for the purpose of undergoing a tubal ligation.

It was alleged in Count I that appellee expressly warranted that the procedure was safe and would not result in unusually heavy and irregular menstrual cycles nor would it result in damage to the uterus. Moreover, it was alleged that the representations and express warranties were made as an inducement for said surgery and appellant relied thereon. It was further alleged that surgery was performed by appellee and the procedure failed because appellant has sustained heavy and irregular menstrual cycles causing extensive medical treatment, surgery, and hormonal therapy, all to her damage. Count II alleged that Dr. Rabbitt impliedly warranted to appellant that he would provide medical, surgical, hospital, nursing, and post-operative care and treatment to appellant in accordance with reasonable ¹⁷⁴ standards for such treatment in Maryland.

It was also alleged that appellant relied on these warranties and upon the knowledge, judgment, and reputation of the appellee. Finally appellant alleged that appellee breached and violated the warranties in that the medical, surgical, hospital, nursing, and post-operative care and treatment given her were not in accordance with reasonable standards “as aforesaid.” The same injuries and damages as contained in Count I were realleged in Count II. Dr. Rabbitt filed a motion raising preliminary objection to the declaration based on the ground that the claim was arbitrable and, as this condition had not been met, the trial court had no subject matter jurisdiction. 2 In due time this motion was granted and judgment in favor of appellee entered, precipitating this appeal. In essence, the appellant contends that her action is one sounding in contract and, as such, is not subject to the mandatory arbitration provisions of the Act.

Appellant relies on our decisions in Cannon and Nichols where we held that only those claims which arise or result from the “breach of a professional’s duty to exercise the appropriate care required of a health care provider in a professional capacity” are covered under the Act. Cannon, 296 Md. at 37 , 459 A.2d at 202 ; see also Nichols, 296 Md. at 161 , 460 A.2d at 61 . We believe appellant reads into our opinions in ¹⁷⁵ these cases that which we had not said nor intended to say. The appellant would read Cannon and Nichols as holding that in no event would claims for breach of contract against a health care provider be covered under the