Chew v. Meyer

BLOOM, Judge. Appellant, Herbert Chew, filed in the Circuit Court for Baltimore City a multiple count complaint, sounding in tort and contract, against appellee, Paul D. Meyer, M.D., P.A. Appellee moved for dismissal of the complaint in its entirety, asserting that the claims were not properly before the court because the claims should have been filed with the Health Claims Arbitration Office, pursuant to Md.Cts. & Jud.Proc.Code Ann. § 3-2A-01 et seq. (1984 Repl.Vol.). Dr. Meyer also moved for summary judgment as to each count.

The court granted the motion to dismiss; simultaneously (and inconsistently) it granted Dr. Meyer’s motion for sum ¹³⁵ mary judgment as to five of the six counts of the complaint. Mr. Chew, understandably perturbed, noted a timely appeal. We agree with appellant that the court erred in granting appellee’s motion to dismiss. We also agree that the court erred in granting summary judgment as to appellant’s claims for breach of contract and negligence.

We shall explain. Facts The gist of appellant’s claim is that his employer fired him, for an unexcused or unexplained absence from work, because Dr. Meyer, after undertaking to send to the employer a document that would explain and excuse Chew’s absence from work, failed to do so in a timely manner. The facts underlying appellant’s claim, as gleaned from the pleadings, depositions and answers to interrogatories, are as follows. Mr. Chew was employed by Bethlehem Steel Company.

The employer required all employees who missed work to produce a written explanation for the absence within fifteen days of the last day worked. A medical explanation or excuse for absence from work required a writing signed by a physician, but the employer prescribed no particular form; therefore, any memorandum or insurance form signed by a physician would suffice. On 8 September 1983, Chew was admitted to South Baltimore General Hospital for surgery to relieve discomfort in his left thigh. Prior to entering the hospital, Chew informed his surgeon, Dr. Meyer, that a particular insurance form entitled “Statement Claim for Sickness and Accident Weekly Benefits” had to be completed and returned to his employer promptly.

It was Chew’s intention that that form serve not only to enable him to collect sick pay but also to document the legitimate excuse for his absence from work. The day following his surgery, Chew presented Dr. Meyer with the insurance form and insisted that he complete it immediately. The doctor refused, but he did accept the ¹³⁶ form for completion by his secretary. In his deposition Chew claimed that he told the doctor at that time, “make sure that you get the papers in within the next week ... or it could cost me my job____” During the period between 10 September and 21 September Chew made several inquiries of the doctor and his secretary concerning the status of the insurance form and on at least one occasion repeated that he could lose his job if that form was not expedited.

Each time he was given assurance that the form would be mailed promptly. The form was not completed, however, until 21 September 1983 and was not received by Bethlehem Steel until 26 September 1983. As a result of the failure to supply his employer with timely documentation that his absence from work was due to an excusable cause, Chew was discharged from employment. Chew’s six-count complaint against Dr. Meyer, arising out of the doctor’s failure to complete and promptly return the insurance form, alleged negligence, breach of contract, intentional interference with contractual relationship, negligent infliction of emotional distress, and breach of fiduciary relationship.

In ruling on appellee’s motion to dismiss, the court determined that Chew’s claim was essentially one for medical malpractice; accordingly, it granted that motion. At the same time, the court also ruled on appellee’s motion for summary judgment, granting that motion with respect to each count except one for breach of contract. I Motion to Dismiss The statutory provision that delineates the jurisdiction of the Health Claims Arbitration Office reads in pertinent part: § 3-2A-02. Exclusiveness of Procedures.

(a) Claims and actions to which subtitle applicable. —(1) All claims, suits, and actions, including cross claims, third-party claims, and actions under Title 3 Subtitle 9 of this article, by a person against a health care provider for ¹³⁷ medical injury allegedly suffered by the person in 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. (2) An action or suit of that type may not be brought or pursued in any court of this State except in accordance with this subtitle. Md.Cts. & Jud.Proc.Code Ann. § 3-2A-02 (Supp.1986) (emphasis added). The term “medical injury” is defined in § 3-2A-01(f) as an “injury arising or resulting from the rendering or failure to render health care.” The critical question, therefore, is whether the injury sustained by appellant can be fairly characterized as having resulted from the rendering or failure to render health care.

We do not think it can. The Health Claim Arbitration Act was passed by the General Assembly as a partial solution to the burgeoning medical malpractice crisis of the time. Cannon v. McKen, 296 Md. 27, 34 , 459 A.2d 196 (1983). Consequently, the Act has been deemed as applying only to those situations involving what is ordinarily denominated as medical malpractice—a health care provider’s breach of his duty to exercise professional expertise or skill.

See e.g. Long v. Rothbaum, 68 Md.App. 569 , 514 A.2d 1223 (1986); Brown v. Rabbitt, 300 Md. 171 , 476 A.2d 1167 (1984). When professional skill is involved, the claim is arbitrable irrespective of its theory of recovery—tort, contract, or strict liability. Brown v. Rabbitt, supra, 300 Md. at 175 , 476 A.2d 1167 .

If, however, the thrust of the action does not concern the exercise of professional skill or expertise, the action falls outside the act and is properly brought directly to Maryland courts. Cf. Nichols v. Wilson, 296 Md. 154 , 460 A.2d 57 (1983); Cannon v. McKen, supra. Chew’s claims against Dr. Meyer do not arise out of the doctor’s failure to adhere to the level of skill or expertise ordinarily expected of a neurosurgeon.

As Chew acknowledged in his brief and at oral argument, he is entirely satisfied with Dr. Meyer’s skill as a surgeon. Chew’s ¹³⁸ complaint against Dr. Meyer lies in the doctor’s failure to perform, in a proper and timely manner, a clerical task collateral to rendering “health care.” We do not believe the Legislature ever intended such a claim to come within the act. Cf. Nichols v. Wilson, supra (claims for assault, battery and intentional infliction of emotional distress were not arbitrable even though striking of patient occurred during medical treatment).

II Summary Judgment Having determined that this case was properly before the circuit court, we now consider the court’s granting of summary judgment. A. Generally A grant of summary judgment is appropriate only where a two-fold test is met. The movant for summary judgment must clearly demonstrate the absence of any genuine issue of material fact and must also demonstrate that he is entitled to judgment as a matter of law. Md.Rule 2-501(a).

See also Dietz v. Moore, 277 Md. 1, 4 , 351 A.2d 428 (1976); Metropolitan Mortgage Fund, Inc. v. Basiliko, 44 Md.App. 158, 162 , 407 A.2d 773 (1979); Vanhook v. Merchants Mutual Insurance Co., 22 Md.App. 22, 26 , 321 A.2d 540 (1974). The court, in ruling on a motion for summary judgment, must consider “the pleadings, depositions, answers to interrogatories, admissions and affidavits” submitted by the parties. Md.Rule 2-501(e). At a hearing on a motion for summary judgment, the function of the judge is “much the same as that he performs at the close of all the evidence in a jury trial when motions for directed verdict ... require him to determine whether an issue requires resolution by a jury, or is to be decided by the court as a matter of law.” Vanhook, supra, 22 Md.App. at 25-26 , 321 A.2d 540 (quoting Knisley v. Keller, 11 Md.App. 269, 272-73 , 273 A.2d 624 (1971)).

In determining whether a factual dispute exists, all inferences are to be drawn in the light most favorable to the non-moving party. DiGrazia v. County Executive for Montgomery ¹³⁹ County, 288 Md. 437, 445 , 418 A.2d 1191 (1980); Berkey v. Delia, 287 Md. 302, 306 , 413 A.2d 170 (1980). B. Negligent Infliction of Emotional Distress, Breach of Fiduciary Duty, Interference with Contract With these principles in mind, we may summarily dispose of Chew’s arguments concerning his count for negligent infliction of emotional