Goodwich v. Nolan

ALPERT, Judge. Appellants, Kenneth M. Goodwich, M.D., and Kenneth M. Goodwich, M.D., P.A., appeal the decision of the Circuit Court for Baltimore City dismissing their Verified Complaint Seeking Writ of Mandamus. In the complaint, appellants sought judicial review of an order of the Health Claims Arbitration ⁵⁰² Office compelling production of deposition testimony taken in an ongoing arbitration proceeding before the HCAO. Appellants present three questions for our review, which we have recast slightly as follows: I. Whether the circuit court abused its discretion in denying appellants’ Verified Complaint Seeking Writ of Mandamus, thereby foreclosing the only available avenue for judicial review of an HCAO order compelling production of statutorily privileged peer review information?

II

Whether the circuit court abused its discretion by failing to issue a writ of mandamus prohibiting the HCAO’s enforcement of an arbitrary order, erroneously compelling the production of privileged medical peer review information in violation of section 14-501(d) of the Health Occupations Article?

III

Whether joinder of the HCAO director as a named defendant in an action seeking a writ of mandamus prohibiting the enforcement of a panel chair’s order during an ongoing HCAO proceeding was proper? Facts and Proceedings The underlying action from which this appeal arises is a medical malpractice claim brought in the Health Claims Arbitration Office by Sharon Brooks, individually and as parent, guardian, and next friend of her son, Jamaal Brooks, against Kenneth M. Goodwich (Dr. Goodwich), M.D., Kenneth M. Goodwich, M.D., P.A. (Goodwich, P.A.), Sinai Hospital of Baltimore, Inc.- (Sinai Hospital), Health Care Corporation of the Mid-Atlantic (Carefirst), and Potomac Physicians, P.A. (Potomac).

Jamaal was bom with severe brain damage in December, 1988, allegedly as a result of negligent obstetrical and surgical treatment rendered by Dr. Goodwich. In addition to primary claims of liability against Dr. Goodwich, Ms. Brooks also brought vicarious or corporate liability claims against Goodwich, P.A., Sinai Hospital, Carefirst, and Potomac, on ⁵⁰³ theories of negligent supervision and credentialing. In orders dated April 19, 1993, and October 12, 1993, the panel chair assigned to the case, appellee Paul W. Nolan, Esquire (Nolan), bifurcated the claims of corporate liability from those brought solely against Dr. Goodwich. 1 During discovery in the HCAO proceeding, Ms. Brooks noted the deposition of Dr. Goodwich. At the deposition, Ms. Brooks’ attorney posed a series of questions to Dr. Goodwich regarding, inter alia, alleged disciplinary restrictions placed upon his staff privileges at Sinai Hospital; alleged disputes with other patients and former partners regarding patient communication problems; and alleged revocation, suspension, or other curtailment of his privileges to practice medicine. 2 At the instruction of his attorney, Dr. Goodwich refused to answer any of the questions on the ground that the medical peer review privilege set forth in section 14-501(d) of the Health Occupations Article protected such information.

The relevant portion of 14-501(d)(l) relied upon by Dr. Goodwich provides: [T]he proceedings, records, and files of a medical review committee are not discoverable and are not admissible in evidence in any civil action arising out of matters that are being reviewed and evaluated by the medical review committee. ⁵⁰⁴ Md.Code Ann., Health Occ. § 14-501 (d)(1) (1991). 3 Ms. Brooks’ attorney pursued similar lines of questioning at the depositions of two former employees of Sinai Hospital, Rebecca Brown, R.N., and Mary Anne Lathrop, M.D. They also were instructed by Dr. Goodwich’s attorney not to answer on the ground that the medical peer review privilege applied. 4 These claims of privilege prompted Ms. Brooks to file with the HCAO a Motion to Compel. After reviewing the extensive briefs filed by the parties, the panel chair, appellee Nolan, issued a Memorandum and Order on June 22, 1993, granting Ms. Brooks’s motion. In the order, Mr. Nolan found that the peer review privilege was not applicable because the information sought by Ms. Brooks at the depositions was not the “records” or “files” of a medical review committee, nor was the information a “proceeding” under 14-501 (d). Mr. Nolan found persuasive a Rhode Island case, Moretti v. Lowe, 592 A.2d 855 (R.I.1991).

He was also careful to note, however, that while the information sought was discoverable, his ruling was not meant to “imply that such evidence will be admissible at the ⁵⁰⁵ hearing on this matter.” (emphasis added). Dr. Goodwieh subsequently filed a Motion for Reconsideration, which was denied by the panel chair on October 12, 1993, again with the proviso that the ruling was not to be interpreted as implying that the information sought would be admissible at the final hearing on the merits. 5 When appellants failed to answer the deposition questions as ordered by Mr. Nolan, Ms. Brooks filed another Motion to Compel, to order Dr. Goodwieh to appear at a supplemental deposition. In response, Dr. Goodwich requested a protective order staying all discovery while he pursued mandamus relief in the circuit court. Mr. Nolan obliged, and on November 15, 1993, ordered that all discovery on the issue be stayed for a period of sixty days in order to permit Dr. Goodwieh to file a complaint for writ of mandamus in the circuit court.

On November 17, 1993, Dr. Goodwieh filed a Verified Complaint Seeking Writ of Mandamus against Mr. Nolan and Walter R. Tabler, Director of the HCAO, in the Circuit Court for Baltimore City. The complaint requested the court to prohibit Messrs. Nolan and Tabler from enforcing the HCAO order compelling Dr. Goodwieh and others to respond to the questions posed at their depositions. Appellees Nolan and Tabler filed a Motion to Dismiss Dr. Goodwich’s complaint, which the circuit court granted on January 11, 1994.

In its Order, the court adopted the reasons set forth in appellees’ motion to dismiss, namely that a writ of mandamus will not lie to direct a party to exercise a judgment that is discretionary in nature, that Dr. Goodwich’s complaint was interlocutory in ⁵⁰⁶ nature, and that an adequate statutory remedy existed after a final award was made by the HCAO. Appellants appeal the dismissal of the complaint for writ of mandamus, contending that the information sought by appellees is privileged under the express terms of 14-501(d). They contend that a writ of mandamus, though interlocutory in nature, is the only available means to prevent disclosure of the information to the general public. Post-arbitration procedures for vacating a final award, appellants argue, are inadequate to prevent disclosure because by that time the information will have already been released, in contradiction of the privilege itself.- Appellants conclude that appellees’ order compelling disclosure of the information should be immediately reviewable in the circuit court in order to protect adequately the information and promote the purposes of 14-501(d).

I. a. Mandamus A writ of mandamus generally seeks “to compel an inferior tribunal, a public official or an administrative agency to perform a function, or some particular duty which in its nature is imperative.... ” Dorchester Gen. Hosp. v. Sober, 79 Md.App. 110, 115 , 555 A.2d 1074 (1989). Mandamus is an “extraordinary remedy,” reserved only for those instances “where there is no other available procedure for obtaining review, or where the action complained of is arbitrary and capricious.” Weidig v. Tabler, 81 Md.App. 488, 491 , 568 A.2d 868 (1990).

It will not lie where there exists an adequate remedy to provide the relief requested, A.S. Abell Co. v. Sweeney, 274 Md. 715, 718 , 337 A.2d 77 (1975), nor will it he where the act or decision being reviewed is discretionary in nature or involves the exercise of judgment. Bovey v. Exec. Dir., HCAO, 292 Md. 640, 646 , 441 A.2d 333 (1982). The party applying for mandamus relief must demonstrate a clear legal right to have the performance of a duty compelled.

Dorchester Gen. Hosp., 79 Md.App. at 115 , 555 A.2d 1074 . A reviewing court should not disturb the dismissal of a writ of manda ⁵⁰⁷ mus unless there has been a clear abuse of discretion on the part of the trial court. Weidig, 81 Md.App. at 491 , 568 A.2d 868 .

In the case at bar, these threshold requirements have not been met. We hold, therefore, that the circuit court did not abuse its discretion in granting appellees’ motion to dismiss the complaint for writ of mandamus. b. Discretionary Nature of Discovery Order Mandamus relief is not appropriate in this case because Mr. Nolan’s decision to issue the discovery order was discretionary in nature rather than ministerial. Bovey, 292 Md. at 646 , 441 A.2d 333 .

Ruling on discovery matters involves the exercise of discretion and independent judgment on the part of a trial judge or a panel chairperson in a health claims arbitration proceeding. See, Baltimore Transit Co. v. Mezzanotti, 227 Md. 8, 13-14 , 174 A.2d 768 (1961) (holding that “discovery rules are to be liberally construed” and those “who are primarily called upon to administer said rules, are vested with a reasonable, sound discretion in applying them”). The discretionary nature of Mr. Nolan’s ruling is evidenced most clearly perhaps by the fact that his decision involved an unsettled area of the law regarding the scope of the peer review privilege. Both parties acknowledge that the issues presented in this case have not been resolved by the Maryland courts.

Extensive briefs were filed by the parties with Mr. Nolan, whose ruling indicates that he carefully considered those cases in other states that have addressed the issue. Clearly, this was not a purely administrative or ministerial function performed by Mr. Nolan. He brought “his sound judgment and discretion to bear in this process.” Bovey, 292 Md. at 649 , 441 A.2d 333 . As this Court cautioned in Dorchester Gen.

Hosp., 79 Md.App. at 118 , 555 A.2d 1074 , “[t]o allow such a use of [a writ of mandamus] with respect to a matter within the panel chairman’s discretion circumvents the rule prohibiting appeals from certain types of interlocutory orders, and ... would open the door to unnecessary judicial interruption.” ⁵⁰⁸ c. Remedies Other Than Mandamus Available to Appellants Contrary to appellants’ contentions, a writ of mandamus is not the only remedy available to obtain judicial review of the order compelling Dr. Goodwich to respond to the deposition questions posed to him. Section 3-2A-06 of the Health Claims Arbitration Act permits a party to file an action in the circuit court after the arbitration proceeding is concluded to modify or vacate the final award of the HCAO. Md. Code Ann., Cts. & Jud.Proc. § 3 -2A-06 (Supp.1994).

This is the ordinary means of obtaining judicial review of a decision by the HCAO. 6 The appellate courts in this state have held in other circumstances that a writ of mandamus may not be issued by a circuit court during ongoing HCAO proceedings on the basis that an adequate remedy is provided for in section 3-2A-06. In Dorchester Gen. Hosp., 79 Md.App. at 114 , 555 A.2d 1074 , for example, the defendants in a HCAO matter filed a complaint for writ of mandamus with the Circuit Court for Dorchester County requesting the court to order a change of venue in the arbitration after Dennis Sober, the panel chair, had refused to do so. The trial judge denied the complaint for writ, even though he recognized that once the hearing was held whatever harm was caused by his refusal to order removal of the case was already done.

Id. This Court ⁵⁰⁹ affirmed, holding that the defendants had “a right to seek review of the venue decision upon final disposition of [the arbitration proceeding], pursuant to [section 3-2A-06].... ” Id. at 118 , 555 A.2d 1074 . Similarly, in Weidig, 81 Md.App. at 491 , 568 A.2d 868 , a medical malpractice claim was brought against a party who contended that he was not a “health care provider” as defined in the Health Claims Arbitration Act and that he could not, therefore, be compelled to submit to arbitration. When his motion for summary judgment was denied by the panel chair, he filed a complaint for writ of mandamus to prohibit the HCAO from exercising jurisdiction over him.

The circuit court denied his complaint for writ and we affirmed, again holding that the appellant could obtain judicial review of the denial of his motion for summary judgment after the arbitration proceedings were concluded. Id. Also, in Bovey, 292 Md. at 641 , 441 A.2d 333 , the claimants in a HCAO matter sought a writ of mandamus in the Circuit Court for Montgomery County to compel the director of the HCAO to ask potential members of the arbitration panel whether they were stockholders in or insured by the same insurance company as the defendant health care provider. The court dismissed the claimants’ complaint for writ of mandamus.

Id. Relying on the availability of “other avenues of potential relief’ under section 3-2A-06, the Court of Appeals affirmed the dismissal of the complaint for writ. Id. at 649 , 441 A.2d 333 . These cases demonstrate that the “extraordinary remedy” of a writ of mandamus will not lie while an arbitration proceeding before the HCAO is still pending.

A party aggrieved by a