Group Health Ass'n v. Blumenthal

Eldridge, J., delivered the opinion of the Court. The United States District Court for the District of Maryland, pursuant to the Uniform Certification of Questions of Law Act, Maryland Code (1974, 1980 Repl. Vol.), §§ 12-601 through 12-609 of the Courts and Judicial Proceedings Article, certified to this Court five questions arising out of a medical malpractice case. Before addressing each of these questions, a review of the pertinent facts is in order.

Group Health Association (GHA), a non-profit District of Columbia corporation, is a Health Maintenance Organization (HMO) as defined in the Maryland Health ¹⁰⁶ Maintenance Organization Act, Code (1982), § 19-701 (e) of the Health-General Article. 1 It holds a certificate of authority to operate in Maryland issued by the State Insurance Commissioner pursuant to § 19-711 of the Health-General Article. GHA, as an HMO, provides comprehensive health care services to its members for a monthly premium. In the fall of 1979, Patricia Blumenthal, a GHA member and a resident of Maryland, contacted GHA because she believed that she was pregnant. Between November 27 and December 12,1979, Mrs. Blumenthal received prenatal care from Dr. Diana Barrows who is an obstetrician-gynecologist, from C. Gordon who is a nurse-midwife, and from an unnamed physician, all employed by GHA.

Mrs. Blumenthal allegedly informed these GHA personnel of her medical history. Her history included complications in two previous pregnancies caused, according to the plaintiffs, by an ¹⁰⁷ incompetent cervix. 2 This condition had required surgical closure of Mrs. Blumenthal’s cervical os in her prior pregnancies. The Blumenthals called this surgical closure a McDonald’s procedure. 3 During an appointment with Dr. Barrows on December 12, 1979, Mrs. Blumenthal allegedly inquired about scheduling a McDonald’s procedure. According to Mrs. Blumenthal, Dr. Barrows said that the procedure was unnecessary at that time.

Mrs. Blumenthal also discussed a proposed automobile trip from Maryland to Tennessee which Dr. Barrows stated would not be harmful to her condition. Early in January 1980, while still in Tennessee, Mrs. Blumenthal, who was approximately four and one-half months pregnant, gave birth to a female child, Grace Anne Blumenthal, who died about 2% hours after delivery. On February 23, 1981, Mrs. Blumenthal and her husband filed a malpractice claim against Dr. Barrows with the Health Claims Arbitration Office pursuant to Maryland’s Health Care Malpractice Claims Act, Code (1974, 1980 Repl. Vol.), § 3-2A-02 (a) of the Courts and Judicial Proceedings Article (hereafter sometimes referred to as "the Act”). 4 ¹⁰⁸ Section 3-2A-02 (a) subjects to the mandatory arbitration provisions of the Act "[a]ll 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 medical injury allegedly suffered by the person in which damages of more than $5,000 are sought.” Only after the completion of arbitration may a claimant initiate a lawsuit based on the malpractice, § 3-2A-06.

The Blumenthals also filed a diversity action against GHA in the United States District Court for the District of Maryland on March 4, 1981. Their complaint alleged that "GHA, acting through its agents and employees, knew or should have known that [Mrs. Blumenthal] could not be expected to carry her baby to term unless the McDonald’s Procedure was performed.” The Blumenthals further alleged that GHA, through its agents and employees, was negligent in not performing the McDonald’s procedure promptly, in advising Mrs. Blumenthal that she could safely take a long car trip, and in failing to closely monitor Mrs. Blumenthal. The Blumenthals sought damages for Mrs. Blumenthal’s injuries, for injuries to their marital relationship, and for the wrongful death of their child. On April 1,1981, GHA moved to dismiss the Blumenthals’ suit without prejudice on the ground that it was a "claim . .. against a health care provider” which was subject to mandatory arbitration under the Health Care Malpractice Claims Act.

GHA alternatively moved to stay the lawsuit pending completion of the arbitration process. 5 The Blumenthals opposed both of these motions and moved to certify to this Court whether their claim against GHA was subject to mandatory arbitration. The Blumenthals also agreed with counsel for Dr. Barrows to stay the arbitration proceeding pending the outcome of their suit against GHA. ¹⁰⁹ GHA then filed a third-party complaint for indemnification and contribution against Dr. Barrows. The United States District Court issued an order, certifying to this Court the following five questions of law: "Question 1. Is defendant, Group Health Association, Inc. ('GHA’) a 'health care provider’ within the meaning of the Health Care Malpractice Claims Act, Md. Ann. Code Cts. & Jud.

Proc. § 3-2A-01 (e) so that the action against it for alleged malpractice is subject to mandatory arbitration under the Maryland Health Care Malpractice Claims Act? "Question 2. If the answer to Question 1 is 'No,’ is an action in which plaintiffs seek to hold a Health Maintenance Organization ('HMO’) liable on a respondeat superior theory for alleged malpractice of 'health care providers’ in its employ nevertheless subject to mandatory arbitration under the Maryland Health Care Malpractice Claims Act‘> "Question 3. If the answer to Question 1 or Question 2 is 'Yes,’ does a Maryland court have jurisdiction to accept the filing of a declaration against an HMO prior to or during mandatory arbitration involving said HMO in order to toll the running of any applicable statute of limitations or for any other reason?

"Question 4. If the answers to Question 1 and Question 2 are 'No,’ or if the answer to Question 3 is 'Yes,’ is a third-party claim by GHA for contribution and/or indemnity against the 'health care providers,’ who are allegedly primarily or jointly liable in this action, subject to mandatory arbitration under the Maryland Health Care Malpractice Claims Act? "Question 5. If the answers to Question 1 and Question 2 are 'No,’ or if the answer to Question 3 is 'Yes,’ does Maryland recognize a cause of action ¹¹⁰ for the wrongful death of a 19-20 week old fetus under the facts alleged by plaintiffs in this case?” We shall address these questions seriatim.

I. Is GHA a "Health Care Provider?” Section 3-2A-01 (e) of the Health Care Malpractice Claims Act defines "health care provider” as follows: " 'Health care provider’ means a hospital, a related institution as defined in § 19-301 of the Health-General Article, a physician, an osteopath, an optometrist, a chiropractor, a registered or licensed practical nurse, a dentist, a podiatrist, and a physical therapist, licensed or authorized to provide one or more health care services in Maryland.” "Related institution,” as defined in § 19-301 (j) of the Health-General Article, "means an organized institution, environment, or home that: (i) Maintains conditions or facilities and equipment to provide domiciliary, personal, or nursing care for 2 or more unrelated individuals who are dependent on the administrator, operator, or proprietor for nursing care or the subsistence of daily living in a safe, sanitary, and healthful environment; and (ii) Admits or retains the individuals for overnight care.” Under the statutory definition of an HMO, supra n. 1, it is neither a hospital nor a related institution. Consequently, it is clear from the plain meaning of the Health Care Malpractice Claims Act that an HMO, itself, is not included within the definition of health care provider. ¹¹¹ II. Is the Blumenthals’ claim against GHA subject to mandatory arbitration? Notwithstanding that GHA is not a "health care provider,” the Blumenthals’ claim against GHA falls within the provisions of the Health Care Malpractice Claims Act.

Therefore the claim is subject to mandatory arbitration. The Blumenthals do not allege that GHA itself was negligent; instead, the complaint against GHA is based on the doctrine of respondeat superior. Simply stated, the Blumenthals hope to prove that Dr. Barrows and other GHA employees were negligent in treating Mrs. Blumenthal, and that GHA as their employer is vicariously liable for that negligence. The mandatory arbitration provisions in § 3-2A-02 (a) of the Health Care Malpractice Claims Act apply to "[a111 claims, suits, and actions, including cross claims, third-party claims,... by a person against a health care provider.” GHA asks us to construe this provision so that any claim based on the malpractice of a health care provider will be subject to arbitration.

Essentially, GHA asserts that the word "claims” is broader than "suits” or "actions” and should be so interpreted. The Blumenthals, on the other hand, contend that the word "claims” in the Act refers only to cross claims and third-party claims. Preliminarily, we reject the contention that the Legislature intended to limit the scope of the word "claims” by the language "including cross claims [and] third-party claims.” Ordinarily the word "including” means comprising by illustration and not by way of limitation. See, e.g., United States v. New York Tel Co., 434 U.S. 159, 169 , 98 S.Ct. 364 , 54 L.Ed.2d 376 (1977); Helvering v. Morgan’s, Inc., 293 U.S. 121 , 125 n. 1, 55 S.Ct. 60 , 79 L.Ed. 232 (1934); Black’s Law Dictionary, 905 (4th ed. 1968).

See also Code (1982), § 1-101 of the Health-General Article. Thus we do not construe the reference to cross claims and third-party claims as indicating an exclusive listing of the claims subject to arbitration. ¹¹² The critical language in § 3-2A-02 (a) covers "ail claims ... by a person against a health care provider for medical injury allegedly suffered by the person . . ..” This language is sufficient to encompass a claim against a health care provider which also forms the basis for respondeat superior liability on the part of the health care provider’s employer, whether or riot that employer is itself a health care provider. We have previously pointed to the broad scope of the term "claim.” In distinguishing between a "claim” and a "cause of action,” the Court stated in White v. Land Homes Corporation, 251 Md. 603, 610-611 , 248 A.2d 159 (1968): "a 'claim’ . .. has been defined as a 'group or aggregate of operative facts giving ground or occasion for judicial action,’ as distinguished from the narrow concept of a 'cause of action.’ 3 Moore, Federal Practice (2d Ed. 1968) § 14.07 at 509.” See also Brooks v. Ford Motor Credit Co., 261 Md. 278, 281-282 , 274 A.2d 345 (1971); Edmonds v. Lupton, 253 Md. 93, 100-101 , 252 A.2d 71 (1969); Harford Sands, Inc. v. Levitt & Sons, 27 Md.App. 702, 708-709 , 343 A.2d 544 (1975). In the instant case, the Blumenthals’ claim, that is the "aggregate of operative facts” giving rise to the action, is the alleged malpractice of Dr. Barrows and other employees of GHA.

Although the Blumenthals seek to impose liability for their claim upon the employer GHA, the aggregate of operative facts is still the alleged malpractice of the health care providers. Additional support for a broad interpretation of the word "claims” may be found in S 5-109 of the Courts and Judicial Proceedings Article. The section was enacted along with the Health Care Malpractice Claims Act by ch. 235 of the Acts of 1976. Section 5-109, prescribing the limitations period for medical malpractice actions, covers "actionfs] for damages for an injury arising out of the rendering of or failure to render professional services by a health care provider, as defined in § 3-2A-01.” The final sentence of § 5-109 states that filing of a claim with the Health Claims Arbitration Office is equivalent to the filing of an action for limitations ¹¹³ purposes.

The Legislature clearly intended § 5-109 to encompass all claims subject to arbitration, yet the application of § 5-109 is not limited to actions in which a health care provider is a defendant. Instead, § 5-109 covers all actions "arising out of the rendering of or failure to render professional services by a health care provider.” Moreover, construing § 3-2A-02 (a) to cover the Blumenthals’ claim against GHA comports with and furthers the legislative intent in enacting the Health Care Malpractice Claims Act. The legislative intent may be gleaned from the Medical Malpractice Insurance Study Committee Report to the President of the Senate and the Speaker of the House 6 This report delineates the primary object of the Committee’s proposal (id. at 3, emphasis added): "The basic proposal of the Committee is the requirement that all health care malpractice claims over $5,000 shall be submitted to arbitration prior to the filing of suit.” The goal of the Committee’s proposals was to establish a "mechanism to screen malpractice claims prior to the filing of suit.” Report at 3. In the Committee’s view, this would reduce the cost of defense by ferreting out unmeritorious claims which, in turn, would lower the cost of malpractice insurance and, potentially, overall health care costs.

The Committee’s proposed § 3-2A-02 (a) was enacted verbatim in ch. 235 of the Acts of 1976. As stated in its title, ch. 235 was "for the purpose of providing for a mandatory arbitration system for all medical malpractice claims in excess of a certain amount.” (Emphasis added.) In light of the legislative history and the title of ch. 235, it would appear that the Legislature contemplated a far-reaching requirement to arbitrate medical malpractice claims. 6 7 ¹¹⁴ We therefore hold that § 3-2A-02 (a) encompasses a claim of malpractice by a health care provider, whether it forms the basis of a suit against that health care provider or a suit against a non-health care provider under the doctrine of respondeat superior.

III

Can a Maryland court accept the filing of a declaration against an HMO prior to or during mandatory arbitration? A Maryland court should not accept a declaration seeking to impose respondeat superior liability upon an HMO, based on the medical malpractice of its employee health care provider, prior to or during mandatory arbitration. To permit a claimant to file such a suit would contravene § 3-2A-02 (a). That section provides in part: "An action or suit [by a person against a