Hartman v. Cooper

LISS, Judge. This is an appeal by Stanley E. Hartman and Thelma J. Hartman, his wife, appellants, from a verdict returned by a jury in the Circuit Court for Anne Arundel County in favor of Neill S. Cooper, M.D., Robert Ellis, M.D., Allan G. Egloff, M.D. and Neill S. Cooper, M.D., P.A., the appellees herein, in a medical malpractice case. This case arises from an orthopedic injury sustained by appellant Stanley Hartman. On February 18, 1978, Hartman fell in the driveway of his home at approximately 7:30 a.m., sustaining a comminuted subtrochanteric fracture of his right hip.

He was taken to Anne Arundel General Hospital where he was treated by appellee Neill S. Cooper. The alleged malpractice in this case arises not from the original treatment and surgery performed by Dr. Cooper, but from followup care after Hartman’s discharge from the hospital. During that time Hartman developed a serious bone infection, known as osteomyelitis. Hartman alleges that Dr. Cooper failed to diagnose and treat the osteomyelitis and that that failure, which permitted the osteomyelitis to develop unchecked, led to a non-union of the fracture, six subsequent surgical procedures, six and a half months of hospitalization, a shortening of Hartman’s right leg by approximately two to two and a half inches, a severe limp and the concomitant pain, suffering and mental anguish that accompanies such a catastrophic occurrence.

The case was first filed on February 11, 1981, before the Health Claims Arbitration (HCA) office of Maryland under ¹⁵⁸ the terms of the Health Claims Arbitration Act, Maryland Code (1974, 1984 RepLVol.) Courts & Judicial Proceedings Article, Subtitle 2A. A panel was selected to hear the dispute pursuant to the panel selections procedures set out in COMAR 01.03.01.07. That procedure provides for three categories of eligible panel members, i.e., attorneys, health care providers and members of the general public. The regulations require that in each case the director of HCA prepare a list of fifteen prospective panelists from which the final panel of three members, one from each category, is selected.

Each prospective panelist is required to complete a panel data sheet containing questions concerning the panelist’s background and other questions relevant to the prospective panelist’s possible bias. The list of prospective panelists and the completed data sheets are then supplied to the litigants’ attorneys so that they may have the opportunity to object for cause to the inclusion of any person on the list. In this case, on the basis of the information supplied, no objection was made to any panelist. Dr. William H.B. Howard was selected as the health care provider representative.

The case was heard before the HCA panel on June 28 through June 30, 1982 and on July 7, 1982 the HCA Board reached a unanimous decision in favor of the health care providers. Shortly thereafter, appellants discovered that Dr. Howard had failed to disclose on his data sheet information relevant to his possible bias, which, if known to appellants might have resulted in his disqualification as a panel member for cause. Prior to his being selected to serve on the panel, Dr. Howard had been asked on his data sheet by Question No. 2, “Have you ever been sued or had a claim brought against you for medical malpractice? If so, give details.” Dr. Howard’s answer to this question was “No.” Question No. 3 on the data sheet askéd, “Have you ever testified as a medical witness in a judicial or administrative proceeding?

If so, give details.” Dr. Howard answered, ¹⁵⁹ “Yes, in a compensation hearing in 1968 in Harrisburg, Pennsylvania.” Appellants argued that relying on the answers supplied by Dr. Howard they accepted him on the panel which heard this case. Appellants thereupon filed a motion to vacate the health panel’s decision and to nullify its conclusions in the Circuit Court for Anne Arundel County. In the course of the hearing on that motion appellants offered testimony that the answer supplied to Question No. 2 was incorrect in that investigation had disclosed that Dr. Howard had been sued individually in the case of Melissa S. Lachica, et al. v. William H.B. Howard, M.D., et al., HCA No. 79-165. That case was set for trial during the week of July 5, 1982, one week after Dr. Howard sat as a panel member in the case here under consideration.

Further investigation disclosed that Dr. Howard’s answer to Question No. 3 was also incorrect in that it was discovered that Dr. Howard had been deposed as a witness for the defense in two other medical malpractice cases. In response to the motion to vacate the panel’s determination of the issues in the case submitted to the HCA panel, Dr. Howard filed an affidavit in which he conceded that his answers to the two disputed questions were erroneous but attempted to explain the incorrect answers for the following reasons. He said in his affidavit: Question 2: The said Panel Data Sheet, which I filed with the intention of volunteering to perform a public service in response to a stated need for health care provider panelists, was filled in by my secretary on her typewriter in complete good faith, and answered in the negative based upon the assumption that the inquiry was addressed to my private practice as a surgeon. I have never been sued as a private practitioner.

The Lachica case [HCA No. 79-165] was one in which we perceived that it was the hospital for whom I was then an employee that was the actual defendant being sued, and that I was involved only as an employee. Perhaps the distinction is not a valid one as a legal proposition, but to us as ¹⁶⁰ non-lawyers it seemed both reasonable and the intended distinction. I simply did not perceive the “you” in the subject question to encompass the hospital-based suit. The omission was entirely inadvertent and certainly not intended to “conceal” anything.

Question 3: Despite what the Claimant’s Memorandum argues, this question was correctly answered. I have never appeared as a witness in any courtroom or in any HCA arbitration hearing. I gave a deposition once, perhaps twice but I think only once, which I did not, and do not, understand to be the equivalent of “testifying as a medical witness in a judicial or administrative proceeding.” I thought that a deposition was an information-gathering discovery device which did not make me a “witness” — certainly not in the sense the question seems to infer. Further, in that same deposition I was asked if I would consent to taking a plaintiff’s case — and testify for a plaintiff — and I responded that I would do so in an appropriate case.

Question A In the instant case [.Hartman v. Cooper, HCA No. 81-48] I assert unequivocally that I had no bias whatsoever for or against either party. Furthermore, the decision of the panel was unanimous [when only a majority vote is required] and that result was reached without consultation or discussion with me. I did or said nothing to influence my co-panelists, nor was it necessary to do so to achieve a decision. Our vote was taken without discussion although we each stated our reasons for reaching the same result.

Each reason, or perspective, was different in that we each found different evidence to be persuasive. The trial judge denied the motion to vacate, stating: Plaintiffs next allege that Dr. Howard falsely or fraudulently misrepresented his status as a neutral arbitrator. Upon review of all of the documents submitted by the parties, the Court finds no evidence that Dr. Howard’s actions were fraudulent or corrupt. Dr. Howard’s affidavit sets forth plausible explanations as to why his answers did not reflect his limited participation in malprac ¹⁶¹ tice cases.

The Court does not find any evidence that Dr. Howard’s omissions were intended to pervert the truth or intended to induce any detrimental reliance by either party. The Court thus finds that this allegation fails to set forth a valid reason to vacate the award of the Panel. In answer to appellant’s additional complaint that Dr. Howard as a member of the panel was evidently partial and that the HCA panel award should have been vacated, the trial judge, in denying the appellant’s contention, said: Lastly, Plaintiffs allege that Dr. Howard is so evidently partial toward doctors in malpractice cases, that the award must be vacated. In the few Maryland cases which discuss an arbitrator’s evident partiality, the courts focus upon the ongoing relationships between the arbitrator and one of the parties.

McKinney Drilling Company v. Mach I Limited, Partnership, 32 Md.App. 205 [ 359 A.2d 100 ] (1976), and Lewatowski v. Ullsperger, Law No. 133/308/107029 (Circuit Court for Baltimore County, November 4, 1981). In the instant case, there is no evidence of any relationship between Dr. Howard and either of the parties. Absent a showing of the clear bias of a relationship between an arbitrator and a claimant, this Court fails to find any other factors in the instant case which would necessitate vacation of an award based upon partiality. Partiality is defined as bias, a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction.

(Black’s Law Dictionary, Fourth Edition and Webster’s New International Dictionary, Second Edition). To warrant vacation of the award, such bias must be clear, convincing, or conclusive. The mere fact that a doctor has given a deposition in a malpractice case or has been sued in his capacity as an employee of a hospital is not clear or conclusive evidence of partiality. By the very nature of their training, experience and professional relationships, doctors, as well as attorneys, judges or any segment of the population, are likely to have particular sets of opinions or beliefs.

Such opinions are not sufficient, absent ¹⁶² other evidence, to prove bias or partiality significant enough to prevent the individual from rendering a fair and open-minded decision. Appellant’s motion for reconsideration of the motion to vacate subsequently was denied. Trial before a jury then began and over objection the trial court instructed the jury on the presumption that the finding of the HCA panel was prima facie correct. The jury returned a verdict in favor of the appellees and it is from their judgment that this appeal was filed.

The issues to be determined by this proceeding are: 1. Did the trial court err in refusing to vacate a Health Claims Arbitration panel determination in favor of defendant physicians where the physician member of the panel failed to disclose required information indicative of possible/potential bias? 2. Did the trial court err in refusing to permit presentation to the jury of evidence concerning the possible bias of the physician member of the Health Claims Arbitration panel offered to rebut the presumption of correctness of the panel’s determination in favor of defendant physicians? 1. The Court of Appeals, in Attorney General v. Johnson, 282 Md. 274 , 385 A.2d 57 (1978), upheld the constitutionality of the health claims arbitration process and indicated the standards against which procedural issues were to be tested.

The Court said: In 1976 the Maryland General Assembly passed legislation, as have many other state legislatures, substantially altering the manner in which claims of medical malpractice by patients against physicians, hospitals, and other “health care providers” may be judicially resolved. In general terms, the effect of this State’s Health Care Malpractice Claims statute, Md.Code (1974, 1977 Cum. Supp.), §§ 3-2A01 to 3-2A09 of the Courts Article (the Act), is to require the submission of certain of such ¹⁶³ claims to an arbitration panel for initial ascertainment of liability and damages before resort may be had to a court of law for final determination. [Footnote deleted]. [Id., at 277, 385 A.2d 57 ]. In Johnson , the Court examined the procedure for selection of the three members of the arbitration panel and especially the selection of the health care provider (usually a physician) member.

The procedure is summarized as follows: The director of the Arbitration Office delivers to the parties a list of fifteen potential arbitrators (five from each of the three categories) chosen at random from lists which