Health Services Cost Review Commission v. Holy Cross Hospital of Silver Spring, Inc.

Smith, J., delivered the opinion of the Court on the motion by Blue Cross of Maryland, Inc., for leave to file a motion for reconsideration as amicus curiae at page 548 infra. Davidson, J., dissents. In this case, which probably will become known as "Holy Cross III,” we shall hold that a trial judge was right for the wrong reason in his determination of an appeal from the Health Services Cost Review Commission (the Commission). We conclude that since the commission failed to establish that the term "total costs of the hospital” at the time of the enactment of the statute creating the Commission in 1971 was "a term 'of art’ in the health care field having a well understood meaning different from its common signification which would include the fees of the physicians here,” the statute provides no authority to the Commission to regulate the professional fees here under consideration.

For a clear understanding of the issue currently before the Court we first refer to Holy Cross Hosp. v. Health Services, ⁵¹¹ 283 Md. 677 , 393 A.2d 181 (1978), "Holy Cross I.” 1 We opened that opinion by saying: We are here involved as a matter of statutory construction with the question of whether fees charged by physicians in certain medical specialties to hospital patients, which fees are placed on hospital accounts and billed by the hospitals in such amounts to the patients, constitute a part of "the total costs of the hospital” so as to be considered as "reasonably related to the total services offered by the hospital” and thus whether the Maryland Health Services Cost Review Commission (the Commission) is empowered to review and set charges by these physicians in the specialties of cardiology, pathology, and radiology. The Commission was created by Chapter 627 of the Acts of 1971. Certain revisions have been made since that date. See Maryland Code (1957, 1971 Repl.

Vol., 1978 Cum. Supp.) Art. 43, §§ 568H-568Z. [Id. at 679-80.] After public hearings relative to Holy Cross, the Commission on December 1, 1976, issued a proposed opinion and order in which it found "that the salaries of the radiologists, pathologists and cardiologists [were] subject to [its] review as a part of [the Commission’s] legislative charge to assure the public that total costs are reasonably related to total services provided.” This was subsequently modified "to read 'compensation’ rather than 'salary’ .. ..” Holy Cross sought judicial review in the Circuit Court for Montgomery County. Certain physicians were permitted to intervene. Three issues were addressed by that court, (1) whether the Commission had jurisdiction to determine the rate charged by pathologists, radiologists, and cardiologists for their services rendered to patients of Holy Cross, (2) whether the Commis ⁵¹² sion’s restructuring of the rate schedules was so arbitrary and capricious as to deny the hospital and physicians due process of law, and (3) whether the Commission’s action in excluding patient telephone charges from the basic room rate was arbitrary and capricious.

The trial judge found for the Commission on the first and third issues but against it on the second issue. Hence, he reversed the order of the Commission and remanded the case to it for further proceedings. Since the circuit court’s determination on the first issue was adverse to them, Holy Cross and the physicians appealed to the Court of Special Appeals. We granted the writ of certiorari prior to consideration of the case by that court.

In Holy Cross I we pointed out that a number of contentions were made to us by the hospital and the physicians as to why the Commission might not do that which it sought to do. We focused, however, "only on the question of whether the charges by these specialists are a part of 'the total costs of the hospital,’ since if they [were] not there [was] no need to consider the other objections.” Id. 283 Md. 683 . We examined the statute in question and reviewed our cases relative to statutory construction. We then pointed out that "for the Commission to have the power it seeks it must be determined that the charges of these physicians constitute a part of 'the total costs of the hospital ....’” Id. 283 Md. at 688 .

After examination of the definitions of the noun "cost” and the preposition "of’ appearing in Webster’s New International Dictionary of the English Language (2d ed. unabr. 1959) we concluded that" 'total costs of the hospital’ means the Hospital’s expenditures or outlays of money in connection with the operation of the Hospital.” Id. at 689 . We then determined: [O]n the record before üs we are unable to agree with the conclusion of the trial judge or the conclusion of the Commission that the fees charged by these pathologists, radiologists, and cardiologists are a part of the "costs of the hospital,” the term being used here in the sense of cost of operation of a hospital. On the other hand, we do not ⁵¹³ rule out the possibility that at the time of the enactment of this statute the words "total costs of the hospital” might have been a term "of art” in the health care field having a well understood meaning different from its common signification which would include the fees of the physicians here. Therefore, we think that the ca use of justice would be best served by a remand of this case to the Circuit Court for Montgomery County under Maryland Rule 871 without affirmance or reversal for further proceedings in which the Commission would be afforded an opportunity to present evidence of such an understanding of the meaning of the term within the field of health care at the time this statute was enacted, if such testimony in fact is available.

In order that there may be no misunderstanding, we point out that if the services here under consideration were not understood in the health care field as embraced within 'Total costs of the hospital” at the time of the enactment of this statute, the Commission has exceeded the power vested in it by the General Assembly. [Id. at 689-90.] On the remand the trial judge heard about nine days of testimony and considered numerous exhibits. He issued a comprehensive opinion in which he concluded in part: 2. The words "total costs of the hospital” as contained in the statute enacted in 1971 (Art. 43, § 568 U (a), Ann. Code of Md. 1957 Ed., 1980 Replacement Volume) constitute a term of art which at that time had a well understood meaning within the field of health care different from its common significance, and as such, included the professional fees of hospital based radiologists and pathologists. He went on, however, to direct the Commission: [T]o exclude from their cost review determination with respect to Holy Cross Hospital, the professional fees of those radiologists, pathologists and ⁵¹⁴ electrocardiologist which are billed to the patients directly by the physicians in question ... and are not carried as allowable costs on reports or the audited financial statement of the hospital for purposes of reimbursement by third-party payors, or for hospital accounting purposes ....

The Commission appealed to the Court of Special Appeals. Prior to hearing in that court the Commission petitioned us for the writ of certiorari. Notwithstanding the provision of Maryland Rule 811 a 3 (d) that a petition for that writ shall contain "[t]he questions presented for review,” the Commission framed no question in its petition. It did "contend[ ] that since the Circuit Court concluded that 'total costs of the hospital’ was a term of art in the health care field at the time the Commission’s statute was enacted which term included the fees of hospital-based radiologists and pathologists, it was error to conclude further that the direct billing of such fees would escape Commission jurisdiction.” It further "contended] that based on the finding of the Circuit Court, the Commission does have the jurisdiction to regulate the fees charged by hospital-based radiologists, pathologists and electrocardiologists to hospital patients, no matter how billed.” The answer to the petition stated that if we determined to issue the writ "the Physician Respondents w[ould] demonstrate that the Circuit Court did not err, as suggested by the Commission, in finding that the fees of the Physician Respondents were not subject to the Commission’s jurisdiction, but rather in finding that the words 'total costs of the hospital’ as contained in the Commission’s enabling statute was a term of art having a well understood meaning.” In this Court the Commission claims that "[hjaving determined that 'total costs of the hospital’ are subject to Commission jurisdiction, including the professional fees of hospital-based radiologists and pathologists, the lower court erred by concluding that these physicians could escape Commission jurisdiction by contracting with the hospital as to the manner of billing.” Holy Cross and the physicians contend that "[t]he circuit court erred in concluding that the ⁵¹⁵ statutory phrase 'total costs of the hospital’ was a term of art in Maryland in 1971.” The Commission moved to strike that portion of the brief of Holy Cross and the physicians which deals with the latter point.

Rule 813 b (1) is applicable. It states: In cases pending in the Court of Special Appeals where no decision has been rendered by it, if the original petition for certiorari is filed by the appellant, this Court will ordinarily consider only the issues which have been raised in the petition and any cross petition and which have been preserved for appellate review, unless otherwise provided by the order granting the writ of certiorari. This rule was extensively discussed in Offutt v. Montgomery Co. Bd. of Ed., 285 Md. 557, 563-64 , 404 A.2d 281 (1979), Robeson v. State, 285 Md. 498, 501-04 , 403 A.2d 1221 (1979), and State v. Raithel, 285 Md. 478, 482 , 404 A.2d 264 (1979). We consider the contention of the Hospital and the physicians here to have been embraced within that portion of the Commission’s petition which claimed "that based on the finding of the Circuit Court, the Commission does have the jurisdiction to regulate the fees charged by hospital-based radiologists, pathologists and electrocardiologists to hospital patients, no matter how billed.” (Emphasis added.) Moreover, as long as there is compliance with Rule 813 a, an appellee, without taking a cross-appeal, is entitled to argue as a ground for affirmance of a trial court judgment a matter that was resolved against the appellee at trial.

Offutt n. 4 at 564, St. Comm’n on Human Rel. v. Amecom Div., 278 Md. 120, 123, n. 2 , 360 A.2d 1 (1976), and Capron v. Mandel, 250 Md. 255, 259 , 241 A.2d 892 (1968). Hence, the motion to strike certain portions of the brief is denied. Since in our view the trial court erred in determining that the statutory phrase "total costs of the hospital” was a term of art in Maryland in 1971, we need not address the Commission’s contention that the trial judged erred by directing the Commission "to exclude from their cost review determination with respect to Holy Cross Hospital, the professional ⁵¹⁶ fees of those radiologists, pathologists and electrocardiologist which are billed to the patients directly by the physicians in question ... and are not carried as allowable costs on reports or the audited financial statement of the hospital for purposes of reimbursement by third-party payors, or for hospital accounting purposes ... The term "words of art” is defined in Black’s Law Dictionary 1439 (5th ed. 1979) as: The vocabulary or terminology of a particular art or science, and especially those expressions which are idiomatic or peculiar to it.

Further light is shed by 2A Sutherland, Statutory Construction § 47.31 (4th ed. C. Sands, 1973) which states: Although questions of statutory interpretation are questions of law which are decided by the judge instead of a jury and concerning which a court is not bound by the testimony of witnesses, the trade or commercial meaning of a term is treated as a fact to be proved in each case. Until such fact is proved, an alleged commercial or trade meaning of a common term is presumed to be the same as the common meaning. Futhermore, in order that an alleged trade or commerical meaning of a term shall prevail, it must appear that such commercial meaning is the result of established usage in commerce and trade, and that, at the time of the passage of the act, such usage was definite, uniform, and general, and not partial, local, or personal.

There is no presumption that the trade or commercial meaning once established, continues. [Id. at 156.] An example of a word as a term of art is found in an earlier generation when the word "telephone” had only recently appeared on the American scene and it was held in Hockett v. State, 105 Ind. 250, 263 , 5 N.E. 178 (1886), to be one of art. On the remand the Commission presented no evidence that the term "total costs of the hospital” was one of art. It ⁵¹⁷ did produce numerous witnesses to testify that the phrase "total costs of hospital services” was a term of art. 2 At a pretrial conference counsel for Holy Cross and the physicians suggested the proper question to be decided but the Commission succeeded in persuading the trial judge to the contrary. Later in the trial, however, he did correctly focus on the issue, stating, "I am dealing with a very narrow issue which has been sent back to me by the Court of Appeals and it revolves around this concept of cost of the hospital and not the philosophical decisions as between a physician and someone else.” (Emphasis added.) Numerous witnesses produced by Holy Cross and the physicians testified that the term "total costs of the hospital” was not a word of art within the health care field at the time the statute was enacted.

As previously indicated, in Holy Cross I we pointed out that since the term " 'total costs of the hospital’ means the Hospital’s expenditures or outlays of money in connection with the operation of the Hospital,” the Commission exceeded its power in attempting to control the fees or charges here and there involved unless "the words 'total costs of the hospital’ might have been a term 'of art’ in the health care field having a well understood meaning different from its common signification which would include the fees of the physicians here.” It was for that reason and that reason only that in the interest of justice we invoked Maryland Rule 871 and remanded the case to the trial court without affirmance or reversal in order that the Commission ⁵¹⁸ might be afforded an opportunity to present evidence of such an understanding of the meaning of the term within the health care field at the time the statute was enacted "if such testimony in fact is available.” To avoid any possible misunderstanding we then went on to indicate that unless such fact were proven "the Commission has exceeded the power vested in it by the General Assembly.” It follows that under the terms of the remand that the extensive testimony adduced about "total costs of hospital services” as a term of art, various federal statutes concerning health care, methods used relative to reimbursement by insurers, the understanding by some people in the health care field of what the statute was intended to mean and the like were irrelevant and immaterial to the issues before the trial court. Since the Commission failed to prove that the words "total costs of the hospital” were a term of art so as to cause them to have a meaning in the statute different from the common, ordinary signification of the term, it follows that the Health Services Cost Review Commission exceeded its authority in the case at bar and its order must be reversed. 3 ⁵¹⁹ The General Assembly is presumed to be fully familiar with the holdings of this Court. Bingman v. State, 285 Md. 59, 65 , 400 A.2d 765 (1979), and cases there cited. There have been two sessions of the General Assembly since our opinion was filed in Holy Cross I. Nevertheless, the General Assembly has not seen fit to change the statute.

If it intends a different interpretation, it no doubt will say so by amending the law relative to the Commission’s powers. Judgment reversing the order of the Health Services Cost Review Commission modified to eliminate so much thereof as approved the Commission’s regulation of the charges here before the Court, and, as modified, judgment affirmed; appellant to pay the costs. . Holy Cross II was Maryland Radiological v. Health Serv., 285 Md. 383 , 402 A.2d 907 (1979). It concerned the attempt of Maryland Radiological Society and others to intervene after our remand in Holy Cross I. .

The concluding portion of the opinion as originally filed in Holy Cross I referred to "total costs of hospital services” rather than to "total costs of the hospital,” the term appearing in the statute and which appeared elsewhere in the opinion. The error was detected and sixteen days after filing of the opinion, which was prior to the issuance of the mandate, correction slips were issued. In Holy Cross II the assistant Attorney General who tried this case on the remand and who argued Holy Cross I appeared on behalf of the Commission. The Court quoted, 285 Md. at 386, from the corrected version of Holy Cross I. As previously indicated, Holy Cross II concerned the attempt of Maryland Radiological Society and others to intervene after our remand in Holy Cross I. It was decided prior to the trial of the issues now before us.

Thus, there is no reason for the Commission to have been misled in any way as to the terms of the remand. . Cognizance is taken of the dissent. We shall not prolong this opinion by writing a rebuttal to each and every proposition advanced by the dissent. We make but two comments.

The dissent would lead one to believe that it was not until "7 January 1980, [that] the Commission, at long last, became aware .of the existence and full impact of the corrected opinion.” We have already pointed out in the text of this opinion, "At a pretrial conference counsel for Holy Cross and the physicians suggested the proper question to be decided but the Commission succeeded in persuading the trial judge to the contrary.” As a matter of fact, the attorney for one of the intervening physicians called to the attention of the trial judge at that time that the word "services” was not in the statute in question and that this was the reason for the correction. The assistant Attorney General who was present representing the Commission acknowledged his cognizance of the corrected version which had been quoted in Holy Cross II. Had anyone been willing to pull from the shelf the appropriate volume of the Maryland Reports or the Atlantic Reporter the opinion in its proper form would have readily appeared, even had one looked at an "advance sheet.” This conference took place on October 5,1979. The dissent quotes, adding emphasis, the statement of the trial judge on December 18,1979, to the effect that he did not know by which opinion he was bound, the published, corrected opinion or the original one.

Why, may one ask, would the Court have distributed corrected versions of the opinion if it were not that this corrected version was to bind the parties? Indeed, just what does the word "correction” mean? In common parlance the issuance of the correction slip would mean that the Court had detected an error. ⁵¹⁹ Despite the purpose of the remand the Commission simply elected to question its experts relative to "total cost of hospital services” as a term of art in the health care field, not "total costs of the hospital.” Davidson, J., dissenting: I Procedural History Before discussing the merits of this case, it is necessary to review its unfortunate procedural history that resulted in a deficient record that, in my view, has severely prejudiced the outcome. In Holy Cross Hospital of Silver Spring, Inc. v. Health Services Cost Review Commission, 283 Md. 677 , 393 A.2d 181 (1978) (Holy Cross I), the question presented was whether the Health Services Cost Review Commission (Commission) had the authority to regulate the costs of services of pathologists, radiologists, and cardiologists (hospital-based physicians) 1 at Holy Cross Hospital (Hospital). ⁵²⁰ The evidence showed that these hospital-based physicians had a contract with the Hospital under which they were compensated on a fee-for-service basis with the Hospital billing the patients for the costs of their services, collecting payment from the patients, and then reimbursing the hospital-based physicians.

The trial court held that the Commission had the authority to regulate the costs of services of hospital-based physicians when the hospital billed the patient. The Court of Appeals disagreed. Focusing on the question whether the costs of services of hospital-based physicians were part of the "total costs of the hospital,” it held that the Commission had no authority to regulate the costs of these services because they were not part of the "total costs of the hospital,” a term that this Court defined as "the Hospital’s expenditures of money in connection with the operation of the Hospital.” Holy Cross I, 283 Md. at 689 , 393 A.2d at 187 . In an opinion filed 6 November 1978 (original opinion), this Court further stated: "[W]e do not rule out the possibility that at the time of the enactment of this statute the words ’total costs of hospital services’ might have been a term 'of art’ in the health care field having a well understood meaning different from its common signification which would include the fees of the physicians here.

Therefore, we think that the cause of justice would be best served by a remand of this case to the Circuit Court ... for further proceedings in which the Commission would be afforded an opportunity to present evidence of such an understanding of the meaning of the term within the field of health care at the time this statute was enacted, if such testimony in fact is available.” [Slip op. at 12 (emphasis added).] ⁵²¹ In a correction filed 16 days later on 22 November 1978 (corrected opinion), the term "total costs of the hospital” was substituted for the term "total costs of hospital services.” On 5 October 1979, a pretrial conference was held in order to define the issue and narrow the ra pe of the evidence to be admitted at trial. Despite the fact that by this time it should have been patently clear that the question presented was whether the term "total costs of the hospital” was a term of art, by some vagary neither the parties nor the trial court understood the full impact of the corrected opinion. The Hospital contended that the question presented was whether the term "total costs of the hospital” was a term of art. However, it did not rely upon the language of the corrected opinion.

Instead, it relied upon the fact that in a quotation from Holy Cross I that appears in Maryland Radiological Society, Inc. v. Health Services Cost Review Commission, 285 Md. 383, 389 , 402 A.2d 907, 909 (1979) (Holy Cross II), the term "total costs of the hospital” was substituted for the term "total costs of hospital services.” The Commission argued that the correct term was "total costs of hospital services,” which appeared in the original opinion. The trial court refused to limit the issue to the question whether the term "total costs of the hospital” was a term of art. It stated: "I am going to listen to any witness that either of you want to produce, within reason. Now, if I don’t agree with your definition of the issue, I am still going to listen to the witness ...

I am not making any ruling at all today.... This matter is a matter of extreme importance... and if you think I am not going to listen to everything on this matter with that kind of an issue involved, you better have another think coming.” (Emphasis added.) After a final attempt by the Hospital "to persuade [the trial court] to follow the Court of Appeals’ language,” the trial court responded, "If I knew what they meant, I might follow it.” ⁵²² On 8 October 1979, the trial on the merits began. Apparently still unaware of the corrected opinion, the Commission presented extensive testimony to prove that the term "total costs of hospital services” was a term of art. This evidence included detailed testimony as to the established usage and general practices concerning the costs of hospital-based physicians’ services in the health care field in 1971.

On 11 October 1979, the Commission rested its case. The Hospital moved for a directed verdict. The Hospital, quoting from the original opinion, pointed out that the Commission had been required to show that the term "total costs of hospital services” was a term of art. It argued that the Commission had failed to carry its burden of proof on this issue.

The trial court denied the motion. Thus, at the time the Commission rested, the parties and the trial court were still unaware of the impact of the corrected opinion. On 18 December 1979, when the trial resumed, the Hospital indicated to the trial court that it had become aware of the existence and full impact of the corrected opinion because a "clerk doing some research in connection with this case ... came upon the reported [corrected] decision....” The trial court stated that subsequent to the issuance of the original opinion, it had received corrections but that it had not been aware that the term "total costs of the hospital” had been substituted for the term "total costs of hospital services.” The trial court then said: "The only thing that I can suggest to you to do is to take it up with the Court of Appeals because I am bound by — well, I don’t know which I am bound by, actually, either the published [the corrected opinion] or this one [the original opinion]. I suggest that you gentlemen confer with the Court of Appeals and find out what they meant.

Now I am going to proceed on the assumption that we have been trying this case on right along, and we will continue on that assumption and if it ⁵²³ gets changed, well, it gets changed. But you might point out when you do refer this matter to the Court of Appeals that we have four days of trial on the assumption that the word ’services’ is in the opinion.” (Emphasis added.) Thus, as late as 18 December 1979, although the trial court knew of the existence of the corrected opinion, it was still unaware of its impact. The hospital proceeded to present its case. It presented evidence to show that neither the term "total costs of hospital services” nor "total costs of the hospital” was a term of art.

It argued that physicians’ services and hospital services were different; that a physician service could never be a hospital service; and that the costs of hospital services were part of the total costs of the hospital but that the costs of physicians’ services were not. It contended that nonsalaried hospital-based physicians performed physicians’ services, not hospital services, and, consequently, that the costs of nonsalaried hospital-based physicians’ services were not a part of either the "total costs of hospital services” or the "total costs of the hospital.” However, while the Hospital insisted that salaried hospital-based physicians also performed physician services, not hospital services, it, nonetheless, conceded that the costs of salaried hospital-based physicians’ services were a part of the total costs of the hospital. The only reasons offered to explain this illogical conclusion were that a physician service could never be a hospital service and, therefore, a part of the total costs of the hospital because "a hospital certainly cannot practice medicine” but that, nevertheless, the costs of salaried hospital-based physicians’ services were part of the total costs of the hospital because such hospital-based physicians are "on the payroll.” On 7 January 1980, during the Hospital’s presentation, the trial court indicated that it had received clarification of the issue from the Clerk of the Court of Appeals, who told it that the corrected opinion was "the accurate one.” Thereafter, the trial court stated: ⁵²⁴ "[T]he phrase which is to be used is 'cost of the hospital’ not 'cost of hospital services’ which is a little bit different from what we all thought for a while. And, what the effect of this may be on the outcome, I have no way of knowing at this time.” (Emphasis added.) Thus, on 7 January 1980, the Commission, at long last, became aware of the existence and full impact of the corrected opinion.

As a result of the trial court’s ruling, the Commission understood for the first time that it had been required to show that the term "total costs of the hospital,” and not the term "total costs of hospital services,” was a term of art. On 22 January 1980, the Commission presented rebuttal evidence. It began a line of questioning that, in my view, was designed to elicit an opinion from an expert as to whether the term "total costs of the hospital” was a term of art that included the costs of services of hospital-based physicians. The following colloquy took place: "Q. [COUNSEL FOR COMMISSION]: [D]o you have an opinion as to whether or not the term 'total cost of the hospital’ includes radiologists and pathologists who are hospital-based physicians? [COUNSEL FOR HOSPITAL]: Objection, Your Honor.

THE COURT: That will be sustained. That is not rebuttal. You should have brought him in the principal case if you wanted to get his opinion on it. Sustained. [COUNSEL FOR COMMISSION]: Well, Your Honor — THE COURT: I have sustained the objection.

All right, go ahead.” Thus, the trial court, which had steadfastly refused to rule that the question presented was whether the term "total costs of the hospital” was a term of art until after the Com ⁵²⁵ mission had presented its entire case, prevented the Commission from offering evidence on that critical issue during rebuttal. As a result, despite the trial court’s awareness that because the Commission represented the public interest, this case was a "matter of extreme importance,” it, nonetheless, caused an unfortunate deficiency in the record that, in my view, has severely prejudiced the outcome of this case. Notwithstanding the deficiency of the record in this respect, the trial court found, based upon evidence of established usage and general practices in the health care field in 1971, that the term "total costs of the hospital” was a term of art with respect to the costs of services of hospital-based physicians. It concluded that the Commission had the authority to regulate the costs of services of hospital-based physicians when the hospital billed patients, but not when the hospital-based physicians billed patients directly.

Based upon the deficient record before it, the majority here (Holy Cross III) disagrees. It finds that there is "no evidence that the term 'total costs of the hospital’ was one of art” (emphasis in original) and, therefore, that the Commission lacks the authority to regulate the costs of hospital-based physicians’ services whether billed by the hospital or by the hospital-based physicians. Even if I agreed with the majority that there was "no evidence that the term 'total costs of the hospital’ was one of art” (emphasis in original), I would not, on the basis of the deficient record here, conclude that the Commission lacks the authority to regulate such costs. I would instead remand the case to the trial court for further proceedings to afford the Commission the opportunity that was denied by the trial court during the trial on remand from Holy Cross I to present evidence of the understanding of the meaning of the term "total costs of the hospital” in the health care field in 1971.

However, despite the deficient record, I, unlike the majority, agree with the trial court that there was sufficient evidence to show that the term "total costs of the hospital” was ⁵²⁶ a term of art. I disagree with the trial court that the Commission lacks the authority to regulate the costs of services of hospital-based physicians who bill patients directly. In my view, the term "total costs of the hospital” included the costs of services of all hospital-based physicians whether billed by the hospital or by the hospital-based physicians. Accordingly, I respectfully dissent.

II The Merits Maryland Code (1957, 1980 Repl. Vol.), Art. 43, § 568H, effective 1 July 1971, provides in pertinent part: "In creating the Health Services Cost Review Commission, the intent of the Maryland General Assembly shall be as follows: (2) From and after July 1, 1974, an additional responsibility of this Commission is to assure all purchasers of health care hospital services that the total costs of the hospital are reasonably related to the total services offered by the hospital; that the hospital’s aggregate rates are set in reasonable relationship to the hospital’s aggregate costs; and that rates are set equitably among all purchasers of services without due discrimination.” (Emphasis added.) Section 568U (b) provides in pertinent part: "(b) In order to properly discharge these obligations, the Commission shall have full power to review and approve the reasonableness of rates established or requested by any hospital subject to the provisions of this subtitle.” This Court has recognized that the Commission was created for the purpose of protecting patients by "assuring the rea ⁵²⁷ sonableness of rates set by hospitals.” Health Servs. Cost Review Comm’n v. Franklin Square Hosp., 280 Md. 233, 234-35 , 372 A.2d 1051, 1052 (1977). More particularly, this Court has stated that "the provisions of the Act reflect the legislative intent that the Commission have broad authority over the financial affairs oí hospital;/’ in order to effectuate tl* ■ ,ct’s purpose of protet i pr- its by "insuring] that rate;, charged to patients iicdect iamy the cost of care provided the patients.” Blue Cross of Md., Inc. v. Franklin Square Hosp., 277 Md. 93, 109, 111, 352 A.2d 798, 808, 809 (1976).

Although this Act, because of its broad remedial purpose, should be liberally construed, Keesling v. State, 288 Md. 579, 589 , 420 A.2d 261, 266 (1380); James v. Prince George’s County, Md., 288 Md. 315, 335 , 418 4.2d 1173, 1184 (1980); 3 Sutherland, Statutory Construction § 60.01-02 (4th ed. C. Sands 1974), the majority here uses a narrow, rigid, and formalistic approach in interpreting the term "total costs of the hospital.” Initially, it determines that the terms "total costs of hospital services” and "total costs of the hospital” were not interrelated and were different in meaning. It then concedes that the Commission produced "numerous witnesses to testify that the phrase 'total cost of hospital services’ was a term of art.” However, it determines that the term "total costs of the hospital” was not a term of art because "the Commission presented no evidence that the term 'total costs of the hospital” was one of art.” (Emphasis in original.) Throughout this litigation the phrase "term of art” has been defined in various ways. Initially, in Holy Cross I, 283 Md. at 689-90 , 393 A.2d at 187 , this Court stated "that at the time of the enactment of this statute the words 'total costs of the hospital’ might have been a term 'of art’ in the health care field having a well understood meaning different from its common signification” which the Court defined as "the Hospital’s expenditures or outlays of money in connection with the operation of the Hospital.” (Emphasis added.) The Court remanded the case to the Circuit Court to afford the Commission ⁵²⁸ "an opportunity to present evidence of such an understanding of the meaning of the term within the field of health care at the time this statute was enacted....” Finally, this Court said: "In order that there may be no misunderstanding, we point out that if the services here under consideration were not understood in the health care field as embraced within 'total costs of the hospital’ at the time of the enactment of this statute, the Commission has exceeded the power vested in it by the General Assembly.” (Emphasis added.) Thus, Holy Cross I establishes that on remand the Commission was to adduce evidence to show what professionals in the health care field generally understood the term "total costs of the hospital” to have meant in 1971, the time of the enactment of the statute.

The Commission was not required to adduce evidence comprised of explicit, conclusionary statements by such professionals, whose training and experience do not necessarily qualify them to draw a conclusion whether the term "total costs of the hospital” constituted a term of art. On remand, the Hospital, when questioning various witnesses, repeatedly defined the phrase "term of art” as "a word or phrase which has a particular meaning within a given industry or profession which it would not have to the ordinary person not a member of that industry or profession.” Thus, the Hospital also recognized that conclusionary statements that the term "total costs of the hospital” was a term of art were insufficient and that it was necessary to adduce evidence to show what professionals in the health care field understood that term to mean in 1971. Finally, in Holy Cross III, the majority, in defining the phrase "term of art,” quotes from Black’s Law Dictionary and from 2A Sutherland, Statutory Construction § 47.31 (4th ed. C. Sands, 1973), the latter of which states: ⁵²⁹ "[I]n order that an alleged trade or commercial meaning of a term shall prevail, it must appear that such commercial meaning is the result of established usage in commerce and trade, and that, at the time of the passage of the act, such usage was definite, uniform, and general, and not partial, local, or personal.” (Emphasis added.) Thus, the majority recognizes that in order to establish that the term "total costs of the hospital” was a term of art, the Commission was required to show the "established usage” or, in other words, the general practices that existed in the health care field at the time of the enactment of the statute.

Such evidence, rather than some ritualized litany, would have demonstrated what professionals in the health care field understood the term to mean. Nevertheless, the majority fails to take into account any of the extensive evidence presented to show the established usage and general practices that existed in the health care field in 1971. 1 disagree with the majority that the terms "total costs of hospital services” and "total costs of the hospital” were not interrelated and had different meanings. There is uncontradicted evidence to show that all "costs of hospital services” were part of the "total costs of the hospital.” 2 ⁵³⁰ Therefore, I would take into account all the evidence produced by the "numerous witnesses” who testified "that the phrase 'total costs of hospital services’ was a term of art.” In addition, I do not agree with the majority’s finding that there is "no evidence that the term 'total costs of the hospital’ was one of art.” (Emphasis in original.) The record shows that there was at least one witness who made an explicit, conclusionary statement that the term was a term of art 3 and another whose testimony inferentially supports that conclusion. 4 Finally, the record abounds with evidence that shows the established usage and general practices in the health care field in 1971, and, therefore, the understanding of professionals in that field at that time. All of this evidence is more than sufficient to show that the term "total costs of the hospital” was a term of art. ⁵³¹ Distinguished physicians, hospital administrators, health care educators, third party payors, hospital cost analysis experts, and accountants testified as to established usage and general practices in the health care field in 1971. 5 They initially pointed out that the relationship of hospital-based physicians to hospitals was unlike that of other members of the medical profession.

The services of hospital-based physicians had historically and consistently been required in order for a hospital to be accredited and licensed. Hospital-based physicians generally practiced under a contractual arrangement with the hospital that, in essence, created a monopoly. Ordinarily, all hospital patients received the services of hospital-based physicians. As a result of these differences, hospitals had traditionally and consistently compensated hospital-based physicians differently from other physicians.

Throughout the 1960s, hospital-based physicians were compensated by either a salary, a percentage of the gross or net departmental revenue, or a fee-for-service. 6 Most hospitals traditionally billed patients for the costs of services of both salaried and ⁵³² nonsalaried hospital-based physicians, although in a few hospitals, hospital-based physicians billed patients directly. 7 Many of the experts testified that traditionally hospital-based physicians’ services were a part of hospital services and, therefore, the costs of hospital-based physicians’ services were consistently and traditionally treated as part of the total costs of the hospital. 8 More particularly, these experts further testified that traditionally the costs of hospital-based physicians’ services were part of the total costs of the hospital whether the hospital-based physicians were compensated by a salary, a percentage of the departmental income, or a fee-for-service 9 and whether the hospital billed ⁵³³ the patients for the services or the hospital-based physicians billed the patients directly. 10 There was other evidence to show that as a matter of established usage and general practices, the costs of hospital-based physicians’ services were a part of the total costs of the hospital. Statistical data and studies established that hospitals traditionally billed patients for the costs of services of both salaried and nonsalaried hospital-based physicians 11 and treated the costs of those services as part of the total costs of the hospital. 12 Accounting standards estab ⁵³⁴ lished by the American Association of Hospitals indicated that the costs of services of both salaried and nonsalaried hospital-based physicians should be treated as part of the total costs of the hospital. 13 In addition, third party payors traditionally included the costs of hospital-based physicians’ services as part of the total costs of the hospital. Thus, Blue Cross, which reimbursed only for hospital costs, and not for the costs of physicians’ services, took the costs of services of salaried and nonsalaried hospital-based physicians into account in determining its premium rates 14 and until 1972, paid the costs of such services 15 whether billed by the hospital or by ⁵³⁵ the hospital-based physicians. 16 The United States Congress recognized that in the late 1960!s the established usage and general practices in the health care field were to treat the costs of services of salaried or nonsalaried hospital-based physieinns as part of the total costs of the hospital. Before the enactment of the Social Security Act of 1965 (Medicare Act), Title XVIII, Pub.

L. No. 89-97, 79 Stat. 286 (codified in scattered sections of 26, 42 & 45 U.S.C. (1976)), the costs of services of hospital-based physicians were reimbursed by insurers of the payment of the costs of the hospital (such as Blue Cross), whereas the costs of services of all other physicians were reimbursed by ⁵³⁶ insurers of the payment of the costs of physicians’ services (such as Blue Shield). When the Medicare Act was enacted in 1965, it provided that the costs of services of hospital-based physicians, like those of all other physicians, were required to be reimbursed by insurers of the payment of the costs of physicians’ services (such as Blue Shield). Because this requirement was contrary to the established usage and general practices in the health care field, confusion concerning reimbursement ensued.

In 1968, the Medicare Act was amended by the Social Security Amendments of 1968, Title XVIII, Pub. L. No. 90-248, 81 Stat. 821 (codified at 42 U.S.C. § 13951 (a) (1) (B) (1976)). 17 The purpose of that amendment was to conform the methods by which hospital-based physicians were reimbursed under the Act to the methods by which they were reimbursed under established usage and general practices. One result of the amendment was that, unlike the costs of services of other physicians, the costs of hospital-based physicians’ services were accounted for as if they were hospital services and, therefore, part of the total costs of the hospital. 18 Thus, the costs of these services were reimbursed by ⁵³⁷ insurers of the payments of the costs of the hospital (such as Blue Cross). Another result was that the costs of hospital-based physicians, like other costs of the hospital, were 100 percent reimbursable, while the costs of the services of all other physicians remained 80 percent reimbursable. 19 Such reimbursement was allowed to both salaried and nonsalaried hospital-based physicians 20 whether the hospital or the hospital-based physicians billed for the costs of their services. 21 ⁵³⁸ Finally, statistical data and studies on health care costs, utilized and relied upon by various United States Government agencies working in the health care field, established that the costs of hospital-based physicians’ services were part of the total costs of the hospital. 22 In addition to all of the evidence adduced to show that in 1971 in the health care field the term "total costs of the hospital” included the costs of services of hospital-based phy ⁵³⁹ sicians including those who