Jewell v. Malamet

CHARLES E. ORTH, Jr., Judge, Specially Assigned. I Some fifteen years ago the General Assembly of Maryland created an elaborate scheme for the arbitration of medical malpractice claims. It is set out in the Maryland ²⁶⁵ Code (1974, 1989 Repl.Vol.) of the Courts and Judicial Proceedings Article as subtitle 2A of title 3 under the heading “Health Care Malpractice Claims” (the Act). 1 Starting in § 3-2A-01 with definitions, the Act, in succeeding sections through § 3-2A-09, covers the exclusiveness of its procedures; the establishment of a Health Claims Arbitration Office, headed by a Director; the procedure for filing claims, the appointment of arbitrators and their immunity from suit; the arbitration of a claim; judicial review by an aggrieved party; waiver of arbitration; award of costs and counsel fees; and the effect of advance payment. We traced the history of the Act in Attorney General v. Johnson, 282 Md. 274, 280-281 , 385 A.2d 57 (1978), appeal dismissed, 439 U.S. 805 , 99 S.Ct. 60 , 58 L.Ed.2d 97 (1978).

In Oxtoby v. McGowan, 294 Md. 83, 86 , 447 A.2d 860 (1982), we noted, “In general, the Act requires certain medical malpractice claims to be submitted to an arbitration panel for initial ascertainment of liability and damages before resort may be had to a court of law for final determination.” We emphasized that [t]he Act, however, does not take away the subject matter jurisdiction of a circuit court to hear and render judgments in cases involving claims which fall within the Act. Id. at 91 , 447 A.2d 860 . We quoted the observation of Johnson, 282 Md. at 283-284 , 385 A.2d 57 , that “[TJhis statute, which in essence requires that malpractice disputes be submitted to nonbinding arbitration” creates “a condition precedent to the institution of a court action____” Oxtoby, 294 Md. at 91 , 447 A.2d 860 . We warned: But the General Assembly has forcefully expressed in § 3-2A-02(a) its intent that this condition precedent be ²⁶⁶ satisfied.

(“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.”) Id. In Cannon v. McKen, 296 Md. 27 , 459 A.2d 196 (1983), we divined the legislative intent. It seemed patent to us that, by enacting the statute, the Legislature was “reacting to a medical malpractice insurance ‘crisis.’ ” Id. at 34 , 459 A.2d 196 . It was, therefore, clear to us that the Legislature intended to include in the scope of the Act only those claims for damages done to or suffered by a person originating from, in pertinent part, the giving of or failure to give health care.

Id. It was our view that the Legislature did not intend that claims for damages against a health care provider, arising from non-professional circumstances where there was no violation of the provider’s professional duty to exercise care, to be covered by the Act. It is patent that the Legislature intended only those claims which the courts have traditionally viewed as professional malpractice to be covered by the Act. Id.

We held that the Act covers only those claims for damages arising from the rendering or failure to render health care where there has been a breach by the defendant, in his professional capacity, of his duty to exercise his professional expertise or skill. Id. at 36 , 459 A.2d 196 . We observed: Those claims for damages arising from a professional’s failure to exercise due care in non-professional situations such as premises liability, slander, assault, etc., were not ²⁶⁷ intended to be covered under the Act and should proceed in the usual tort claim manner. Id. at 36-37 , 459 A.2d 196 .

II A Raymond L. Malamet, M.D., filed a preliminary motion for dismissal of the civil action instituted against him in the Circuit Court for Washington County by Marlene K. Jewell. Upon a hearing on the motion, it appeared to the judge that the matter was properly for arbitration under the Act. He dismissed the action. Jewell appealed.

We ordered the issuance of a writ of certiorari on our own motion before decision by the Court of Special Appeals. We are called upon to determine the propriety of the dismissal. B It is not disputed that Jewell’s employer referred her to Malamet, a physician practicing in the field of rheumatology. Malamet was to make a medical evaluation of Jewell’s physical disability resulting from apparently job-related chronic musculoskeletal pain.

Malamet conducted a physical examination of her on two occasions. On the first occasion, as set out in Count I of Jewell’s amended complaint, 2 [Wjhile during the course of a scheduled medical examination, Malamet, intentionally, wrongfully, willfully, maliciously and violently assaulted and did batter Jewell, by then and there physically sexually abusing her and battering her. During the course of the examination, Jewell was taken into an examining room and given a gown to get into. The nurse then left the room and at no time during the examination did the nurse return.

Jewell was requested to sit on a chair and talk with Malamet for ²⁶⁸ about five (5) minutes while he took notes of her medical history and related problems. Upon completion of the history, the doctor asked Jewell to get onto a table and lie on her back. He then examined her over her body as a whole. While the gown was completely pulled up, he then started to push on Jewell’s stomach and then around her groin muscles.

After pushing on the groin muscles and saying “is that sore, is that sore,” he then started to fondle her around the lips of her vagina. Malamet inserted his finger up into the vagina, not wearing a rubber glove or any protective equipment, and then continued asking if Jewell was sore. The second occasion, Count II of the complaint alleged, occurred almost five weeks later. Jewell was again scheduled for a medical examination by Malamet.

Malamet, during the aforesaid examination, intentionally, wrongfully, willfully, maliciously, and violently assaulted and did batter Jewell, by then and theré physically sexually abusing her and battering her. Jewell, again, was taken into the examination [room] of Malamet without any nurse or other witnesses. Jewell was requested to sit on the examination table. Malamet asked what problems, if any, Jewell was having.

Malamet did then pull out the extension on the examination table and asked Jewell to stand on her feet. Jewell then was requested to remove her sweatpants and underpants down below the midway of her thighs. Malamet then instructed Jewell to lie down and to turn over. Malamet then requested Jewell to bring her knees up under her and at which point Malamet fondled Jewell by touching her in her vaginal region of the body.

Malamet felt and touched the buttocks area as well as the vagina of Jewell and then inserted his finger in her vagina. Malamet continued to fondle Jewell. Malamet did not have on a rubber glove or any other protective equipment. Jewell then was instructed to sit up.

Malamet then questioned Jewell to determine if there was any pain in the muscles and area of the chest. Malamet then stood up, took both of his hands up under the sweatshirt of Jewell, and under the ²⁶⁹ bra of Jewell, and pulled both the sweatshirt and the bra away from the breasts of Jewell and did proceed to fondle both breasts of Jewell. There was an allegation in separate paragraphs of each count that the “assault and battery occurred during the course of a scheduled medical examination” and that Jewell “sustained injuries and underwent great emotional pain and suffering without any negligence on her part contributing thereto.” Ill Pertinent to the resolution of this case are the prescriptions regarding the exclusiveness of the Act’s procedures and two of the definitions set out in the Act. Section 3-2A-02(a)(l), under the heading, “Claims and actions to which subtitle applicable,” provides: All claims, suits, and actions, including cross claims, third-party claims, and actions under Subtitle 9 of this title, by a person against a health care provider for 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.

Paragraph 2, subsection (a), § 3-2A-02 declares: 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. Section 3-2A-09 warns, however: The provisions of this subtitle shall be deemed procedural in nature and shall not be construed to create, enlarge, or diminish any cause of action not heretofore existing, except the defense of failure to comply with the procedures required under this subtitle. Section 3-2A-01(e) includes among the designations of a “health care provider,” a “physician ... licensed or authorized to provide one or more health care services in Maryland.” It is not disputed that Malamet was a health care provider subject to the Act. “Medical injury,” according to ²⁷⁰ § 3-2A-01(f), “means injury arising or resulting from the rendering or failure to render health care.” The term “health care” is not defined, nor is the term “health care services.” IY A The hearing conducted by the court on Malamet’s motion to dismiss was not plenary. Only the pleadings and arguments of counsel were before the court.

The hearing concluded on this comment by the judge: It seems to be a question of whether checking out the vaginal area is something that is normally done in the examination by this kind of physician for the purposes for which the lady is there. You have some other facts in the second incident. If this case were purely brought on this first incident it would be out. But you have some additional facts in the second incident of I guess the method that was used, not only the vaginal area but also the breasts.

The judge held the matter under consideration, although he was “almost persuaded that you’re in the wrong place.” Upon consideration, it appeared to the judge that the court should not exercise jurisdiction in the light of the Health Care Malpractice Claims Act. He explained his conclusion in a memorandum opinion accompanying his order dismissing the action. The judge began with a brief discussion of the exclusive features of the Act: The determination of jurisdiction in cases involving an intentional tort of a professional nature lies not in an examination of the label given to the tort alleged by the plaintiff, but on the factual context in which the tort was allegedly committed____ When professional skill is involved, the claim is arbitrable irrespective of its theory; if health care is or should be rendered and damage results therefrom, then it is a claim under the Act and must first be arbitrated____ What is the aggregate of operative ²⁷¹ facts giving rise to the action? Does the thrust of the suit concern the exercise of professional skill or expertise?

(Citations omitted). He then summarized the allegations in the complaint: As pointed out by [Jewell], this claim concerns two office visits to a rheumatologist for the purpose of medical examinations scheduled by an insurance carrier to determine the nature and extent of [her] physical disability. She alleges