Bovey v. Executive Director, Health Claims Arbitration Office

• Decision Date: 22 February 1982
• Docket Number: No. 121,121
• Citation: 441 A.2d 333,292 Md. 640
• Parties: Alice V. BOVEY et al. v. EXECUTIVE DIRECTOR, HEALTH CLAIMS ARBITRATION OFFICE.
• Court: Maryland Court of Appeals

Page 640

292 Md. 640

441 A.2d 333

Alice V. BOVEY et al. v. EXECUTIVE DIRECTOR, HEALTH CLAIMS ARBITRATION OFFICE.

No. 121.

Court of Appeals of Maryland.

Feb. 22, 1982.

Barry J. Nace, Bethesda (Paulson & Nace, Bethesda, on the brief), for appellants.

Maureen O'Ferrall Gardner, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and J. DUDLEY DIGGES, ret'd, specially assigned, JJ.

SMITH, Judge.

Appellants, Alice V. Bovey et al., sought the writ of mandamus in the Circuit Court for Montgomery County to compel the Director of the Health Claims Arbitration Office to inquire of each potential member of an arbitration panel as to whether "the potential health care panelist is a stockholder in and/or insured by the same insurance carrier as the health care provider against whom a claim has been filed and against whom the panelists must sit in judgment." Although they argued to us also that "updated biographical sketches of potential panelists" should be provided, this does not appear to have been sought in the petition for the writ of mandamus. However, our reasoning on the first issue would also cover the biographical sketches.

The trial judge sustained a demurrer without leave to amend. Sensing an issue of potential public importance relative to the operation of Maryland's Health Care Malpractice Claims Act, we issued the writ of certiorari ex mero motu prior to consideration of the appeal by the Court of Special Appeals. We conclude, however, that mandamus may not be used to compel performance of the acts here sought to be required.

The appellants are claimants in twelve separate cases filed in the Health Claims Arbitration Office. That office is created by Maryland Code (1974, 1980 Repl.Vol.) § 3-2A-03, Courts and Judicial Proceedings Article. The Health Care Malpractice Claims Act, embodied in §§ 3-2A-01 to -09 of that article, was enacted in 1976 as part of Maryland's answer to what was deemed to be the malpractice insurance crisis. By the terms of the Act, all claims in which damages of more than $5,000 are sought against a health care provider for medical injury allegedly suffered by a person must proceed under it before a suit may be brought in any court. Claims are filed with the Director of the Health Claims Arbitration Office and are then referred to a panel of three arbitrators for nonbinding arbitration. Under § 3-2A-03(c) arbitrators fall into three categories: attorneys, health care providers, and members of the general public who are neither attorneys, health care providers, or agents or employees of an insurance company or society. A panel must consist of one member from each category.

This controversy surrounds the Director's duties under § 3-2A-04(b). That provision requires that within twenty days after the filing of a response to a claim, the Director is to "deliver to each party the names of five persons chosen at random from each of the categorical lists prepared by him pursuant to § 3-2A-03(c), together with a brief biographical statement as to each of the 15 persons." He is required "(b)efore delivering the list ... (to) inquire of the persons selected and assure himself that they do not have a personal or economic relationship with any of the parties that can form the basis of any partiality on their part."

The data sheet which the Director requests health care providers to complete asks, among other things, the person's educational background; his field of practice; his hospital affiliation following training; any teaching appointments; whether he has ever been an arbitrator; whether he has ever been sued or had a claim brought against him for medical malpractice; whether he has ever testified as a medical witness in a judicial or administrative proceeding; whether he has ever been the subject of professional discipline; whether he has ever studied law; and whether he feels "confident that (he) could impartially hear and decide a health care malpractice claim solely on the basis of law and the evidence presented."

In connection with his motion for summary judgment, the Director set forth the questions that he asks each health care provider in advance of their being named to a list for submission as arbitrators. He first reads the names of the parties. Then inquiry is made as to whether a prospective panelist knows any of these people; how well they are known; whether they are an acquaintance, an associate, an employee, an employer, or a neighbor; whether the person is seen socially; whether the relationship is a long-standing one; whether the prospective panelist has any economic dealings or connection with this person; whether he has referred patients to the health care provider or providers named on the claim; whether he is in any way affiliated with the hospital named on the claim; whether he has ever been used by any of the attorneys named on the claim as an expert witness; and whether any of the attorneys named on the claim have represented him.

Appellants contend that the questions do not go far enough. They argue "that 90% of the physicians in the State of Maryland are insured by (Medical Mutual Liability Insurance Company of Maryland)" and that "the chances are better than 9 out of 10 that a health care provider who is a potential panelist in a malpractice arbitration proceeding is insured by the same company as the health care provider charged with negligence and that the profit or loss of his carrier, and the surcharge upon him, is directly related to the award of the panel ...." From this they posit that since a panelist may not "have a personal or economic relationship with any of the parties that can form the basis of any partiality on (his) part," that such a person so insured has an economic relationship with one of the parties and thus is disqualified. Accordingly, they seek to compel the Director, as we have previously stated, to inquire as to "whether or not the potential health care panelist is a stockholder in and/or insured by the same insurance carrier as the health care provider against whom a claim has been filed and against whom the panelists must sit in judgment." Even if the English language could be so tortured that we would be obliged to conclude that an "economic relationship with a party" appearing before the panel exists between a panelist and that party when the same company insures both a panelist and the health care provider against whom a claim is brought (a fact not necessarily known to the panelist), the appellants' contention simply fails to be one concerning which mandamus is a proper remedy.

The law relative to mandamus was well summarized by Judge Alvey for the Court almost a century ago in George's Crk. C. & I. Co. v. Co. Com., 59 Md. 255 (1883):

"Mandamus is a most valuable and essential remedy in the administration of justice, but it can only be resorted to to supply the want of some more appropriate ordinary remedy. Its office, as generally used, is to compel corporations, inferior tribunals, or public officers to perform their functions, or some particular duty imposed upon them, which, in its nature, is imperative, and to the performance of which the party applying for the writ has a clear legal right. The process is extraordinary, and if the right be doubtful, or the duty discretionary, or of a nature to require the exercise of judgment, or if there be any ordinary adequate legal remedy to which the party applying could have recourse, this writ will not be granted. The application for the writ being made to the sound judicial discretion of the court, all the circumstances of the case must be considered in determining whether the writ should be allowed or not; and it will not be allowed unless the court is satisfied that it is necessary to secure the ends of justice, or to subserve some just or useful purpose. 2 Dill.Mun.Corp. sec. 827; State v. Graves, 19 Md. 351, 374 ( (1863) ); Booze v. Humbird, 27 Md. 1, 4 ( (1867) )." Id. at 259.

Judge McSherry put it a bit more succinctly when he said for the Court in Brown v. Bragunier, 79 Md. 234, 29 A. 7 (1894):

"The remedy by mandamus is not one which is accorded ex debito justitiae. The writ is a prerogative one; and unless the right which the relator seeks to enforce is clear and unequivocal, and the correlative duty which the respondent refuses to perform is purely ministerial, and there be no other adequate remedy at law, it will not be granted. Weber v. Zimmerman, 23 Md. 45 ( (1865) ); Hardcastle v. R. R. Co., 32 Md. 32 ( (1870) ); Legg v Annapolis, 42 Md. 203 ( (1875) ); Marbury v. Madison, 1 Cranch, 137 (2 L.Ed. 60)." 79 Md. at 235-36, 29 A. 7.

Virtually the same views have been expressed more recently. See, e.g., Md. Act. for Foster Child. v. State, 279 Md. 133, 138-39, 367 A.2d 491 (1977); Hillyard v. Chevy Chase Vill., 215 Md. 243, 246, 137 A.2d 555 (1958); and Pressman v. Elgin, 187 Md. 446, 451, 50 A.2d 560 (1947).

Our cases illustrate the situations in which mandamus does and does not lie. See, e.g., the discussion in 2 J. Poe, Pleading & Practice § 710 (5th ed. H. Tiffany 1925). Two old cases involving the Comptroller aptly demonstrate the point. In Thomas v. Owens, 4 Md. 189 (1853), mandamus was held to lie to compel the State Treasurer to pay the salary of the Comptroller, although the writ was not issued under the peculiar facts of that case. That case was relied upon by certain of the parties in Green v. Purnell, 12 Md. 329 (1858), where an individual sought to require the Comptroller to issue a warrant for payment of rent. The Court said, "(Thomas) is a very different case from this. There the petition asked for a mandamus requiring the Treasurer of the State to pay the Comptroller, upon his warrant, the amount of his salary, which is regulated by the Constitution, and, of course, duly appropriated by law." Id. at 334. It held, however, "(H)er...