Cannon v. McKen

• Decision Date: 25 April 1983
• Docket Number: No. 67,67
• Citation: 459 A.2d 196,296 Md. 27
• Parties: Gloria CANNON and William Cannon v. Neville McKEN.
• Court: Maryland Court of Appeals

Page 27

296 Md. 27

459 A.2d 196

Gloria CANNON and William Cannon v. Neville McKEN.

No. 67.

Court of Appeals of Maryland.

April 25, 1983.

Daniel N. Steven, Bethesda (Gary Diamond and Waldman & Steven, Bethesda, on the brief), for appellants.

Thomas V. Monahan, Jr., Baltimore (Donald L. DeVries, Jr., and Semmes, Bowen & Semmes, Baltimore, on the brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

COUCH, Judge.

In this case we are called upon to determine what type claim against a health care provider is covered by the Health Care Malpractice Claims Act (the Act). ¹ We must also decide what must be pleaded in a declaration against a dentist ² to survive a motion raising preliminary objection.

The controversy arose when Gloria Cannon and her husband, William, filed a multi-count declaration in the Circuit Court for Prince George's County against Neville McKen, D.D.S., sounding in negligence, strict liability in tort, and breach of warranty. The operative allegations of the negligence count were as follows:

"During the year 1978, Defendant McKen had contracted for the design and construction of structural improvements to his residence to be used as a dental office. This office included a dental chair and/or x-ray equipment wall attachment, which equipment was used by plaintiff Gloria Cannon on or about October 28, 1978 in her capacity as a dental patient of defendant McKen."

Following an allegation that the defendant "owed a duty to exercise reasonable care in offering equipment in his dental office for safe and secure use by his patients," it was further alleged:

"The defendant breached the duty to exercise reasonable care, in that the condition of the dental chair and/or x-ray equipment wall attachment was not safe for use by plaintiff Gloria Cannon, on or about October 28, 1978. While the plaintiff was sitting in this dental chair, a part of the chair and/or x-ray wall attachment broke loose and fell on her, striking her on the face and head. Plaintiff also relies on the doctrine of res ipsa loquitur."

In the strict liability count, the Cannons alleged in pertinent part:

"[T]he dental chair and/or x-ray wall attachment used by plaintiff Gloria Cannon in the office of defendant Neville McKen, D.D.S. was defective and unreasonably dangerous. Defendant McKen knew or should have known that plaintiff Gloria Cannon would use the dental chair and/or x-ray wall attachment without inspection for defects. At all times herein mentioned, the dental chair and/or x-ray wall attachment was being used for such ordinary purposes as were reasonably foreseeable, i.e., dental chair and/or x-ray wall equipment."

Finally, in their breach of warranty count, the Cannons alleged that:

"Defendant McKen impliedly warranted that the dental chair and/or x-ray wall equipment was fit for ordinary purposes as were reasonable foreseeable in a dentist's office. This warrant extended to natural persons who could reasonably be expected to be users, or in some manner affected by the use of the above described dental chair and/or x-ray wall equipment, including plaintiff Gloria Cannon.

Defendant McKen breached the warranty made to plaintiff Gloria Cannon in that the dental chair and/or x-ray wall equipment was unfit, unsafe and unusable for the ordinary purposes for which it was used by her on or about October 28, 1978. Plaintiff Gloria Cannon relied on the defendant's skill, experience and judgment, as well as the warranty made to reasonably foreseeable users of the dental chair and/or x-ray wall equipment."

The declaration also included three counts of loss of consortium resulting from defendant's negligence, strict liability, and breach of warranty.

Dr. McKen responded to this declaration with a motion raising preliminary objection attacking subject matter jurisdiction of the court because of the impact of §§ 3-2A-02(a) and 3-2A-04(a) of the Courts and Judicial Proceedings Article. ³ Following submission of memoranda by the parties, oral argument was had and the motion was granted. After the filing of a revised order granting the motion, the Cannons appealed to the Court of Special Appeals. We granted the writ of certiorari prior to consideration by that court in order to consider an important issue of public interest.

(1)

Simply stated, the position of the Cannons is that the injury to Mrs. Cannon was not one arising or resulting from the rendering or failure to render health care. Thus, by definition, it was not a "medical injury," and not within the Act. Specifically, the Cannons contend their claim was based upon general negligence and products liability rather than medical malpractice. The Cannons further assert that, as proprietor of a commercial establishment, Dr. McKen had a duty to provide Mrs. Cannon, a business invitee, with safe premises and to warn of latent damages. Dr. McKen, on the other hand, argues that "[u]nder the fact[s] alleged in their Declaration, the Appellant's alleged injuries arose from the rendering of dental care" and thus was a "medical injury" and arbitration was required. Each party was reached their ultimate conclusion from their respective interpretations of legislative intent.

In Police Comm'r v. Dowling, 281 Md. 412, 418, 379 A.2d 1007, 1010-11 (1977), Judge Smith wrote for the Court:

"There is no shortage of holdings of this Court relative to statutory construction. The cardinal rule of statutory construction is to ascertain and carry out the real legislative intent. In determining that intent the Court considers the language of an enactment in its natural and ordinary signification. A corollary to this rule is that if there is no ambiguity or obscurity in the language of a statute, there is usually no need to look elsewhere to ascertain the intent of the General Assembly." (Citations omitted.)

See also Board of Educ., Garrett Co. v. Lendo, 295 Md. 55, 62, 453 A.2d 1185, 1188-89 (1982); Smelser v. Criterion Ins. Co., 293 Md. 384, 388-89, 444 A.2d 1024, 1027 (1982). On the other hand, as Judge Digges observed for the Court in Northland Ins. Co. v. Walls, 291 Md. 604, 611, 436 A.2d 61, 65 (1981):

"If ambiguity or uncertainty exists, however, the Court may consider the background of the statute's adoption, and the legislative history, as well as any judicial decisions pertaining to the enactment." (Citations omitted.)

The immediate question then that must be decided is whether there is any ambiguity or obscurity in the language used in the definition of "medical injury" contained in § 3-2A-01(f) of the Courts and Judicial Proceedings Article. If there is no such ambiguity, then we need look no further to determine the intent of the legislature as to what claims, suits, or actions are within the scope of the Act. Obviously, if there is such an ambiguity, we must look elsewhere.

The Act defines "medical injury" as an "injury arising or resulting from the rendering or failure to render health care." Courts and Judicial Proceedings Article, § 3-2A-01(f). Considering this definition to be somewhat ambiguous, we shall look elsewhere to determine what the legislature intended the Act to cover.

In Attorney General v. Johnson, 282 Md. 274, 280-81, 385 A.2d 57, 61 (1978), appeal dismissed, 439 U.S. 805, 99 S.Ct. 60, 58 L.Ed.2d 97 (1978), Judge Digges wrote for the Court:

"Before beginning our analysis of the several challenges to the statute, we refer briefly to the circumstances, as developed at trial, which spurred the passage of this legislation. The appellees sought to show that the malpractice insurance 'crisis' sweeping the nation, see note one supra, had avoided the State of Maryland, and that the General Assembly had imposed a draconian solution to a minor problem; as they put it, surgery has been performed when the patient could have been cured with aspirin. It is clear that although the dominant insurer in Maryland received a dramatic rate increase in 1974, it nonetheless decided to cease writing medical malpractice insurance in this State when it was refused its request for an additional substantial increase later that year. The General Assembly at its 1975 session responded to this withdrawal notice by creating, effective in June of that year, the Medical Mutual Liability Insurance Society of Maryland, see Md.Code (1957, 1972 Repl.Vol., 1977 Cum.Supp.), Art. 48A, §§ 548-556, an insurance company initially funded by a tax on Maryland physicians, and which now insures ninety percent of the State's doctors; availability of coverage was thereby assured. In July of that year, the presiding officers of both houses of the General Assembly jointly appointed a Medical Malpractice Insurance Study Committee, which in its subsequent report to the legislature indicated that the creation of Medical Mutual represented only temporary relief for the 'myriad problems of medical malpractice insurance,' and recommended legislation similar to the present Act." (Footnotes omitted).

Thus, it seems patent the legislature, by enacting the pertinent legislation, was reacting to a medical malpractice insurance "crisis" which was recognized as only partially resolved by creation of the Medical Mutual Liability Insurance Society of Maryland. It therefore is 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. See also Oxtoby v. McGowan, 294 Md. 83, 447 A.2d 860 (1982). In our view, 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.

We...