Goodwich v. Nolan, 24

Citation680 A.2d 1040,343 Md. 130
Decision Date01 September 1995
Docket NumberNo. 24,24
PartiesKenneth M. GOODWICH, et al., v. Paul W. NOLAN, et al. ,
CourtCourt of Appeals of Maryland

Page 130

343 Md. 130
680 A.2d 1040
Kenneth M. GOODWICH, et al.,
Paul W. NOLAN, et al.
No. 24, Sept. Term, 1995.
Court of Appeals of Maryland.
Aug. 5, 1996.

[680 A.2d 1042]

Page 134

Timothy L. Mullin, Jr. (John E. McCann, Jr., Miles & Stockbridge, on brief), Baltimore, for Petitioner.

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Daniel J. O'Brien, Jr., Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), C. Holly Buckley (Joanne L. Suder, Suder & Suder, on brief), Baltimore, for Respondent.


BELL, Judge.

This appeal arises from a medical malpractice action filed in the Health Claims Arbitration Office ("HCAO"). See Maryland Code (1973, 1995 Repl.Vol. & Cum.Supp.), §§ 3-2A-01 et seq. of the Courts and Judicial Proceedings Article ("the Health Care Malpractice Claims Act" or "the Act"). The issue we must decide is whether the petitioners, Kenneth M. Goodwich, M.D. and Kenneth M. Goodwich, M.D., P.A. (hereinafter "the petitioners" or "Dr. Goodwich"), properly instituted a mandamus action in the Circuit Court for Baltimore City to obtain judicial review of a HCAO discovery order compelling deposition testimony concerning the findings and recommendations of a medical review committee. The circuit court denied the petitioners' request for mandamus relief. On appeal, the Court of Special Appeals affirmed the judgment of the circuit court. Goodwich v. Nolan ("Goodwich I "), 102 Md.App. 499, 650 A.2d 296 (1994). At the petitioners' request, we issued the writ of certiorari and now affirm the judgment of the Court of Special Appeals.


The medical malpractice action out of which this case arose was initiated by Sharon Brooks, individually and as parent, guardian, and next friend of her son, Jamaal Brooks, in the Health Claims Arbitration Office, against Dr. Goodwich, Sinai Hospital of Baltimore, Inc. ("Sinai Hospital"), Health Care Corporation of the Mid-Atlantic ("Carefirst"), and Potomac Physicians, P.A. ("Potomac") for alleged negligent surgical and obstetrical care resulting in Jamaal's birth, in December 1988, with severe brain damage. In addition to claims of primary

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medical negligence against Dr. Goodwich, vicariously imputed to the other health care providers, Ms. Brooks also brought claims of corporate liability against Sinai Hospital, Carefirst and Potomac based on theories of negligent supervision and credentialing. Paul W. Nolan, Esquire, the respondent ("the panel chair"), the chair of the arbitration panel assigned to the case, later bifurcated the latter claims.

While in the discovery phase of the HCAO proceeding, Ms. Brooks deposed Dr. Goodwich and two former Sinai Hospital employees, Rebecca Brown, R.N., and Dr. Mary Anne Lathrop, both of whom had been involved[680 A.2d 1043] in Ms. Brooks's care. During Dr. Goodwich's deposition, Ms. Brooks's attorney asked a series of questions regarding alleged disciplinary restrictions imposed on Dr. Goodwich's staff privileges at Sinai Hospital, including, inter alia, whether he was "required at Sinai Hospital to obtain second opinions for patients," 1 whether his medical license ever had been suspended, revoked or curtailed, in any way, while Ms. Brooks was his patient, and whether he ever had been discharged from Sinai's HMO. Ms. Brooks's attorney also questioned Dr. Goodwich about alleged communication problems with other patients.

Dr. Goodwich refused to answer this line of questioning, contending that it infringed upon the protections of the medical peer review privilege as set forth in Maryland Code (1981, 1994 Repl. Vol, 1995 Cum.Supp.), § 14-501(d) of the Health Occupations Article. That section provides, in pertinent part:

[T]he proceedings, records, and files of a medical review committee are not discoverable and are not admissible in evidence in any civil action arising out of matters that are being reviewed and evaluated by the medical review committee.[ 2

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Ms. Brooks's attorney asked Ms. Brown and Dr. Lathrop similar questions in their subsequent depositions. They were asked whether they knew if Dr. Goodwich's privileges had been suspended or curtailed, in any way, while he was caring for Ms. Brooks, and whether they knew if Dr. Goodwich had been required to obtain second opinions. Like Dr. Goodwich's attorney, and for the same reason, the attorney for Sinai Hospital instructed Ms. Brown and Dr. Lathrop not to answer the questions.

Dr. Goodwich and Sinai Hospital having raised claims of privilege, Ms. Brooks's attorney filed a motion with the panel chair to compel the deponents to answer the questions. After reviewing the briefs submitted by Ms. Brooks and Dr. Goodwich, the panel chair, in an order issued on June 22, 1993, granted Ms. Brooks's motion. 3 The order stated the basis for

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his decision, namely his belief, given the authorities submitted, that the information Ms. Brooks sought did not constitute the " 'proceedings, records, and files of a medical review committee[,]' " (quoting § 14-501(d)(1)). The panel chair concluded, therefore, that § 14-501(d)(1) did not preclude discovery of the information. While noting that there were no Maryland appellate cases directly addressing the issue, the panel chair, nevertheless, was persuaded by the analysis adopted by the Supreme Court of Rhode Island in Moretti v. Lowe, [680 A.2d 1044] 592 A.2d 855 (R.I.1991). 4 Moreover, he stressed that while he found the requested information discoverable, he was not ruling, nor did he intend to imply, that the information would be admissible at a hearing on the merits. 5

Dr. Goodwich filed a motion for reconsideration of the panel chair's discovery order. The motion was denied. Meanwhile, Ms. Brooks having filed another motion to compel him to appear for a supplemental deposition, Dr. Goodwich filed a motion for a protective order asking the panel chair to stay all discovery while he pursued mandamus relief in the Circuit Court for Baltimore City. The panel chair granted the motion and ordered all discovery stayed for 60 days to allow Dr. Goodwich to seek mandamus relief.

Thereafter, Dr. Goodwich filed, in the circuit court, a Verified Complaint Seeking Writ of Mandamus, naming the panel

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chair and the HCAO, through its director, Walter R. Tabler 6, as defendants. In that complaint, he sought to have the court prevent the panel chair and/or the HCAO from "compelling production of statutorily privileged medical peer review information in violation of Maryland law." The panel chair and Mr. Tabler filed a motion to dismiss Dr. Goodwich's mandamus action, arguing that mandamus will not lie when a fully adequate statutory remedy is available after the HCAO makes a final award, that Dr. Goodwich's complaint was interlocutory, and that mandamus relief is inappropriate to direct a party to exercise judgment that is discretionary. The circuit court granted the motion, adopting as the reasons for the dismissal, those enumerated in the defendants' motion to dismiss.

Following the circuit court's dismissal of his complaint, Dr. Goodwich appealed to the Court of Special Appeals. 7 That court, as previously noted, affirmed the judgment of the circuit court. Goodwich v. Nolan, supra, 102 Md.App. at 514, 650 A.2d at 303. In explaining the basis for its decision, the Court of Special Appeals's opinion emphasized the discretionary nature of the panel chair's order, which, it concluded, made mandamus relief inappropriate. The intermediate appellate court also noted that judicial review of HCAO orders after issuance of a final award provided Dr. Goodwich with an adequate remedy. Id. at 507-09, 650 A.2d at 299-301. Finally, the court was satisfied that Dr. Goodwich had other measures available during HCAO discovery, including the use of a protective order, to prevent disclosure of peer review information. As a further basis for rejecting mandamus, the

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court noted that the panel chair's discovery order was not immediately appealable under the collateral order doctrine, id. at 510-12, 650 A.2d at 301-02, and that the writ of mandamus did not meet the prerequisites of that doctrine. As previously noted, we granted Dr. Goodwich's petition for writ of certiorari to consider the important issues raised in this case.

[680 A.2d 1045] II.


Dr. Goodwich asserts that the test for assessing the propriety of issuing a writ of mandamus during an ongoing HCAO proceeding is " 'where there is no other available procedure for obtaining review, or where the action complained of is arbitrary and capricious[,]' " (quoting Goodwich I, supra, 102 Md.App. at 506, 650 A.2d at 299, quoting, in turn, Weidig v. Tabler, 81 Md.App. 488, 491, 568 A.2d 868, 870 (1990), cert. granted sub nom. Kies v. Tabler, 319 Md. 632, 574 A.2d 312, vacated as moot, 321 Md. 1, 580 A.2d 701 (1990)). He further asserts that the Court of Special Appeals has misapplied the test in this case. Specifically, he contends that the intermediate appellate court erred in concluding that "[a] party aggrieved by a decision of the HCAO may seek review in the circuit court only after the HCAO has issued a final award[,]" id. at 509, 650 A.2d at 301, and in holding that the post-arbitration procedure for vacating an HCAO arbitration award under § 3-2A-06 of the Act provides an adequate remedy in this case. Id. Dr. Goodwich also contends that the Court of Special Appeals erred in concluding that procedural protections, such as a protective order limiting Ms. Brooks's use of the discovered peer review information, or alternatively, placing that information under seal to preserve its confidentiality during the pendency of the HCAO proceeding, provide him sufficient protection.

In Dr. Goodwich's view, vacating an ultimate HCAO award would fail to protect privileged peer review information from initial disclosure during discovery. Thus, he claims that once privileged information is produced in discovery, its...

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