Karl v. Davis

• Decision Date: 01 September 1993
• Docket Number: No. 711,711
• Parties: James R. KARL, et ux. v. Robert J. DAVIS. ,
• Court: Court of Special Appeals of Maryland

Page 42

100 Md.App. 42

639 A.2d 214

James R. KARL, et ux. v. Robert J. DAVIS.

No. 711, Sept. Term, 1993.

Court of Special Appeals of Maryland.

April 7, 1994.

[639 A.2d 215]

Kenneth D.L. Gaudreau, Salisbury, for appellants

Daniel C. Costello (Andrew E. Vernick and Wharton, Levin, Ehrmantraut, Klein & Nash, P.A. on the brief), Annapolis, for appellee.

Argued Before GARRITY, DAVIS and HARRELL, JJ.

GARRITY, Judge.

The primary issue presented by this appeal is whether appellants, James A. Karl and Pamela J. Karl, plaintiffs below, failed to [639 A.2d 216] arbitrate in good faith their claim of medical negligence in view of their decision to rely solely on expert discovery deposition testimony that failed to establish any breach of the applicable standard of care.

FACTS

Following an accident in which his right hand was injured, Mr. Karl sought medical treatment on August 27, 1986, at the Emergency Room of Peninsula General Hospital and came under the care of Dr. Robert J. Davis. Dr. Davis x-rayed the extremity, repaired the soft tissue injuries, and prescribed physical therapy. Mr. Karl failed to experience relief and continued to complain of pain. Several months after his

treatment with Dr. Davis, Mr. Karl consulted Dr. A. Lee Osterman, who diagnosed carpometacarpal fracture dislocations ¹ and performed corrective surgery

The essence of the Karls' claim is that the original x-rays taken by Dr. Davis revealed the fractures and that Dr. Davis should have ordered additional x-rays to make a more accurate diagnosis. The Karls filed suit before the Health Claims Arbitration Panel (HCAP) alleging medical negligence, specifically that Dr. Davis failed to diagnose and treat the fracture dislocations and that, as a consequence of that failure, Mr. Karl suffered permanent injury. Mrs. Karl joined her husband with an additional count of loss of services and consortium.

Prior to the arbitration hearing, appellants' attorney advised appellee's attorney that appellants had elected not to present live testimony from Dr. Osterman but instead had chosen to read portions of Dr. Osterman's discovery deposition taken by counsel for Dr. Davis. Dr. Osterman, who was both treating physician and sole expert witness, was not deposed de bene esse.

In a letter dated January 6, 1993, appellee's counsel informed counsel for the Karls that the defense would object to introduction of Dr. Osterman's deposition testimony on the ground that it was inadequate to establish a violation of standard of care under Maryland law. The objections specified that the expert's opinions were not rendered to a reasonable degree of medical probability. Counsel for Dr. Davis filed a Motion in Limine arguing to exclude Dr. Osterman's opinion testimony, but the Panel Chairman withheld ruling until Dr. Osterman's testimony was presented at the hearing.

At arbitration on January 26, 1993, counsel for the Karls read into evidence the entire deposition testimony of Dr. Osterman and relied solely on it to establish a violation of the

applicable standard of care by Dr. Davis. Additional testimony was given as to the effect of the injury on Mr. Karl. At the close of the Karls' case in chief, Dr. Davis moved for and was granted Summary Judgment because of the Karls' failure to establish a prima facie case in that they "failed to establish how Dr. Davis violated the standard of care." The Panel Chairman ruled that Dr. Osterman's deposition testimony as to violation of the standard of care was not stated to be within a reasonable degree of medical probability. Further, the Chairman ruled that certain statements made by appellee's attorney during deposition did not constitute admissions of violation of the standard of care by his client

The Karls filed a notice of rejection, and on April 30, 1993, a hearing was held in the Circuit Court for Wicomico County on the Karls' request to nullify the arbitration decision. The Court dismissed the action, ruling that the Karls had failed to arbitrate in good faith. The Karls appeal from that ruling arguing:

I. The Circuit Court erred in dismissing the case for failure to arbitrate in good faith because

a. The deposition testimony was adequate and

b. Statements made by Dr. Davis' counsel were sufficient evidence of admissions of liability to establish a prima [639 A.2d 217] facie case of violation of the standard of care. ²

II. Should we decide that the motion to dismiss was improper, Mr. Karl should not be precluded from pursuing

a claim for economic damages in circuit court, even though the HCAP failed to address the issue

DISCUSSION OF LAW

I. Appellants' Arbitration in Good Faith

The Karls contend that only when a claimant willfully refuses to present any evidence at a panel hearing is dismissal for failure to arbitrate in good faith proper. Bailey v. Woel, 302 Md. 38, 45, 485 A.2d 265 (1984). Appellants argue that the court's acknowledgment, that the panel determined that the failure of the claimants to have established a prima facie case as its sole reason for having dismissed the claim, precluded him from dismissing the action for failure to arbitrate. Citing Wyndham v. Haines, 305 Md. 269, 503 A.2d 719 (1986), the Karls argue that mere failure to present adequate expert testimony before the panel may not be a basis for dismissal by the circuit court on the ground of failure to arbitrate.

The only reason that the question of appellant's good faith is even before us in this case is because the Panel Chairman, exercising his authority pursuant to Md.Code (1974, 1989 Repl.Vol.), § 3-214(b) of the Cts. & Jud.Proc. Article, allowed the deposition of Dr. Osterman to be presented to the panel. Had the Panel Chairman refused to admit the deposition, as he had every reason to have so ruled given the opportunity presented by appellee's motion in limine, ³ this case would have presented a situation more analogous to Bailey. Absent the granting of the motion in limine, however, we are unfortunately presented with the need to divine whether appellant's counsel's misplaced reliance on Dr. Osterman's deposition suffices, as a matter of law, to demonstrate a lack of good faith in appellant's approach to the mandated arbitration process.

Maryland requires that all claims by a person against a health care provider for medical injury in which damages are greater than the limit of the concurrent jurisdiction of the District Court shall be brought pursuant to the Maryland Health Care Malpractice Claims Act (the Act) and may not be brought in any court of this State except in accordance with that statute. Md.Code (1974, 1989 Repl.Vol., 1993 Cum.Supp.) § 3-2A-02(a), (b) of the Cts. & Jud.Proc. Article. The Court of Appeals has interpreted the Act to require that such medical malpractice claims must be submitted to the HCAP before suit can be filed in the circuit court. Attorney General v. Johnson, 282 Md. 274, 287, 385 A.2d 57, appeal dismissed, 439 U.S. 805, 99 S.Ct. 60, 58 L.Ed.2d 97 (1978), overruled on other grounds, Newell v. Richards, 323 Md. 717, 734, 594 A.2d 1152 (1991). We have said that more than mere lip service must be paid to this mandatory condition precedent before allowing the case to proceed in the circuit court. Schwartz v. Lilly, 53 Md.App. 318, 322-24, 452 A.2d 1302 (1982).

In certain instances, the proper remedy for failure to follow the special statutory arbitration procedure is dismissal. Tranen v. Aziz, 304 Md. 605, 612, 500 A.2d 636 (1985) (noncompliance with the mandatory requirement of filing notice of rejection of arbitration award mandates dismissal); Bailey, 302 Md. at 45, 485 A.2d 265 (claimant who presents no evidence at arbitration has not satisfied mandatory arbitration requirement and the claim must be dismissed by circuit court); Oxtoby v. McGowan, 294 Md. 83, 91, 447 A.2d 860 (1982) (trial court gave no reasons for allowing case to proceed and record was silent as to evidence before the court; therefore, appellate court could not conclude that trial court erred in deciding that case was not subject to mandatory arbitration as a condition precedent to court suit); Golub v. Spivey, 70 Md.App. 147, 154-55, 520 A.2d 394 (1987) (failure of aggrieved party to institute action to review HCAP award along statutory guidelines mandated dismissal); Schwartz, 53 Md.App. at 324, 452 A.2d 1302 (dismissal was proper where plaintiff failed to file a claim with the HCAP in the first instance). But see Wyndham, 305 Md. at 275, 503 A.2d 719 (failure to produce sufficient evidence to establish a claim where there was a good faith effort to establish case, is not the type of situation subject to dismissal); Mitcherling v. Rosselli, 304 Md. 363, 368, 499 A.2d 476 (1985) (failure to provide copy of notice of rejection to panel as required by statute was not fatal where copy was filed with director, since director received notice in his individual capacity as well as the designated recipient for the panel); Curry v. Hillcrest Clinic, Inc., 99 Md.App. 477, 497-501, 638 A.2d 115 (1994) (default as to one defendant did not preclude full litigation before the HCAP where evidence presented enabled panel to determine that defendant's liability, therefore satisfying the condition precedent to circuit court review). The public policy behind this mandatory condition precedent, to present a case fairly on its merits to the arbitration panel, is so strong that appellate courts will not hesitate to vacate judgments sua sponte and order dismissal where litigants have not followed the special statutory procedure. Oxtoby, 294 Md. at 91, 447 A.2d 860. (citations omitted).

The question squarely before us is what will constitute a good faith effort at arbitration such that cases that subsequently proceed to the circuit court pursuant to Md.Cts. & Jud.Proc.Code Ann. § 3-2A-06 will not be dismissed for failure to arbitrate. To allow less than a legitimate good faith attempt before the HCAP to satisfy the mandatory...