Odyniec v. Schneider

• Decision Date: 01 September 1990
• Docket Number: No. 37,37
• Citation: 322 Md. 520,588 A.2d 786
• Parties: Norman A. ODYNIEC, et al. v. Roger E. SCHNEIDER
• Court: Maryland Court of Appeals

Page 520

322 Md. 520

588 A.2d 786

Norman A. ODYNIEC, et al. v. Roger E. SCHNEIDER.

No. 37 Sept. Term, 1990.

Court of Appeals of Maryland.

April 15, 1991.

Marvin Ellin and David Agatstein (Ellin & Baker, on brief), Baltimore, for appellants.

E. Dale Adkins, III (Constance D. Burton, Anderson, Coe & King, on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE and CHASANOW, JJ.

MURPHY, Chief Judge.

This case concerns the scope of the privilege in a defamation action as it applies to a physician retained as an expert witness in a health claims arbitration proceeding under Maryland Code (1989), §§ 3-2A-01 through 3-2A-09 of the Courts and Judicial Proceedings Article. ¹

I.

Norman A. Odyniec, M.D. and Mitchell Mills, M.D. (the plaintiffs) filed a complaint against Roger E. Schneider, M.D. in the Circuit Court for Baltimore County seeking compensatory and punitive damages for defamation. The complaint averred that on August 13, 1986, Virginia R. Ensor underwent arthroscopic surgery on her right knee, a procedure which involved shaving or removing torn cartilage in the knee joint; that during the surgery, the orthopedic surgeon negligently lacerated the popliteal artery in her right knee; that when Ms. Ensor was discharged from the hospital on September 4, 1986, she was not diagnosed as having a severed popliteal artery, but rather with a diagnosis of venous thrombosis; and that it was not until October 21, 1986 that the orthopedist who lacerated the popliteal artery found, through the performance of magnetic resonance imaging (MRI), that she was suffering from a false aneurism and/or bleeding into the knee joint from the popliteal artery.

The complaint further alleged that Ms. Ensor lost confidence in the orthopedic surgeon and sought the surgical advice and treatment of the plaintiffs; that Dr. Odyniec subsequently performed corrective vascular surgery at Sibley Memorial Hospital on Ms. Ensor's right leg; and that although he was unable to reunite the severed ends of the popliteal artery, he ligated the ends of the transected artery and determined that the patient would need to rely on collateral blood supply to the lower leg. Further in the complaint, it was alleged that on June 9, 1987, Ms. Ensor filed a medical malpractice claim with the Health Claims Arbitration Office against the orthopedist who lacerated her popliteal artery, a consulting vascular surgeon who failed to diagnose the laceration, the radiologist who diagnosed venous thrombosis, and the hospital; that pursuant to Maryland Rule 2-423, Ms. Ensor was required to submit to a physical examination by an expert of the defendants' choice; and that to this end the defendants retained Dr. Schneider as an expert in defense of the suit.

According to the plaintiffs' complaint, the extent of Dr. Schneider's services was "to elicit a history, examine the patient, review records furnished him by the referring attorney ... and state an opinion as to whether malpractice had occurred on the part of the vascular surgeon named in the malpractice suit and an opinion as to the present status of [Ms.] Ensor's condition and its relationship if any to the contended malpractice of the Defendants" against whom the suit was brought. It was further averred in the complaint that after a cursory examination of Ms. Ensor, and without the benefit of any arteriographic studies, Dr. Schneider said to her:

"You have been lied to by your surgeons [the plaintiffs] at Sibley Hospital. Your popliteal artery was never ligated. They have not told you the truth. There is nothing wrong with your artery. You are perfectly all right. It is just that you have been given false information. You could not possibly have a ligated artery."

The complaint then alleged that after Dr. Schneider's statement, Ms. Ensor believed that she had undergone unnecessary surgery and that the plaintiff doctors had been guilty of fraud in their treatment and contact with her. According to other averments in the complaint, Ms. Ensor believed that she had undergone surgery for a condition other than that related to her and that her disability arose from an injury inflicted by the plaintiff Doctors Odyniec and Mills instead of through the laceration of her popliteal artery by the orthopedist on August 13, 1986. The complaint further specified that after Ms. Ensor was advised that the plaintiffs had ligated her popliteal artery, and that an arteriograph would confirm this fact, she underwent such a test which confirmed the advice given to her by the plaintiffs.

Dr. Schneider moved to dismiss the complaint pursuant to Maryland Rule 2-322 on the ground that it failed to state a claim upon which relief could be granted; he contended that the allegedly defamatory comments were made during the course of a judicial proceeding and were therefore absolutely privileged. The Circuit Court for Baltimore County (Buchanan, J.) granted the motion to dismiss. Relying upon Adams v. Peck, 288 Md. 1, 415 A.2d 292 (1980), the court concluded that Dr. Schneider's verbal statements to Ms. Ensor were absolutely privileged. We granted certiorari prior to consideration of the appeal by the Court of Special Appeals to consider the significant issue of public importance raised in the case.

II.

Upon an appeal from the granting of a Rule 2-322 motion to dismiss a complaint, the truth of all well-pleaded relevant and material facts is assumed, as well as all inferences which can be reasonably drawn from the pleadings. See Figueiredo-Torres v. Nickel, 321 Md. 642, 647, 584 A.2d 69 (1991); Sharrow v. State Farm Mutual, 306 Md. 754, 768-69, 511 A.2d 492 (1986).

As appellants, Doctors Odyniec and Mills contend that the trial court erred in treating Dr. Schneider's verbal statements to Ms. Ensor as having been made in the course of judicial proceedings. They claim that, at the time the defamatory statements were made, Dr. Schneider was neither required nor requested to say anything to Ms. Ensor; that he was employed to render an opinion as to whether physicians were negligent in treating Ms. Ensor; and that he was only to examine Ms. Ensor and report his medical findings to the lawyer who engaged his services, and not to Ms. Ensor. Therefore, appellants contend Dr. Schneider's statements were totally gratuitous, were unsolicited, and ascribed outrageous and fraudulent conduct to them in their professional practice. They urge that Dr. Schneider's unsolicited statements were neither published to the attorney who had retained him, nor were they even remotely intended to be used as evidence in any judicial proceeding.

Furthermore, appellants argue that Dr. Schneider's statements were uttered at a time when the Health Claims Arbitration Office was not exercising any judicial or quasi-judicial functions, and that the statements far exceeded Dr Schneider's potential function as an expert witness before an arbitration panel. As to this, the appellants maintain that investigatory work performed by an expert witness is not, in itself, the exercise of a judicial or quasi-judicial function and, therefore, statements by an expert in such circumstances are not accorded absolute privilege simply because they were addressed to a party in the arbitration proceedings.

The appellants recognize that the absolute privilege granted to witnesses in judicial proceedings is necessary to the proper administration of justice and is in furtherance of the public policy of the State. They emphasize, however, that because Dr. Schneider's defamatory statements were made at a time when no judicial safeguards were present, and were wholly unrelated to any judicial proceeding, it would undermine the public policy of promoting the proper administration of justice if these statements were accorded an absolute privilege.

Finally, appellants contend that the so-called judicial privilege is not applicable in a health claims arbitration proceeding. These proceedings, they say, are not judicial proceedings since the arbitration panel's decisions are not binding and the panel does not exercise any judicial power. In any event, the appellants point out that Dr. Schneider's defamatory statements were not made before the panel, but were uttered in a setting lacking all attributes of an adversary proceeding, namely, during Dr. Schneider's medical examination of Ms. Ensor.

III.

Statements made during the course of judicial proceedings (with an exception for lawyers in some circumstances) are absolutely privileged, and therefore cannot serve as the basis for an action sounding in defamation. Miner v. Novotny, 304 Md. 164, 170, 498 A.2d 269 (1985); Keys v. Chrysler Credit Corp., 303 Md. 397, 403-04, 494 A.2d 200 (1985); Adams v. Peck, 288 Md. 1, 3, 415 A.2d 292 (1980); Kennedy v. Cannon, 229 Md. 92, 97, 182 A.2d 54 (1962). "This absolute privilege protects the person publishing the defamatory statement from liability even if his purpose or motive was malicious, he knew that the statement was false, or his conduct was otherwise unreasonable." Adams, 288 Md. at 3, 415 A.2d 292. As Maryland has long adhered to the so-called "English" rule of privilege for witnesses' statements, the privilege is absolute without regard to the relevancy of the defamatory statement to the subject matter of the proceedings. Keys, 303 Md. at 404, 494 A.2d 200; Korb v. Kowaleviocz, 285 Md. 699, 704, 402 A.2d 897 (1979). Absolute privilege extends not only to statements made in court, but also to statements contained in pleadings, affidavits and other documents filed in a judicial proceeding or directly related to the case. DiBlasio v. Kolodner, 233 Md. 512, 520-23, 197 A.2d 245 (1963); Kennedy, 229 Md. at 97, 182 A.2d 54; Bartlett v. Christhilf, 69 Md. 219, 226, 14 A. 518 (1888). Defamatory statements published in documents prepared for use in connection with a pending judicial proceeding are also privileged, even if they have not yet been filed. Keys, 303...