Unnamed Physician v. Commission on Medical Discipline

• Decision Date: 23 April 1979
• Docket Number: No. 33,33
• Citation: 285 Md. 1,400 A.2d 396
• Parties: UNNAMED PHYSICIAN v. COMMISSION ON MEDICAL DISCIPLINE of Maryland.
• Court: Maryland Court of Appeals

Page 1

285 Md. 1

400 A.2d 396

UNNAMED PHYSICIAN v. COMMISSION ON MEDICAL DISCIPLINE of Maryland.

No. 33.

Court of Appeals of Maryland.

April 23, 1979.

James D. Johnson, Baltimore (Sheldon H. Braiterman, Baltimore, on the brief), for appellant.

Jack C. Tranter, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH and COLE, JJ.

COLE, Judge.

The primary question presented in this case is whether the proceedings, records and files of a medical review committee are protected by statute from the subpoena power of the Commission on Medical Discipline. We shall examine certain sections of the Maryland Code (1957, 1971 Repl. Vol., 1978 Supp.), Article 43, to determine if the legislative intent and answer to this question is manifest.

Section 130A establishes the Commission on Medical Discipline of Maryland (the Commission) as the agency of the Department of Health and Mental Hygiene charged primarily with the supervision and control of physicians. Section 130(h) sets forth eighteen (18) separate grounds upon which the Commission may discipline a physician. Section 130(i) empowers the Commission to issue subpoenas and administer oaths in connection with any investigation, hearing or proceeding. Section 130(j) entitles any physician whose case is referred to the Commission to appear with counsel at any scheduled hearing. Section 130(q) forbids the record of Commission proceedings to be admitted into evidence in any proceeding, civil or criminal, except by the express consent of the parties. ¹ Section 130(r) provides that no member of the Commission, no complainant or investigator shall be liable for his participation in prosecution of the complaint if such person acted without malice. ²

In 1976, the General Assembly amended Article 43 by adding § 134A which permits a hospital (and other providers of health care) to establish from its medical staff, a medical review committee. Such committee may also discipline a physician for unprofessional conduct by limiting or denying him staff privileges. Section 134A(d) is entitled "Confidentiality of proceedings, records, and files of committee," and provides:

The proceedings, records, and files of a medical review committee are neither discoverable nor admissible into evidence in any civil action arising out of matters which are being reviewed and evaluated by the committee. This immunity does not apply to a civil action brought by a party to the proceedings of the review committee and claiming to be aggrieved by the decision of the committee. Also, this immunity does not extend to any records or documents considered by the committee which would otherwise be subject to discovery and introduction into evidence in a civil action.

Section 134A(e) provides:

(e) Immunity from liability for damages. A medical review committee, individual members of a committee, or any person (1) providing information to, (2) participating in, or (3) contributing to the function of a committee are immune from liability for damages from their activity if their actions are taken in good faith and within the scope of the committees' jurisdiction.

Under this state of the law, the following controversy arose between the medical review committee of Saint Joseph Hospital, Inc. (Hospital Committee) and the Commission. In September of 1974, this Hospital Committee received a report from an ad hoc committee of the medical staff evaluating the qualifications, competence, and performance of duties of the Unnamed Physician (Physician). The Physician requested a hearing before the Hospital Committee which was held on March 19, 1975. However, the hearing was not concluded and no decision was made.

On October 11, 1976, pursuant to an investigation into the medical practice of the Physician, the Commission issued subpoenas duces tecum ³ to Frank W. Baker, Jr., M. D., Arthur E. Cocco, M.D. and Sister Marie Cecilia, O.S.F. ⁴ To give testimony and produce the records of the Hospital Committee pertinent to the privileges and practice of the Physician at St. Joseph Hospital, Inc. They refused to comply.

On October 26, 1976 the Commission filed a petition to enforce the subpoenas in the Circuit Court for Baltimore County. In their answer and motion to quash, the physicians ⁵ contended that under § 134A(d), the proceedings, records and files of the Hospital Committee were protected from discovery by the Commission. The Physician intervened, contending that the statute authorizing the issuance of the subpoenas, § 130, is unconstitutionally vague under the United States Constitution, ⁶ the contention being that the failure of the statute to provide for formalized notice and hearing leaves the physician's procedural rights unclear. The trial court ruled that a disciplinary proceeding before the Commission is not a "civil action" within the meaning of § 134A(d) and that therefore the subpoenaed materials are not protected from discovery. Accordingly, the court entered an order to enforce the subpoenas on May 4, 1977.

On appeal, the Court of Special Appeals agreed with the circuit court that a proceeding before the Commission is not a "civil action" within the ambit of the statute. Cocco v. Md. Comm'n on Med. Discipline, 39 Md.App. 170, 384 A.2d 766 (1978). The appellate court, however, did not affirm the judgment below; that court recognized that Art. 43, § 130A, ⁷ which became effective eight weeks after the entry of the enforcement order, must also be considered in the resolution of the issue. Id. at 174-75, 384 A.2d 766. The court found that § 130A(a)(3) expressly precludes the discovery of any "minutes or notes" and held that all of the material subpoenaed by the Commission, with the exception of any "minutes or notes" of the Hospital Committee, must be produced. Id. at 176-78, 384 A.2d 766. The court reversed and remanded the case for further proceedings in accordance with its opinion. Id. at 179, 384 A.2d 766. Upon petition of the Physician, we granted certiorari to consider whether the proceedings, records, and files of the Hospital Committee could be subpoenaed by the Commission.

The Physician contends that a proceeding before the Commission is a "civil action" as that term appears in § 134A(d) and that therefore the subpoenaed materials are not discoverable. The Commission argues that the Court of Special Appeals properly decided this question and asks us to affirm the judgment of the lower court. We note preliminarily that the relevant statutes do not expressly define the term "civil action," and that this Court has never definitively stated the meaning of the term in any decision.

However, there are many sources which have attempted to explain the meaning of the phrase. Black's Law Dictionary 311-12 (rev'd 4th ed. 1968) defines a civil action as:

(a)n action wherein an issue is presented for trial formed by averments of complaint and denials of answer or replication to new matter . . . , an adversary proceeding for declaration, enforcement or protection of a right, or redress, or prevention of a wrong . . .. Every action other than a criminal action. (citations omitted).

Poe's Pleading and Practice, § 46 (6th ed. H. Sachs 1970) provides that:

(a) civil action may be defined to be a proceeding instituted in a court of law for the purpose of obtaining redress for a grievance in the shape of a judgment by the court. "Action" includes all the steps by which a party seeks to enforce any right in a court of law or equity and includes An appeal taken to a court of record from the final decision of an inferior court Or administrative body where such appeal is authorized by statute. "Action" does not include a criminal proceeding. . . . Until defined by the Maryland Rules the word "action" was inapplicable to suits pending in equity, the definition of the word being limited to those matters pending only before the law courts. (emphasis supplied).

While the case law discussing the term "civil action" in the context of a medical disciplinary proceeding is sparse, it tends to support the view that a medical disciplinary proceeding is a "special proceeding," not a civil action in the common law sense. The Supreme Court of Washington in In re Kindschi, 52 Wash.2d 8, 319 P.2d 824, 825-26 (1958) stated:

It is somewhat difficult to classify a medical disciplinary proceeding. It is characterized as civil, not criminal, in nature; yet it is quasi criminal in that it is for the protection of the public, and is brought because of alleged misconduct of the doctor involved. Its consequence is unavoidably punitive, despite the fact that it is not designed entirely for that purpose. It is not strictly adversary in nature. It is essentially a Special, somewhat unique, statutory proceeding, in which the medical profession (under state authorization through the medical disciplinary board) inquires into the conduct of a member of the profession and determines whether disciplinary action is to be taken against him in order to maintain sound professional standards of conduct for the purpose of protecting (a) the public, and (b) the standing of the medical profession in the eyes of the public. Cf. In re Little, 40 Wash.2d 421, 244 P.2d 255.

See also State Board of Medical Examiners v. Macy, 92 Wash. 614, 159 P. 801 (1916).

Further, it would appear that a medical disciplinary proceeding does not fit the definition of a civil action (one for the enforcement or protection of a private right or for the redress or prevention of a private wrong) as espoused by courts in other jurisdictions. E. g., Lee v. Lang, 140 Fla. 782, 192 So. 490 (1940); Gillikin v. Gillikin, 248 N.C. 710, 104 S.E.2d 861 (1958); Pearson v. State, 159 Tex. 66, 315 S.W.2d 935 (1958); State Board of Medical Examiners v. Macy, supra.

The parties would have us equate disciplinary proceedings involving members of the legal profession with proceedings...