Cannon v. McKen

Davidson, J.,

dissenting:

I agree with the majority that the Health Care Malpractice Claims Act applies only to medical malpractice claims in which there has been a breach by a health care provider, "in his professional capacity, of his duty to exercise his professional expertise or skill,” and that the Act does not apply to claims based upon negligence other than medical malpractice in which "there was no violation of the provider’s professional duty to exercise care.” I further agree with the majority that "the pleader must allege sufficient facts to make clear the theory upon which the alleged liability is based.” However, I do not agree with the majority that the allegations contained in Count I of the declaration here "are too sparse to allow a determination whether Mrs. Cannon’s injury arose because of the defendant’s breach of his professional duty owed her [medical malpractice] or because of a breach of duty which he may have owed her as a premises owner or in some other non-professional capacity [negligence other than medical malpractice].” In my view, the facts alleged in Count I are sufficient to show that that Count is based upon negligence other than medical malpractice.

In Maryland, this Court has frequently recognized that medical malpractice is predicated upon a physician’s failure *40to exercise requisite medical skill. As long ago as 1889, in State ex rel. Janney v. Housekeeper, 70 Md. 162, 171-72, 16 A. 382, 384 (1889), this Court, in describing the duty owed to a patient by a physician, said:

"It was the duty of the [physicians] to exercise ordinary care and skill . . . which physicians and surgeons ordinarily exercise in the treatment of their patients. .. .”

More recently, in Johns Hopkins Hospital v. Genda, 255 Md. 616, 620, 258 A.2d 595, 598 (1969), this Court, in describing the elements of medical malpractice, said:

"[I]n order for the plaintiffs to prevail in this case, it was incumbent upon them to introduce sufficient evidence from which the jury could have determined (1) the standard of skill and care ordinarily exercised by surgeons in cases of this kind and (2) that the defendant in this case failed to comply with those standards.” (Emphasis added.)

Most recently, in Shilkret v. Annapolis Emergency Hospital Association, 276 Md. 187, 190-91, 200, 349 A.2d 245, 247, 253 (1975), this Court, in describing the standard of care applicable to a physician, said:

"The general principles which ordinarily govern in negligence cases also apply in medical malpractice claims. Therefore, as in any other case founded upon negligent conduct, the burden of proof rests upon the plaintiff in a medical malpractice case to show a lack of the requisite skill or care on the part of the [physician]. But, whereas the conduct of the average layman charged with negligence is evaluated in terms of the hypothetical conduct of a reasonably prudent person acting under the same or similar circumstances, the standard applied in medical malpractice cases must also take into account the specialized knowledge or skill of the [physician].
*41LA] physician is under a duty to use that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances.” (Citations omitted) (emphasis added).

Thus, this Court has established that the essential characteristic distinguishing medical malpractice from negligence other than medical malpractice is the applicable standard of care. More important, this Court has consistently reiterated that, in order to recover on a medical malpractice claim, it is necessary to prove that a physician failed to exercise requisite medical skill — the degree of care and skill expected of a reasonably competent practitioner.

On at least one occasion, this Court has considered the precise question of the extent of the factual allegations necessary to properly plead a claim of medical malpractice. Fink v. Steele, 166 Md. 354, 171 A. 49 (1934), concerned the sufficiency of the allegations of a declaration seeking damages for the negligent treatment of a child by a dentist. There, it was alleged:

" '[0]n or about April 3rd, 1931, the plaintiff (appellee) was a patient of the defendant (appellant), a practicing dentist at Elkton, Maryland, at which time the defendant, acting in the scope of his employment, filled a tooth of the said infant plaintiff, and that said filling remained in said tooth for a period of five days, whereby said infant plaintiff suffered great physical injury, both serious and permanent; that said injuries to said infant plaintiff were caused directly by said defendant in filling said tooth and allowing said filling to remain in said tooth for five days, and that the filling of said tooth and permitting said filling to remain in said tooth for a period of five days was due to the want of reasonable care, skill and *42diligence and to neglect in the care, skill and diligence on the part of the said defendant, and that said acts of the defendant and the injuries resulting therefrom were not due to any want of care on the part of the said infant plaintiff or her father and next friend directly contributing to said injuries.’ ” Fink, 166 Md. at 356, 171 A. at 50-51.

The defendant demurred on the ground that the facts alleged were insufficient to show negligence on the part of the dentist. There, this Court said:

"[W]hat do we have here? A child went to a practicing dentist to have a tooth filled. He accepted the employment; he filled the tooth; the filling remained in the tooth five days 'whereby’ the child 'suffered great physical injury both serious and permanent.’ There is no charge of negligence to this point. It is a mere statement of what happened to the child following the filling of the tooth. No physician or dentist is chargeable with the results of his efforts if he has applied the degree of care and skill ordinarily required and to be expected of one of his profession in the treatment of disease or injury. The declaration then says that the injuries 'were caused directly by the defendant in filling said tooth and allowing the filling to remain for five days.’ There is no charge of lack of care, skill, or negligence in this, but the declaration goes on to say 'that the filling of the tooth and allowing the filling' to remain in said tooth for a period of five days was due to the want of reasonable care, skill and diligence and to neglect in the application of care, skill and diligence on the part of the defendant.’ Suppose the declaration, after the statement of the injury, had said: 'Said injuries so suffered by’ her 'had been caused directly by’ and were 'due to the want of reasonable care, skill, diligence and the neglect of the defendant.’ If he had treated the plaintiff at the times stated, it would have given *43him notice of the claim he was called on to defend, and that is that for a period of five days he had failed to exercise the degree of care and skill required of one of his profession, and that by reason of this failure and neglect the plaintiff had suffered injury for which compensation was demanded of him.” Fink, 166 Md. at 357-58,171 A. at 51 (citation omitted) (emphasis added).

Thus, Fink establishes that, in order to properly plead a claim of medical malpractice, it is necessary to allege facts sufficient to show that a physician failed to exercise requisite medical skill. Indeed, this concept has received widespread acceptance. See 19 Am.Jur.Pl. & Pr.Forms (Rev.) Physicians and Surgeons 554-56 (1958).

Here, Count I of the declaration alleges in pertinent part:

"At all relevant times mentioned herein Defendant Neville McKen, D.D.S. was engaged in the practice of dentistry in Prince George’s County, Maryland.
"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.
"Defendant McKen owed a duty to exercise reasonable care in offering equipment in his dental office for safe and secure use by his patients, including plaintiff Gloria Cannon.
"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 *44x-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.
"As a direct and proximate result of the negligence of the defendant, plaintiff Gloria Cannon, without contributory negligence on her part, sustained serious and permanent bodily injuries.” (Emphasis added.)

Manifestly, there are no factual allegations in Count I to show that the dentist failed to exercise requisite medical skill — the degree of care and skill expected of a reasonably competent practitioner. Therefore, the facts alleged in Count I are insufficient to establish a claim of medical malpractice. Indeed, the omission from Count I of any allegation relating to the essential characteristic distinguishing medical malpractice from negligence other than medical malpractice inevitably leads to the conclusion that the claim asserted in Count I is not based upon medical malpractice, but rather is based upon negligence other than medical malpractice.

Additionally, the majority appears to suggest that in this case it is necessary to allege performance or legal justification for nonperformance of a condition precedent to the institution of a court action — namely, that the dispute has been submitted to arbitration as required by Md. Code (1974, 1980 Repl.Vol.) § 3-2A-02 (a) of the Courts and Judicial Proceedings Article. Such a requirement must of necessity be premised upon an underlying assumption that submission to arbitration is a condition precedent to the institution of any court action by a patient against a health care provider, whether the claim is based upon medical malpractice or negligence other than medical malpractice. Again, I do not agree. In my view, such an assumption is unsound and illogical.

As the majority recognizes, § 3-2A-02 (a) requires only that medical malpractice disputes be submitted to arbitration. Therefore, submission to arbitration is a condition precedent only with respect to medical malpractice disputes. Consequently, it is necessary to allege performance *45or legal justification for nonperformance of this condition precedent only if the claim asserted is based upon medical malpractice. There is no condition precedent and no requirement for alleging performance or justification of nonperformance if the claim asserted is based upon negligence other than medical malpractice. In my view, the claim asserted in Count I is based upon negligence other than medical malpractice. It is not necessary to allege either performance or legal justification for nonperformance of any condition precedent.

In short, the factual allegations contained in Count I are sufficient to show that the claim asserted in that Count is based upon negligence other than medical malpractice. Therefore, it is not necessary to allege performance or legal justification for nonperformance of any condition precedent. In my view, the pleadings are adequate to show that the claim is not within the scope of the Act. Accordingly, I respectfully dissent. I would reverse the order of the trial court granting the motion raising preliminary objection and remand the case for further proceedings without requiring the plaintiffs "to plead facts which show whether or not their claim falls within the Act.”