Afamefune v. Suburban Hospital

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STEPH ANIE DALEY AFAMEFUNE, A MINOR BY HER MOTHER AND NEXT FRIEND, SOPHIA AFAMEFUNE, AND SOPHIA AFAMEFUNE, INDIVIDUALLY, v. SUBURBAN HOSPITAL, INC. No. 120, September Term, 2002 Headnote: Maryland Health C are Malpractice Claims Act, Maryland Code (1974, 2002 Repl. Vol.) §§ 3-2A-01 through 3-2A-09 of the Courts and Judicial Proceedings Article does not apply, where a patient alleging assault and rape by another patient, while hospitalized sues a hospital for negligence for failing to provid e for her s ecur ity. IN THE COURT OF APPEALS OF MARYLAND No. 120 September Term, 2002 ____________________________________ STEP HAN IE DA LEY AFA MEF UNE , A MINOR, BY HER MOTHER AND NEXT FRIEND, SOPHIA AFAMEFUNE, AND SOPHIA AFAMEFUNE, INDIVIDUALLY v. SUBURBAN HOSPITAL, INC. ____________________________________ Bell, C.J. *Eldrid ge. Raker Wilner Cathell Harrell Battaglia, JJ. Opinion by Bell, C.J. _______________________________________ Filed: March 17, 2005 * Eldridge, J. now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. We granted certiorari in this case to decide whether the Maryland Health Care Malpractice Claims Act, Maryland Code (1974, 2002 Repl. Vol.) §§ 3-2A-01 through 3-2A09 of the Courts and Judicial Proceedings Article ( the Act )1 applies when a hospital 1 Aside from the definition of medical injury, set out in Maryland Code (1974, 2002 Repl. Vol.) § 3-2A-01 (f) of the Courts and Judicial Proceedings Article, the pertinen t provisi ons of the Ac t for ou r purpo ses are § § 3-2A -02, 3-2 A-03 and 3-2 A-04 . The former addresses the procedure for instituting a claim and provides, in that regard: (a)(1) All cla ims, suits, and a ctions, includ ing cross cla ims, third - party claims, and actions und er Subtitle 9 o f this title, by a person against a he alth care provider for medical injury allegedly suffered by the person in which damages of more than the limit of the concurrent jurisdiction of the District Court are sought to and shall be governed by the provisions of this subtitle. (2) An action or suit type that may not be brought or pursued in any court of this State exc ept in accor dance w ith this subtitle. (3) Exce pt for the pro cedures sta ted in § 3-2A -06(f) of th is subtitle, an action within the concurrent jurisdiction of the District Court is not subject to the provisions of this subtitle. (b) A claim filed under this subtitle and an initial pleading filed in any subsequent action may not contain a statement of the amount of damages sought oth er than that the y are more tha n a required jurisdictional am ount. (c) In any action for damag es filed under this subtitle, the health care provider is not liable for the payment of damages unless it is established that the care given by the health care provider is not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action. (d) Exce pt as otherw ise provide d, the Ma ryland Rules s hall apply to all practice and pro cedure issues a rising un der this s ubtitle. Section 3-2A -03 c reate s an H ealth Clai ms A rbitration Off ice, h eade d by a Director. Se ction 3-2A -04 then p rovides tha t [a] person having a c laim agains t a health care pro vider fo r dama ge due to a me dical inju ry shall file his claim with the Direc tor, subsection (a) (1), and, pre scribes proc edures fo r doing so. T hus, a claim against a he alth care provider for medical injury, where the amount of damages sought exceeds the limit of the concurrent jurisdiction of the District Court is governe d by the Health Care Malp ractice C laims A ct. patient, alleging that she was assaulted and raped by another patient, sues the hospital for negligence in failing to provide for her security while hospitalized. If it does, then the claim must be filed w ith the Hea lth Claims Arb itration Off ice; if it does no t, the claim is approp riately filed in the C ircuit Co urt. Appellant Sophia A famefu ne, individu ally, and as nex t friend and mother of Stephanie Afamefune, the other ap pellant, Steph anie, (collective ly the appellants ), filed, in the Circuit Court for Montgomery County, a complaint sounding in negligence against Suburban Hospital, Inc., the appellee. Pointing out that claims for medical injury, as a condition precedent to filing an action in court, must be submitted to non-binding arbitration by being filed with the Health Claims Arbitration Office and arguing that the appellant s claims were for medical injury, the appelle e moved to dismiss the appellants c omplaint. A greeing w ith the appellee, the trial court granted its motion. For reasons hereinafter to be set forth, we shall reverse the judgm ent of the C ircuit Court. I. Stephanie, a fourteen year old minor, was, on September 26, 2001, admitted as a patient at Suburban H ospital for injuries sustained when she jumped from a moving automobile.2 On October 2, 2001, while a patient on the psychiatric ward, being treated for 2 Because w e review the grant of a motion to dismiss, the w ell pleaded facts are taken a s true. Warner v. Lern er, 348 M d. 733, 735 , 705 A. 2d 1169, 11 70 (1998 ); Boyds Civic As s'n v. Mon tgomery Co unty Coun cil, 309 Md. 683, 686 n. 2, 526 A. 2d 598 (1987); Berman v. Karvo unis, 308 M d. 259, 264 , 518 A. 2d 726, 728 (1987); Flaherty v. Weinberg, 303 Md. 116 , 135-36, 492 A . 2d 618, 628 (198 5). 2 depression, she was assaulted and raped or attempted to be raped by a male patient. The appellants filed a complaint in the C ircuit Court for Mo ntgomery County against the appellee. In the complaint, they alleged that the appellee breached the duties it owed Stephanie to exercise reasonable care for her protection and ... to protect her from being assaulted and raped, resulting in sev ere physical and emotional pain and suffering which may be permane nt and w hich has req uired and w ill continue to require medical attention, with the necessary financial expenditures and anticipated financial losses.3 The appellee filed a motion to dismiss and argued in s upport of the motion the appellan ts failure to file their claims pursuant to the Maryland Health Care Malpractice Claims Act, with th e Health Claims Arbitration Office.4 The Circuit Cou rt granted the appellee s motion and dismissed 3 Before the Court is the appellants amended complaint. The initial complaint was met with the appellee s motion to dismiss, the basis for which, it alleged, was the appellants failure to file their claims with the Health Claims Arbitration Office, as the Health Care Malpractice Claims Act requires. The Circuit Court granted the motion and dismissed the complaint, without prejudice, allowing the appellants fifteen days to file an amen ded co mplain t, which they did. 4 Replying to the appellants Opposition to Motion to Dismiss, the appellee offere d an alte rnate the ory for dis missal. C iting M aryland C ode (19 74, 200 2 Rep l. Vol.) § 5-609 of the Courts and Judicial Proceedings Article, it submitted that the appellants comp laint did not state a claim upon w hich reli ef cou ld be gr anted. See Md. Rule 2-322 (b). Section 5-609 provides: (a)Definitions. - (1) In this section the following words have the meanings indicated. (2) Mental Health provider means: (i) A mental health care provider licensed under the Health Occupations Article; and (ii) Any facility, corporation, partnership, association, or other entity that provides treatment or services to individuals who have 3 mental disorders. (3) Administrator means an administrator of a facility as define d in § 10 -101 o f the H ealth - G eneral A rticle. (b) In general. - A cause of action or disciplinary action may not arise against any m ental health c are provide r or admin istrator for failin g to predict, warn of, or take pre cautions to provide protec tion from a patient s violent behavior unless the mental health care provider or administrator knew of the patient s propensity for violence and the patient indicated to the mental health care provider or administrator, by speech, conduct, or writing, of the patient s intention to inflict imminent physical injury upon a specified victim or group of victims. (c) Duties.- (1) The du ty to take the action s under pa ragraph (2 ) of this subsection arises only under the limited circumstances described under subsec tion (b) o f this sec tion. (2) The duty described under this section is deemed to have been discharged if the mental health care provider or administrator makes reasonable and timely efforts to: (i) Seek civ il commitm ent of the p atient: (ii) Formulate a diagnostic impression and establish and undertake a documented treatment plan calculated to eliminate the possibility that the patient will carry out the treat; or (iii) Inform the appropriate law enforcement agency and, if feasible, the specified victim or victims of: 1. The n ature of the threat; 2. The identity of the patient making the threat; and 3. The identity of the specified victim or victims. (d) Patient Confide ntiality.- No cause of action or disciplinary action may arise under any patient confiden tiality act against a mental health care provider or administrator for confidences disclosed or not disclosed in good faith to third p arties in an ef fort to discha rge a duty arising under this section accord ing to th e provi sions o f subse ction (c) of this se ction. A motion to dismiss for failure to state a claim tests the sufficiency of the pleadings. M d. Rule 2-3 22 (b)(2); see Converge Services Group, LLC v. Curran, 383 Md. 462, 475, 860 A. 2d 871,878-79 (2004) ( consideration of the universe of facts pertinent 4 the appellants co mplaint, w ith prejudice a nd witho ut leave to am end. No ting that the Health Claims A rbitration Ac t was desig ned to cov er health care providers, and that generally has been given a rather broad perspective, the Court reasoned: It cannot be ignored that Suburban is a medical facility, and would come under the general umbrella of health care providers. That statute is designed for the purpose of bringing these matters to a preliminary matter of resolution before it comes to court, and I am satisfied that the language mandates that this - even though it is a hospital and the to the court s analysis of the motion are limited generally to the four corners of the complaint and its incorporated supporting exhibits, if any ); Paul V. Niemeyer & Linda M. Sc huett, Maryland Rules C ommentary, 206 (3d ed.2003) ( [t]he object of the motion is to argue that as a matter of law relief cannot be granted o n the facts alleged ); Sharrow v. State Farm Mut. Ins. Co., 306 Md. 754, 768, 511 A. 2d 492, 500 (1986)(noting that any ambiguity or uncertainty in the allegations bearing on whether the complaint states a cause o f action must b e const rued ag ainst the pleade r ). See also Faya v. Almaraz, 329 Md. 435, 443, 620 A. 2d 327, 331 (1993). Thus, in deciding suc h a motion, the Cou rt assumes the truth of the well-pleaded facts and allegations in the complaint, as well as the inferen ces reas onably d rawn f rom the m. Porterfield v. Mascari II, Inc., 374 Md. 402, 414, 823 A. 2d 590, 597 (2003) (indicating that the we accept all well-pled facts in the complaint, and reasonable inferences drawn from them, in a light most favorable to the non-mo ving party); Bennett Heating & Air Conditioning, Inc, 342 Md. 169, 674 A. 2d 534 (1996) ( the facts to be [considered are] those that are well pleaded by the plaintiffs, including those facts that m ay fairly be inferred from the matters exp ressly alleged ); Board of Education v. Browning, 333 M d. 281, 286 , 635 A. 2d 373, 376 (1994)(in evaluating a motion to dismiss the court must accept as true all well-pleaded facts and allegations in the comp laint ); Decoster v. Westinghouse, 333 Md. 245, 249, 634 A. 2d 1330, 13 32 (1994 ) ( the truth of all well-plead ed relevan t and mate rial facts as w ell as all inferences that reasonably can be drawn therefrom must be assumed) . Only when, so viewed, th e facts and allegations w ould be ins ufficient to e stablish a cau se of action , is dismiss al for fa ilure to sta te a claim proper . Board of Education v. Browning, 333 Md. at 286, 635 A. 2d at 37 6 ( [d]ism issal is only prope r if the facts an d allegations viewed in the light most favorable to the plaintiff fail to afford the plaintiff relief if proven. ). We conclude that there is no merit to the appellee s alternative argument; therefore, its motion to dismiss for failure of the complaint to state a claim is denied. 5 theory of recovery is negligenc e as oppo sed to medical m alpractice, w hich is medical negligence - I feel that the defendant s argument is the stronger of the two. That it shou ld be dismis sed for fa ilure to have been pursued in the proper fashio n of the Health Claim s Arbitr ation A ct. The Appellants noted an appeal to the Court of Specia l Appeals. Prior to any proceedings in the intermediate appellate court, on our own motion, we issued the writ of certiorari, see 372 Md. 684, 814 A. 2d 570 (2003), to consider this importan t issue of pu blic interest. II. It is well settled that, [a] bsent a waiver by the parties, the Health Care Malpractice Claims Act requires the submission of malpractice claims against hea lth care prov iders to an arbitration proceeding as a condition precedent before m aintaining a to rt action in the c ircuit court. Goico chea v . Langworthy, 345 M d. 719, 7 25, 694 A. 2d 4 74, 477 (1997 ). See Goodwich v. Nolan, 343 Md. 130, 151, 680 A. 2d 1040, 1050 (19 96); Jewell v. Malamet, 322 Md. 262, 265 , 587 A. 2d 474 , 475-476 (1991 ); Tranen v . Aziz, 304 Md. 605, 612, 500 A. 2d 636, 6 39 (1985 ); Bailey v. Woel, 302 Md. 38, 41, 485 A. 2d 265, 266 (1984); Oxtoby v. McGowan, 294 M d. 83, 91, 44 7 A. 2d 8 60, 864-8 65 (1982 ); Attorney General v. Johnson, 282 Md. 274, 283-284, 385 A. 2d 57, 63, appeal dismissed, 439 U.S. 805, 99 S. Ct. 60, 58 L. Ed. 2d 97 (1978). See also Newell v. Richards, 323 Md. 717, 727-734, 594 A. 2d 1152, 1157-11 61 (1991 ). The claim s against he alth care providers to which the Act pertains are 6 only those in which medical injuries are alleged. See § 3-2A-01(f), 5 defining medical injury to mean [] injury arising or resulting fro m the rend ering or failu re to render health care. This C ourt ha s consid ered, and explaine d, thi s def initio n of me dica l inju ry 6 and concluded: [T]he legislature did not intend that claims fo r damage s against a health care provider, arising from non-professional circumstances where there was no violation of the provider's professional duty to exercise care, to be covered by the Act. It is patent that the legislature intended only those claims which the courts have traditionally viewed as professional malpractice to be covered by the Ac t. Cannon v. McKen, supra, 296 Md. 34, 459 A. 2d at 200. See Nichols v. Wilson, 296 Md.at 161, 460 A. 2d at 61 ( it is only those claims for damages where there has been a violation of the health care provider s professional duty to exercise care which are within the Act ); Brown v. Rabbitt, 300 Md. 171 , 175, 476 A. 2d 1 167, 1169 (198 4). 5 As a re sult of a n ame ndme nt durin g the 20 04 spe cial legis lative se ssion, see Acts 2004, 1 st Sp. Sess., ch.5, § 1, effective January 11, 2005, the definition of medical injury is now codified at § 3-2 A-01 (g). 6 We considered the definition of medical injury to be somewhat ambiguous. Cannon v. McKen, 296 M d. 27, 32, 45 9 A.2d 1 96, 199 (1 983). The refore, we sought to discern the legislative intent from material extraneous to the Act. After reviewing our decision in Attorney General v. Johnson, 282 M d. 274, 2 80-81 , 385 A . 2d 57, 6 1, appeal dismissed, 439 U.S. 805, 99 S. Ct. 60, 58 L. Ed. 2d 97 (1978), we concluded: Thus, it seems patent the legislature, by enacting the pertinent legislation, was reacting to a medical malpractice insurance "crisis" which was recognized as only partially resolved by creation of the Medical Mutual Liability Insurance Society of Maryland. It therefore is clear to us that the legislature intended to include in the scope of the Act only those claims for damage s done to o r suffered by a person o riginating fro m, in pertinen t part, the givin g of or failure to give he alth care . Cannon v. McKen, supra, 296 M d. at 34, 4 59 A. 2 d at 200 . 7 Our consideration and explanation were in the context of the rendering of medical services or treatment. In Goicochea v. Langworthy, supra, and Nichols v. Wilson, supra, there were allegations that, while providing the m edical treatment sought, the hea lth care provider committed intentional torts on the patient. In Goicochea v. Langworthy, supra, the allegation that the doctor, during a hernia examination, intentionally assaulted and battered [the plaintiff s] left inguinal area with the full force of his left foref inger for ap proximate ly five minutes, 345 Md. at 723, 694 A. 2d at 476, was found insufficient to remove [the plaintiff s] claim from the coverage of the Health Care Malpractice Claims Act. Id. at 729, 694 A. 2d at 479. The allegation in Nichols v. Wilson, supra, that, while on the operating table, prepared f or the remo val of sutur es, the defendant do ctor w ithout p rovoca tion ... inten tionally, violently, maliciou sly, wantonly and recklessly struck with his ha nd the left cheek of [the plaintiff], causing permanent injury, pain and mental anguish, 296 Md. at 155, 460 A. 2d at 58, which clearly sounds in traditional assault and battery terms and alleges an intentional, malicious, wanton and reckless act, id. at 161, 460 A. 2d at 61 , was held b y this Court not to be w ithin the Act, even though such action took place during the rendering of health care. Id. We we re careful to point out tha t not all intention al torts were a utomatically excluded, opining, instead, that there may well be many [intentional to rts] that wou ld be so covered. Id. at 161 n . 5, 460 A . 2d at 61 n. 5. The complaint in Brown v. Rabbit, supra, alleged a breach of express and implied warranties made to the plaintiff and on which the plaintiff relied, in connection with a tubal 8 ligation procedu re. Conclu ding that suc h an action was cov ered by the Act - [t]his is clearly a claim involving the a ppellee s pro fessional ex pertise and th us is subject to mandatory arbitration, no twithstandin g the fact tha t the action is brought for breach of warra nty, 300 Md. at 176, 476 A. 2d at 1170 - , the Court stated the critical question as being whether the claim is based on the rendering or failure to render health care and not on the label placed on the claim. Id. at 175, 476 A. 2d at 1169. The complain t in Cannon v. McKen, supra, sounded in negligen ce, strict liability in tort and bre ach of warra nty. 296 M d. at 28- 29, 459 A. 2d a t 197. The causes of action arose out of the injury to the plaintiff , a dental patient, incurred when, while sitting in [the defendant dentist s] den tal chair, a part o f the chair and/or x-ray wall attachment broke loose and fell on her, striking her on the face and head. Id. at 29, 459 A. 2d at 198. Although conceding that [a] much closer situation may develop where the injury occurs during treatment when equipment, being used in that treatme nt, malf unction s and ca uses the injury, id. at 36, 459 A. 2d at 201, the Court held: [T]he Act covers only those claims for damages arising from the rendering or failure to render health care w here there has been a bre ach by the de fendant, in his profess ional capac ity, of his duty to exercise his professional expertise or skill. Those c laims for dama ges arising f rom a pro fessional s f ailure to exercise due care in non-prof essional situa tions such a s premises lia bility, slander, assault, etc., we re not intend ed to be co vered un der the A ct and sho uld procee d in the u sual tort c laim m anner. Id. at 36-3 7, 459 A . 2d at 20 1. We ma de clear, how ever, that the b urden is on the pleader to: 9 allege sufficient facts to make clear the theory upon which the alleged liability is based. It is a basic rule of law that where a cause of action is dependent upon a condition precedent, plaintiff must allege performance of such condition o r show leg al justification for nonperformance. If the [compla int] fails to contain such allegations, defendant can object by [motion to dism iss] or ple a. Id. at 38, 459 A. 2d at 202. Noting that the complaint alleged the plaintiff s status as a dental patient using the dental chair and/or x-ray equipm ent wall attachment at the time that she was injured, the Court found the pleadings too sparse to allow a determination whether [the plaintiff] s injury arose because of the defendant s breach of his professional duty owed her or because o f a breach of duty wh ich he ma y have ow ed her as a p remises ow ner or in some other non-professional capacity. Id. at 37-38, 459 A. 2d at 202. Jewell v. Malamet also addressed the pleading re quiremen t, in the process clarifying the holding in Nichols v. Wilson with respe ct to when intentional torts alleged to have been committed by health care providers during the rendering of medical care are covered by the Act. In that case , the p laint iff a llege d tha t a ph ysicia n had in tenti onally, wr ongfully, willfully, maliciously and violently assaulted, battered and sexually abused her by fondling her vaginal and breast areas during two muscu loskele tal exam inations . 322 Md. at 267-269, 587 A. 2d at 47 7. Noting th at the factu al context in which th e tort was alle gedly committed, id. at 272, 587 A. 2d at 47 9, is critical, after an alyzing our cases and the allegations in the complaint before it, the Court concluded: Unlike Nichols, the claims here as alleged do not support a view that in no way can it be read tha t the Legislatu re intended them to be within the A ct. In the face of the allegations, we cannot say, as a matter of law, that the claims 10 as set out were not for medical injury allegedly suffered by Jewell. Id. at 274, 587 A. 2d at 480. In explanation, we detailed the Court s attempt at oral argument to obtain a concession from the physician s counsel that the conduct complained of had no conceivable validity as part of the examination being conducted. Id. at 275, 587 A. 2d at 481. It was in the absence of s uch a con cession, tha t we [w ere] unable to conclude, as a matter of law, that the allegations as voiced are not subject to the Act. Id. The Jewell v. Malamet holding and analysis were extensively discussed and explicated in Goico chea v . Langwort hy, supra. Addressing the plead ing requirement, the Co urt explained: Co nseq uently, under Jewell, the determination of the proper initial forum for cases involving a llegations of intentional torts comm itted by health care providers depends upon the fa ctual contex t in which th e tort was alle gedly committed. Where a plaintiff alleges that he or she wa s injured by a h ealth care provider during the r endering o f medica l treatment o r services, the A ct is implicated, regardless of whether the claim sounds in negligence or intentional tort. When confronted with such a claim, the trial court must determine if the plain tiff's factual allegations remove the claim from the A ct's coverage. If the complaint sets forth facts showing that the claimed injury was not inflicted during the rendering of medical services, or that the injury resulted from conduct complete ly lacking in me dical validity in relation to the medical care rendered, the Act is inapplicable, and the action may proceed without first resorting to arbitration. Under our holdin g in Jewell, however, if the trial court is unable to conclude that the allegations remove the claim from the A ct's coverage , the court sho uld not exercise jurisdiction over the cla im until a ma lpractice claim is filed with the HCA O. The H CAO initially will determine if the claim alleges a medical injury an d is there fore su bject to th e Act. 345 Md. at 728-29, 694 A. 2d at 479. 11 In the instant cas e, we obs erve that it is alleg ed that Stephanie was assaulted and raped, or attempted to be raped, in her hospital room while a psychiatric patient on the appellee s premises, b ut, at the time of the assault, no active or direct health care was being rendered by any health c are pro vider. Moreover, it is not alleged that a health care provider committed the a ssau lt. To the c ontrary, the allegation is that it was comm itted by another a male - of the appellee s psychiatric patie nts. Nor is the re an allegatio n, and it is inconceiv able that there could be one, that the assault was itself a part of the course of treatment that Stephanie was receiving for depression.7 The appellee argues that the Circuit Court correctly ruled that the app ellants claim against it was covered by the Act and, therefore, that their complaint, because it was not filed initially in the Health Claims Arbitration Office, was properly dismissed. Specifica lly, it says, the appellants did not meet their obligation to show in their complaint that the Act does not apply. The appellee concedes that the complaint sufficiently alleged the hospital-patient relationship, also that the assault was committed by another patient and that the appellee owed Stephanie a duty to protect her from such assaults; however, it maintains that [w]hat is missing ... are f actual allega tions that wo uld take the Appellan t s claims aga inst her health care provider that arose during the course of a hospital-patient relationship outside the scope 7 It is not clear w hether Step hanie wa s receiving m edication. N evertheless, it is conceivable that retention in the hospital, whether for rest or for observation or some other p urpose related to the patie nt s con dition, co uld be c onside red trea tment. 12 of the A ct. 8 It proffers, in that regard: In order to determine if Suburban was negligent in [p]e rmit[ting] an adult male patient to walk into [Appellant s] room which was in clo se proxim ity to the nurse s station, or [f]ail[ing] to provide adequate security for [Apellant s] well-being , a jury would have to address various issues involving the professional competence and judgment of agents and employees of Suburban. There is no way a jury can determine whether Suburban failed to meet the common law tort standard of acting as a reasonably prudent person under the circumstances without addressing the following issues: ! Was it reaso nable to pla ce a mino r female psychiatric patient such as the Appellan t on Subu rban s psychia tric unit? ! Assuming the assaulting patient was also a patient on the 8 In addition to the failure to plead facts that would exclude the claim from the coverage of the Act, the appellee submits that the appellants failed to plead essential elements of a premises liability cause of action, namely, notice and the existence of a dangerous condition. The appellee relies on Lloyd v. Bowles, 260 Md. 568, 572-73, 273 A. 2d 193,196 (1971), in which this Court set out the requirements for finding premises liab ility on the part of th e storeow ner: the jury must find, (1) that the storeowner had actual or constructive notice of a condition which created an unreasonable risk of harm to the invitee, (2) that the storeowner should have anticipated that the invitee would not discover th e condition or realize the d anger, or w ould fail to p rotect herself from the danger, and (3) that the storeowner failed to take reasonable means to make th e premises safe or to g ive adequ ate warnin g of the co ndition to the invit ee. (Citing Gast, Inc. v. Kitchner, 247 Md. 677, 685, 234 A. 2d 172 (1967); Restatement (Secon d) of T orts s 34 3 (196 5)). As i s evide nt from the fore going q uote, Lloyd v. Bowles, supra, was not a pleading case; rather, it addressed the sufficiency of the evidence, an issue presented in that case via a ruling on a motion for judgment notwithstanding the verdict. The argument and Lloyd v. Bowles are inap posite. 13 psychiatric unit, was it reasonable to place that individual on Suburban s psychiatric unit? ! Did the patient who alleg edly committed the assault say or do anything that would have or should have indicated to Suburban s staff that he posed a threat to the Appellant or anyone else? ! Was the adult patient who allegedly assaulted the Appellant appropriately evaluated, diagnosed and treated? ! Was the Appellant appropriately evaluated, diagnosed and treated? ! Was the condition and diagnosis of the adult patient who allegedly assaulted the Appellant such that Suburban s staff, in the exerc ise of their pro fessional jud gment, should have taken certain steps to ensu re that he no t come into contact with the A ppellant? ! Considering the conditions of the patients inv olved, was there appropr iate s upervisi on and su rveillanc e pro vide d by Suburban s staff? Appellee s brief at pages 13-14. In addition to those of our cases as we have reviewed, the appellee relies on Long v. Rothbaum, 68 Md. App. 569, 514 A. 2d 1223 (1986) and Roberts v. Suburban Hospital, 73 Md. App . 1, 532 A. 2d 108 1 (1987). Long v. Rothbaum was an action aga inst health care providers, Frank lin Square Hospital and Taylor Manor, for false imprisonment, intentional infliction of emotional distress and violation of constitutional rights, pursuant to 42 U.S.C. § 1983. The factual basis for the action, as revealed by the complaint, can be stated simply. The plaintiff was 14 taken to Fra nklin Square Hospital by Toll Facilities police, who believed that the plaintiff was suicidal. When he attempted to leave, the doctors and other agents of the hospital restrained him, subse quently drugg ed him an d still later caused him to be admitted involuntarily to a mental health facility, 68 Md. App. at 571, 514 A. 2d a t 1224, f or the accomplishment of which they executed illegal documents - Physicians Certificates that did not comply with the procedure prescribed by COM AR 1 0.21.01 .03, id. at 576, 514 A. 2d at 1226, - and han dcuffed and transp orted him to an asylum. 68 Md. App. at 571, 514 A. 2d at 1224. Having been delivered to the asylum, Taylor Manor, where he remained for 7 days, through the ac tions of do ctors and o ther agents o f Taylor M anor, he w as illegally involuntarily admitted, without his consent kept at Taylor Manor, subjected to unlawful procedures and other wrongful actions. Id. at 572, 514 A. 2d at 1224. Cognizant that the critical qu estion is the basis for the claim, whether it is based on the rendering o r failure to ren der health c are, rather than how the claim is labele d, id. at 575, 514 A. 2d at 1226, quoting Brown v. Rabbitt, 300 Md. at 175, 476 A. 2d at 1169, the intermediate appellate co urt rejected the plaintiff s argument that intentiona l torts simply are not medical injuries, id. at 573, 514 A. 2d at 1225, and focused on the allegations of the complaint. It concluded: The complain t shows th at Long w as brough t to Franklin Square Hospital because h e was tho ught to be a suicide risk. H e was ke pt there invo luntarily because the health care providers at that hospital w ere attemptin g to treat him for that problem. His claimed false imprisonment, from which the asserted emotional distress arose, was caused by those health providers who executed Physicians Certificates for mentally disordered that are required for 15 involu ntary adm ission to menta l health f acilities. Id. at 575- 76, 514 A. 2d a t 1226. After discussing the plaintiff s arguments with respect to the violation of COMAR 10.21.01.03 and pertinent other provisions, the court observed: It is apparent to us that what Lo ng s com plaint in fact a lleges is misd iagnosis of his condition and the subsequent rendition of unnecessary and, therefore, improper care. The appellees alleged failure to comply with various COMAR provisions dealing with the treatment of involuntary mental commit tees is in effect a charge of malpractice - the failure to adhere to a standa rd of ca re requ ired (by C OM AR) o f certain health c are pro viders. Id. at 576, 514 A. 2d at 1226-27. The Court of Special A ppeals pro ceeded to contrast its case with Nichols v. Wilson, noting: The case before us is unlike Nichols. In that case the cause of action (the slap) did not arise from a negligen t, reckless, or un necessary sutu re remova l. Rather, the slap was a gratuitous act that obviously was not part of the medical treatment. Here, the cause of action is based on the treatment itself and other actions that are s aid to be in violat ion of m andate d health care sta ndards . Id. at 567-77, 514 A. 2d at1227. The intermediate appellate court concluded: In the case before us, Long's claims arise from a doctor-patient relationship, albeit an involun tary one. They stem from the re ndering o f health care in alleged contraven tion of stand ards applica ble to that care . They implica te directly the profes sional com petence o f the several appellees. We hold that Lon g's common law claims involve medical injuries as defined in § 3-2A01(f), and thus are subject to arbitration as a condition precedent to judicial relief. Id. at 578, 514 A. 2d at 1227. The plaintiff in Roberts v. Suburb an Hosp ital brought, in the Circuit Court for Montgom ery County, an action against the hospital, which presented three theories: strict 16 liabi lity, breach of implied warranties of fitness and merchantability and negligence. 73 Md. App. at 2-3, 5 32 A. 2 d at 108 2. A hemophiliac, the plaintiff a lleged that he had receiv ed all of his blood transfusions at the hospital and that he contracted AIDS as a result of a blood transfusion. Id. The hosp ital moved to dismiss the complain t, alleging failure to com ply with the mandatory arbitration requirements. The Court of Special Appeals agreed, although the Circuit Court had not decided the case on that basis. It did so on the basis that the negligence count stated a claim for breach of professional skill and duty and ... it was therefore subject to the Act. Id. at 6-7, 5 32 A. 2 d at 108 4. That count charged the hospital with breaching a duty to use ordinary and reasonable care in the selection, screening and testing of blood suppliers and donors for infectious diseases and viruses including the AIDS virus and to use ordinary and reasonable care to mitigate the possibility of AIDS being transmitted to patients receiving blood transfusions in the hospital. Id. at 6, 532 A. 2d at 1084. The cases in which the Act has been found to apply, including those on which th e appellee relies, have all involved claims that arose as a result of the rendering of medical treatment or the fa ilure to d o so, Goicochea v. Langworthy, supra (alleged assa ult committed by doctor w hile exam ining the pla intiff for a h ernia); Brown v. Rabbitt, supra (warranties, express and implie d in conne ction with a tubal ligation); Roberts v. Suburban Hospital, supra (alleged negligenc e in conne ction with b lood transf usions); Long v. Rothbaum, supra (misdiagnosis of mental condition), or there was such ambiguity in the pleadings in that 17 regard that exclusio n from the Act is required as a matte r of law . Jewell v. Malamet, supra (alleged assault and battery committed by doctor by fondling the vaginal and breast areas of the plaintiff during two m usculo skeletal exam inations ). See also Cannon v. McKen, supra. As we have seen, the Court neither found the Act to apply nor not to apply in Cannon v. Mcken; rather, it reman ded the ca se to the Circ uit Court fo r further pro ceedings to allow the plaintiff to plead facts which would resolve the issue. Of significance to the issue sub judice, howe ver, w as that, in that case, the plaintiff was injured while sitting in the dental chair as a dental p atient, when the dental chair and/or x-ray wall attachment broke loose and injured her; there was a plausible connection between the allegations and the plaintiff s injuries b eing m edical in juries. In this case, the allegations of the complaint clearly do not show that Steph anie s injuries were incurred during the active rendering of medical services and, indeed, they show that they were not inflicted by a medical care prov ider or as a result of that provider s treatment or failure to treat. In fact, the complaint doe s not allege injury by a health care provider during the rend ering o f med ical treatm ent or se rvices. Moreover, an assault, rape or attempted rape can in no way be describe d as med ical service an d it is inconceivable that it could, or would, be prescribed as treatment for depression. In addition, even were it to be so prescribed , assault, rape or attempted rape is completely lacking in any medical validity in that re gard. Nevertheless, the appelle e maintains that the Act applies becau se, inter alia, Stephanie 18 was under the c are of a he alth care provider, the hospital, and the decision to hospitalize her and treat her condition involved medical judgment. Moreover, it believes that the diagnoses that were m ade with re spect to Step hanie and the male patient who assaulted her, as well as the decisions that the hospital made with respect to where to house them necessarily involved professional judgment and, thus, implicate the Act. In effect, the appellee seems to be suggesting that Stephanie s hospitalization was itself treatment and that every decision emanating from the decision to hospitalize, however indirect and whateve r its connectio n to the claim ed injur y, is the ren dering of me dical ca re. The appellee reads our cases too broadly with respect to the interpretation to be given to rendering health care. O n the contrary, our cases make clear that the cause of the injury must have been a breach by the defendant, in his[, her or its] professional capacity, of [the] duty to exercise ... pro fessional ex pertise or skill in rendering o r failing to render hea lth care. Cannon v. McKen, supra, 296 Md. at 36, 459 A. 2d at 201. Thus, we have said that when it is clear from the allegations of the complaint that the plaintiff s claimed injury was not inflicted during the rendering o r failure to render m edical servic e or that it wa s the result of conduct hav ing u tterly n o me dica l vali dity in relation to the medical care rendered, the action properly proceeds in Circuit Court, without first resorting to arbitration. Goicochea v. Langworthy, 345 M d. at 479 , 694 A . 2d at 72 8. This case is much like Nichols v. Wilson, although the injuries in this case did not occur during the rendering of health care, at lea st no t dire ctly at the m ome nt of the in jury. 19 Like the slap, the assault, rape or attempted ra pe by the ma le patient bore no relationsh ip to the medical treatment for whic h Stephan ie was ho spitalized. W hat the Co urt said in Nichols v. Wilson thus applies w ith equal, if not greater - the medical provider did not cause the injury in this case - , force here: [i]n no way can it be said that the legislature intended such a claim to be within the Act. Nichols v. Wilson, 296 Md. at 161, 460 A. 2d at 61. JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY REVERSED; CASE REMANDED TO THAT FURTHER PRO CEE DING S. PAID BY T HE A PPEL LEE . 20 COURT FO R COSTS TO BE

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