This is an appeal by Stanley E. Hartman and Thelma J. Hartman, his wife, appellants, from a verdict returned by a jury in the Circuit Court for Anne Arundel County in favor of Neill S. Cooper, M.D., Robert Ellis, M.D., Allan G. Egloff, M.D. and Neill S. Cooper, M.D., P.A., the appellees herein, in a medical malpractice case. This case arises from an orthopedic injury sustained by appellant Stanley Hartman. On February 18, 1978, Hartman fell in the driveway of his home at approximately 7:30 a.m., sustaining a comminuted subtrochanteric fracture of his right hip. He was taken to Anne Arundel General Hospital where he was treated by appellee Neill S. Cooper. The alleged malpractice in this case arises not from the original treatment and surgery performed by Dr. Cooper, but from followup care after Hartman's discharge from the hospital. During that time Hartman developed a serious bone infection, known as osteomyelitis.
Hartman alleges that Dr. Cooper failed to diagnose and treat the osteomyelitis and that that failure, which permitted the osteomyelitis to develop unchecked, led to a non-union of the fracture, six subsequent surgical procedures, six and a half months of hospitalization, a shortening of Hartman's right leg by approximately two to two and a half inches, a severe limp and the concomitant pain, suffering and mental anguish that accompanies such a catastrophic occurrence.
The case was first filed on February 11, 1981, before the Health Claims Arbitration (HCA) office of Maryland under the terms of the Health Claims Arbitration Act, Maryland Code (1974, 1984 Repl.Vol.) Courts & Judicial Proceedings Article, Subtitle 2A. A panel was selected to hear the dispute pursuant to the panel selections procedures set out in COMAR 01.03.01.07. That procedure provides for three categories of eligible panel members, i.e., attorneys, health care providers and members of the general public. The regulations require that in each case the director of HCA prepare a list of fifteen prospective panelists from which the final panel of three members, one from each category, is selected. Each prospective panelist is required to complete a panel data sheet containing questions concerning the panelist's background and other questions relevant to the prospective panelist's possible bias. The list of prospective panelists and the completed data sheets are then supplied to the litigants' attorneys so that they may have the opportunity to object for cause to the inclusion of any person on the list. In this case, on the basis of the information supplied, no objection was made to any panelist. Dr. William H.B. Howard was selected as the health care provider representative.
The case was heard before the HCA panel on June 28 through June 30, 1982 and on July 7, 1982 the HCA Board reached a unanimous decision in favor of the health care providers.
Shortly thereafter, appellants discovered that Dr. Howard had failed to disclose on his data sheet information relevant to his possible bias, which, if known to appellants might have resulted in his disqualification as a panel member for cause. Prior to his being selected to serve on the panel, Dr. Howard had been asked on his data sheet by Question No. 2, "Have you ever been sued or had a claim brought against you for medical malpractice? If so, give details." Dr. Howard's answer to this question was "No."
Question No. 3 on the data sheet asked, "Have you ever testified as a medical witness in a judicial or administrative proceeding? If so, give details." Dr. Howard answered, "Yes, in a compensation hearing in 1968 in Harrisburg, Pennsylvania." Appellants argued that relying on the answers supplied by Dr. Howard they accepted him on the panel which heard this case.
Appellants thereupon filed a motion to vacate the health panel's decision and to nullify its conclusions in the Circuit Court for Anne Arundel County. In the course of the hearing on that motion appellants offered testimony that the answer supplied to Question No. 2 was incorrect in that investigation had disclosed that Dr. Howard had been sued individually in the case of Melissa S. Lachica, et al. v. William H.B. Howard, M.D., et al., HCA No. 79-165. That case was set for trial during the week of July 5, 1982, one week after Dr. Howard sat as a panel member in the case here under consideration. Further investigation disclosed that Dr. Howard's answer to Question No. 3 was also incorrect in that it was discovered that Dr. Howard had been deposed as a witness for the defense in two other medical malpractice cases.
In response to the motion to vacate the panel's determination of the issues in the case submitted to the HCA panel, Dr. Howard filed an affidavit in which he conceded that his answers to the two disputed questions were erroneous but attempted to explain the incorrect answers for the following reasons. He said in his affidavit:
In answer to appellant's additional complaint that Dr. Howard as a member of the panel was evidently partial and that the HCA panel award should have been vacated, the trial judge, in denying the appellant's contention, said:
Appellant's motion for reconsideration of the motion to vacate subsequently was denied. Trial before a jury then began and over objection the trial court instructed the jury on the presumption that the finding of the HCA panel was prima facie correct. The jury returned a verdict in favor of the appellees and it is from their judgment that this appeal was filed. The issues to be determined by this proceeding are:
The Court of Appeals, in Attorney General v. Johnson, 282 Md. 274, 385 A.2d 57 (1978), upheld the constitutionality of the health claims arbitration process and indicated the standards against which procedural issues were to be tested. The Court said:
In Johnson, the Court examined the procedure for selection of the three members of the arbitration panel and especially the selection of the health care provider (usually a physician) member. The procedure is summarized as follows:
The trial court, in denying appellant's motion to vacate the award of the arbitration panel, based its decision on its conclusion that Dr. Howard did not intentionally give false or fraudulent information on the panel data sheet furnished by the health representative to appellant.
The Health Claims Act looks to the Maryland Arbitration Act Courts Article § 3-224(b)(2) standard of evident partiality and misconduct as the basis for vacating an award. That section reads in pertinent part:
We perceive a difference in the approach by various courts on the issue of vacating an award where the attack is on the substance of the award itself and when the issue is the partiality of the arbitrators. In the latter instance only evident partiality or misconduct need be demonstrated without reference to or evaluation of actual bias or prejudice. The leading case on the question of evident partiality is Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 89 S.Ct. 337, 21 L.Ed.2d 301 (1968). In that case, one of the arbitrators and the prime contractor in the arbitration had sporadic dealings not connected with the matter before the arbitration panel, but amounting to some $12,000 in fees paid to the arbitrator over a period of four years prior to the arbitration. This fact was not known to the other party involved in the arbitration proceedings. In setting aside a unanimous award, even though there was no finding of actual fraud or bias, Justice Black construed the language of the United States Arbitration Act (whose provisions on the vacating of awards parallel that of the Maryland Act) to require not just any arbitration but an impartial one. [393 U.S. at 147, 89 S.Ct. at 338]. Justice Black noted:
Following the decision in Commonwealth Coatings, supra, the Supreme Court of Wisconsin in Richco Structures v. Parkside Village, Inc., 82 Wis.2d 547, 263 N.W.2d 204 (1978) expanded upon the definition of evident partiality when viewed in the arbitration setting. Determining that evident partiality must be held to conform with the expectations of reasonable parties to an arbitration proceeding that the award will be made by a disinterested arbitrator, the court reasoned that evident partiality included proof of a neutral arbitrator's mere failure to disclose facts and relationships which may create an appearance of bias:
We note that the elaborate provisions set up by the Health Claims Arbitration Act presuppose that the information furnished by prospective panel members shall be sufficiently accurate to advise the parties of the existence of any facts which might serve as a basis for objecting to the inclusion of any prospective panelist in a hearing panel. This requirement is even more crucial when we recognize that the act provides no opportunity for either oral or written voir dire. We conclude that the failure of Dr. Howard to disclose in his answers supplied on his data sheet that there was a pending medical malpractice suit against him scheduled for trial one week after he was scheduled to sit on the panel in this case constituted "evident partiality." The further inaccurate or incomplete answer to Question No. 3 of the data sheet concerning Dr. Howard's ever having testified as a medical witness in a judicial or administrative proceeding was further evidence of "evident partiality" as defined by the authorities we have cited. The appellant was entitled to the correct information in deciding whether to exercise his right to object to Dr. Howard serving as a panelist for cause or whether to make further inquiry of the panelist or of the Director.
The failure to supply the information discovered by accident after the award of the panel reasonably supported an inference of or the appearance of the existence of bias, prejudice or partiality or absence of impartiality.
We have previously held that the failure to disclose circumstances likely to create an appearance of bias or evident partiality requires the vacation of an arbitration award. In McKinney Drilling Co. v. Mach I Ltd Partnership, 32 Md.App. 205, 359 A.2d 100 (1976), we discussed Md.Code Cts. & Jud.Proc. § 3-2A-06(c) which provides that a party may by preliminary motion seek a vacation of an improper award because of the grounds we have heretofore cited found in § 3-224(b)(1) et seq. which provides that the motion shall be determined by the court without a jury prior to trial.
The United States Arbitration Act and the Uniform Arbitration Act, under which McKinney was decided, have become the cornerstones of arbitration in this country. The Uniform Arbitration Act was adopted by Maryland in 1965 and appears in its current form in Md.Code, (1974, 1984 Repl.Vol.) Cts & Jud.Proc., §§ 3-201 to 3-234. See Frederick Contractors, Inc. v. Bel Pre Medical Center, Inc., 274 Md. 307, 334 A.2d 526 (1975).
To vacate an award on the basis of evident partiality under these acts, a showing of actual bias or proof of improper conduct is not necessary; all that is required is an appearance of possible bias. See generally Annot., Setting Aside Arbitration Award On Ground of Interest or Bias of Arbitrator, 56 A.L.R.3d 697 (1974), 5 Am.Jur.2d, Arbitration and Award, § 181.
In the medical malpractice context, it has also been held that failure to disclose a relationship or a possible bias in a medical arbitration proceeding is sufficient to require vacation of an award. In Wheeler v. St. Joseph's Hospital, 63 Cal.App.3d 345, 133 Cal.Rptr. 775 (1976), the medical member of an arbitration panel failed to disclose his relationship with one of the law firms involved in the arbitration. The court vacated the unanimous panel decision even though there was no evidence that the medical member of the panel was guilty of any wrongdoing or that he was in fact biased or influenced by reason of the relationship. The court concluded that the relationship manifestly gave rise to "an impression of possible bias" and that the failure to disclose it mandated the vacating of the award. "If arbitration of medical malpractice claims is to be encouraged," the court stated, "as we believe it should, any appearance of possible bias on the part of an arbitrator should be fully disclosed to the parties." [Id., at 793].
Appellees contend that absent proof of actual bias on the part of Dr. Howard, that appellant's cause must fail. We do not agree. The failure of Dr. Howard to make complete and accurate disclosure deprived the appellant of information which might have been grounds for the disqualification for cause of Dr. Howard as a panel member. In addition, the award as made by the panel, was admitted, under the provisions of § 3-2A-06(d), into evidence in the case tried before the jury in the Circuit Court for Anne Arundel County. The jury was instructed by the court, as required, that the award was presumed to be correct and that the burden was on the party rejecting it to prove that it was not correct.
As we have found that the award made by the panel was tainted by "evident partiality" the admission of the award and the instruction as to the presumption of its correctness and the burden imposed on the appellant was clearly prejudicial.
JUDGMENT REVERSED, CASE REMANDED FOR TRIAL. COSTS TO BE PAID BY APPELLEES.