Swam v. Upper Chesapeake Medical Center, Inc. ( 2007 )

ELDRIDGE, J.

The issue in this case is whether the general statute of limitations barred a claim initially filed in the wrong forum, the Health Care Alternative Dispute Resolution Office (“Health Care Office”), and then subsequently filed in the appropriate forum, the Circuit Court for Harford County.¹

The plaintiffs-appellants, Mary C. Swam and Scott Swam, filed their claim with the Health Care Office based upon an alleged personal injury resulting from an abandoned hypodermic syringe on the premises of the defendant-appellee, Upper Chesapeake Medical Center, Inc. If the injury was a “medical injury” within the meaning of the Health Care Malpractice Claims Act (“Health Claims Act”), the filings of the claim with the Health Care Office and Circuit Court would have been timely. If the injury, although medically-related, was not a “medical injury” within the meaning of the Health Claims Act, the filing in the Circuit Court was untimely unless the filing related back to the time of filing in the Health Care Office.

We agree with the Circuit Court that Mrs. Swam’s injury was not a “medical injury” within the meaning of the Health Claims Act. Nonetheless, we shall hold that the Swams’ medically-related claim was timely under the general statute of limitations applicable to civil actions, Maryland Code (1974, 2006 Repl.Vol.), § 5-101 of the Courts and Judicial Proceedings Article, because the initial filing in the wrong forum, the Health Care Office, tolled the statute of limitations. The subsequent filing in the Circuit Court, therefore, related back to the initial filing and satisfied the statute of limitations.

I.

On December 30, 2000, while waiting in an area adjacent to one of Upper Chesapeake’s operating rooms, Mary C. Swam put her right hand on a counter and was stuck by an uncapped hypodermic needle. Mrs. Swam was not an Upper Chesapeake patient at the time of the injury, but she was accompanying her father who was to undergo surgery at the hospital. After being examined in Upper Chesapeake’s emergency room, Mrs. Swam returned home with instructions to avoid unprotected sexual intercourse. On January 4, 2001, Mrs. Swam returned to Upper Chesapeake after running a low grade fever and experiencing increased swelling, erythema, and tenderness in her right hand. Upper Chesapeake admitted her and treated her with antibiotics for hand cellulitis. Mrs. Swam returned to Upper Chesapeake two days later, was admitted, and was again treated with antibiotics. In mid-January, Mrs. Swam returned for a third time to Upper Chesapeake with diarrhea and an irritated esophagus due to antibiotic ingestion, and was instructed to stop taking the prescribed antibiotics.

On January 31, 2001, Mrs. Swam’s physician diagnosed that she had a deep infection in the soft tissues after she experienced redness and soreness on the back of her right hand. Upper Chesapeake again admitted Mrs. Swam and performed an incision and drainage of an abscess. She was discharged from the hospital on February 4, 2001, with instructions to take antibiotics and pain medications.

Pursuant to the Health Claims Act, Maryland Code (1974, 2006 RepLVol.), § 3-2A-04(a) of the Courts and Judicial Proceedings Article,² the Swams filed an action with the Health Care Office on December 30, 2003, against Upper Chesapeake. The filing was exactly three years from the date Mrs. Swam was injured on the premises of the hospital. In their complaint, the Swams alleged that Upper Chesapeake was negligent in its “disposal and/or storage of regulated waste and/or contaminated sharps including without limitation, needles.” The Swams subsequently filed a Certificate of Qualified Expert and report from Stephen Goldberg, M.D., in accordance with § 3-2A-04(b). Dr. Goldberg, a board-certified physician, stated that it was his opinion, within a reasonable degree of medical probability, that Upper Chesapeake and its agents and employees “departed from applicable standards of care” in failing to ensure that “needles were properly disposed of’ and that Mrs. Swam was injured as a result of this violation of the applicable standards of care.

After the Swams on May 13, 2004, filed an election to waive arbitration under § 3-2A-06B, the Health Care Office ordered the case transferred to the Circuit Court for Harford County.³ On May 17, 2004, four days later, the Swams filed a complaint against Upper Chesapeake in the Circuit Court for Harford County. The complaint contained the same allegations, verbatim, as the filing in the Health Care Office. Upper Chesapeake, pursuant to § 3-2A-04(a), responded to the claim and filed a Certificate of Qualified Expert and report by a physician, Dr. Richard Berg, M.D. According to Dr. Berg, the care and treatment provided by Upper Chesapeake, “conformed to, and did not deviate from, accepted standards of care applicable to Health Care Providers in its class.” About two months later, Upper Chesapeake moved for summary judgment on the ground that the Circuit Court suit was barred because it was not filed within the three-year general statute of limitations for civil actions.

The general statute of limitations applicable to civil actions, § 5-101, provides that “[a] civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.” The Swams’ May 17, 2004, filing in Circuit Court exceeded this three-year limit. The Swams contended that their action was timely, however, because it conformed with the special statute of limitations provided for claims under the Health Claims Act. Section 5—109(a), entitled “Actions against health care providers,” contains a special period of limitations for an action based on “an injury arising out of the rendering of or failure to render professional services by a health care provider____” Section 5-109(a) requires that claims be filed with the Health Care Office within the earlier of “(1) Five years of the time the injury was committed; or (2) Three years of the date the injury was discovered.” Section 5-109(d) states that the filing of a claim with the Health Care Office, in accordance with the Health Claims Act, “shall be deemed the filing of an action.” Section 3-2A-06B(f) provides a 60-day period, after a plaintiffs waiver of arbitration, for the plaintiff to file a complaint in the appropriate circuit court.

In response to Upper Chesapeake’s motion for summary judgment, the Swams argued that their action was timely filed because it was filed in the Health Care Office within three years of the injury and was filed in the Circuit Court within 60 days after their waiver of arbitration.

The Circuit Court agreed with Upper Chesapeake that the Swams’ action was barred by the § 5-101 general statute of limitations and granted the hospital’s motion for summary judgment. The court reasoned that Mrs. Swam’s injury was not a “medical injury” as contemplated by the Health Claims Act, and that, therefore, the Swams inappropriately filed a claim with the Health Care Office. The court held that, by the time the action was filed in the Circuit Court, the three-year general statute of limitations had run and barred the action.

The Swams appealed to the Court of Special Appeals. Prior to argument in the intermediate appellate court, this Court issued the writ of certiorari. Swam v. Upper Chesapeake Medical, 389 Md. 398, 885 A.2d 823 (2005).

The Swams contend that the Circuit Court erred when it held that Mrs. Swam did not suffer a medical injury and that the general statute of limitations barred their claim. They argue that the claim was subject to the Health Claims Act, was properly filed with the Health Care Office, and was timely under the special statute of limitations applicable to such claims. Alternatively, the Swams submit that, even if their claim was not subject to the Health Claims Act, the nature of the injury was such that the appropriate forum was unclear, and the filing with the Health Care Office within three years of the injury should satisfy the statute of limitations.

Upper Chesapeake argues that Mrs. Swam did not suffer a “medical injury” as defined by the Health Claims Act. Section 3-2A-04(a) of the Health Claims Act provides that “[a] person having a claim against a health care provider for damage due to a medical injury shall file his claim with the Director ...” (emphasis added). Section 3-2A-01(g) of the Act defines a “medical injury” as an “injury arising or resulting from the rendering or failure to render health care.” According to the hospital, because Mrs. Swam was not a patient at the time of her injury, the Health Claims Act precludes her from filing with the Health Care Office. Upper Chesapeake argues that this preclusion makes the the Swams’ filing with the Health Care Office irrelevant. By the time the Swams filed in the appropriate forum, according to Upper Chesapeake, their claim was barred by the three-year general statute of limitations.

II.

A.

As previously indicated, § 3-2A-02(a) of the Health Claims Act states that “[a]ll claims, suits and actions ... by a person against a health care provider for medical injury” must be filed with the Health Care Office. Section 3-2A-01(g) of the Health Claims Act defines “medical injury” as an “injury arising or resulting from the rendering or failure to render health care.” This definition is also reflected in the special statute of limitations which, in § 5-109(a), applies to an action based on “an injury arising out of the rendering of or failure to render professional services by a health care provider.” In order to fall within the ambit of the Health Claims Act, the claim must involve the rendering of or failure to render professional services. We agree with Upper Chesapeake and the Circuit Court that Mrs. Swam’s injury, although medically-related, did not result from the “rendering or failure to render health care.” Our cases dealing with the scope of the Health Claims Act demonstrate that the Health Care Office is the appropriate forum for only those cases where professional care, or the lack thereof, is involved.

In Cannon v. McKen, 296 Md. 27, 459 A.2d 196 (1983), the Court emphasized the rendering of professional services requirement. The patient in Cannon brought an action against her dentist for injuries sustained when part of a dental chair or part of the x-ray equipment broke loose and fell on her. The Cannon opinion explained the scope of the Health Claims Act as follows (296 Md. at 34, 459 A.2d at 200):

“It is therefore clear to us that the legislature intended to include in the scope of the Act only those claims for damages done to or suffered by a person originating from, in pertinent part, the giving of or failure to give health care. In our view, the legislature did not intend that claims for damages against a health care provider, arising from nonprofessional 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 Act.”

See also Nichols v. Wilson, 296 Md. 154, 160, 460 A.2d 57, 61 (1983) (“In our view, the legislature did not intend that claims for damages against a health care provider, arising from nonprofessional circumstances where there was no violation of the provider’s professional duty to exercise care, to be covered by the Act”).

Ultimately, this Court remanded the Cannon case to the trial court on the ground that the pleadings were “too sparse to allow a determination whether [the plaintiffs] injury arose because of the defendant’s breach of his professional duty owed her or because of a breach of duty which he may have owed her as a premises owner or in some other non-professional capacity.” Cannon v. McKen, supra 296 Md. at 37-38, 459 A.2d at 202.

Mrs. Swam’s injury does not precisely fit the Cannon description of the scope of the Health Claims Act because she was not the recipient of care at Upper Chesapeake when the injury occurred. In fact, she was not on the premises as a patient but as a person accompanying her father who was to undergo surgery. As the Court noted in Cannon, 296 Md. at 36-37, 459 A.2d at 201, “those claims for damages arising from a professional’s failure to exercise due care in non-professional situations such as premises liability, slander, assault, etc., were not intended to be covered under the Act and should proceed in the usual tort claim manner.” Mrs. Swam’s injury more appropriately matches this type of claim which should proceed directly to a circuit court.

This Court further explained the scope of the Health Claims Act in Goicochea v. Langworthy, 345 Md. 719, 694 A.2d 474 (1997). In Goicochea, the issue before the Court was whether a civil claim that a physician committed an assault and battery on a patient, during a routine medical examination, was covered by the Health Claims Act. The Court held that as long as the alleged injury occurs during the rendering of medical treatment, “the Act is implicated regardless of whether the claim sounds in negligence or intentional tort.” Goicochea, 345 Md. at 728, 694 A.2d at 479. We clarified what type of claim would be outside the scope of the Act (ibid.):

“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 completely lacking in medical validity in relation to the medical care rendered, the Act is inapplicable, and the action may proceed without first resorting to arbitration.”

See also Jewell v. Malamet, 322 Md. 262, 587 A.2d 474 (1991) (holding that where the health care provider would not concede that the conduct complained of had no conceivable medical validity, the Health Care Office was the appropriate initial forum); Brown v. Rabbitt, 300 Md. 171, 175, 476 A.2d 1167, 1169 (1984) (“the critical question is whether the claim is based on the rendering or failure to render health care and not on the label placed on the claim”).

The plaintifPs claim in Goicochea did not fall outside the Health Claims Act because the plaintiff specifically alleged that the doctor “caused his groin injury by improperly conducting a hernia examination.” Goicochea, supra, 345 Md. at 729, 694 A.2d at 479. We held that the plaintiff “fail[ed] to set forth any factual basis upon which the court could properly conclude that [the physician’s] actions had no conceivable medical validity or were totally unrelated to the performance of a routine hernia examination.” Ibid. Mrs. Swam’s injury, unlike the one in Goicochea, did not occur while a physician was rendering care. In fact, her injury did not involve medical care at all until after she sustained the injury, and she has made no complaint about such post-injury care. See also Afamefune v. Suburban Hospital, Inc., 385 Md. 677, 694, 870 A.2d 592, 602 (2005) (holding that the plaintiff need not file her claim with the Health Care Office because the “allegations ... do not show that [the plaintiffs] injuries were incurred during the active rendering of medical services and, indeed, they show that [the injuries] were not inflicted by a medical care provider or as a result of that provider’s treatment or failure to treat”).⁴

Turning to the case at bar, the allegations of negligence in the complaint all relate to the disposal of medical waste and not to medical treatment. Such alleged conduct is not within the scope of the Health Claims Act, and therefore the Swams filed their action in the wrong forum when they filed with the Health Care Office. The appropriate avenue for the Swams was to proceed directly to Circuit Court because the injury was not a “medical injury” as defined by the Health Claims Act.

B.

While we hold that Mrs. Swam did not incur a “medical injury,” our opinions have recognized that the phrase “medical injury” and its statutory definition are somewhat ambiguous. Furthermore, many of the cases before this Court, involving medically-related injuries, presented borderline situations where the appropriate forum for the claim was not entirely clear. In the present case, the alleged injury is medically-related in that involved medical instruments and occurred in a hospital. The defendant, whose alleged negligence caused the injury, is a health care provider. Both the plaintiffs’ and the defendant’s medical experts filed certifications as to whether the hospital and its personnel departed from applicable standards of health care.

This Court applied a broad interpretation of the word “claims” as used in the Health Claims Act, § 3-2A-02(a), in Group Health Association, Inc. v. Blumenthal, 295 Md. 104, 453 A.2d 1198 (1983). In Blumenthal the Court held that a claim, based on the doctrine of respondeat superior against a non-health care provider, fell within the Health Claims Act. In applying a “broad interpretation” of the word “claims,” the Court examined the legislative intent underlying the Health Claims Act and concluded that “the Legislature contemplated a far-reaching requirement to arbitrate medical malpractice claims.” Group Health Association, Inc. v. Blumenthal, supra, 295 Md. at 113, 453 A.2d at 1204. The discussion in Blumenthal demonstrates that the scope of the Health Claims Act should not be construed as narrowly inclusive.

Echoing the decision in Blumenthal, Adler v. Hyman, 334 Md. 568, 574, 640 A.2d 1100, 1103 (1994), pointed to the “broad construction of ‘claim ... for medical injury’ that our cases have placed on the Act.” In Adler, an insurer for one physician brought an action in the Circuit Court against a second physician for contribution, claiming that the second physician was a joint tortfeasor. The trial court dismissed the claim, and this Court affirmed, holding that the claim was subject to arbitration pursuant to the Health Claims Act. We stated that “the purpose of the Act would not be served by restricting arbitration of claims for contribution to those asserted as part of the same litigation that includes the claim by the individual who directly suffered a personal injury.” Adler v. Hyman, supra, 334 Md. at 575, 640 A.2d at 1103. Like Blumenthal, Adler cautioned against restricting the scope of the Health Claims Act too narrowly.

Several of our cases have recognized the potential difficulty in determining whether the Health Care Office is the appropriate forum for a claim. In Cannon v. McKen, supra, the Court was unable to determine from the record whether the injury sustained by the claimant in the dental chair constituted a “medical injury.” As earlier discussed, the Court remanded the case for further proceedings to determine whether the claim fell within the Act. The analysis focused on the definition of “medical injury” and determined that the statutory definition is “somewhat ambiguous,” 296 Md. at 32, 459 A.2d at 199. This ambiguity, combined with a medically-related injury, may create a situation where the proper forum is not entirely clear to a claimant.

This Court again confronted situations where the definition of “medical injury” made the proper forum somewhat unclear in Jewell v. Malamet, supra, and Goicochea v. Langworthy, supra. In Jewell, the plaintiff brought a civil action, alleging an assault and battery by her treating physician. She argued that her claim was not included within the purview of the Health Claims Act. The Court held that, “[i]n the face of the allegations, we cannot say, as a matter of law, that the claims as set out were not for medical injury as allegedly suffered by Jewell.” Jewell v. Malamet, supra, 322 Md. at 274, 587 A.2d at 480. Jewell’s complaint did not sufficiently allege a claim that could not be considered a “medical injury.” Therefore, we required that the claim be submitted to arbitration.

In Goicochea v. Langworthy, supra, like Jewell, we were not able to determine conclusively whether the plaintiff suffered a “medical injury” as contemplated by the Health Claims Act. Therefore, the plaintiff, who alleged an assault and battery by his physician during an examination, was required to submit to arbitration. The Court held that the Health Care Office “initially will determine if the claim alleges a ‘medical injury’ and is therefore subject to the Act.” Goicochea v. Langworthy supra, 345 Md. at 729, 694 A.2d at 479. Jewell and Goicochea underscore the fact that the proper forum for the filing of a borderline medically-related claim may not always be apparent. As these cases hold, the Health Care Office possesses the authority to determine whether a claim constitutes a “medical injury” in a borderline case and is therefore subject to the Health Claims Act.

In the present case, while we have held that the Swams’ claim is outside the purview of the Health Claims Act, we are aware that the proper forum may not have been entirely obvious to the claimant. As previously discussed, Mrs. Swam’s injury was very much medically-related, occurring in a hospital, and inflicted because of the alleged negligence of a health care provider. In light of the Court’s broad interpretation of the Health Claims Act, and its willingness to be over-inclusive as opposed to under-inclusive in terms of covered claims, we should approach a claimant’s choice of the proper forum, as it affects limitations, in the same spirit.

C.

It should be emphasized that, not only was the Swams’ claim medically-related, but it also conformed to the statutorily prescribed time restraints for filing with the Health Care Office. The Swams filed with the Health Care Office within three years of the injury. This satisfied the statute of limitations in the Health Claims Act, § 5-109(a). Except for the forum in which it was initially filed, this would also satisfy the general statute of limitations applicable to civil actions, § 5-101. Furthermore, the action in the Circuit Court was filed within the prescribed period after the waiver of arbitration. Additionally, the Swams’ claim in Circuit Court repeated verbatim the claim filed with the Health Care Office. The Circuit Court complaint contained no new information or allegations. Therefore, by the time the Circuit Court complaint was filed, Upper Chesapeake was already put on notice of all the allegations by the initial claim filed with the Health Care Office.

In Bertonazzi v. Hillman, 241 Md. 361, 216 A.2d 723 (1966), this Court recognized a tolling exception to the general statute of limitations when a case is timely filed, but in the wrong forum, and filing in the correct forum is after limitations have run. The plaintiff in Bertonazzi, mistakenly believing that defendant resided in Baltimore County rather than Baltimore City after misreading a map, filed suit in Baltimore County within the six month limitations period. He subsequently filed in the appropriate venue, Baltimore City, after the Baltimore County court dismissed the case for improper venue. The Baltimore City filing, however, occurred after the applicable six-month statute of limitations had passed, and the court dismissed the action. This Court reversed, holding that the running of the statute of limitations was tolled during the pendency of the suit in Baltimore County.

The Bertonazzi opinion reasoned that, to preclude the claim from going forward in the proper venue would be contrary to the purpose of statutes of limitations. “Statutes of limitations are designed primarily to assure fairness to defendants on the theory that claims, asserted after evidence is gone, memories have faded, and witnesses disappeared, are so stale as to be unjust.” 241 Md. at 367, 216 A.2d at 726. In Bertonazzi, the Court concluded that the tolling of the statute of limitations during the pendency of the suit filed in the wrong forum was consistent with this primary purpose of the statute of limitations because “the appellee ... was fully put on notice of the appellant’s claim by suit in Baltimore County as she would have been by suit in Baltimore City.” Ibid. See also Weaver v. Leiman, 52 Md. 708, 718 (1880) (observing that the running of a statute of limitations may be suspended if there is a “certain and well-defined exception clearly established by judicial authority”).

In Philip Morris USA v. Christensen, 394 Md. 227, 239, 905 A.2d 340, 347 (2006), we revisited and reaffirmed the tolling rule set out in Bertonazzi. The Court distilled the tolling rule and established two necessary components for recognizing a tolling exception in a particular case: “(1) there is persuasive authority or persuasive policy considerations supporting the recognition of the tolling exception, and (2) recognizing the tolling exception is consistent with the generally recognized purposes for the enactment of statutes of limitations.” The Court in Philip Morris, finding that these two components were satisfied, held “that if the conditions for the application of class action tolling are met, the filing of a class action complaint suspends the running of the statute of limitations at minimum from the time the putative class action is filed until the time that class certification is denied.” Philip Morris, 394 Md. at 264, 905 A.2d at 362.

Here, both components of the tolling exception rule have been satisfied. The persuasive policy supporting the exception in this case is the ambiguity regarding the appropriate forum for a medically-related claim and basic fairness to the parties. The difficulty in determining the proper forum is analogous to the difficulty faced by the plaintiff in Bertonazzi. In Bertonazzi, the defendant’s home was situated on the map so closely to the line dividing Baltimore County and Baltimore City that the appropriate venue was unclear. Likewise, although we hold that Mrs. Swam’s injury was not a “medical injury,” our cases broadly interpreting the scope of the Health Claims Act, and the ambiguous definition of medical injury, made the determination of the proper forum problematical. Given this difficulty, the Swams should be allowed to pursue their claim on the merits despite the timely filing in the wrong forum. We emphasize again that the Swams timely filed their claim under the statute of limitations contained in the Health Claims Act, and that this filing also would satisfy the general statute of limitations if the Swams had initially filed in the proper forum.

Allowing the Swams’ claim to proceed on the merits also is in accord with the second component of the tolling exception rule because it would not contravene the general purpose of the statute of limitations. As the Court stated in Bertonazzi, statutes of limitation are designed to assure fairness to the defendants. Here, Upper Chesapeake will experience no unfairness by allowing the Health Care Office filing to toll the statute of limitations. Upper Chesapeake had notice of the Swams’ claim and the specific allegations within three years of the injury. In no way was the Swams’ claim in Circuit Court “so stale as to be unjust.” See Bertonazzi, 241 Md. at 367, 216 A.2d at 726. The timeliness of the Swams’ claim also plays a role under this second component of the tolling exception rule because it emphasizes that Upper Chesapeake is not faced with defending a claim after “evidence is gone” and “memories have faded.” Ibid.

In conclusion, we hold that the Circuit Court erred in dismissing the Swams’ action on the ground that it was barred by the § 5-101 general statute of limitations. The initial filing with the Health Care Office tolled the running of the general statute of limitations because the Swams’ brought a medically-related claim, the proper forum was ambiguous, and the filing was otherwise timely. These factors satisfy both components of the tolling exception set out in Philip Morris. In addition, Upper Chesapeake will suffer no unfairness in allowing the claim to proceed on the merits because it already had notice of the claim. Thus, the purpose of the statute of limitations is satisfied.

JUDGMENT OF THE CIRCUIT COURT FOR HAR-FORD COUNTY REVERSED AND CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. APPELLEE TO PAY COSTS.

CATHELL and HARRELL, JJ., Concur.

1 . At the time this case arose, the Health Care Alternative Dispute Resolution Office was called the Health Claims Arbitration Office. See Health Care Malpractice Claims Act, Maryland Code (1974, 2006 Repl. Vol.), § 3-2A-03 of the Courts and Judicial Proceedings Article. The key statutory provisions involved in this case have not changed, and we shall refer to the office by its new name.

2 . Hereafter, all statutory references will be to the Courts and Judicial Proceedings Article of the Maryland Code.

3 . Section 3-2A-06B(b) provides:

“Waiver by claimant.—(1) Subject to the time limitation under subsection (d) of this section, any claimant may waive arbitration at any time after filing the certificate of qualified expert required by § 3-2A-04(b) of this subtitle by filing with the Director a written election to waive arbitration signed by the claimant or the claimant's attorney of record in the arbitration proceeding. * * * ”

4 . Although we agree that the injury to Mrs. Swam was not a "medical injury,” we note that Upper Chesapeake mistakenly relies on this Court’s decision in Dehn v. Edgecombe, 384 Md. 606, 865 A.2d 603 (2005), in arguing that a doctor-patient relationship must be present for there to be a "medical injury.” The issue in Dehn did not concern the scope of the Health Claims Act, but was whether the physician owed any duty at all to the patient's wife who became pregnant following a vasectomy. In Dehn, a patient and his wife brought a medical malpractice action against a physician for negligence in post-operative care following a vasectomy performed by another surgeon. The Court held that the patient's wife did not have a claim for malpractice because the doctor did not owe her a duty. This holding did not purport to interpret "medical injury” or the scope of the Health Claims Act. Indeed, the Court explicitly stated that "the common law does not foreclose the possibility of imposing a duty of care in the absence of a doctor-patient relationship to a third party who never received treatment from the doctor....” Dehn v. Edgecombe, supra 384 Md. at 621, 865 A.2d at 612.