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Roland Imperial v. Drapeau8/27/1998
r, in the investigation resulting from Novotny's complaint, and at any disciplinary hearing that might result, the officer would enjoy the protections of the "Law-Enforcement Officers' Bill of Rights," Maryland Code (1957, 1996 Repl. Vol.), Art. 27, 727 through 734D. Miner, 304 Md. at 173, 498 A.2d at 273. This Court held that the procedural safeguards under that statute were sufficient to protect the officer. Id. at 174-75, 498 A.2d at 274. In particular, we noted that the statute required that a police brutality complaint be under oath and, in the case of an adult victim, be made by a person having personal knowledge; the statute imposed criminal penalties for false complaints; it provided for mechanisms to inform the officer of the subject of the investigation; and it guaranteed the officer the right to be represented by counsel when interrogated. Id. Additionally, any hearing was adversarial, with witnesses under oath and subject to cross-examination. Id. at 175, 498 A.2d at 274.
In Odyniec, 322 Md. 520, 588 A.2d 786, this Court held that the witness privilege extended to statements made by a physician while medically examining the claimant in a personal injury action. The reported case involved a sequence of three physicians. The first physician had operated on the patient's knee, with a poor result. The patient consulted the second physician who concluded that the first physician had lacerated the patient's popliteal artery, which the second physician repaired. The patient then filed a claim with the Health Claims Arbitration Office (HCAO) against the first physician for medical malpractice. In preparing to defend, the first physician arranged to have the patient examined by a third physician. In the course of that examination the third physician told the patient that she had been lied to by the second physician and that the first physician had never ligated the popliteal artery. The reported decision was rendered in the defamation action brought by the second physician against the third physician.
The claim was defended on the ground of absolute witness immunity. In opposition, the plaintiff contended (1) that the HCAO was not exercising any judicial or quasi-judicial functions, (2) that the third physician's statements exceeded his potential function as a witness before the HCAO, (3) that no judicial safeguards were present, (4) that a particular HCAO panel does not exercise any judicial power, and (5) the expert's statements were not before the HCAO panel but "were uttered in a setting lacking all attributes of an adversary proceeding," i.e., a medical examination. Id. at 525-26, 588 A.2d at 788-89.
Rejecting these arguments, this Court reasoned: "Gersh, Miner, and McDermott [discussed infra] thus stand for the proposition that absolute witness immunity will not be extended to a non-judicial proceeding unless the same policy considerations which underlie the application of the privilege in the judicial sphere are also present. It must appear from the nature and conduct of the proceeding that society's benefit from unfettered speech during the proceeding is greater than the interests of an individual who might be defamed during that proceeding."
Id. at 531, 588 A.2d at 791.
On balance, this Court concluded that the privilege applied. Requisite procedural safeguards were present in an HCAO proceeding which was "at least as functionally comparable to a trial before a court as the administrative disciplinary proceedings involved in Miner." Id. at 534, 588 A.2d at 792. Further,
" he social benefit derived from free and candid participation by potential witnesses in the arbitration process is essential to achieve the goal of a fair and jus
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