The opinion
ROBERT M. BELL, Judge,
concurring.
I have no quarrel with the bottom line of the majority opinion, nor, for that matter, with most of the reasoning *318 which underlies it. I write separately because my interpretation of Smith Laboratories v. Teuscher, 310 Md. 676 , 531 A.2d 300 (1987) differs from that of the majority.
In this case, as we have seen, appellant sued Giant Foods; she specifically refrained from suing Dr. Ein, the physician who issued the prescription which Giant Food’s agent negligently filled and who sterilized appellant in order to solve the problem caused by Giant Food’s negligence. In her case against Giant, she proposed to prove that the sterilization procedure was not, in fact, necessary. As the majority puts it, “Keefover felt it requisite to her case to show malpractice by Dr. Ein.” The trial court refused her testimony on that issue;
Implicit in part II of the majority opinion is its interpretation of Smith as requiring appellant, as a condition precedent to establishing her “case in a case”, Dr. Ein’s malpractice, to arbitrate her case against Giant. In the majority’s view, appellant has proceeded “contrary to the clear intent of the Health Care Malpractice Claims Act;” by proceeding as she has she has sought to circumvent the Act.
I do not agree. The holding in Smith 1 does not require, or even imply, that a suit filed against a party alleged to be negligent, in which proof of damages may necessitate the plaintiff’s proving malpractice on the part of a physician, who is not sued, must initially be filed in arbitration. Indeed, I read Smith as very explicitly saying just the opposite. Whether such an action, can be won is quite another *319 matter. That depends upon the evidentiary and discretionary rulings of the court.
The essential nature of an action is not changed by reference to the damages one proposes to pursue. Consequently, and in summary, because Dr. Ein was not sued and plaintiff sought to introduce evidence of his medical malpractice only as a means of proving the damages for which Giant was responsible, she was not required to proceed first in arbitration. Smith does not so hold. To the extent that the majority implies that it does, I disagree.
. The court did state the holding in two places in the opinion. In the first paragraph, it said: ( 310 Md. at 678 , 531 A.2d 300 )
In this case we hold that the Maryland Health Care Malpractice Claims statute, Maryland Code (1974, 1984 Rep. Vol., 1986 Cum. Supp.), §§ 3-2A-01 to -08 of the Courts and Judicial Proceedings Article (the Act), does not require, as a condition precedent to a civil action in court, arbitration of a products liability claim asserted exclusively against a pharmaceutical manufacturer. In the last paragraph, it put it thus: 310 Md. at 679 [ 531 A.2d 300 ] ) We hold simply that, absent any health care provider as a defendant to any claim in arbitration, there is no basis for applying the Act.
These holdings are not, in my opinion, inconsistent and, thus, constitutes but one holding, as opposed to two.