Maryland Medical Malpractice Statute of Limitations

I got a page on Thursday night during the Heat-Mavericks game. A woman called with a medical malpractice case, alleging negligence in October 2001. The woman had surgery and continued to experience problems after the surgery. The doctor continued to treat her for two years for the complications, telling the woman that they were expected risks of the procedure. After a second opinion earlier this year, she came to believe that the complication was not a known risk of the procedure and was the result of medical negligence.

I do not think this potential medical malpractice client has a case on the merits because I believe that the complication is in fact a known risk of the procedure. But her case raises the legal question of whether a medical malpractice lawyer in Maryland (or other states with a similarly worded statute) could bring an action on her behalf. To answer the question, you must read Maryland Courts and Judicial Proceedings § 5-109, the Maryland statute that addresses limitations in medical malpractice cases.

The statute of limitations in medical malpractice cases in Maryland is five years from the time the injury was committed or three years from the date the injury was discovered, whichever is shorter. This law imposes a sort of statute or repose on medical malpractice cases in Maryland. But what sort of claims can be brought that are more than three years old but less than five?

Under the statute of limitations in Maryland for most negligence cases, a personal injury suit can be filed within a certain period of time after the injury from the accident is discovered, or reasonably should have been discovered. The latter is known as the discovery rule. The discovery rule exists because sometimes a reasonable person cannot discover the cause of their injury, or even know that an injury has occurred, until some later event connects the dots between the accident and the injury. For example, if a surgeon leaves a sponge inside his patient who discovers it ten years later and immediately brings suit, that would fit under the classic application of the discovery rule. However, if the same patient had stomach pain for four years before having a doctor examine him, he cannot be said to have acted with reasonable diligence and he would not be protected by the discovery rule.

Accordingly, under the discovery rule, the statute of limitations would arguably not expire for the potential client discussed above until October, 2006, five years after the medical malpractice.

Again, the discovery rule does not apply in full force to medical malpractice cases in Maryland. The statute of limitations for injuries arising out of health care malpractice is five years from the time the injury was committed or three years from the date the injury was discovered. See §5-109. In other words, regardless of when the injury could have been discovered, claims are time barred after five years. Obviously, this causes unfortunate results that are simply unfair. For example, in the surgery patient example above, the patient would not be able to recover even though there is no way the patient could have known he was the victim of medical malpractice before the statute expired. Moreover, at least one commentator has argued that this rule leads to isolated, random injustice because few claims implicate a medical malpractice statute of repose. See Note, Medical Malpractice Statutes: Special Protection For a Privileged Few? 12 N. KY. L.J. 295, 303 (1983). Accordingly, a small minority of injured victims are not given a right to a remedy without any real decrease in the number of malpractice claims.

A few additional points of interest on Maryland's statute:

Because the statute of limitations is an affirmative defense, the doctor accused of malpractice has the burden of proving when an injury was committed, for the purpose of determining whether an action is barred by the medical malpractice statute of limitations. See Rivera v. Edmonds, 347 Md. 208, 699 A.2d 1194 (1997).

If the medical malpractice results in a wrongful death, an action may be brought by the decedent's dependents within three years after death under Maryland Courts and Judicial Proceedings § 3-904. Section § 5-109 applies to any survival medical malpractice action brought by the decedent's estate.

Here is the text of the statute:

Maryland Courts and Judicial Proceedings Code Annotated § 5-109

§ 5-109. Actions against health care providers

(a) Limitations. -- An action for damages for an injury arising out of the rendering of or failure to render professional services by a health care provider, as defined in § 3-2A-01 of this article, shall be filed 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.

(b) Actions by claimants under age 11. -- Except as provided in subsection (c) of this section, if the claimant was under the age of 11 years at the time the injury was committed, the time limitations prescribed in subsection (a) of this section shall commence when the claimant reaches the age of 11 years.

(1) The provisions of subsection (b) of this section may not be applied to an action for damages for an injury:

(i) To the reproductive system of the claimant; or

(ii) Caused by a foreign object negligently left in the claimant's body.

(2) In an action for damages for an injury described in this subsection, if the claimant was under the age of 16 years at the time the injury was committed, the time limitations prescribed in subsection (a) of this section shall commence when the claimant reaches the age of 16 years.

(d) Effect of filing claim. - For the purposes of this section, the filing of a claim with the Health Claims Arbitration Office in accordance with § 3-2A-04 of this article shall be deemed the filing of an action.

(e) Effect of other provisions. -- The provisions of § 5-201 of this title that relate to a cause of action of a minor may not be construed as limiting the application of subsection (b) or (c) of this section.

(f) Application. - Nothing contained in this section may be construed as limiting the application of the provisions of:

(1) § 5-201 of this title that relate to a cause of action of a mental incompetent; or

(2) § 5-203 of this title.