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.
(c) Exceptions to age limitations in certain actions. -
(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.
Comments
I had spinal surgery in 2005 to "fix" a spinal surgery in 2003-the doctor said that I was in the 2% that the surgery didn't work for, that the next surgery would fix it. It didn't. I haven't been able to work since 2006, and I am just getting worse. The worst part is that my neck never hurt until after I had surgery! On top of that, I now have bulging discs in my lower back and sciatica that I know of. I have finally come to the conclusion that a) it was an incorrect diagnosis, and b)the result of the surgery has incapcitated me from working or anything else that I have to sit or stand or for any length of time.
Do I have a legitamate case,even?
Posted by: Rebecca Bogie | February 18, 2010 12:56 PM
Based on the facts you have given, I do not know if limitations has passed for you. The best thing you could do would be to contract a lawyer immediately and get a consultation as to the law that applies to your case. The problem you may have is that many lawyers are going to shy away from reviewing your case because you may be close to the statute of limitiations.
Posted by: Ron Miller | February 18, 2010 2:09 PM
I had spinal surgery in 2005 to "fix" a spinal surgery in 2003-the doctor said that I was in the 2% that the surgery didn't work for, that the next surgery would fix it. It didn't. I haven't been able to work since 2006, and I am just getting worse. The worst part is that my neck never hurt until after I had surgery! On top of that, I now have bulging discs in my lower back and sciatica that I know of. I have finally come to the conclusion that a) it was an incorrect diagnosis, and b)the result of the surgery has incapcitated me from working or anything else that I have to sit or stand or for any length of time.
Do I have a legitamate case,even?
Posted by: Rebecca Bogie | February 18, 2010 2:50 PM
I had 7 heart attacks and finally open heart surgery 6 yrs ago. All the heart attacks were within a 1 yr. period. My doctor at that time said during the seventh heart attack, he could not help me. I was wondering if there is something I could do now knowing why I was having all those attacks.I now have been treated properly and have not had another one.
Posted by: Patricia Loforte | May 21, 2010 9:43 AM
My Wife had Back Surgery in 2000 and it never was right she just discover that the surgery she had was done wrong and the screws were banned years ago in this procedure. In 2008 a Doctor told her she wouldn't be able to get the same surgery to correct the mistake, because it would be to risky. Is there anything she can do reguarding a Lawsuit with the discovey being within 3 years
Posted by: Sandra Stylc | June 17, 2010 8:31 AM
My boyfriends mother passed away from Pancreatic Cancer in July 2009. She had been in and out of the hospital and doctors office for over 2 years complaining of pain in her back and lumps. They wouldnt do an ex-ray and always just sent her home with no explanation. When they finally found the pancreatic cancer it had spread from a tumor in her back that had been causing the pain all along. Could he file a lawsuit against the hospital that refused her the ex-rays that could of saved her life?
Posted by: Angela Sprole | July 1, 2010 12:52 PM
On June 28 I went in to receive a routine colon exam. After the procedure I received a consultation with the Doctor who performed the exam and was told that he found a pulp and removed it. (I have pictures). I left the center thinking everything was alright to later being rushed to the nearest hospital with a raptured colon where the incision occurred. From June 28 I have been in and out of the hospital to correct the doctor's mistake. Due to this doctor's mistake I have been seen by my physician and the surgeon who performed the removal of a section of my colon. I was in ICU for three days which I had to receive blood transfusions due to loss of blood and received surgery three times up until now. My life has been a living hell. I limited use of my body. I have not been able to work and walking standing, and sleeping has become my nightmare. I live in the Riverdale Maryland area and can not travel far without assistance. Are there law firms in my general area for further gudiance?
Posted by: Barbara Ferrell | August 9, 2010 1:49 PM
Statue of Limitations are time frams. If a missed diagnosis and tumor was missed and shown by MRI in 2006 but yet missed. 5 years later surgery was required to fix the symptoms of the tumor and it was discovered. that fits within the staute correct
Posted by: Howard | July 9, 2011 9:16 AM
on feb 5 i was admitted into the hospital for servere phnemomia while i was in there the doctor was trying to remove fluid from in between my lung and rib he then punchured my right lung flatting it. the doctor came in and told me cause he did that i had to get a chest tube i was in there for ten days and now i also have muscle damage to my left rist do u think i have a case especially cause the pain and suffering
Posted by: shane green | September 25, 2011 9:46 PM
Shane, I'm sorry to hear what you have gone through. It is difficult to tell whether there is a case by just reading a short paragraph. You can call our office to get more information at 800-553-8082.
Posted by: Ron Miller | September 28, 2011 3:10 PM
I am 22 as of october 2011, I was hospitalized in nov 2006 for crohnes disease, due to not taking care of a standard IV and allowing it to drip all over me ( leaving it open to infection) I contracted a staff infection, cellulitis, and phlebitis, I had to have surgery to remove the blood clot in my vein traveling to my heart.and was left with 5 massive scars down my arm. I told the doctor before I was released how bad my arm felt and he assured me it was just irritated, that night I had 103 fever and a massively swollen heart due to the staff infection etc. I was imedietly hospitalized... My question is can I still sue the doctor because I was under 18 at the time?
Posted by: Penina szojchet | October 11, 2011 4:04 PM
Maryland Medical Malpractice Statute of Limitations
Are there any exceptions that would toll the Statute of Limitations especially, fraud and mental incompetence?
In the blog it’s mentions something about doctors altering medical records. My question is what proof would a plaintiff need to prove fraud? Does Title 5 of the CJ article provide for tolling the statute of limitations? Title 5-203 provides, “If the knowledge of a cause of action is kept from a party by the fraud of an adverse party, the cause of action shall be deemed to accrue at the time when the party discovered, or by the exercise of ordinary diligence should have discovered the fraud.”
Also as far as tolling the statute of limitations for a mental incompetent, what is considered a mental incompetent? Is it merely enough that a person suffers from a mental illness or does a plaintiff have to be deemed insane?
At the bottom of CJ 5-109 it states that, “(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”. 5-201 reads, “(a) When a cause of action subject to a limitation under Subtitle 1 of this title or Title 3, Subtitle 9 of this article accrues in favor of a minor or mental incompetent, that person shall file his action within the lesser of three years or the applicable period of limitations after the date the disability is removed.”
Posted by: Michael Sigmon | December 6, 2011 9:18 PM
Hello,
I had L4-L5-S1 Back Fusion on Feb 21 2011 due to years of back pain. My pain now is much worse than before and now I have continuous left foot/leg pain which I never had before the surgery. While in the hospital my left foot was in extreme pain, and it was caused because the drain that the doctor inserted during surgery was put in my sciatic nerve canal. My doctor apologized for the misplacement. Once the drain was removed, the extreme foot pain went away, but I still have this left foot/leg pain. I think this pain is caused by scarring, caused by improper insertion of the drain tube. I would like to investigate my options. I am still having to undergo spinal injections to try to lessen the pain and am going to be overseas for 5 months. I'm wondering if I can pursue options when I return (17 months after the surgery) and if you think there may be possibility of compensation. I am much worse than before the surgery and never experienced leg/foot pain prior to the surgery.
Posted by: Steve | January 29, 2012 11:33 AM