Maryland Medical Malpractice Statute of Limitations

I got a page on Thursday night. The caller was a woman alleging medical malpractice.  She had surgery and continued to experience problems after the surgery. The doctor continued to treat her for two years for complications, telling her 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.

How long do you have to file a medical malpractice lawsuit in Maryland?

How long do you have to file a medical malpractice injury or wrongful death lawsuit in Maryland?

I do not think this potential medical error client has a case on the merits because I believe that the complication is, in fact, a known risk of the procedure that would not be caused by a medical mistake.   You can’t sue for bad outcomes just because they are awful and tragic.  But her case raises the legal question she could bring a malpractice action in Maryland (or in other states with a similarly worded statute).

What the Law Is in 2014

Under Maryland’s statute of limitations that applies to most tort cases, a lawsuit suit must be filed within three years of the date on which the wrongful act occurs.  It is a harsh rule that is even harsher in medical malpractice cases.  Maryland created two rules to soften that effect.

Continuous Treatment Rule

Like most states, we have a “continuous treatment rule,” under which, “if the treatment by the doctor is a continuing course and the patient’s disease or condition is of such a nature as to impose on the doctor a duty of continuing treatment and care, the statute [of limitations] does not commence running until treatment by the medical man for the particular disease or condition involved has terminated, unless during the course of treatment the patient learns or should reasonably have learned of the harm, in which case the statute runs from the time of knowledge, actual or constructive.”

Discovery Rule

Maryland also has a discovery rule which says that  the time to file does not begin to run until the harm is known or should have been know.  The  purpose of providing a three-year limitations is to give people the time to investigate whether they have a claim.  But plaintiffs’ counsel often screws up what this really means.

Victims are charged under the law with the responsibility to perform a diligent investigation.  That investigation is intended to begin when the victim has knowledge of circumstances which ought to put a person of ordinary prudence on notice.  So, as a matter of law, the victim has  inquiry notice of an injury the moment she possesses the “knowledge of circumstances which ought to have put a person of ordinary prudence on inquiry” to investigate the cause of an injury.

Too many lawyers and unrepresented victims take liberties with this rule and assume it is when they knew.  It is not.  The rule is when they should have started investigating to figure it out.

The Five Year Leash

But the law puts a leash on how long these exceptions can be applied in Maryland Courts and Judicial Proceedings § 5-109, the Maryland statute that addresses limitations in medical malpractice cases.  The limitations period in health care negligence claims 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?

So under this rule,  you must sue 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. 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.

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.

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.
  • Maryland Code Courts and Judicial Proceedings § 5-201 lets you toll the statute of limitations for those with an existing mental disability.  It may be a disability that arises after the limitations period has started to run will not toll the statute of limitations but I don’t think Maryland law is 100% clear on this point
  • Statute of limitations in a medical malpractice claim where a minor child  is injured generally does not run against the child’s claim until the child reached the age of 18 (but be careful with this one).
  • This statute is harsh.  There are few exceptions in the interest of justice.  So many people assume that fairness will prevail.  It just does not when it comes to a statute of limitations problem.
  • The five-year period of limitation on the filing of a medical mistake claim is calculated from when the injury was committed

Text of the Key Statute of Limitations Statute

malpractice lawMaryland 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.

Cases Discussing the Maryland SOL

These are cases, most malpractice cases, that shed more light on the time in which these cases must be filed:

  • Valentine-Bowers v. Retina Group of Washington (2014: lawyers let case gets dismissed because of discovery failures that occurred after the statute of limitations passed so the case getting dismissed without prejudice is the same as a dismissal with prejudice)
  • Puppolo v. Adventist Healthcare, Inc. (this 2013 case, the most recent case on malpractice SOL issue as of May, 2014, underscores why you need lawyers in your own state involved in your claim when you file suit because the out-of-state attorneys did not understand the complexities of the certificate of merit requirements that we have here and the case got dismissed)
  • Anderson v. United States (this 2012 discusses limitations case in Maryland medical negligence cases, asks whether there is a five year limit a statute of limitations or a five year statute of repose)
  • Piselli v. 75th Street Medical (2002:  when is a claim is brought by parents on behalf of a child who was injured before reaching age eleven, the three-year statute of limitations begins to accrue upon the discovery of the injury by the child or upon discovery of the injury by the parents?)
  • Murphy v. Merzbacher  (19997: can the SOL be equitably estopped from asserting limitations when threats by the defendant in a child molestation case?)
  • Edmonds v. Cytology Services (1995: when is the legally cognizable harm?)
  • Pennwalt v. Evangelia Nasios (1988: when does a cause of action begin to accrue in a medical products liability case?)
  • Hill v. Fitzgerald (1985: continuous medical treatment case)
  • Dig even deeper into the statute of limitations in these cases

Getting a Lawyer for Your Case

If you have been injured or a loved one has been killed and you suspect negligence from a health care provider, I can answer your questions.  Call Ron Miller at 800-553-8082 or get a free on-line consultation.

  • Rebecca Bogie

    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?

  • Ron Miller

    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.

  • Rebecca Bogie

    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?

  • Patricia Loforte

    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.

  • Sandra Stylc

    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

  • Angela Sprole

    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?

  • Barbara Ferrell

    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?

  • Howard

    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

  • shane green

    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

  • Ron Miller

    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.

  • Penina szojchet

    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?

  • Michael Sigmon

    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.”

  • Steve

    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.

  • Teresa

    2005 I was in the hospital with 7 blood clots,I had already turned gray, 4 in my lungs and 3 in my right legg, I had just started taking the Yaz birth control pill a month before. I dont remember the Dr telling me they were due to the pill, I do know they told me I had to go off them. Now the lawsuit is going on and I have joined a law firm to handle my case, But I just got a letter telling me they may not beable to help due to statute of limitations in Maryland. I now have other medical problems because of these blood clots and will have to take a blood liner the rest of my life. My question is, if all the info and cause about the pill is just coming out, doesnt that make me able to be in the lawsuit with the statute of limitations rules?

  • Bridget

    In 2005 after delivering my daughter, my doctor left a sponge behind, it was found 6 days later, I’ve had several issues since this happen. Is there still time for a law suit?

  • charlette surrette

    With no history of heart problems, I went into cardiac arrest after undergoing dialysis.This occured June 2007. By the time I recovered from it , I was getting a kidney transplant in April 2008. I have had a lot of complications from the transplant and so 19 hospilizations later its 2012. Allthese years I knew something was strange about the cardiac incident. My daughter was told that I needed a cardiac intervention surgery. Knowing that I had no history of heart problems, she was confused. Fortunately no surgery occured.Yesterday I saw a commercial about dialysis patients having Heart attacks either after or while on the machine. Am I past the statute of limitations? It was a horrible experience please help me get compensation.

  • Ron Miller

    Charlette, you would have to call my office and we would have to learn more about your case. You can reach me at 410-553-6000 and we will answer any questions you may have. But, certainly, I am very concerned about the statute of limitations in your case.

  • Steven Cooper

    I live in Baltimore Maryland and back in march of 2008 . I had to go to the emergency room because I was having probems breathing. They told me I had a upper respitory infection. They gave me antibiotics and sent me home. The next day i had to go back for the same problem. They finally did an xray and found I had a bloodclot in my lung. So they addmitted me in the hostipal to try and break up the clot. They put me on couaiden and released me. They also set an appointment for me to see a doctor about a week or so later because they did not monitor my INR levels . My blood became to thin and blood filled up my right lung. So they had to admit me back into the hpstipal so they tried to drain it but they also tried to thicken up my blood. . So now the blood in my lung turned to blood pockets, so they had to cut me open and scrape my lung. After a couple in the hostipal they released me and put me back on coumidin for about 6 months back and and forth to the hostipal for 6 months. Then they decided to take me off of coumindin. Then in 2009 I was supposed to get surgery on my back and they thought that it was a good idea for me to get a filter placed in my groin. Two days later I could not walk and had to call an ambulance to take me to the Emergency room. After arguing in the Emergency room they said they did not know what it was . They contacted the doctor that put the filter in and all they told me is that i did not have a blood clot . So they sent me home. The next day i had to go back to the Emergency room because i was in so much pain , and i still could not walk. The emergency room said they dont know whats wrong . So they sent me back home with an appointment to see a Pulumonary specialist. The specialist then did a sonogram on my leg and told me i had a really bad blood clot in my leg. I was addmitted into the hostipal where they put me on blood thinners to break up the clot. I was then told i would be on blood thinners the rest of my life. I have so many health problems and i believe some of them are cause of the neglect from this hostipal. I need to know if the statue of limitation has ran out and if not do i have a case.

  • Just Asking

    Settled a malpractice case in 2011, incident happen in 2009. Information of severity of damage and admission of doctor was known after settlement, tried to stop decision next day was told by lawyer it was too late. I feel I was misrepresented. Can I reopen case?

  • Ron Miller

    Just Asking, I would need to know more facts to give you real legal advice. That said, I cannot imagine many scenarios where your case could be reopened. Absent extraordinary facts or fraud, a settlement is generally a settlement.

  • Ron Miller

    Steven Cooper, we would need more fact for your case as well. If I were a betting man, I would guess your limitations period has passed. But I would need more information to draw a real conclusion.

  • JenniferBanks

    In 2003 my friend (has inverted nipple) had a brest reduction to correct reoccuring back injury. Once the surgey was complete she has a deformed areola and no nipples…….She is able to sue for corrective procedures?

  • Ron Miller

    Again, Jennifer, the answer is the same I gave to Steve. I can’t say for sure because the exceptions to rules sometimes fill a book. Was your friend a minor at the time? Was their fraud that prevented the discovery of the connection between the injuries and the malpractice? These case depend on the specific facts of the claim.

    But, generally, speaking, it is going to be difficult to get around the statute of limitations when the malpractice occurred 10 years ago in the vast majority of cases.

  • In 2007 I had to have a kidney removed due to what my Surgeon said was birth defect called Bladder Exstrophy. My parents nor I had ever been informed about this condition and unfortunately, I have suffered the loss of a kidney and will suffer hip problems, I won’t be able to birth babies naturally and who knows what else.

    My major concern is that my birth records does not indicate that I was born requiring any surgeries or that any surgeries or repairs to internal organs were made. However, it is clear from my external scarring, pelvic bone placement, urinary reflux condition that caused my kidney damage and my bicornuate uterus that I was born with these issues. However, there is no recording of my birth defect and the severity of my condition.

    The reason that I am bringing this issue up at this time in my life is because in 2007 I had to have a kidney removed and now I am experiencing more pain and more issues possibly concerning my colon and reproductive organs and I know it is very important to the pursuit of my foregoing medical guidance that I have knowledge of the condition that I was born in that has ultimately had a huge affect on my life and will continue to affect my overall physical health and well-being.

    Please let me know if there is some type of negligence lawsuit or something that I can bring about. My parent was not properly informed of my birth defect nor was any of it documented to be used in my fore-going medical care. Please let me know if there is anything that I can do about this issue. Thank you so much in advance.

  • Ron Miller

    I think your claim would have a lot of challenges but I would need to know more about it. We are always willing to give our thoughts, just give me a call and I will give you my thoughts, Patrece.

  • Dottie

    My daughter was misdiagnosed and it caused her to be taken from me when I was 17. She had slid down a plastic sliding board with out a pull up and suffered a friction burn on her butt. It blistered and I took her to the emergency room and the said she was burned by an iron. From that caused a lot of mistreatment of my daughter and me through the Md judiciary system as well as the social service agency. I am a first year law student and I see malpractice that caused all this but because its been eight years I think the statue of limitation has ran out and I am just a victim of the system ..

  • Rose

    A Orthodontist recommended that my daughter remove 4 teeth due to overcrowding “citing impact”, the doctor said she had no space for her new teeth to come in, after examining her gums, she said new teeth were on the brink of coming in, but needed room & my daughter’s jaw was developed abnormally “too small” and if i did not remove the teeth she would experience pain later on in life. My daughter was 11. After the four teeth was removed we kept going back for treatment etc. My daughter started experiencing severe headaches, in the first place she bled longer than I was told she would. However, we were assured by the dental group & the particular dentist that all the pain she was experiencing was natural side effects of the procedure and after she removed her braces it would subside. She wore braces for 5 yrs. The pain continued after it was removed and we went through a series of trial and errors before realizing that the diagnosis was WRONG! no new teeth came in, the X-ray that I obtained from that dental office & was recently analyzed by another dentist showed that ALL her permanent teeth were already in when the previous dentist made the decision to remove her teeth. Today my daughter’s teeth are crooked “the space never closed from the teeth removal”, she has severe periodontal issues, damaged bones! TMJ! Nerve damage! Neck damage from the trauma during removal, her chin is rapidly receding. I am told by a prominent DC dental specialist that she will need extensive surgery to get some semblance of restoration. Her tongue does not fit properly in her mouth etc, her speech is messed up too. This procedure was done in Maryland. She is now 22. I tried to get legal representation 2 years ago and they said it was past the statute of limitation, but now I found an article that said the 5 year cap actually started after she turned 16. I cannot SLEEP. I suffer guilt everyday for not obtaining a second opinion before following the doctors advise. I feel as though I have FAILED my daughter, now the system is failing us. She is BEAUTIFUL and I am watching her face change for the worst day after day, I watch her in pain day after day, she was robbed of her youth. We cannot afford the surgery at the moment. I am saving towards it…Is there anything that can be done at this stage legally? She will be 23 in a couple months. Later research revealed that this doctor was actually doing an internship with the dental group & she along with other dental students were allowed to make autonomous decisions that they were not equipped to make, although she had told me that she had in-depth/extensive experience in the procedure that she had recommended for my daughter

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