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 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 2017
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.”
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 known. The purpose of providing 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?