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.
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 2019
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 claims. 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 of 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.
Are There Other End Runs Around a Statute of Limitations?
Let me start off by saying this is really rare, okay? But the Maryland Legislature has enacted various tolling provisions interrupt the “running of a statute of limitations in certain situations….” Ali v. CIT Tech. Fin. Servs., 416 Md. 249, 258 (2010).
The doctrinal path to this rare extension of the statute of limitations is called judicial tolling. The doctrine of judicial tolling allows a judge to suspend a statute of limitations for compelling policy reasons.
How do you get to this rare path around the statute of limitations? In Philip Morris USA, Inc. v. Christensen, the Maryland Court of Appeals gave us a test to determine if judicial tolling is appropriate in a particular case:
(1) there is persuasive authority or persuasive policy considerations supporting the recognition of the tolling exception, and
(2) recognizing the tolling exception is consistent with the generally recognized purposes for the enactment of statutes of limitations.
Can you expect to climb these hurdles in a normal case? It is very unlikely.
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
- The 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
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 after 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 relates 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:
- Dunham v. UMMS (2018: the perils of failing to file a lawsuit long before the statute of limitations given the technical requirements in malpractice cases imposed by Maryland law)
- Crystal v. Midatlantic Cardiovascular Associates (2016: just alleging fraud or lack on information does not get you around the five-year statute)
- 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 online consultation.