In its unreported opinion filed on August 14, 2018, the Court of Special Appeals of Maryland (“Maryland Appellate Court”) held that the Maryland medical malpractice plaintiff had filed her Maryland medical malpractice claim after the relevant statute of limitations for medical malpractice claims in Maryland had expired.
Maryland’s Medical Malpractice Statute Of Limitations
Courts and Judicial Proceedings Article (“CJP”), § 5-109(a) provides, in relevant portion:
(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 . . . 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.
Thus, a plaintiff has three years from the date the wrong was discovered or reasonably should have been discovered to file a medical malpractice claim in Maryland. The five-year maximum period under CJP § 5-109 runs its full length only in those instances where the three-year discovery provision does not operate to bar an action at an earlier date, without regard to whether the injury was reasonably discoverable or not.
Maryland’s Discovery Rule
In determining whether a plaintiff was on notice for purposes of the discovery rule, the health-care provider has the burden of proving when the plaintiff discovered the injury. The hallmark of the discovery rule in Maryland is the presence of notice — specifically, that the plaintiff has or should have gained the knowledge, through reasonably diligent investigation, that an injury has occurred as a result of medical treatment.
A medical malpractice cause of action in Maryland arises when harm results from the tortious act, but it accrues, and the statute of limitations begins to run, when the patient is aware, or in the exercise of due care and diligence should be aware, that the cause of action has arisen, that the medical care provider has breached a duty owing to the patient, and that harm to the patient has resulted from that breach.
The discovery rule in medical malpractice actions in Maryland contemplates actual notice of actionable harm; constructive notice is not sufficient to start the statute of limitations. The determinative date of when the discovery rule begins to run is not the date on which an expert concluded that there had been malpractice, but the date on which the person was put on notice that she may have been injured.
Actual vs. Implied Notice
Actual notice encompasses both express and implied notice. Express notice is established by direct evidence and embraces not only knowledge, but also that which is communicated by direct information, either written or oral, from those who are cognizant of the fact communicated.
Implied notice is established by the proof of circumstances from which it is inferable as a fact. Implied notice arises where the party to be charged is shown to have had knowledge of such facts and circumstances as would lead him, by the exercise of due diligence, to a knowledge of the principal fact; it is simply circumstantial evidence from which notice may be inferred.
Constructive notice, while similar to implied notice, rests not on factual inferences drawn from the circumstances of the case, but from strictly legal presumptions which are not allowed to be controverted.
The Underlying Facts
While living in Arizona, the plaintiff contracted Valley Fever (Coccidioidomycosis, which is commonly known as “Cocci”), which is caused by the inhalation of Coccidioides spores, a fungus germane to the semi-arid areas of the southwestern states.
In 2008, the plaintiff began to experience symptoms that she believed to be indicative of a Cocci infection. That year, the plaintiff and her husband moved to Maryland, where the plaintiff sought treatment at The Johns Hopkins Hospital and came under the care of a Hopkins physician who opined that there was a 90 percent chance that the plaintiff’s symptoms were caused by lung cancer, rather than Coccidioides spores, and that the only way to treat it was to conduct a partial lung lobotomy.
In February 2009, the physician removed a portion of the plaintiff’s right lung. Pathologists at The Johns Hopkins Hospital later determined that a Cocci infection caused the lesion.
It was not until over four years later, in December 2013, that the plaintiff filed a Maryland medical negligence claim against Johns Hopkins Hospital, Inc. and Johns Hopkins Labs in the Circuit Court for Baltimore City.
The Circuit Court for Baltimore City subsequently granted Johns Hopkins’ motion for judgment after finding that the plaintiff failed to file her Maryland medical malpractice claim within three years of the notice date pursuant to CJP § 5-109. The plaintiff appealed.
Maryland Appellate Court Opinion
The Maryland Appellate Court held that the plaintiff’s visit to the Phoenix Mayo clinic on March 19, 2009, where she learned that she had previous exposure to the fungus but did not have an active infection, combined with the phone call from the Johns Hopkins’ physician’s office in mid-February 2009 that the lung tissue removed contained evidence of an active Cocci infection, placed the plaintiff on actual notice that (1) her cancer diagnosis was in error; (2) the physician had performed an unnecessary surgery at the time that it was performed; (3) there were other, non-invasive alternatives to determine the cause of her injury; (4) those alternatives had not been considered or even brought to her attention; and (5) the removal of a portion of her lung was an irreparable injury.
The Maryland Appellate Court concluded: “we hold that the trial court did not err by granting Johns Hopkins’s motion for judgment. No reasonable jury, supplied with the facts before the trial court and correctly instructed on applicable law, could find that [the plaintiff] was not on inquiry notice. Therefore, Johns Hopkins was entitled to judgment as a matter of law.”
Source Krumperman v. Johns Hopkins Hospital, No. 1537 September Term, 2016.
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