Maryland Appellate Court Addresses Inquiry Notice In Hip Replacement Medical Malpractice Case

162017_132140396847214_292624_nIn its unreported opinion dated July 20, 2017, the Court of Special Appeals of Maryland (“Maryland Appellate Court”) reversed the trial court’s order that had granted summary judgment to the defendant orthopedic surgeon who had negligently performed right hip replacement surgery on the plaintiff, thereby causing serious harm to the plaintiff, according to the plaintiff’s Maryland medical malpractice lawsuit.

The issue before the Maryland Appellate Court was whether the Maryland medical malpractice plaintiff was on “inquiry notice” of her claim against the defendant orthopedic surgeon more than three years before she filed her Maryland medical malpractice statement of claim on January 2, 2014.

The Underlying Facts

The defendant orthopedic surgeon had performed successful left hip replacement surgery on the plaintiff in 2005. The plaintiff returned to the defendant orthopedic surgeon about five years later with complaints regarding pain in her right hip, for which he recommended right hip replacement surgery that he performed on April 28, 2010.

During the follow-up visit on May 12, 2010, the plaintiff complained that her pain was worse after the second procedure than it had been after the first procedure. The defendant orthopedic surgeon told her that she needed more physical therapy. The plaintiff had physical therapy for two weeks following the right hip replacement surgery and later had a few physical therapy treatments at an outpatient facility but had to stop physical therapy because it was too painful.

The defendant orthopedic surgeon never advised the plaintiff that her symptoms were anything other than normal results of successful surgery, and he eventually authorized the plaintiff to return to work behind the meat counter at a local supermarket. The plaintiff testified in her deposition that when she returned to work, she experienced difficulty: ” … this hip was different, and it was taking longer [to heal] … I just thought if I kept on working, kept plugging along, it would eventually get better.”

The plaintiff saw another orthopedic surgeon, for a second opinion, on December 6, 2010, advising him that “since the time of the surgery, [she] constantly gets the feeling that the hip is going out of the socket [and] she feels that it is unstable and not easily able to support her weight.” The second-opinion orthopedic surgeon subsequently performed three revision surgeries on the plaintiff’s right hip.

The plaintiff filed a Statement of Claim in the Health Care Alternative Dispute Resolution Office on January 2, 2014, pursuant to Maryland Code (1973, 2013 Repl. Vol.), Courts and Judicial Proceedings Article (“CJP”), §3-2A-01 et seq. After arbitration was waived, a Maryland medical malpractice complaint was filed in the Circuit Court that contended that the defendant orthopedic surgeon had wrongly placed the acetabular cup of the right hip prosthesis, or failed to recognize that it was misplaced, leading to the need for the plaintiff to have revision surgery; that the defendant orthopedic surgeon and his practice failed to obtain informed consent; and, alleged claims for loss of consortium.

On December 23, 2014, the defendant filed a motion for summary judgment, arguing that the plaintiff’s complaint was time-barred because there is no dispute that the plaintiff had knowledge sufficient to put her on inquiry that she had a potential cause of action more than three (3) years prior to filing suit, no later than on December 6, 2010, at which time the second-opinion orthopedic surgeon told the plaintiff that she needed to have revision surgery.

The plaintiff opposed the defendant’s motion for summary judgment, arguing that on December 6, 2010 she knew that there was something wrong with her hip that was going to require revision surgery but that she did not know, and had no reason to know, that the issues with her right hip had anything whatsoever to do with the way that the defendant orthopedic surgeon had performed the hip surgery or that he had done anything negligently or wrong (i.e., the defendant never told her that there had been anything out of the norm relative to her surgery, and, despite recommending a revision, the second-opinion orthopedic surgeon did not communicate anything that would have led a reasonable person to conclude that the source of her continuing hip problem was medical malpractice committed by the defendant).

The Maryland medical malpractice plaintiff argued that her three-year deadline for filing a claim against the defendant should be measured from January 7, 2011, which was the date on which she opened a letter from her insurance company advising that there had been a recall of certain DePuy prosthetic hip components and that it was likely that she had received one of the recalled components when the defendant performed her right hip replacement on April 28, 2010.

The trial court initially denied the defendant’s motion for summary judgment but subsequently granted the defendant’s motion, finding that there was no genuine dispute of material facts and that any reasonable jury would have to conclude that the plaintiff was on inquiry notice of her malpractice claim after attending the December 6, 2010 visit with the second-opinion orthopedic surgeon. The plaintiff appealed.

Maryland Appellate Court Opinion

The Maryland Appellate Court stated that like any other issue that is fact-dependent, if there is any genuine dispute of material fact as to when the plaintiff possessed the requisite degree of knowledge, the issue is one for the trier of fact to resolve, and summary judgment is inappropriate; even if it appears that the relevant facts are undisputed, if those facts are susceptible to inferences supporting the position of the party opposing summary judgment, then a grant of summary judgment is improper.

The Maryland Appellate Court stated that the key issue in this case is when the plaintiff possessed knowledge of circumstances which would cause a reasonable person in the position of the plaintiff to undertake an investigation which, if pursued with reasonable diligence, would have led to knowledge of the alleged cause of action (i.e., when did she know facts that would have caused a reasonable patient in her position to investigate whether she should file a malpractice claim against the defendant orthopedic surgeon).

The Maryland Appellate Court further stated that the issue is complicated by the fact that, in the field of medicine, an unsuccessful result alone does not necessarily establish negligence on the part of the health care provider, and to establish a claim of medical  “injury,” a plaintiff must prove not only a bad result, but also a breach of the standard of care that was a proximate cause of the bad result.

Maryland Medical Malpractice Statute Of Limitations – Inquiry Notice

The statute of limitations for professional liability claims against health care providers in Maryland is codified in CJP § 5-109(a): “An action for damages for an injury arising out of the rendering of or the 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.” The Maryland Appellate Court stated that Subsection 5-109(a)(2) is a legislatively imposed discovery rule.

The Maryland Appellate Court stated that in considering the evidence in the light most favorable to the plaintiff in the present case, the second-opinion orthopedic surgeon did not indicate on December 6, 2010 that malpractice by the defendant orthopedic surgeon was a likely, or even a possible, cause of her problem: even though the plaintiff was told that the displacement of the prosthetic required revision surgery, a potential need for revision surgery was one of the known risks that the defendant orthopedic surgeon had warned of.

Furthermore, the second-opinion orthopedic surgeon’s notes from the December 6, 2010 meeting confirm, rather than raise a concern about the quality of the defendant’s care: the second opinion orthopedic surgeon explained to the plaintiff “that there appears to be some change in the position of the inversion of the pouch since the procedure was originally performed and I believe it is likely that this may be related to the work form to the development of the heterotopic bone which could help cause some subluxation.” The Maryland Appellate  Court stated that a reasonable lay person in the position of the plaintiff could have reasonably inferred from his explanation of heterotopic ossification that the displacement of the prosthetic and the pain were caused by bony growth that was produced by the plaintiff’s body, and were not the fault of the defendant.

The Maryland Appellate Court therefore held that under the circumstances, and, considering the evidence and inferences in a light most favorable to the non-moving party, it could not say that, as a matter of law, that the plaintiff was on inquiry notice on December 6, 2010 of a malpractice claim against the defendant: considering the evidence in the record in the light most favorable to the plaintiff, the Maryland Appellate Court concluded that summary judgment was not properly granted because there is a genuine dispute of material fact regarding when the plaintiff was on inquiry notice of a malpractice claim against the defendant orthopedic surgeon.

Source Sigethy v. Klepper, No. 016.

If you or a loved one may be the victim of medical malpractice in Maryland or in another U.S. state, you should promptly consult a Maryland medical malpractice attorney (or a medical malpractice attorney in your state) who may investigate your medical negligence claim for you and represent you in a medical malpractice  case, if appropriate.

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This entry was posted on Tuesday, July 25th, 2017 at 5:21 am. Both comments and pings are currently closed.

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