The Court of Special Appeals of Maryland (“Maryland Appellate Court”) held in its unpublished opinion filed on January 18, 2019 that the Maryland medical malpractice plaintiff “clearly was aware by August 2010 that he had a MRSA infection in his left leg, that the infection was connected with at least some of the hardware that was bolted into his bone, and that there were obvious symptoms from that infection. In light of Dr. Petri’s [the plaintiff’s expert] conclusion that the MRSA infection evident in 2010 remained in him – the same bug – until 2012, that put him at least on inquiry notice then that he had suffered an injury and was not being effectively treated.”
Dr. Petri was prepared to testify that the plaintiff’s orthopedic surgeon, who was an employee of the defendant hospital, deviated from the pertinent standard of care in two respects: first, by discharging the plaintiff on July 19, 2010 rather than ordering that he remain hospitalized for “definitive therapy of [his] infection,” and second, on July 27-29, 2010, by “failing to remove all of the hardware to achieve definitive therapy of the infection.”
The plaintiff argued that the defendant hospital’s continuing treatment of him until August 2011 permitted him to rely on the defendant’s diagnosis of no “concerning” infection and that no injury associated with the hardware infection was identified prior to the June 2012 reinfection episode.
Maryland Medical Malpractice Statute Of Limitations
Maryland Code, § 5-109 of the Courts Article, provides that an action for damages for an injury arising out of the rendering or failure to render professional services by a health care provider must be filed within the earlier of five years from the time the injury was committed or three years from the date the injury was discovered. An injury is committed when legally compensable tort damages first occur, regardless of whether those damages are discoverable or undiscoverable. An action is discovered, and thus accrues under that prong of the statute, when the plaintiff knew, or, with due diligence, reasonably should have known of the wrong.
Actual Notice Versus Constructive (Implied Or Inquiry) Notice
Before an action can accrue, the plaintiff must have notice of the nature and cause of his or her injury. Notice can be actual or constructive. Actual notice can be express or implied. Actual notice is established by direct evidence and includes not only knowledge but also that which is communicated by direct information from those who are cognizant of the fact communicated. Implied notice, or inquiry notice, is notice implied from knowledge of circumstances which ought to have put a person of ordinary prudence on inquiry (thus, charging the individual) with notice of all facts which such an investigation, in all probability, would have disclosed if it had been properly pursued.
The Maryland Appellate Court stated that it is undisputed that the plaintiff had both actual and implied notice that he had an MRSA infection during the period from July 12, 2010 through July 29 of that year: he was told that; he was put in isolation as a result of it, both at UMMC and Inova; and he was treated for it. Furthermore, the plaintiff clearly was aware by August 2010 that he had a MRSA infection in his left leg, that the infection was connected with at least some of the hardware that was bolted into his bone, and that there were obvious symptoms from that infection.
The Maryland Appellate Court held: “In light of Dr. Petri’s conclusion that the MRSA infection evident in 2010 remained in him – the same bug – until 2012, that put him [the plaintiff] at least on inquiry notice then that he had suffered an injury and was not being effectively treated.”
Source Craddock v. University of Maryland Medical System Corp., No. 2057 September Term, 2017.
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