What is an Injury? Maryland Courts Reaffirm the Statute of Limitations for Medical Malpractice Claims
November 5, 2020 By Lauren N. Rutkowski
In a reported opinion, the Maryland Court of Special Appeals re-emphasized the timing for plaintiffs to file suit alleging medical malpractice for claims involving misdiagnoses. In Thomas v Shear, Linda Thomas (“Plaintiff”) alleged that Dr. Shear committed medical negligence when he placed a surgical clip on her right ureter during an aorto-bifemoral bypass graf performed on May 26, 2000. 247 Md. App. 430 (August 27, 2020). The Plaintiff contended her injury occurred once she began experiencing severe abdominal pain from the presence of the clips in 2014. As a result, Plaintiff filed her claim before the Health Care Alternative Dispute Resolution Office in 2016 and the case was later transferred to the Circuit Court of Maryland for Baltimore County in 2017.
Discovery was completed and the depositions of Plaintiff’s experts were taken. Plaintiff’s experts testified at their depositions that Plaintiff suffered from hydronephrosis which both Plaintiff’s experts, Dr. Brown and Dr. Blond, testified was caused by the surgical clip placed in Plaintiff’s ureter in 2000. The experts, likewise, testified that Plaintiff’s kidney stones in 2006 did not cause her hydronephrosis. After depositions were taken, Defense Counsel for Dr. Shear filed a motion for summary judgment on the grounds that Plaintiff’s claim was time barred by the statute of limitations for medical malpractice claims. See Md. Code Ann., Cts. & Jud. Proc. § 5-109.
Medical malpractice claims in Maryland have a statute of limitations period based on the earlier of the following: (1) five (5) years of the time the injury was committed; or (2) three years of the date when the injury was discovered. See Md. Code Ann., Cts. & Jud. Proc. § 5-109.
Dr. Shear contended that the injury occurred in 2000 when the surgical clip was placed on her ureter or, in the alternative, in 2006 when Plaintiff was first diagnosed with hydronephrosis. Plaintiff argued that the injury occurred in 2014 once she began experiencing abdominal pain. In support of Plaintiff’s opposition to Dr. Shear’s motion for summary judgment, Plaintiff attached affidavits from her experts who renounced their prior deposition testimony and instead contended her 2006 diagnosis of hydronephrosis was caused by her kidney stones rather than the surgical clip. Dr. Shear filed a motion to strike Plaintiff’s experts’ affidavits as they were materially inconsistent and, as a result, the trial court granted Dr. Shear’s motion for summary judgment.
The Court of Special Appeals emphasized that the purpose of the statute of limitations is to encourage claimants to promptly file their claims and to weed out old and stale cases. Anderson v. United States, 427 Md. 99, 118 (2012). In medical malpractice cases, a key factor in determining if a claim is barred by the statute of limitations is when the “injury” occurred. Generally, the determination of when an injury occurs is a question of fact. See Rivera v. Edmonds, 347 Md. 208, 211 (1997).
In cases such as Thomas v Shear, Maryland Courts use what is called the Oxtoby-Hill analysis to determine when an “injury” has occurred. An “injury” does not always occur on the date of the allegedly negligent or wrongful act or omission; rather, an “injury” occurs when the allegedly negligent act is first coupled with a cognizable harm. Anderson, 427 Md. at 126-27. When both of the above factors have been met, the five (5) year statute of limitations will begin to run.
In cases involving a misdiagnosis, Maryland Courts have provided the following list of examples of when a cognizable harm or damage has occurred for purposes of the statute of limitations:
(1) When plaintiff experiences pain or other manifestation of an injury;
(2) When the disease advances beyond the point where it was at the time of the misdiagnosis and to a point where (a) it can no longer effectively be treated, (b) it cannot be treated as well or as completely as it could have been at the time of the misdiagnosis, or (c) the treatment would entail expense or detrimental side effects that would not likely have occurred had treatment commenced at the earlier time; or
(3) the patient dies.
Id. at 269. As soon as one of the above three factors has occurred, the five (5) year statute of limitations will begin to run, because the injury occurs “when legally compensable tort damages first occur, regardless of whether those damages are discoverable or undiscoverable.” Id.
In Thomas v Shear, Plaintiff’s experts’ affidavits were rightfully stricken for being materially inconsistent with their deposition testimony. When the Court considered the deposition testimony of Plaintiff’s experts, the experts’ opinions demonstrated that the Plaintiff’s injury was committed in 2000, contemporaneously with the alleged negligent action. Even if the Plaintiff had an argument that her injury did not occur in 2000, there is no way for her to get around her 2006 diagnosis of hydronephrosis as a result of the implantation of the surgical clips. This opinion is encouraging for physicians and their insurance carriers in reinforcing the view that the statute of limitations for medical malpractice is not dictated by when a plaintiff discovers potential negligence. The Maryland Courts appear to be firm in their view that any cognizable harm will begin the five-year countdown for a plaintiff’s potential medical neg