In part 1 of the Blog post, I discussed what happens when affidavits opposing a summary judgment motion contradict the affiant’s prior testimony. In part 2, I then examined the issue of generating a genuine dispute of material fact to avoid granting a summary judgment motion.

Factual Background

In 2000, the plaintiff underwent an aortic-bifemoral bypass graft at GBMC. This procedure created a new path around an obstructed blood vessel. (Op. at 3). Sixteen years later, the plaintiff filed a malpractice claim against the surgeon.  The complaint alleges that the doctor placed a surgical clip on the plaintiff’s right ureter, which then caused the plaintiff to start having abdominal pain in 2014. (Id. at 1, 4-5).

Discovery revealed a 2006 CT Scan of the plaintiff, which revealed kidney stones. In addition, it showed hydronephrosis, which is excessive fluid in the kidney due to urine backup. The scan also showed clips from the bypass. (Id. at 6). 

Summary Judgment Motions

The parties filed motions for summary judgment on the statute of limitations. The defense argued that the five-year statute of limitations in CJP 5-109(a) barred the plaintiff’s claim. The defense contended that if it placed a clip on the ureter in 2000, that is when the injury timing occurred. Alternatively, the defense asserted that a CT scan 2006 showed hydronephrosis that the clip caused the plaintiff’s claim. Under this argument, the claim was barred by 2011. (Id. at 9).

The plaintiff submitted expert affidavits that contradicted their previous deposition testimony, explaining that they made the change after reviewing the entire file relating to the 2006 visit. The experts first contended in depositions that the clips caused the 2006 hydronephrosis. They now claimed that the defendant’s negligence did not cause the 2006 admission, but rather kidney stones did. The plaintiff contended that there was no injury timing in 2006 from the negligence. (Id. at 7, 9-10). The defense filed a motion to strike the affidavits contradictory to prior testimony. (Id. at 10).

The Circuit Court for Baltimore County determined that the statute of limitations had expired in 2006. It dismissed the inconsistent affidavits from the plaintiff’s experts, thereby granting the defense motion for summary judgment. (Id. at 12-13).

Court of Special Appeals on Injury Timing

The CSA turned to the application of the medical malpractice statute of limitations. The statute of limitations for suits against health care providers is in CJP § 5-109: 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. CJP § 5-109(a). (Id. at 16).

Injury timing occurs when the negligent act was first coupled with harm. (Id. at 18). The key is when damages first arise, not when all the damages have arisen. (Id. at 20-21).

The issue in this case is when the injury timing occurred. The defense argued that the evidence demonstrated two possible injury dates. The first was the 2000 procedure, in which any clip would have caused at least a partial blockage and increased pressure in the ureter. The second was the 2006 diagnosis of hydronephrosis. (Id. at 36).

The 5-year period depends on the date of injury timing. It does not matter whether the injury was reasonably discoverable or not. (Id. at 37).

CSA Analysis

The CSA agreed that the plaintiff suffered a medical injury during the 2000 procedure. The plaintiff’s expert testified that a clip was placed on the ureter during the procedure, causing a narrowing. (Id. at 42). This narrowing occurred even though the plaintiff may not have experienced pain then. (Id. at 43). Summary judgment for the defense was proper because the plaintiff needed to file within five years of the injury or by 2005. (Id. at 44).

The Court of Special Appeals also concurred with the defense’s stance on the statute of limitations. The court agreed that the statute began to run at the latest from the time of the 2006 diagnosis. The CT scan unequivocally showed clips and hydronephrosis, constituting a clear injury. The plaintiff’s experts, in their depositions, testified that the clip placed in 2000 caused the hydronephrosis in 2006. The court’s decision effectively barred the plaintiff’s claim due to the statute of limitations, highlighting the importance of understanding and adhering to these legal timelines in medical malpractice cases. (Id. at 45).

Commentary by the Baltimore Medical Malpractice Lawyer on Injury Timing

The fact from this case that leaps out at medical malpractice lawyers is that the plaintiff filed her suit 16 years after the procedure at issue. How will that comply with the Maryland medical malpractice statute of limitations?

Maryland lawmakers have harshly cut off the discovery rule for other injury cases. A patient can file a medical malpractice claim after the three-year period if they have not reasonably discovered their claim. But they cannot go past five years, even if finding the claim by then was impossible. However, there is an exception to this rule. If the plaintiff can prove ‘fraudulent concealment ‘, which is the intentional hiding of the existence of an injury or the cause of an injury, then the statute of limitations may be extended. (This assumes that the plaintiff cannot prove fraudulent concealment).

Injury Timing

Since the discovery rule is limited, the plaintiff’s only chance is to establish that there was a delay in the occurrence of an injury that would start the running of the statute of limitations. The Thomas opinion noted that this issue usually comes up in delayed diagnosis cases, such as cancer, where the debate is when an injury occurred. 

Here, the alleged malpractice was placing a clip on the ureter. The court found that such placement would have immediately caused an effect on the ureter that constituted an injury, even if no symptoms had started yet.

The court also noted that the filing still would have been late if the injury had been in 2006 when a CT scan showed the clips and the plaintiff was diagnosed with hydronephrosis. 

In this case, the plaintiff never had much of a chance to avoid the statute of limitations defense.

You can read other Blog posts on the Maryland medical malpractice statute of limitations.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Circuit Court Facts

In March 2020, the plaintiffs filed a wrongful death claim in the Health Care Alternative Dispute Resolution Office (HCADRO). They contended that medical malpractice had caused a death in June of 2018. (Op. at 1). HCADRO then transferred the case to the Circuit Court for Montgomery County. Afterward, the court dismissed it without prejudice in July 2022 because of multiple deficient Certificates of Qualified Expert (CQE). In September of 2022, the plaintiffs then filed a new claim with HCADRO. The HCADRO transferred it to the circuit court. The circuit court subsequently dismissed it as failing to meet the statute of limitations. (Id.).

The plaintiffs had alleged the death occurred while in a nursing home and related to problems with the patient’s G-Tube, which provided nutrition and hydration. Afterward, the patient ultimately became septic and died. (Id. at 2). 

After the close of discovery in the first case, the defense filed a motion for summary judgment, specifically arguing that the plaintiff’s CQE was deficient and that the plaintiff’s nurse was not qualified to opine on causation. The circuit court reserved the motion and correspondingly ordered the plaintiffs to file a substitute CQE (Id. at 2-3).

Refile CQE

The plaintiffs filed a substitute CQE, and the defense later moved to strike it for failure to identify the names of the individuals charged with breaching the standard of care. In July 2022, the circuit court dismissed the complaint without prejudice, ruling that both CQEs had been deficient. (Id. at 4).

Refile in HCADRO

Plaintiffs refiled their claim in HCADRO in September of 2022, more than four years after the death. The plaintiffs transferred the case with a CQE to the circuit court in March 2023. The defense filed a motion to dismiss, arguing that the statute of limitations barred the complaint. The circuit court ruled in July of 2023 that the statute of limitations had expired in July of 2021 and that the savings provisions invoked by the plaintiffs were inapplicable. (Id.).

Appellate Court – Statute of Limitations Savings Clauses

Two provisions, known as savings clauses, can allow a plaintiff to refile after the statute of limitations has expired. They are found in CJP 5-119 and CJP 3-2A-04(b)(4)(iv). CJP 5-119 allows a plaintiff 60 days to refile if the complaint was dismissed for failure to attach a report to the CQE. 

CJP 3-2A-04(b)(4)(iv) allows a plaintiff to refile within 120 days if the expert fails to meet the requirements of that subsection. That subsection states that the health care provider who signs the CQE on the standard of care cannot devote more than 25% of their professional activities to activities that directly involve testimony in personal injury claims during the 12 months immediately before the date the plaintiff claim first filed the case.

CJP 5-119 Statute of Limitations Savings Clause

The plaintiffs argued that under CJP 5-119, filing an improper report is the same as failing to file a report. Also, the plaintiffs contended that the CJP 3-2A-04(b)(4)(iv) reference to subsection is not limited to the (b)(4)(iv) 25% requirement but applies to the (b) CQE requirement generally. (Id. at 8).

The Appellate Court noted that the circuit court had dismissed the first complaint for deficiencies with the CQE, not the report, so the CJP 5-119 savings clause did not apply. (Id. at 11).

CJP 3-2A-04(b)(4)(iv) Statute of Limitations Savings Clause

The Appellate Court found that the savings clause in CJP 3-2A-04(b)(4)(iv) was ambiguous as to whether it applies to all of (b) or only (b)(4)(iv). The Court looked at the legislative intent and noted that the amendment focused only on (b)(4) and the legislative process centered on the expert’s professional activities. (Id. at 16). The testimony also only focused on the professional activities component and expert exclusion based on failure to comply. The legislators did not discuss any other provision within (b). (Id. at 17). As a result, The Appellate Court concluded that the savings clause is limited to dismissal for failure to comply with the 25% rule. (Id. at 18). The Court also found that principles of statutory construction support the conclusion. (Id. at 19-20).

Commentary By the Baltimore Medical Malpractice Lawyer

I believe the Appellate Court correctly analyzed the savings clauses. Although the language in CJP 3-2A-04(b) is not well drafted, the court’s conclusion is well reasoned.

This case involves multiple setbacks that seem avoidable. The plaintiff’s selection of a nurse to sign the CQE is unusual. Admittedly, there may not be well-established case law for this point. There is an unreported opinion from 2020 in Gore v. Calvert Mem. Hosp. (May 26, 2020), holding that a nurse could not sign the CQE. Even so, as a matter of practice, I have never considered a nurse for the CQE and do not recall seeing other practitioners do it.

However, the requirement of identifying healthcare providers by name has been clear since the 2007 decision in Carroll v. Konits, 400 Md. 167 (2007). Of course, identifying the responsible healthcare provider can occasionally be challenging. Still, there are means available to make that determination, including conducting discovery in HCADRO before filing a CQE.

This litigation has taken four years and during that time the courts never considered the merits of the plaintiff’s claim.

Update 5/2/24

The Appellate Court of Maryland has subsequently issued a reported opinion in Robinson v. Canton Harbor Healthcare, Center, Inc. The Court specifically held that a nurse can sign a CQE in a nursing home bed sore case.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Circuit Court Facts

On January 16, 2017, the plaintiff was in a one car accident that resulted in severe injuries. Afterward, he was in the hospital for over six weeks, much of it under sedation. (Op. at 1). One of the injuries was an open comminuted fracture of the right femur. This case concerns fractures of the second and third metatarsals in the foot of the same leg. (Id. at 2).

On January 27, the care providers observed bruising and discoloration of the foot, and an x-ray then revealed the fractures with mild angulation for the first time. A doctor ordered a hard cast shoe, which the medical providers did not give to the plaintiff. (Id. at 2).

A second doctor believed that the fractures would heal normally without stabilization or immobilization, especially since the plaintiff would be on bed rest due to the leg injury. (Id. at 3).

On February 27, the hospital then transferred the plaintiff to a rehab facility. The plaintiff claims that he did not know about his foot fractures at this time, and the medical records provided to rehab did not reference the fractures. (Id.).

When Was Inquiry Notice for the Statute of Limitations

On April 27, the plaintiff complained that his foot turned red when he sat up. An x-ray. indicated a “prior” fracture of the foot. On May 2, the plaintiff saw a defense orthopedist. The doctor opined that the foot was healing correctly and believed the discoloration was due to vascular problems. The doctor cleared the plaintiff for weight bearing., but the plaintiff could not bear weight on his foot. (Id. at 3-4).

Later, providers took x-rays in October of 2017 and February of 2018 and read them as healed fractures. (Id. at 4). The plaintiff, however, continued to have pain and difficulty bearing weight on his right foot. In February 2018, the plaintiff sought a second opinion from doctors at another hospital, the University of Maryland. Several doctors there considered that a bunion deformity or metatarsophalangeal osteoarthritis could be the problem but did not make a definitive diagnosis. They characterized the old fractures as healed. (Id. at 5-6).

Statute of Limitations – Inquiry Notice

In January 2019, the plaintiff had increased pain and more difficulty bearing weight on his foot. A CT scan showed a healed fracture deformity. He went to a foot and ankle specialist who confirmed the diagnosis of fracture malunion and presented the plaintiff with treatment options, including surgery. (Id. at 6).

In February 2020, the plaintiff filed a complaint against Dimensions and two emergency room providers in the Circuit Court for Prince George’s County. In November 2021, the plaintiff filed an amended complaint against the Dimension Orthopedists. (Id. at 7).

The orthopedist defendants filed a motion for summary judgment, arguing that the statute of limitations barred the amended complaint, and the circuit court granted the motion. (Id. at 7-8). The trial proceeded against the emergency room defendants, and the jury found for them. (Id. at 8 n. 1).

Appellate Court: Statute of Limitations – Inquiry Notice

The issue on appeal was when the plaintiff’s claim accrued. CJP 5-109(a)(2) requires the plaintiff to file an action within three years of discovering the injury. Here, the claims had to accrue on or after November of 2018. (Id. at 9-10).

The Appellate Court found that the evidence did not support summary judgment. The plaintiff’s knowledge in May 2017 that his foot was discolored and the difficulty weight bearing was insufficient to alert the plaintiff that the defendants may have negligently treated his foot. (Id. at 23). The Court also held that UM’s discussion of potential foot problems did not, as a matter of law, require the plaintiff to investigate further. A reasonable jury could find that they were unrelated to the treatment of the foot fractures. (Id. at 25-26).

Lastly, the Court rejected the defense argument that a reasonably diligent investigation by the plaintiff would have discovered a causal relationship between his right foot symptoms and the defendants’ alleged negligence. The Court observed that at least five different providers reviewed the plaintiff’s medical records between April 2017 and March 2018. All five failed to diagnose malunion of the metatarsal fractures. Instead, they believed that the fractures had healed without complications. (Id. at 28-29).

The Appellate Court concluded that a genuine dispute existed regarding when the plaintiff was on inquiry notice about his claims against the defendants. As a result, the circuit court erred in granting summary judgment to the defense based on the statute of limitations. The Appellate Court reversed the judgment and remanded the case to the circuit court for trial. (Id. at 33).

Commentary By the Baltimore Medical Malpractice Lawyer

I believe the Appellate Court made the right decision in this case. Although the plaintiff knew he continued to have foot problems, his initial treatment and second-opinion doctors determined that the foot fractures had correctly healed. As a result, a jury could find (and probably will find) that the plaintiff did not have inquiry notice that the defendants may have negligently treated his foot until the foot and ankle specialist told him in January 2019 that the foot fractures had not healed properly.

However, the plaintiff has a bigger problem. The same facts that relieve his inquiry notice of the potential malpractice also help the defense establish that there was no malpractice. Five orthopedic providers determined that the fractures had correctly healed. That will probably make it difficult for the plaintiff to prove malpractice by the defendants.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Facts

On November 27, 2023, the Appellate Court of Maryland issued an unreported opinion in Janvier v. Greyhound Lines, Inc. The plaintiffs were passengers on a Greyhound bus that crashed in May of 2019. Afterward, they filed suit on August 5, 2022. Greyhound moved to dismiss the complaint because plaintiffs filed it after the three-year statute of limitations. The trial court dismissed the complaint. (Op. at 2).

The plaintiffs argued that equitable estoppel precluded a statute of limitations defense. They argued that they had given a notice to Greyhound that the claims would go to arbitration. Plaintiffs mistakenly believed that they had to arbitrate and relied on the fact that Greyhound did not say anything to the contrary. Instead, the parties agreed to engage in settlement negotiations and exchanged information. The plaintiffs believed that their arbitration notice was sufficient for statute of limitations purposes and that they did not have to file in court. After the statute of limitations date passed, Greyhound terminated negotiations because the claims were time-barred. (Id. at 9-10).

Court Decision

The Court described equitable estoppel: It is the effect of the voluntary conduct of a party whereby he is absolutely precluded both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has on good faith relied upon such conduct, and has been led thereby to change his position for the worse and who on his part acquires some corresponding right, either of property, of contract, or of remedy. (Id. at 10-11).

The Court summarized the aspects of an equitable estoppel argument as “representation, reliance, and detriment.” A defendant may be equitably estopped from asserting a statute of limitations defense if it held out inducements not to file suit or indicated that it would not plead limitations. The representation must be an affirmative act or affirmative statement. Silence where there is no duty to speak does not create estoppel. (Id. at 11).

The Court observed that Greyhound did not represent that the claim was subject to arbitration and made no affirmative representation that plaintiffs did not need to file their complaint within limitations. Greyhound’s silence was not a basis for the application of equitable estoppel. The Court affirmed the dismissal of the case. (Id. at 13-14).

Commentary By the Baltimore Medical Malpractice Lawyer

Equitable Estoppel

As discussed in other posts on this Blog, the statute of limitations can be a minefield. In some cases, precisely calculating the statute of limitations can be challenging. The Janvier case addresses another situation – when the statute of limitations can be a trap for lawyers. However, it does not have to be.

If the defense suggests that the plaintiff not file suit or says it will not raise limitations, another tool for the Maryland medical malpractice lawyer is the tolling agreement. This agreement expressly suspends the statute of limitations for some time. With such an agreement, the plaintiff will not have to resort to equitable estoppel and will not be susceptible to the defense’s opposition to such an argument.

The need for a tolling agreement does not often arise in medical malpractice cases. In the vast majority of cases, the plaintiff proceeds with filing the complaint in court. However, there may be times when the defense would like an opportunity to explore a pre-suit settlement of the case. These negotiations usually happen when there is (1) a solid case of liability and (2) circumstances the defense would like to avoid having aired publicity or facing in court. In such a situation, if the statute of limitations is approaching, then a tolling agreement may meet the needs of both parties.

You can read other Blog posts on the statute of limitations.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

On November 14, 2023, the Appellate Court of Maryland issued an unreported opinion in Grgac v. Dash, applying the medical malpractice statute of limitations. The statute of limitations for negligence claims against health care providers is in section 5-109(a) of the Courts and Judicial Proceedings Article of the Maryland Code. The action must be filed within the earlier of: (1) Five years of the time the injury was committed and (2) Three years of the date the injury was discovered. The action is filed when submitted to the Health Care Alternative Dispute Resolution Office (HCADRO). (Op. at 1).

Grgac Facts

After having periodic numbness in her hands, the plaintiff got an MRI and consulted with the defendant doctor on November 25, 2008. The doctor believed that the plaintiff was likely suffering from carpal tunnel syndrome. He felt the MRI only revealed bulging discs in her spine. (Id. at 2).

In 2010, the plaintiff experienced problems with balance and word pronunciation. Those symptoms resolved, but then she had severe pain in her neck and right arm. She got another MRI and consulted with Dr. Dash on November 12, 2010. The plaintiff was concerned that she might have multiple sclerosis. (Id. at 2-3). 

The doctor believed that the bulging of the disc had become more severe and was the likely cause of her symptoms. He also noted that a single right subcortical white matter dot was not clinically significant. (Id. at 3).

The plaintiff continued to experience various physical symptoms periodically. On December 19, 2017, the plaintiff was diagnosed with MS. Her symptoms became worse through 2018, necessitating a career change. On December 17, 2020, the plaintiff filed a medical negligence claim against the defendants in HCADRO, alleging misdiagnosis, specifically that the doctor had failed to diagnose MS in 2008. The case was transferred to the Circuit Court for Baltimore City. (Id. at 3-4).

The plaintiff’s expert doctor attributed most of the symptoms in 2008 to MS. Also, the 2011 MRI showed additional lesions. (Id. at 4). 

The defendants argue that the plaintiff’s complaint was time-barred by the five-year period because she was injured no later than 2011 but filed her claim in 2020 (Id. at 6).

Court’s Decision: Statute of Limitations – Injury

The Court noted some principles in applying the statute of limitations. It stated that “injury” occurs when the alleged negligent act was first coupled with harm. The five-year period runs without regard to whether the injury was reasonably discoverable. (Id. at 9). The Court concluded that the failure to diagnose injured the plaintiff no later than 2011. (Id. at 15).

Commentary By the Baltimore Medical Malpractice Lawyer

Explanation of the Statute of Limitations and Recommendations

As the discussion above shows, it can be complicate to apply applying the statute of limitations. While Grgac focused on the five-year part of the statute, I will look more broadly at the whole law.

The starting point is that you have three years from discovering the injury. You have to be careful with the notion of discovery. Other Maryland cases expand on that concept. Discovery can occur before you know all the facts. 

I recommend consulting with a medical malpractice lawyer when you have a bad medical outcome or have any concerns about potential medical malpractice. Do not put off the consultation until you get more information about your injury or until the doctor attempts to treat the injury. 

The five-year period can be harsh in application. This part of the statute cuts off further time to discover the injury. Another way of saying it is you have three years from discovering the injury but at most five years from it.

In Grgac, a doctor diagnosed the plaintiff with MS in 2017. (Id. at 3). The Court found the defendant’s alleges misreading of the MRI caused the plaintiff’s injury under the statute of limitations by 2011 at the latest. Therefore, the application of the five-year period barred the plaintiff’s claim before she even found out she had MS. That is a harsh result. Note that the Maryland General Assembly created the five-year period. The Court just applied it.

Get a Second Medical Opinion

The Grgac case also highlights the importance of getting a second opinion. In 2010, the plaintiff had symptoms of MS. The MRI showed an abnormality in her brain, but the defendant doctor thought it was not significant. (Id.) 

We do not know the doctor’s qualifications or how convincing he was in dismissing the brain finding. So, we cannot criticize the plaintiff for failing to take the MRI to another doctor for a second opinion. However, I do wonder what would have happened if she had. Would she have received an MS diagnosis sooner to allow treatment of her early symptoms before the disease progressed? If not, would she have received the diagnosis in time to bring a claim within five years?

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.