Use Plaintiff SOL: Vivar v. Dilts

The Baltimore Medical Malpractice Lawyer Blog examines Maryland appellate opinions in medical malpractice cases. This post discusses a July 8, 2026 Appellate Court of Maryland reported opinion. The case is Vivar v. Dilts, (No. 82). Navigating the procedural intersections of medical malpractice claims and wrongful death actions in Maryland requires absolute precision. The Appellate Court of Maryland affirmed that the statutory deadlines for wrongful death actions act as conditions precedent. The court said that a “use plaintiff” cannot rely on the relation back doctrine. It will not allow a use plaintiff to join an ongoing lawsuit after the three-year statute of limitations period has expired. This ruling provides a vital reminder for practitioners and grieving families alike. It regards the strict temporal limits placed on recovery under Maryland law.

Factual Background

The underpinnings of this litigation began in August 2020.  A nine-year-old child had a historical diagnosis of chronic constipation. He suffered an episode of acute abdominal pain and advanced bowel symptoms. On August 28, 2020, the child went to an urgent care pediatric facility. The attending doctor performed a physical evaluation and administered an enema. The child was discharged that same evening despite having not passed a bowel movement. Tragically, the next morning, the child collapsed at home, became unresponsive, and suffered a severe cardiac arrest alongside gastrointestinal bleeding. The child passed away on August 30, 2020, from complications relating to a severe bowel obstruction.

Nearly three years later, on August 16, 2023, the plaintiff mother initiated a medical malpractice claim. She filed it with the Maryland Healthcare Alternative Dispute Resolution Office (HCADRO). It targeted the attending doctor and the operating corporate medical entities. On that very same day, the plaintiff mother formally waived arbitration to clear the path for circuit court litigation. Following statutory waiver timelines, the plaintiff mother filed her formal complaint. It was in the Circuit Court for Prince George’s County on September 22, 2023. The complaint enumerated causes of action for negligence, wrongful death, and a survival action. It explicitly named the child’s father as a “use plaintiff” within the pleadings. The issue became the statute of limitations for the use plaintiff’s claim.

Use Plaintiff

The filing plaintiff served the use plaintiff father with the complaint and the mandatory statutory notice on September 26, 2023. This was less than a month after the true three-year anniversary of the child’s tragic passing. The use plaintiff father attempted to file a formal motion to intervene. He filed it at the circuit court clerk’s office on October 19, 2023. 

However, the court clerk refused the submission, providing a case summary that mistakenly indicated he was already an active plaintiff in the action under the same legal representation as the mother. Following direct communications with the mother’s counsel, who explicitly clarified that he did not represent the father and that formal intervention remained mandatory, the use plaintiff father retained separate counsel and formally filed a Motion to Intervene on June 7, 2024. Both the plaintiff mother and the defendant doctor filed timely oppositions, arguing that the law had already extinguished the father’s right to participate. On February 11, 2025, the circuit court denied the father’s motion as untimely, paving the way for appellate review.

The Parties’ Arguments on Use Plaintiff Statute of Limitations

On appeal, the use plaintiff father admitted that his formal intervention fell outside the strict temporal constraints of Maryland Rule 15-1001. However, he argued that a plain language reading of the rule caused a fundamentally absurd and unfair result. He noted that because the HCADRO statute allows a primary claimant 60 days post-arbitration waiver to file a complaint in circuit court, a primary plaintiff can routinely and legally serve a use plaintiff well after the three-year statute of limitations has run. He asserted that this dynamic effectively “iced out” secondary beneficiaries before they were ever given a realistic opportunity to act after receiving formal notice. To remedy this tension, the use plaintiff father urged the court to apply the relation back doctrine, which would theoretically tie the date of his intervention back to the mother’s timely initial filing before the HCADRO.

Conversely, the plaintiff mother and the defendant doctor countered that the plain language of Maryland Rule 15-1001 is unambiguous and absolute. They emphasized that the rule clearly states that any individual who fails to file a complaint or a motion to intervene before the statutory deadline is barred from participating in the action or claiming a recovery. They argued that the three-year window acts as a substantive condition precedent to maintaining a lawsuit, meaning that a failure to meet it permanently extinguishes the underlying right to sue rather than merely blocking a procedural remedy. Furthermore, the defendants contended that applying the relation back doctrine would impermissibly expand their liability by “pyramiding” separate emotional and mental anguish damages after the statutory limitations period had closed.

The Court’s Ruling

The Appellate Court of Maryland affirmed the circuit court’s decision to deny the intervention. The court conducted a plain text analysis of Maryland Rule 15-1001(e)(2). It concluded that the rule’s mandate is absolute. An individual who fails to file a complaint or motion to intervene by the statutory deadline may not participate in the action or recover damages. The court made clear that even though the statutory notice framework requires a use plaintiff to respond within 30 days of service, that window is bounded by the phrase “no later than the earlier of” the statutory deadline or the served notice deadline. Thus, if the statutory deadline passes before service occurs, the right to intervene is lost under a plain reading.

The court rejected the father’s invocation of the relation back doctrine. The court highlighted Maryland precedent establishing that the three-year limitation period in wrongful death actions is not a mere statute of limitations. It is a substantive condition precedent. 

Because a condition precedent is an essential element attached to the right to sue, its expiration extinguishes the liability. Therefore, the court held that the relation back doctrine is incapable of reviving a right that has ceased to exist. Additionally, the court noted that even if the deadline were a standard statute of limitations, the relation back doctrine is restricted to situations where an additional party merely shares in an existing pool of damages. Because wrongful death claims allow individual beneficiaries to claim distinct damages for mental anguish and emotional suffering, introducing a new plaintiff would “pyramid” the doctor’s potential liability, creating unfair prejudice after the limitations period expired.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Use Plaintiff Statute of Limitations

There are not many reported opinions involving use plaintiffs. Many use plaintiffs are estranged family members whose claims have questionable value because of their distance from the deceased. In those instances, after the filing plaintiff gives notice, at some point after the use plaintiff fails to participate, the active parties seek summary judgment on the use plaintiff’s claim. This is the course many use plaintiff’s claims follow.

This case was different. While the outcome of this case feels undeniably harsh to a grieving father who faced confusing administrative pushback from a court clerk, the Appellate Court’s ruling is legally sound. As the court stated, the use plaintiff father was never legally dependent on the actions or timing of the primary plaintiff mother. Under Maryland law, any eligible beneficiary possesses an independent, equal right to file their own statement of claim or lawsuit within three years of a tragedy. If multiple beneficiaries file separate claims, the court simply consolidates them to satisfy the “one action rule”. 

The clear language of the rule allows the exact situation that happened in this case. By waiting for another family member to take the lead, a use plaintiff assumes an operational risk. Their filing might occur at the tail-end of the limitations window. This can make the resulting notice beyond the statute of limitations deadline for the use plaintiff to join.

Amend the Rule?

The court’s job was to apply the rule, and it did. Should the General Assembly amend the rule? Perhaps. There may be a solution that provides for the filing plaintiff to give prompt notice. Then the use plaintiff promptly files, such that there is not inordinate delay for the lawsuit. For now, the law continues to be clear. Use plainitffs must be aware that the outcome in this case is a possible one.

You can read other Blog posts on cases involving Statute of Limitations issues.

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.