Foos v. Steinberg

Finan, J., delivered the opinion of the Court. On November 27, 1962, appellants, Anna E. Foos, et vir, filed suit in the Superior Court of Baltimore City against ap ³⁷ pellee, Doctor Murray Steinberg, alleging medical malpractice. On January 3, 1963, appellants, pursuant to an order of court, filed an amended declaration which was the same as the original declaration except that it corrected the appellee’s name and address. The acts of malpractice were alleged to have occurred when the appellee failed to remove a surgical sponge from appellant’s vaginal cavity following an operation in April of 1959, to repair a rectovaginal fistula.

In November, 1959, a corrective operation was performed and according to the amended declaration appellant remained under appellee’s care until March, 1960. On January 26, 1965, the court struck certain of the appellee’s preliminary motions and on February 15, 1965, appellee demurred to the amended declaration. The demurrer attempted to raise the statute of limitations as a bar to the appellants’ suit. Thereafter, on April 15, 1965, the appellee withdrew his demurrer and filed a plea to the amended declaration, raising specially limitations.

On April 20, 1965, appellants’ moved to strike the special plea of limitations on the ground that it was not filed within the time allotted by the Maryland Rules. Appellants’ motion to strike was denied by Chief Judge Manley. Appellee moved for a summary judgment on September 22, 1965. A hearing was held on the motion, and on July 11, 1966, appellee was granted summary judgment; Judge O’Donnell finding the appellants’ claims to be barred by the statute of limitations.

In reversing the lower court we need go no further than to hold that the appellee’s plea of limitations was not filed within the time contemplated by the Maryland Rules and thus should have been stricken pursuant to Rule 322. Rule 342 provides that a plea of limitations must be specially pleaded in both actions ex contractu (342 c 1 (d)) and ex delicto (342 c 2 (a)) and further provides that the “plea of limitations must be filed within the time required by Rule 307 (Time for Defendant’s Initial Pleading).” Rule 342 d 2. Rule 307 a 1 provides that the defendant has fifteen days after the day of return to file his initial pleading; however, Rule 309 a provides that where “a motion, demurrer, * * * or other pleading requiring a ruling by