Geisz v. Greater Baltimore Medical Center

RODOWSKY, Judge. This wrongful death and survival action alleging medical malpractice was filed more than ten years after the patient died of cancer. Injury to the patient occurred before the earliest' statute of repose for medical malpractice claims ³⁰⁵ was enacted. Consequently, the issue as to the survival claim is whether it is barred under the discovery rule of the general three year statute of limitations.

We shall hold that it is not barred. Whether the wrongful death claim was timely turns on the applicability of Md.Code (1974, 1984 RepLVol.), § 5-203 of the Courts and Judicial Proceedings Article (CJ) which reads: If a party is kept in ignorance of a cause of action by the fraud of an adverse party, the cause of action shall be deemed to accrue at the time when the party discovered, or by the exercise of ordinary diligence should have discovered the fraud.[ 1 ] We shall hold that § 5-203 applies to the facts here. I The plaintiffs’ decedent, Steven F. Geisz (Geisz), died at age twenty-nine, on September 21, 1975, of Hodgkin’s disease. He was survived by his son, Steven Geisz, II (Steven), born April 1, 1972, and by Elaine Geisz (Elaine), his former wife and Steven’s mother, from whom Geisz had obtained a divorce a few months before his death.

Slightly more than three years after the marriage, Geisz was diagnosed as having Hodgkin’s disease. Proper treatment of that cancer enjoys a high success rate according to the plaintiffs’ experts. On November 26,1971, Geisz first came under the care of Dr. George J. Richards, Jr. (Dr. Richards), one of the defendants, who was the Director of the Radiation Therapy Department at Greater Baltimore Medical Center (GBMC), ³⁰⁶ another defendant. 2 Between November 1971 and November 1973 Geisz received, usually from technicians acting at the direction of, and under the supervision of Dr. Richards, courses of treatment which the plaintiffs allege were improperly conceived and administered. By November 1973 Geisz was beyond help by conventional methods.

Dr. Richards referred Geisz to a program, operated independently of the defendants, in which experimental drugs were administered. In early 1985 Elaine consulted counsel as a result of her having read a newspaper article concerning malpractice actions instituted against Dr. Richards. Geisz’s probate estate was reopened and Elaine was appointed personal representative. On November 18, 1985, this action was filed.

As personal representative Elaine asserts, pursuant to CJ § 6-401(a) and Md.Code (1974), § 7-401(x) of the Estates and Trusts Article, a “personal action which the decedent might have commenced or prosecuted” (the survival claim). As mother of Steven, and for his benefit, she also claimed pursuant to CJ §§ 3-901 through 3-904 (the wrongful death claim). Defendants moved for summary judgment on the ground that the claims were time barred. The statute of limitations relevant to the survival action is CJ § 5-101 which provides that “[a] civil action at law shall be filed within three years from the date it accrues____” When a survival claim “accrues” is determined by the discovery rule.

See Trimper v. Porter-Hayden, 305 Md. 31 , 501 A.2d 446 (1985); Poffenberger v. Risser, 290 Md. 631 , 431 A.2d 677 (1981); Waldman v. Rohrbaugh, 241 Md. 137 , 215 A.2d 825 (1966). See also Southern Maryland Oil Co. v. Texas Co., 203 F.Supp. 449, 451-52 (D.Md.1962); Hahn v. Claybrook, 130 Md. 179 , 100 A. 83 (1917). Analysis of the timeliness of the wrongful death claim begins with CJ § 3-904(g) which provides that a wrongful death claim “shall be filed within three years ³⁰⁷ after the death of the injured person.” Under Trimper v. Porter-Hayden, supra, the discovery concept of accrual, judicially created by interpreting CJ § 5-101, does not apply to CJ § 3-904(g). 3 Elaine contends that she did not “discover” the causes of action until she read a newspaper article describing one or more malpractice actions filed against Dr. Richards and that discovery is the sole manner in which this survival claim can accrue. In plaintiffs’ view death is not an accrual.

Plaintiffs submit that the wrongful death action is also timely because fraud kept Elaine in ignorance of the cause ³⁰⁸ of action. They rely on Elaine’s deposition testimony that Dr. Richards made certain statements which kept them in ignorance of the cause of action and which are set forth in part II, infra. Plaintiffs contend that these statements were a fraud within the meaning of CJ § 5-203 and that § 5-203 operates to toll the time for filing a wrongful death action. Consequently, plaintiffs assert that the three year period for bringing this wrongful death claim is measured from discovery of the fraud and not from Geisz’s death.

The defendants contend that Geisz and Elaine had knowledge of facts constituting discovery as a matter of law no later than November 1973 when Dr. Richards stopped treating Geisz. Specifically with respect to the survival claim, the defendants rely on Trimper v. Porter-Hayden, supra, in which we held that under CJ § 5-101 a survival action predicated on latent disease accrued at death. The defendants argue from the Trimper reasoning that, even if there has been no discovery by a plaintiff, a survival action which is predicated on medical malpractice and not governed by the medical malpractice statute of repose similarly accrues at death as a matter of law. The defendants contend that the fraud statute, CJ § 5-203, does not apply to a wrongful death claim and, in any event, deny that the statements attributed to Dr. Richards constitute fraud within the meaning of CJ § 5-203.

The Circuit Court for Baltimore County entered summary judgment for the defendants and the Court of Special Appeals affirmed. Geisz v. Greater Baltimore Medical Center, 71 Md.App. 538 , 526 A.2d 635 (1987). The circuit court, relying on Trimper , held that the survival action accrued as a matter of law on the death of Geisz and the Court of Special Appeals agreed. The circuit court further held that the plaintiffs had failed to show facts which would permit a finding of fraud under CJ § 5-203 so that the right to bring a wrongful death action ended three years after Geisz’s death.

The trial court nevertheless specifically addressed the issue of due diligence and concluded that a jury question was presented as to whether the plaintiffs should ³⁰⁹ have discovered the claims earlier. The Court of Special Appeals assumed that the summary judgment record could support a finding of fraud and implicitly assumed that fraud under § 5-203 tolled the running of the time within which a wrongful death action must be brought. But the intermediate appellate court held that Elaine and Geisz “by the exercise of ordinary diligence should have discovered the fraud” more than three years prior to the filing of the wrongful death claim. We granted petitions and cross-petitions for certiorari which raise the issues described above.

II The facts most favorable to the timeliness of the plaintiffs’ claims are presented in this part II. In October 1971 Geisz had developed a persistent cough. He saw his general physician who detected a lump in his chest. Within two weeks Geisz was operated on at GBMC.

A biopsy of the excised lump revealed Hodgkin’s disease. The surgeon told Geisz to start radiation treatment immediately at GBMC. Geisz first met with Dr. Richards, the chief of radiation therapy at GBMC, on November 26, 1971. Elaine was present at that meeting and on every other occasion when Geisz had conversations with Dr. Richards at GBMC.

At the first meeting Dr. Richards discussed Geisz’s illness and told him that he would begin radiation treatment and probably receive chemotherapy as well. Dr. Richards told the couple that Geisz had a 95% chance of being cured. Elaine asked Dr. Richards if they should go to Sloan-Kettering or to Johns Hopkins. Dr. Richards assured them that GBMC had the best that there was to offer, that GBMC was treating people with the most up-to-date techniques and that the survival rate of patients treated at GBMC was very good.

He saw no reason for them to go to New York or to change hospitals. ³¹⁰ Beginning on the first day of consultation with Dr. Richards, and continuing through January 20, 1972, Geisz received an initial course of radiation therapy. As revealed by the unsworn, written reports of the plaintiffs’ medical experts which were included in the summary judgment record without objection, the plaintiffs’ theory of liability is, in part, that radiation was not applied to all of the affected area or, if applied, was applied in insufficient dosages. In March 1972, Dr. Richards began Geisz on chemotherapy which made him extremely nauseous. On April 17, 1972, Dr. Richards caused a Gallium Scan to be performed on Geisz for the first time.

It revealed that the disease was spreading. Discussing the test results with Geisz and Elaine, Dr. Richards said that he would make the treatment stronger and that the chances of cure were 90%. A second round of radiation treatment was administered between May 25 and August 6, 1972. When, by the fall of 1972, Geisz had made no progress toward a cure, the couple again consulted with Dr. Richards.

In substance he said that Geisz was getting the best treatment. The couple was given the impression that Geisz was simply in the lower end of the statistics but that Dr. Richards was going to try something else to beat the disease. They remained totally confident in Dr. Richards. For example, when asked about possible conversations during this period with other patients of Dr. Richards, Elaine testified: We would be in the x-ray room waiting for treatment, there always seemed to be a room full of patients.

It was a very small room, and just seemed to be people waiting there all of the time. For the most part, people didn’t talk a lot, but it seemed like everybody there had the feeling that they had their trust in him like we did. We looked up to Dr. Richards as if he was a God for us and he was, he was going to help us get through this. There was more chemotherapy beginning in February 1973.

In the summer of 1973 Geisz’s persistent cough became worse. Diagnostic x-rays revealed that the sac around Geisz’s heart was filling with fluid so that he would ³¹¹ require surgery. Geisz and Elaine knew that this condition resulted from radiation treatment, but Elaine states that they believed the condition to have been a natural consequence of the series of treatments necessary to attack the cancer. Indeed, she testified on deposition that the heart surgeon told her that this could be an aftereffect of the radiation.

In November of 1973 the couple had their last meeting with Dr. Richards. According to Elaine, he told them that for whatever reasons, we were at the low end of the statistics and he had given us every treatment available in the country, the best of the treatments, and [Geisz] was not responding. There were no answers why, he said that he had given us everything available and that he’d like us to go to the Cancer Research Center.... That facility “would only accept patients who had been given up as hopeless.” Geisz underwent surgery to remove the fluid from around his heart in the fall of 1973 at University Hospital.

There is no evidence that any health care provider at GBMC, at University Hospital or at the Cancer Research Center ever indicated to the couple, or either of them, that Geisz had received other than proper, albeit unsuccessful, treatment while under the care of Dr. Richards. The plaintiffs also rely on testimony of Dr. Richards given in a deposition taken in another case pending against him, his professional association and GBMC (the Burton case). The deposition in Burton was concerned with the year 1972 and was taken in March of 1985, approximately four years after Dr. Richards had “resigned” from his position at GBMC. A large part of the interrogation by Burton’s counsel concerned allegations which Dr. Richards had made in a crossclaim against GBMC in yet another patient’s lawsuit.

In the case sub judice the plaintiffs assert that deposition answers by Dr. Richards in Burton demonstrate either an intentionally fraudulent concealment of these plaintiffs’ causes of action or that the statements ³¹² reviewed above were misrepresentations made with a reckless disregard for their truth or falsity. Dr. Richards deposed that when the GBMC radiation therapy department opened in 1965 it was understaffed in that there were only “two technologists with two machines whereas [the department] should have had four technologists with two machines.” As the hospital began to function and income improved, there was no real change in the staffing patterns despite multiple requests by Dr. Richards for increased staff. He did not believe that patients were neglected as a result of the lack of staff; rather, under-staffing made it much more difficult to take care of the patients. Existing staff had to work longer hours and work harder.

He also believed that his department was underequipped in that he operated the department with one super voltage unit until late 1974. Nevertheless, in his opinion the dedication of the people working there offset the lack of requested additional equipment. The most common complaint about the department was the wait between a patient’s appointment time and actual treatment. Some appointments had to extend into the early evening hours.

Without identifying any specific incident, Dr. Richards admitted that there were instances when his staff did not take portal films when he had requested that it be done. A portal film is a means of verification that radiation is in fact reaching into the areas of a patient intended for radiation. Dr. Richards stated that he usually picked up the failure to take portal films and corrected it so that it did “[n]ot really” impact on the quality of care being administered. One of the positions in the department was that of physicist.

At GBMC there was a part-time physicist who worked at least two days per week. When the physicist was not available Dr. Richards had to perform those duties. He acknowledged that the lack of a full-time physicist affected his ability to monitor and supervise members of the department. It is also Dr. Richards’s opinion that the ³¹³ medical board and board of trustees of GBMC “most certainly failed to properly safeguard and preserve the records” of the radiation therapy patients.

On deposition Dr. Richards readily agreed that the anatomical diagrams made by his staff to record treatment fields were sloppy and in no way represented the true areas of treatment. He further said, however, that he personally set up every patient’s initial treatment and every change in the field of treatment. The application of radiation therapy is to the patient, not to an anatomical diagram and on the patient’s body there would be indelible paintings of the actual fields of treatments so that the machines were aimed and calibrated to the actual treatment field on the patient____ So at no time did the patient ever receive treatment that did not have clear cut markings which were verified either by a direct physician’s verification or by a port film to assist the physician in the verification. The plaintiffs’ medical experts concluded in their reports that treatment plans, calculations of dosages, and portal films were not done. 4 We shall refer to these reports in greater detail in part IV B, infra.

Ill A “The burden which the defendants assumed by their motion [for summary judgment] was to show that there was no dispute of any fact material to the limitations ³¹⁴ issue and that they were entitled to judgment on limitations grounds as a matter of law.” O’Hara v. Kovens, 305 Md. 280, 286 , 503 A.2d 1313, 1316 (1986). We shall first consider if the plaintiffs failed, as a matter of law, to exercise due diligence. 5 This record does not support ruling that, more than three years before thq, survival action was brought, Geisz or Elaine had “ ‘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 would in all probability have disclosed if it had been properly pursued.’ ” [Poffenberger v. Risser, supra, 290 Md. at 637 , 431 A.2d at 681 (quoting Fertitta v. Bay Shore Dev. Corp., 252 Md. 393, 402 , 250 A.2d 69, 75 (1969)) (quoting Blondell v. Turover, 195 Md. 251, 257 , 72 A.2d 697, 699 (1950)).] Defendants emphasize that the couple knew that, although the rate of cure for Hodgkin’s disease was very ³¹⁵ high, Geisz’s condition nevertheless continued to deteriorate to the point where Dr. Richards considered the case to be hopeless and sent Geisz to the Cancer Research Center. In addition the patient and Elaine knew at the same time that the radiation treatments had caused a buildup of fluid around Geisz’s heart.

But Maryland appellate cases have required clearer and more definitive indications of malpractice than are presented here before holding that limitations bar the claim as a matter of law. For example, in Hahn v. Claybrook, supra, the plaintiff alleged that the defendant physician had negligently prescribed a drug which, when taken in the prescribed quantities, had caused the plaintiff’s skin to become discolored. The treatments had begun in 1904 and, although the plaintiff’s skin had turned blue by 1908, the plaintiff delayed suit until 1915. The patient in Decker v. Fink, 47 Md.App. 202 , 422 A.2d 389 (1980) complained that her psychiatrist had sexual relations with her during the course of a psychoanalysis which ended in 1971.

In 1973 another psychiatrist told the plaintiff that the defendant’s method of treatment violated medical standards. A suit filed in 1977 was barred by limitations as a matter of law despite the plaintiff’s contention that she had been influenced in the interim by the “transference phenomenon.” Although the issue primarily presented in Johns Hopkins Hosp. v. Lehninger, 48 Md.App. 549 , 429 A.2d 538 , cert. denied, 290 Md. 717 (1981) was whether equitable estoppel, not amounting to fraud, would prevent asserting limitations, the starting point for the discussion was the legal conclusion that limitations otherwise barred the suit. The plaintiff claimed a failure to diagnose deterioration of the neck of his right femur but a few days after the alleged misdiagnosis, the defendant had described possible complications to the plaintiff, including bone disintegration due to disruption of the femur’s blood supply. In a case of alleged malpractice involving the setting of a broken ankle by the defendant doctor, limitations began to run as a matter of law when, more than three years before suit was filed, a ³¹⁶ different doctor examined the plaintiffs ankle, told her it was “all messed up” and asked her “ ‘who the hell told you to walk on that ankle?’ ” Lutheran Hosp. v. Levy, 60 Md.App. 227, 233 , 482 A.2d 23, 25 (1984), cert. denied, 302 Md. 288 , 487 A.2d 292 (1985).

The facts in the matter before us are not as strong for a limitations bar as are the facts in the cases reviewed above. Indeed, the facts in the instant case are not as strong for a limitations bar as were the facts in Baysinger v. Schmid Prods. Co., 307 Md. 361 , 514 A.2d 1 (1986) where we reversed a summary judgment and held that the limitations defense presented a factual question. Mrs. Baysinger had begun using, in May 1979, an intrauterine contraceptive device manufactured by the defendant which, as alleged in her suit filed in January 1984, had caused peritonitis and infertility.

During a December 1979 hospitalization for peritonitis she asked her physician whether the defendant’s product was responsible. Although the plaintiff had been suspicious that the device had caused her condition, she had also been concerned that the cause might be toxic shock syndrome or sexual intercourse. The doctor told her that intrauterine devices had been associated in medical literature with pelvic infection but that he had no way of determining whether her infection was caused by the device or by some other, unrelated cause. We held that reasonable minds could differ on whether the plaintiff should have pursued inquiry beyond that which she made of her physician.

It was only after using the intrauterine device that Mrs. Baysinger developed abdominal and pelvic inflammation whereas Geisz had Hodgkin’s disease before he was referred by his surgeon to Dr. Richards. As head of the radiation therapy department at GBMC, Dr. Richards bore the indicia of competence to render, and supervise the rendering of, follow-up treatments to the cancer surgery. The many patients whom Geisz and Elaine observed waiting for treatment in Dr. Richards’s department, it may be inferred, represented referrals by numerous physicians and reinforced the confidence that Elaine ³¹⁷ and Geisz had in Dr. Richards. Elaine’s evidence is that she and Geisz labored under the belief that, despite the best possible care, Geisz was unfortunately within the five to ten percent of Hodgkin’s disease patients who did not respond to treatment.

After treatment by Dr. Richards was discontinued in November 1973, nothing was said to Geisz or Elaine by those involved with the heart sac surgery or by those associated with the experimental drug program which raised any question about the quality of care provided by Dr. Richards. A jury could conclude that the circumstances known to Geisz and Elaine would not cause reasonable persons in their position to undertake an investigation which, if pursued with reasonable diligence, would have led to knowledge of the alleged malpractice more than three years before the survival claim was asserted. In O’Hara v. Kovens, supra, a variety of nonliability hypotheses could have explained the facts known to the O’Hara plaintiffs so that limitations was a fact question. Similarly here, cancer which was not responding to proper treatment, as contrasted with cancer which was being negligently treated, could have explained Geisz’s deterioration and death.

The instant record presents a factual setting in which it may be impossible for a lay person, unskilled in medicine, “reasonably to understand or appreciate that actionable harm has been done him.” Waldman v. Rohrbaugh, supra, 241 Md. at 145 , 215 A.2d at 830 . On these facts, when the plaintiffs should have discovered the survival claim is a jury question. B The defendants submit that, even if the facts known to Geisz and Elaine during Geisz’s lifetime do not constitute discovery as a matter of law, accrual under CJ § 5-101 took place as a matter of law upon Geisz’s death on September 21, 1975. This result is said to flow from the holding of Trimper v. Porter-Hayden, supra, that a survival claim predicated on a latent disease accrues at death.

At all relevant times in Trimper , CJ § 5-101 was the only limita ³¹⁸ tions statute applicable to that survival claim. 6 We, however, refused to hold in Trimper that death is uniformly equated with discovery and that it therefore marks the time of accrual for all survival actions. We recognized that the judicial interpretations of “accrues” in CJ § 5-101 demonstrated a high degree of flexibility and that “the weight which one might assign to the competing, and indeed conflicting, [policy] considerations can vary depending on whether the case involves a latent disease, medical malpractice, strict products liability, lack of knowledge of the fact of death, or some other theory of liability or other factor.” 305 Md. at 49, 501 A.2d at 456 . Looking to the General Assembly’s evaluation of the competing policy considerations, we noted that a wrongful death claim based on a latent disease would then have to have been brought within three years after death under the plain language of CJ § 3-904(g). Additionally, although at that time there was no statute addressing limitations specifically in latent disease tort cases, workers’ compensation statutes required claims for disability or death resulting from an occupational disease to be filed within a fixed period from the date of disablement or death.

Finding no indication of a policy to permit accrual under § 5-101 to be postponed after death until some indefinite time of discovery, and applying the policy of repose underlying all statutes of limitations, Trim- ³¹⁹ per held that an undiscovered, latent disease claim accrues no later than death. In the case before us the statutory guidance concerning medical malpractice survival claims points to a public policy contrary to that applied in Trimper . Beginning July 1, 1975, § 5-109 established that an action for damages resulting from an “injury” arising out of the rendering of, or failure to render, professional services by a physician “shall be filed (1) within five years of the time the injury was committed or (2) within three years of the date when the injury was discovered, whichever is the shorter.” Because Geisz’s “injury” occurred between November 1971 and November 1973, no party argues that this medical malpractice statute of repose governs either claim in the instant action. See n. 3, supra.

Nevertheless, the statute is of considerable assistance in applying the Trimper rationale under which we weigh policy considerations. CJ § 5-109 clearly reinforces the policy of repose underlying all statutes of limitations and caps the discovery rule. But of significance for present purposes is that the bar at five years after injury deals with undiscovered claims while the three year period deals with claims which have been discovered. Thus, the undiscovered claim of a person who died from any cause a few days after the injury is not barred until five years after the injury.

Under the medical malpractice statute of repose a survival claim which remains undiscovered for more than three years after the death of the patient may still be brought if instituted within five years of the injury. Death of the patient is not a factor affecting limitations under § 5-109. Consequently, a ruling that a malpractice claim, based on an injury occurring prior to July 1, 1975, and governed by CJ § 5-101, “accrues” no later than death could, in a given case, shorten the five year period which the General Assembly considers to be the appropriate time at which to cut off undiscovered malprac ³²⁰ tice survival claims. 7 Also significant is that when enacting the medical malpractice statute of repose the General Assembly could have fixed the time at which undiscovered, pre-existing claims would be barred, but did not do so. Arguably after Hahn v. Claybrook was decided in 1917, and certainly after Waldman v. Rohrbaugh was decided in 1966, the accrual of a medical malpractice cause of action under the general three year statute of limitations has been determined by the discovery rule.

Prior to Trimper no Maryland decision had addressed how the death of the injured individual affected the discovery rule and the decisions in other states reflect a lack of consensus. See Trimper v. Porter-Hayden, supra, 305 Md. at 43-49, 501 A.2d at 452-56 . Nevertheless, the General Assembly limited the first medical malpractice statute of repose to injuries occurring on or after July 1, 1975. Chapter 545, § 2 of the Acts of 1975.

The absence of a retroactive feature is not due to constitutional prohibitions. Due process does not prohibit enacting a time bar for pre-existing undiscovered medical malpractice claims so long as a reasonable period following the effective date of the legislation is provided within which to assert pre-existing claims. See Allen v. Dovell, 193 Md. 359 , 66 A.2d 795 (1949). With respect to limitations on medical malpractice claims stemming from injuries occurring prior to July 1, 1975, and initially asserted as survival actions in reliance on ³²¹ the discovery rule, the General Assembly either has no policy or has a policy that discovery is the only bar to injuries incurred in that window of time.

Further, unlike the relationship of employer and nonmanagerial employee in the industrial setting involved in the occupational, latent disease claim presented in Trimper , the relation of physician and patient is a confidential relationship. See Sard v. Hardy, 34 Md.App. 217 , 367 A.2d 525 (1976) , rev’d on other grounds, 281 Md. 432 , 379 A.2d 1014 (1977) . For these reasons we conclude that Trimper does not control and that under CJ § 5-101 a medical malpractice survival claim predicated on an injury occurring prior to July 1, 1975, accrues upon discovery. IV A In this part IV we consider the wrongful death claim.

The threshold issue is whether CJ § 5-203 applies at all to a wrongful death claim. It is an issue of first impression in this state. Trimper v. Porter-Hayden, supra, held that the plain language of CJ § 3-904(g), providing that a wrongful death claim “shall be filed within three years after the death of the injured person,” precluded applying a judicially created discovery rule. The rule which the plaintiffs seek to have applied here, however, is the legislatively created discovery rule of CJ § 5-203.

On the other hand the defendants argue that the language of § 5-203, i.e., “the cause of action shall be deemed to accrue at the time when the party discovered ... the fraud,” applies only to a limitations provision which is expressed by using some form of the words, “accrue” or “accrual.” Under the defendants’ analysis CJ § 5-203 could not apply to the time limitation, “three years after ... death,” in the wrongful death statute. Maryland’s first wrongful death statute was enacted by Ch. 299 of the Acts of 1852. Present CJ § 5-203 was first ³²² enacted by Ch. 357 of the Acts of 1868. It was expressly applicable, prospectively, to “all actions” and thus literally embraced the then relatively new actions for wrongful death. 8 Although the present statute no longer expressly refers to “all actions,” it does not expressly exclude any action.

The words, “all actions,” were deleted by Ch. 2 of the Acts of the First Special Session of 1973 in the enactment of the CJ Article in the code revision process. In that process changes of language are presumed to be for clarity rather than to change meaning. “ ‘ “Thus, even a change in the phraseology of a statute by a codification will not ordinarily modify the law unless the change is so material that the ■ intention of the General Assembly to modify the law appears unmistakably from the language of the Code.” ’ ” Rohrbaugh v. Estate of Stern, 305 Md. 443, 449 , 505 A.2d 113, 116 (1986) (quoting Consumer Protection v. Consumer Publishing Co., 304 Md. 731, 768 , 501 A.2d 48, 67 (1985) (quoting In re Special Investigation No. 236, 295 Md. 573, 576-77 , 458 A.2d 75, 76 (1983)). Further, although the time period specified in the wrongful death statute is not an ordinary statute of limitations but is part of the substantive right of action, see Trimper v. Porter-Hayden, supra, 305 Md. at 35, 501 A.2d at 449 , a wrongful death claim may be considered to accrue at death under CJ § 3-904(g). It is not inconsistent with the text of either §. 3-904(g) or § 5-203 to “deem” a fraudulently concealed wrongful death claim to accrue on discovery rather than on death.

The reasoning of Chandlee v.