Geisz v. Greater Baltimore Medical Center

WILNER, Judge. We have before us a very serious medical malpractice case. 1 The issues on appeal concern not the alleged malpractice, however, but only whether the plaintiff brought her actions within the applicable period of limitations. The Circuit Court for Baltimore County, ruling on defense motions for summary judgment, concluded that the actions were not filed timely and, on that account, entered judgments in favor of the various defendants. Elaine Geisz, as personal representative of the estate of Steven F. Geisz and as mother of the minor child of Steven and Elaine Giesz, alleges that in November, 1971, following a diagnosis of Hodgkin’s disease, her former husband Steven was referred for treatment to Dr. George J. Richards, Jr. (Richards), who was then the head of the Radiation Therapy Department of Greater Baltimore Medical Center (GBMC).

According to Ms. Geisz, Richards misrepresented his ability to treat Steven competently, improperly treated him with radiation and chemical therapy, failed to stem the spread or worsening of the cancer, and caused additional injury from the treatment, ultimately leading to Steven’s death in 1975. Richards and GBMC are both named as ⁵⁴¹ defendants, along with a professional association through which Richards practiced at the time of treatment (P.A.). In her “survival” actions, filed pursuant to Md.Code Ann.Est. & Trusts art., § 7-401(x), 2 Ms. Geisz charges Richards, GBMC, and the P.A. with negligence (Count I), failure to obtain Steven’s informed consent (Count II), and fraud (Count V). GBMC and the P.A., in addition, are charged with the negligent retention of Richards (Count III) and negligently entrusting him with radiation therapy facilities and equipment and with chemotherapy drugs (Count IV).

These actions were initially filed in Circuit Court on November 18, 1985. They had not been previously submitted to the mandatory arbitration process provided for in Cts. & Jud.Proc. art., § 3-2A-01 et seq., on the theory that the “medical injury” sued upon occurred prior to July 1, 1976. 3 A. Alleged Facts Steven Geisz was first referred to Richards in November, 1971. The complaint alleges that (1) with appropriate treatment, he had a “high chance of complete cure” at that time and that Richards in fact told him that he had “a 95% probability of complete cure,” (2) Richards directed immediate radiation therapy without consulting other physicians and without preparing a treatment plan, (3) Richards and technicians under his control administered 43 treatments between November, 1971, and January, 1972, but the treatments were inadequate to effect a cure, (4) in February, 1972, Richards began administering chemotherapy, (5) in April, 1972, the disease returned and spread, (6) from May ⁵⁴² to August, 1972, Richards started a second series of radiation therapy, followed by chemotherapy, (7) in November, 1972, the disease returned again, and more aggressive chemotherapy commenced, (8) in mid-1973, an increasing cardiac silhouette was noticed, leading to surgery in October to remove fluid in the heart sac, (9) in November, 1973, Mr. Geisz was referred to the University of Maryland Cancer Research Center, which took over his treatment, (10) the disease was then too far advanced for cure, and (11) Mr. Geisz died in September, 1975. All of the acts or omissions sued upon by Ms. Geisz occurred prior to July 1, 1975.

Accordingly, the statute of limitations applicable to her “survival” actions — Counts IV — is that set forth in Cts. & Jud.Proc. art., § 5-101: 4 “A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.” The issue as to those actions is when they “accrued.” Ms. Geisz contends that the defendants “fraudulently concealed” their wrongdoing and thus seeks to invoke the provisions of Cts. & Jud.Proc. art., § 5-203: “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.” The fraud alleged by Ms. Geisz in this regard is essentially that set forth in Count V of the amended complaint. As supplemented by her affidavit and deposition testimony, she complains of three sets of representations made by Richards. ⁵⁴³ The first set occurred at the initial interview with Richards, prior to the commencement of treatment. Ms. Geisz asserts that Richards told her and Mr. Geisz that “he was an expert in radiation therapy,” that “his Radiation Therapy Department used the most up-to-date and advanced techniques and methods in the treatment of cancer, including Hodgkin’s Disease,” that its results in that regard were “as good as any other hospital in the country,” that GBMC had “ ‘the best that there was to offer’ in the way of facilities, equipment, and staff,” and that Mr. Geisz “had a 95% chance of cure.” These representations, she insists, which led Mr. Geisz to undergo treatment by Richards at GBMC, were false when made and were known by Richards to be false. In support of that averment, Ms. Geisz offered evidence that (1) Richards and the Radiation Therapy Department were treating far too many patients to be able to treat them competently, (2) some of the technicians employed were not properly trained and were not properly supervised, (3) the Department was understaffed and lacked adequate equipment, and (4) Richards’s methodology did not comport with accepted practice.

All of this, she argues, establishes that the Department did not offer the best, most up-to-date methods and techniques. The second set of representations occurred during the course of treatment — between November, 1971 and November, 1973. Notwithstanding the worsening of Mr. Geisz’s condition, Richards stated that Mr. Geisz was receiving “the best and most up-to-date treatment available” and that he was simply “one of the unfortunate people who was not responding to treatment.” Having trust and confidence in Richards, the Geiszes accepted this explanation, which Ms. Geisz now asserts was knowingly false, and did not seek alternative advice or treatment. The final set of alleged misstatements occurred in November, 1973, when, in referring Mr. Geisz to the University of Maryland Cancer Center, Richards said that “although he had given us everything available,” Geisz “was ‘at the ⁵⁴⁴ low end of the statistics’ and was not responding to treatment.” Even after the referral, Ms. Geisz avers, Richards’s treatment was never questioned by the Cancer Center physicians: “We never heard any statements from the staff at the Cancer Research Center to the effect that Mr. Geisz had not received the best care at GBMC.

We had no cause to question or doubt that Dr. Richards had done everything available for Mr. Geisz and in fact, when other patients at the Cancer Research Center spoke highly of Dr. Richards, our admiration and trust in him was heightened.” As a result of all this, Ms. Geisz claims that she remained in ignorance of any wrongdoing until she read an article in a local newspaper in January, 1985, mentioning other malpractice actions against Richards and GBMC. The court concluded that these averments did not suffice to show fraud and that, in the absence of fraud, Ms. Geisz’s “survival” actions “accrued,” at the latest, upon Mr. Geisz’s death in September, 1975. That latter conclusion was based on principles enunciated in Trimper v. Porter-Hayden, 305 Md. 31 , 501 A.2d 446 (1985). Ms. Geisz contends here that the court erred in failing to find sufficient evidence, for summary judgment purposes, of fraud and in applying the Trimper analysis to a malpractice action governed by Cts. & Jud.Proc. art., § 5-101.

The issue as to Ms. Geisz's “wrongful death” action is similar in some respects. That action is authorized by Md.Code Ann.Cts. & Jud.Proc. art., §§ 3-902 and 3-904. Section 3-904(g) provides, however, that “[a]n action under this subtitle shall be filed within three years after the death of the injured person.” It is clear, of course, that Ms. Geisz did not meet that deadline. As with her “survival” actions, she seeks refuge in § 5-203, arguing that § 5-203 operates as a “statutory exception” to § 3-904(g), and that the defendants’ fraud sufficed to extend the time for filing her action.

The Circuit Court agreed with her that § 5-203 acts as an exception to § 3-904(g), but, in light of its finding that there was insufficient evidence of fraudulent conceal ⁵⁴⁵ ment, concluded that, in the particular case, § 5-203 was not applicable. Ms. Geisz defends the court’s conclusion as to the legal effect of § 5-203 but challenges its finding as to the nonexistence of fraud. B. Fraudulent Concealment As the timeliness of both the “survival” and the “wrongful death” actions hinges, in large measure, on the adequacy of Ms. Geisz’s averments of fraudulent concealment, we begin our analysis with that question. The first step in that analysis is to define the context of it.

In O’Hara v. Kovens, 305 Md. 280 , 503 A.2d 1313 (1986), the Court observed that an issue of timeliness under a given statute of limitations may involve questions of both fact and law, and that, when the issue is raised in a motion for summary judgment, the normal standards applicable to summary judgment proceedings apply. The motion should not be granted unless the movant is entitled to judgment as a matter of law, and if there is any genuine dispute of material fact bearing on the question, it is inappropriate to decide the question on summary judgment. In determining whether such a genuine dispute exists, and generally whether the movant is entitled to judgment as a matter of law, the evidence before the court and all inferences fairly deducible from that evidence must be construed against the movant. Leonhart v. Atkinson, 265 Md. 219 , 289 A.2d 1 (1972); Berkey v. Delia, 287 Md. 302 , 413 A.2d 170 (1980).

Under this standard, the credibility of the various affiants is not relevant. Nor, in this setting, are the exculpatory explanations offered by Richards or by witnesses on his or GBMC’s or P.A.’s behalf. We take Ms. Geisz’s averments and the evidence offered in support of them at face value, giving her every reasonable benefit of doubt, and simply look to see whether they would suffice, if believed, to permit a trier of fact to conclude that her actions were filed timely. If so, summary judgment was inappropriate; if not, it was not only appropriate but called for by Md. Rule 2-501. ⁵⁴⁶ The Circuit Court rejected Ms. Geisz’s claim of fraud principally on the ground that she failed to show that Richards actually believed the various statements attributed to him were false or that he made the statements with reckless disregard of their truth or falsity.

The deficiency, in other words, was in proof of scienter. The court looked, in part, to exculpatory statements in Richards’s deposition testimony, given in another case but admitted in this one as well, and denigrated contrary opinions by other witnesses as being in the nature of hindsight disagreements or evaluations. We do not believe that summary judgment was appropriate on that basis. In the first place, though continually claiming that the treatment administered by him and GBMC was of high quality, Richards also conceded in his deposition testimony that there were serious deficiencies in the Department of which he was aware.

He acknowledged that the Department was understaffed, that at least until 1975 it did not have adequate equipment, that there was no backup supervision beyond himself, that GBMC “most certainly failed to properly safeguard and preserve [medical] records,” that the technicians in the Department “were negligent in the administration of radiation therapy using carelessly made diagrams of treatment fields that were unable to be related to anatomical landmarks,” that, because of a shortage of personnel, “they may have taken some shortcuts in patient care that I would not most certainly have approved of,” and that there was excessive waiting time for patients — “an ill patient may have waited a much longer period of time than they normally ought to have waited for their treatment.” Whether or not any of this would suffice as evidence of fraud, it does at least suffice to lend an inference that Richards was aware that some of his alleged statements concerning the Radiation Therapy Department were not accurate. More