Jacobs v. Flynn

³⁵⁰ ADKINS, Judge. This medical malpractice case revolves around the events that led to the paralysis of Leo M. Jacobs, 1 appellant/cross appellee. Mr. Jacobs brought a negligence suit against: ap-pellees/cross appellants, Dr. Thomas MacLean, MacLean, Ap-plestein & Kishel, M.D., P.A.; appellees, Drs. John Kishel, Marc Applestein, Meade Flynn, Gregory McCormack, and Howard County General Hospital (“HCGH”); and Dr. Jerry Seals. 2 Dr. Seals settled the claim against him before trial and a trial by jury proceeded against the remaining defendants.

The jury returned a verdict in favor of Mr. Jacobs against Dr. MacLean, MacLean, Applestein & Kishel, M.D., P.A. and Dr. Flynn only, and awarded Mr. Jacobs $1,240,000. The trial judge later directed a verdict in favor of Dr. Flynn based on the applicable statute of limitations and reduced the judgment against Dr. MacLean to $620,000 based on the settlement with Dr. Seals and the application of the Maryland Contribution Among Joint Tort-Feasors Act. Both Mr. Jacobs and Dr. MacLean have raised a number of issues on appeal: I. Whether the trial court erred in denying motion for judgment and motion for judgment not withstanding the verdict filed by Dr. MacLean and MacLean, Ap-plestein & Kishel, M.D., P.A.?

II

Whether the trial court erred in ruling, as a matter of law, that Mr. Jacobs’s claim against Dr. Flynn was barred by the statute of limitations?

III

Whether the trial court erred in reducing the judgment against Dr. MacLean by one half pursuant to the Maryland Contribution Among Joint Tort-Feasors Act? ³⁵¹ IV. Whether the trial court erred by refusing to admit certain medical records? V. Whether the trial court erroneously instructed the jury on apparent agency? FACTS Mr. Jacobs had been deaf and mute since birth.

Despite his disability, he had an active lifestyle and worked for the deaf community. In February of 1991, Mr. Jacobs was vacationing in California. When he arrived in California, he began to experience severe back pain and a fever. On February 2, Mr. Jacobs checked into Washington Hospital in Freemont, California.

He was hospitalized for approximately nine days in California and treated for back pain and fever. While in the hospital, Mr. Jacobs received treatment from Dr. Ahmed Sadiq, a specialist in oncology, and Dr. Muni Barash, a specialist in infectious diseases. Mr. Jacobs testified that he told these doctors that he was experiencing pain in the middle of his back. These doctors told Mr. Jacobs that his back pain was caused by metastatic prostate cancer.

After being discharged from the hospital on February 11, Mr. Jacobs remained in California and continued to receive treatment for his back pain from various health care providers. Mr. Jacobs returned to his home in Laurel, Maryland, on February 22, 1991. On February 25, 1991, Mr. Jacobs went to see Dr. Mac-Lean. Dr. MacLean was a urologist who had previously treated Mr. Jacobs for prostate related problems.

Dr. Mac-Lean immediately admitted Mr. Jacobs to HCGH in order to evaluate the cancer diagnosis. That day, Dr. MacLean ordered a blood test and a lumbosacral (lower back) spine x-ray. Dr. MacLean testified that he did not order an x-ray for the middle of Mr. Jacobs’s back because Mr. Jacobs did not inform him that he was experiencing pain in that region. Dr. MacLean testified that he had to leave town on February 26 for personal reasons.

At this point, Dr. MacLean ³⁵² turned over Mr. Jacobs’s case to his partners, Drs. Applestein and Kishel, both urologists. Dr. Applestein testified that he began treating Mr. Jacobs on February 27 and that he called Dr. Sadiq in California and Dr. Sadiq told him that he believed that Mr. Jacobs did not have cancer. At this point, Dr. Applestein believed that Mr. Jacobs’s back pain might be caused by an infection rather than cancer.

Accordingly, Dr. Applestein called Dr. Seals, an infectious disease specialist. Dr. Seals ordered that a number of tests be done on Mr. Jacobs, including a bone scan, in order to investigate the probability of osteomyelitis, “which can also give birth to the epidural abscess.” At the same time, Drs. Applestein and Kishel, who examined Mr. Jacobs on February 28, continued to investigate possible urological causes for Mr. Jacobs’s pain. By March 2, 1991, based on various tests, Drs.

Applestein and Kishel ruled out urological causes for the back pain. Dr. Flynn interpreted the bone scan as normal. At this point, Dr. Seals continued his treatment of Mr. Jacobs and called in a rheumatologist, 3 Dr. McCormack, to investigate whether Mr. Jacobs’s pain was caused by a more chronic problem. Dr. MacLean again became involved with Mr. Jacobs’s care on March 4, 1991.

At Dr. McCormack’s suggestion, Dr. MacLean ordered an MRI scan of Mr. Jacobs’s lower back. The MRI was not ordered on a “stat” basis. As a result, the MRI scan was not performed until March 6 and no doctor inquired as to the MRI results until March 7. Mr. Jacobs’s condition worsened on March 5.

On March 7, when Mr. Jacobs reported problems with leg weakness, Drs. McCormack and Seals ordered a neurological consult. Subsequently, Mr. Jacobs was transferred to the University of Maryland Hospital. At the University of Maryland Hospital, Mr. Jacobs was diagnosed with an epidural abscess, a pocket ³⁵³ of pus or inflammation outside of the spinal cord.

The infection from the abscess caused Mr. Jacobs to become permanently paralyzed from the mid-waist level down. Mr. Jacobs required hospitalization for five months and then spent another seventeen months in an assisted living environment. He died from apparently unrelated causes in December 1998. DISCUSSION I. The trial court properly denied Dr. MacLean’s motion for judgment and judgment not withstanding the verdict.

A party is entitled to a judgment not withstanding the verdict (JNOV) when the evidence at the close of the case, taken in the light most favorable to the nonmoving party, does not legally support the nonmoving party’s claim or defense. See Bartholomee v. Casey, 103 Md.App. 34, 51 , 651 A.2d 908 (1994), cert. denied, 338 Md. 557 , 659 A.2d 1293 (1995). In reviewing the denial of a JNOV, we “ ‘must resolve all conflicts in the evidence in favor of the plaintiff and must assume the truth of all evidence and inferences as may naturally and legitimately be deduced therefrom which tend to support the plaintiffs right to recover....’” Houston v. Safeway Stores, Inc., 346 Md. 503, 521 , 697 A.2d 851 (1997) (quoting Smith v. Bernfeld, 226 Md. 400, 405 , 174 A.2d 53 (1961)). If the record discloses any legally relevant and competent evidence, however slight, from which the jury could rationally find as it did, we must affirm the denial of the motion.

See Franklin v. Gupta, 81 Md.App. 345, 354 , 567 A.2d 524 , cert. denied, 319 Md. 303 , 572 A.2d 182 (1990). If the evidence, however, does not rise above speculation, hypothesis, and conjecture, and does not lead to the jury’s conclusion with reasonable certainty, then the denial of the JNOV was error. See Bartholomee, 103 Md.App. at 51 , 651 A.2d 908 . Nevertheless, “[o]nly where reasonable minds cannot differ in the conclusions to be drawn from the evidence, after it has been viewed in the light most favorable to the plaintiff, does the issue in question become ³⁵⁴ one of law for the court and not of fact for the jury.” Pickett v. Haislip, 73 Md.App. 89, 98 , 533 A.2d 287 (1987), cert. denied, 311 Md. 719 , 537 A.2d 273 (1988).

Dr. MacLean contends that the trial court erred in denying his motion for judgment and JNOV because the evidence presented at trial was not legally sufficient to establish that his negligence was the proximate cause of Mr. Jacobs’s paraplegia. Specifically, Dr. MacLean asserts that the testimony of the plaintiffs expert witnesses, Drs. David Andrews and Jack Kaufman, and the testimony of the opposition’s expert witness, Dr. Bruce Ammerman, did not establish to a reasonable degree of medical probability that different conduct by Dr. MacLean would have prevented Mr. Jacobs’s paraplegia. In order to establish a prima facie case of medical negligence, a plaintiff must establish: (1) the applicable standard of care; (2) that this standard has been violated; and (3) that this violation caused the complained of harm.

See Weimer v. Hetrick, 309 Md. 536, 553 , 525 A.2d 643 (1987) (quoting Waffen v. U.S. Dep’t of Health & Human Servs., 799 F.2d 911, 915 (4th Cir.1986)). As with other cases, in order to prove causation, a medical malpractice plaintiff must establish that but for the negligence of the defendant, the injury would not have occurred. See Suburban Hosp. Ass’n, Inc. v. Mewhinney, 230 Md. 480, 484-85 , 187 A.2d 671 (1963).

Because of the complex nature of medical malpractice cases, expert testimony is normally required to establish breach of the standard of care and causation. See Meda v. Brown, 318 Md. 418, 428 , 569 A.2d 202 (1990). Generally, we have required expert opinions to be established within a reasonable degree of probability. See Karl v. Davis, 100 Md.App. 42, 51-52 , 639 A.2d 214 , cert. denied, 336 Md. 224 , 647 A.2d 444 (1994).

Nevertheless, decisions by the Court of Appeals have held that the expert testimony itself need not establish a probable causal relationship. As the Court has previously explained: ³⁵⁵ The law requires proof of probable, not merely possible, facts, including causal relations.... But, sequence of events, plus proof of possible causal relation, may amount to proof of probable causal relation, in the absence of evidence of any other equally probable cause. Charlton Bros.

Transp. Co., Inc. v. Garrettson, 188 Md. 85, 94 , 51 A.2d 642 (1947) (emphasis in original). For example, in Hughes v. Carter, 286 Md. 484 , 204 A.2d 566 (1964), the plaintiff claimed that she suffered pneumonia as a result of an automobile accident. Her attending physician testified that pneumonia “was sometimes caused by a patient being confined to bed, and sometimes it followed a compression-type injury to the chest[,]” and that the plaintiff had suffered such an injury.

Id. at 486, 204 A.2d 566 . The physician also testified that the plaintiff showed no signs of pneumonia when she was treated on the night of the accident. When, however, asked whether the accident caused the pneumonia, he “[f]irst said it was possible, then that it was probable, and finally that he would not ‘pin it down.’ ” Id. The Court held that there was sufficient evidence of a causal connection to submit the question of causation to the jury.

See id. Relying on these decisions, we stated in Karl that an expert’s testimony to a reasonable degree of probability is not always essential to prove causation; rather, a plaintiffs burden of proof will be satisfied by expert testimony “with respect to causation as to what is possible if, in conjunction with that testimony, there is additional evidence of causation introduced at trial that allows the finder of fact to determine that issue.” Karl, 100 Md.App. at 52 , 639 A.2d 214 . Therefore, our inquiry on appeal is whether, based on the entire record, a reasonable jury could have found that the negligence of Dr. MacLean was a proximate cause of Mr. Jacobs’s paraplegia. Reasonable “[p]robability exists when there is more evidence in favor of a proposition than against it (a greater than 50% chance that a future consequence will occur).” Cooper v. Hartman, 311 Md. 259, 270 , 533 A.2d 1294 (1987) ³⁵⁶ (quoting Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 666 , 464 A.2d 1020 (1983)) (emphasis omitted).

For example, in Franklin an expert testified about five instances where the standard of care was breached and testified that the patient’s condition would have been less likely to occur absent the breach. See Franklin, 81 Md.App. at 361 , 567 A.2d 524 . We held that this testimony satisfied the causation element. “[The expert concluded] ‘the events would have not occurred, or would have been less likely to have occurred....’ We find that sufficient.” Id. Likewise, in Meda , the plaintiff claimed that her arm was injured because it was improperly secured while she was under anesthesia during an operation.

See Meda, 318 Md. at 425-26 , 569 A.2d 202 . The expert in Meda could not testify exactly how the arm was injured, but rather, relied on circumstantial evidence in forming his opinion. The Court of Appeals found this testimony sufficient to reverse the trial court’s grant of a JNOV because “the facts had support in the record, and the reasoning employed was based upon logic rather than speculation or conjecture.” Id. at 428 , 569 A.2d 202 . Both Mr. Jacobs and Dr. MacLean presented expert witnesses to testify regarding causation and the probability that Mr. Jacobs’s condition could have been prevented.

A major focus of the testimony of these experts was on the question of whether Mr. Jacobs’s condition could have been prevented by surgery. Dr. David Andrews, a neurosurgeon, testified on behalf of Mr. Jacobs regarding causation. He stated that “in most cases [involving an epidural abscess] surgery is indicated.” He explained: Only in instances where patients are neurologically intact would we consider watching them medically, i.e. just treating them with antibiotics and examining them carefully over time.... The most compelling picture [for surgery] is one in which a patient has a documented epidural abscess, is on the appropriate antibiotics and starts losing neurological function.

That’s a situation in which neurosurgeons would ³⁵⁷ then intervene and operate on the spine to open up the canal, debride the area, obtain specimens to make sure you have the appropriate antibiotic coverage.... Dr. Andrews testified that Mr. Jacobs was a candidate for treatment by a neurosurgeon at HCGH. The following exchange also took place between Dr. Andrews and Mr. Jacobs’s counsel: [COUNSEL]: Do you have an opinion to a reasonable degree of professional probability as to whether or not Mr. Jacobs’[s] paraplegia could have been prevented or would have been prevented had Mr. Jacobs been referred to a neurosurgery unit such as yourself by March 1, 1991? [DR. ANDREWS]: He could have been paralyzed under any circumstance.

The best chance of neurologic recovery or maintenance of normal neurological function however would have probably ... been with neurological intervention. [COUNSEL]: Were there any indications in Mr. Jacobs’[s] course from [March 1] on that would have indicated to a neurosurgeon that he was a candidate for either surgical intervention or some other therapy? [DR. ANDREWS]: Yes. Dr. Andrews testified that MRI exams taken on Mr. Jacobs’s back after the March 8 myelogram showed spinal cord compression. Dr. MacLean’s expert witness, Dr. Ammerman, opined that Dr. MacLean’s negligence was not the proximate cause of Mr. Jacobs’s paraplegia because Mr. Jacobs never had compression in his spinal cord. “Cord compression,” he said, was “pressure on the spinal cord,” “as though I were to take my hands and put them around somebody’s neck and squeeze.” Dr. Ammerman opined that only patients who have an epidural abscess caused by cord compression are viable surgical candidates.

He explained, however, that cord compression is the most common way in which an epidural abscess causes damage to the spinal cord: ³⁵⁸ The most common is that there is compression on the spinal cord itself.... [T]hat compression, that pressure causes a lack of blood flow to the spinal cord and the spinal cord has a stroke and the patient becomes paralyzed.... In some patients they don’t have compression. The inflammation is enough in this group to cause the blood vessels to become inflamed and to block up, to stop working. During cross-examination, Dr. Ammerman acknowledged that if Mr. Jacobs had a spinal cord compression, he would have been a viable surgical candidate, and surgery should have been performed immediately.

Although Dr. Ammerman testified that a myelography 4 performed on Mr. Jacobs on March 8, 1991, showed no signs of cord compression, he reluctantly admitted that an MRI performed on March 7, 1991, showed Mr. Jacobs had spinal cord compression: [Counsel]: Now did the MRI that you looked at on March the 7th, 1991 show evidence of cord compression? * * * [Dr. Ammerman]: It’s described as showing displacement of the cord posteriorly.... [Counsel]: Well, that’s cord compression, correct? [Dr. Ammerman]: That’s what they’re describing in this report, correct. [Counsel]: So as of March 7 th, 1991 the MRI does show evidence of cord compression, correct? [Dr. Ammerman]: The person who described this, does. As it turns out on the myelogram, which I have reviewed, which is the gold standard, the film was over read, because there is no cord compression. In light of the agreement by Dr. Andrews and Dr. Ammerman that Mr. Jacobs was a viable candidate for surgery if he had cord compression in his spine, we think it reasonable for the jury to infer that Dr. MacLean’s failure to ³⁵⁹ refer Mr. Jacobs to a neurologist had a causal relation to his paralysis. Dr. MacLean’s expert, Dr. Ammerman, acknowledged that the most common type of epidural abscess is that caused by a cord compression.

He further agreed that surgery should be performed immediately when it is discovered that a patient suffers from spinal cord compression. The MRIs done on March 7 and after showing cord compression provided the jury with evidence that Mr. Jacobs did, in fact have cord compression. As we indicated, the expert testimony itself need not establish the probable cause relationship, and the jury may rely on other circumstances. See Charlton, Bros., 188 Md. at 94 , 51 A.2d 642 .

While Dr. Ammerman challenged the significance of the MRI showing that there was cord compression, the jury was free to disregard his testimony, and conclude that Mr. Jacobs suffered from cord compression. If the jury concluded that cord compression was present, its conclusion that Mr. Jacobs’s paraplegia probably would have been prevented, absent Dr. MacLean’s negligence, is supported by the testimony of both experts and the evidence offered at trial. Although none of the doctors who testified could state to a medical certainty that Mr. Jacobs would not have been paralyzed if he was immediately referred to a neurosurgeon, the test is one of reasonable probability. See Karl, 100 Md.App. at 51-52 , 639 A.2d 214 .

The evidence regarding causation was not limited to the curative effect of surgery. There was also expert testimony that Mr. Jacobs would not have been paralyzed if he had received appropriate antibiotic therapy throughout the course of his treatment. On cross-examination, Dr. Ammerman testified that when a patient has an epidural abscess, but no spinal cord block, the patient should be treated with antibiotics and “many times ... that’s the end of it[,][t]he patient does not become paraplegic.” Additionally, Dr. Andrews testified that Mr. Jacobs was a candidate for antibiotic therapy and explained how the treatment should be properly initiated and monitored. Moreover, Dr. Jack Kaufman, an internist, who testified as an expert witness regarding the standard of care, stated that antibiotic treatment “will usually work.” The jury ³⁶⁰ could have reasonably concluded that the failure to give proper antibiotic treatment caused Mr. Jacobs’s paralysis.

Accordingly, the trial court did not err in denying the motion for JNOV.

II

The trial court did not err by ruling as a matter of law that Mr. Jacobs’s action against Dr. Flynn was barred by the statute of limitations. Mr. Jacobs’s claim against Dr. Flynn is based on the theory that Dr. Flynn negligently reported the bone scan given to Mr. Jacobs on March 2,1991, as “normal,” when the bone scan showed the presence of an epidural abscess. Dr. Flynn was not a defendant in the initial suit and was not added as a defendant until May 8, 1995. Dr. Flynn moved for summary judgment in both the Health Claims Arbitration Office (“HCAO”) and the circuit court based on the statute of limitations.

At the close of the evidence in the circuit court, the trial judge granted judgment in favor of Dr. Flynn, holding that Mr. Jacobs’s claim was barred by the statute of limitations. The court explained: I believe that the Plaintiffs claim against Dr. Flynn is barred by the limitations---- I believe the Plaintiff has to within the statute, within three years, has to have discovered his injury. I don’t believe that he need[s] to know the mechanics of his injury. I don’t even know that he need[s] to know -with specificity who caused his injury.

The evidence in this case is, that in the spring of ’91, he realized that he was paralyzed and that it was the product of negligence. I think he then was put on notice, go out and muster your case, drum up a case against whoever you think caused your injuries.... [I]n the spring of ’91, the Plaintiff, his two daughters, realized that, or had reason to believe, well specifically, that he had been injured likely as the result of negligence on parts of physicians associated with likely his hospitalization in Howard County.... [N]o ³⁶¹ reasoning juror as I see it could conclude that in the spring of ’91 he wasn’t aware of his injury.... [A]nd that’s the issue. Mr. Jacobs argues that the trial court erred by treating the date Mr. Jacobs discovered he was injured as the accrual of his cause of action. He asserts that: (1) the limitations period did not begin to run until he was on notice of his claim against Dr. Flynn; and (2) reasonable minds could differ as to whether Mr. Jacobs, in the exercise of due care and diligence, would have discovered his claims against Dr. Flynn by May 8, 1992.

We disagree with Mr. Jacobs and affirm the judgment in favor of Dr. Flynn on the limitations ground. A trial court should grant a motion for summary judgment only when the movant clearly demonstrates the absence of any genuine issue of material fact and demonstrates that it is entitled to judgment as a matter of law. See Beatty v. Trailmaster Prods. Inc., 330 Md. 726, 737 , 625 A.2d 1005 (1993).

In determining whether the grant of a motion for summary judgment is appropriate, the “reviewing court [should] resolve all inferences to be drawn from the pleadings, admissions, and affidavits, etc. against the moving party.” Hartford Ins. Co. v. Manor Inn of Bethesda, Inc., 335 Md. 135, 145 , 642 A.2d 219 (1994). The statute of limitations applicable in this case is three years from the date the injury was discovered. See Md.Code (1974, 1998 Repl.Vol.), § 5-109(a)(2) of the Courts & Judicial Proceedings Article (C & J).

Maryland follows the “discovery rule” under which “the cause of action accrues when the claimant in fact knew or reasonably should have known of the wrong.” Poffenberger v. Risser, 290 Md. 631, 636 , 431 A.2d 677 (1981). Thus, a claimant will be charged with notice, and the statute will begin to run when: 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. ³⁶² O’Hara v. Kovens, 305 Md. 280, 287 , 503 A.2d 1313 (1986) (quoting Poffenberger, 290 Md. at 637 , 431 A.2d 677 (alteration in original)). This aspect of limitations law is known as the discovery rule. See Pennwalt Corp. v. Nasios, 314 Md. 433, 438 , 550 A.2d 1155 (1988).

It applies in medical malpractice actions as well as other negligence suits. See Young v. Medlantic Lab. Partnership, 125 Md.App. 299 , 725 A.2d 572 , cert. denied, 354 Md. 572 , 731 A.2d 970 (1999). In Conaway v. State, 90 Md.App. 234 , 600 A.2d 1133 (1992), we were called upon to apply the discovery rale in a suit for medical malpractice in a situation similar to the present one.

In Conaway , the plaintiff, a prison inmate, alleged permanent injury to his finger caused by negligence of the prison health care provider in treating the finger when it was broken. Conaway first filed his claim in the HCAO against the State. The State alleged, inter alia, that Conaway “had not exhausted his administrative remedies as he did not file a claim with the Inmate Grievance Commission (IGC).” Id. at 238 , 600 A.2d 1133 . While investigating this defense, Conaway’s attorney learned that the health care services provided to Conaway were not provided by state employees, but by a company with which the State contracted to provide medical care to inmates.

See id. As a result, Conaway amended his HCAO complaint to include the State’s then current health care provider. While the litigation was pending before the HCAO, Conaway’s attorney learned that the current provider was not the State’s health care provider at the time medical treatment was rendered to Conaway. Rather, Frank Basil, Inc. (Basil) was under contract with the State and rendered treatment to Conaway in May 1986 when his finger was broken.

Conaway amended his claim to include Basil, but both the HCAO and later the circuit court granted summary judgment in favor of Basil because the amendment was filed more than three years after discovery of the injury. On appeal, Conaway contended “that, under the discovery rale, his claim against Basil did not accrue until December of ³⁶³ 1989, when he learned of Basil’s involvement in the case.” Id. at 251 , 600 A.2d 1133 . He based his argument on the theory that knowledge of the identity of a particular defendant who caused the harm is an essential part of his cause of action, and that the cause of action should not accrue until he learns the identity of that party. See id. at 253 , 600 A.2d 1133 .

In rejecting this contention, Judge Rosalyn Bell, writing for this Court, reasoned: Appellant was injured in May, 1986, and the allegedly negligent treatment by Basil occurred that same month. In August, 1986, appellant wrote a letter to his attorney, claiming that he had been improperly treated. In September, 1986, appellant’s counsel wrote a letter to the State, requesting medical records and other information regarding appellant’s treatment. We hold that appellant was aware of the circumstances surrounding his claim no later than September 8, 1986, and that he had three years from that date to bring suit against the proper parties.

Appellant did not amend his complaint before the HCAO to include Basil until January, 1990, more than three years later. On that basis, we hold that appellant’s claim against Basil was barred by the three-year statute of limitations set forth in § 5-109 of the Courts and Judicial Proceedings Article. Id. at 252-53, 600 A.2d 1133 (footnote omitted). The Court in Conaway relied in part on the Court of Appeals decision in Ferrucci v. Jack, 255 Md. 523 , 258 A.2d 414 (1969), and summarized Ferrucci as follows: In that case, plaintiff sued a corporation which owned an apartment complex for injuries incurred while on the apartment grounds.

Only after the three-year statute of limitations had run did the plaintiff discover that the corporation did not own the apartment complex at the time he incurred his injuries. Nevertheless, the Court of Appeals held that the statute of limitations barred his claim. Id. at 254, 600 A.2d 1133 . The Court of Appeals in Ferrucci reasoned: ³⁶⁴ It scarcely need be said that ownership of the apartments could have been established by Ferrucci prior to the filing of his suit by an examination of the land records.

A failure to do so is evidence of lack of the ordinary diligence required of a person seeking to toll the running of the statute---- A litigant who fails to avail himself of the provisions of our rules of procedure which allow liberal pre-trial discovery cannot be permitted to maintain that his opponent is under a duty to volunteer information which could have been gained from discovery, much less from an examination of public records. Ferrucci, 255 Md. at 525 , 258 A.2d 414 . The present case has significant similarities to Conaway and Ferrucci . All three cases involve: (1) the plaintiffs knowledge from an early date that he was injured, that he had a cause of action, and the nature of the cause of action; (2) the filing of suit against some party within three years of the injury; and (8) the plaintiffs belated discovery of a tort-feasor’s identity.

Mr. Jacobs relies heavily on our recent decision in Young to support his contention that the question of limitations should be submitted to the jury. In Young , the plaintiff sued her gynecologist after she suffered a rupturing of the fallopian tube as a result of a failed abortion. In her suit, Ms. Young claimed that the gynecologist failed to abort the fetus and pathologically confirm that the abortion had been completed. In the course of discovery, the plaintiff obtained the laboratory’s pathology report indicating that the abortion may not have been successful.

The report was dated November 24, five days before the plaintiff suffered her injuries. During the gynecologist’s deposition, and more than three years from the date of her injuries, the plaintiff learned that the gynecologist did not receive the report until after she suffered her injuries. Thereafter, the plaintiff filed suit against the laboratory for failure to inform the gynecologist immediately that the report showed the abortion was not successful. The trial court dismissed the action against the ³⁶⁵ laboratory on the ground that the statute of limitations had expired.

We reversed the decision of the trial court, holding that it was improper to dismiss the claim on statute of limitations grounds because reasonable minds could differ, under the circumstances presented, as to whether the plaintiff exercised due care and diligence. See Young, 125 Md.App. at 312 , 725 A.2d 572 . In Young , we were disturbed by the fact that it would require far too many leaps, not compelled by logic, for the plaintiff to conclude, within the limitations period, that the laboratory’s negligence in transmitting the pathology report, rather than the doctor’s negligence in performing the operation, caused her injury. Judge Bloom, writing for the Court, said: From the fact that she had an ectopic pregnancy that was not terminated by the suction curettage, appellant had a basis to believe that she had a cause of action against Dr. Ross for failing to diagnose her condition properly and, as a result, for failing to terminate her pregnancy as he had contracted to do.

Even if appellant ... had examined Dr. Ross’s records much sooner than they did, they would have found appellee’s written report, dated 24 November 1992, with Dr. Ross’s handwritten notation that he reviewed the report on 1 December 1992. It would not have been illogical or unreasonable for appellant to assume, from the disparity between the date of the report and the date Dr. Ross read it, that appellee transmitted its report in time for Dr. Ross to have taken steps to prevent the rupture of her fallopian tube, but that Dr. Ross delayed reading it. That interpretation would have been entirely consistent with the theory already subscribed to; Dr. Ross was negligent. Id. at 309-10 , 725 A.2d 572 .

In Young , we distinguished Conaway , reasoning that in the earlier case the plaintiff knew he had been injured by substandard medical care rendered at a particular location: In Conaway , the plaintiff knew more than three years before he filed a claim against Basil that he had been ³⁶⁶ injured by the allegedly negligent medical care afforded him at the Maryland Division of Correction Brockridge facility in Jessup; he merely did not know the name of the physician who had treated him.... [Although] Ms. Young knew by 29 November 1992 of the allegedly negligent failure of Dr. Ross to successfully perform the contracted for abortion; it was not until about four years later that she discovered that appellee had allegedly committed a separate tort — breach of a distinct duty — that caused or contributed to the cause of her harm. Id. at 308 , 725 A.2d 572 . This case is analytically closer to Conaway than to Young . We see merit in Dr. Flynn’s, argument that “[d]istinct from Young is the fact that the medical care rendered to Mr. Jacobs by Dr. Flynn was for the purpose of diagnosing Mr. Jacobs’[s] back condition, rather than intervening as a remote pathology laboratory performing an after-the-fact analysis.” In March 1991, while Mr. Jacobs was a patient at the University of Maryland Hospital, “the comments of several doctors who attended” him caused Mr. Jacobs and his family to believe that he had not been properly cared for by his prior physicians and that “the paralysis could have been prevented.” In March 1991, the first week that she heard her father had been paralyzed, Mr. Jacob’s daughter, Sheila, contacted a malpractice attorney to investigate possible claims.

When asked why she felt “there was a need to file a lawsuit against doctors in Maryland” she replied: Because my father had been in the hospital approximately 10 days before he became paralyzed. And I figured, based on my interactions with the doctors or medical staff, that 10 days was an awfully long time when they did not have a clear diagnosis still about the nature of my father’s discomfort and extreme pain. Thus, it was clear that in March 1991 she perceived that her father had a cause of action relating to the substandard diagnosis and treatment of physicians at HCGH. On her lawyer’s advice, she prepared a calendar of important events ³⁶⁷ relating to her father’s care, and included a note on the March 2 entry that the “radiologist thinks maybe degeneration in back.” The bone scan in question was performed by employees of HCGH and interpreted by Dr. Flynn during the ten-day period she described.

Dr. Flynn interpreted Mr. Jacobs’s condition as normal, other than degenerative changes secondary to scoliosis. Mr. Jacobs alleged, and his expert testified at trial, that Dr. Flynn’s negligent report that the scan was “normal” conveyed a message to the other physicians that “there’s no reason to be concerned” about an infection. Unlike Ms. Young, Mr. Jacobs and his family were on notice that Dr. Flynn was one of the physicians who attempted to diagnose the cause of Mr. Jacobs’s back pain, and failed to detect the epidural abscess. Counsel for Mr. Jacobs had Dr. Flynn’s report in his possession in early June 1991.

Moreover, they knew that within five days of Dr. Flynn’s interpretation of the scan, complications from the epidural abscess caused Mr. Jacobs’s paralysis. The Young plaintiff, in contrast, knew only that her surgery was not successful, and had no knowledge that the rupture of her fallopian tube could potentially have been avoided but for the delay of a laboratory in transmitting the pathology report to the gynecologist after the surgery — a highly unlikely combination of circumstances. There was nothing in the surgeon’s chart pertaining to Ms. Young that would reveal that the report was delivered late, and it was only the surgeon’s testimony that showed that the report dated November 24 was not delivered to the surgeon until after the November 29 rupture of her fallopian tube. Mr. Jacobs argues that the limitations period was tolled in the present case because Dr. Flynn’s report did not reveal his negligence, and one had to look at the actual bone scan to learn of Dr. Flynn’s negligence.

We do not agree. The purpose of providing a three-year period within which to bring suit is to allow persons sufficient time to investigate their claims. During that period, one has a responsibility to ³⁶⁸ perform a diligent investigation, and is charged with notice when he or she has “knowledge of circumstances which ought to have put a person of ordinary prudence on inquiry.” Poffenberger, 290 Md. at 637 , 431 A.2d 677 . According to Mr. Jacobs’s own expert, the negligence of Dr. Flynn is readily apparent from a review of the bone scan, which could have easily been obtained by Mr. Jacobs or his attorney in 1991.

To resolve this appeal, we must determine whether a person of ordinary prudence, investigating a malpractice claim against physicians relating to Mr. Jacobs’s care at HCGH, could have failed to obtain and review the actual bone scan performed by Dr. Flynn. Given the scope of the investigation (i e., to determine which doctors contributed to the misdiagnosis), the knowledge the investigator had&emdash;that within five days of Dr. Flynn’s report of “normal” results, Mr. Jacobs suffered paralysis from the epidural abscess&emdash;we conclude, as a matter of law, that a person of ordinary prudence would have obtained the bone scan. Accordingly, Mr. Jacobs is charged with knowledge of the bone scan itself, which would have disclosed Dr. Flynn’s negligence. Thus, his cause of action against Dr. Flynn accrued in 1991, and the trial court