Newell v. Richards

CHASANOW, Judge. Estella Newell (Newell) filed a claim for medical malpractice with the Health Claims Arbitration Office on July 25, 1984 against health care providers George J. Richards, Jr., M.D.; Richards, Hirschfeld and Associates P.A. (the partnership); and the Greater Baltimore Medical Center (GBMC) (hereinafter collectively Richards). In a two-count complaint Newell alleged that she had sustained injuries as a result of Dr. Richard’s negligence in administering excessive and improper radiation treatments and joined the partnership and GBMC on the basis of respondeat superior.

In a written opinion, the Health Claims Arbitration Panel chairperson granted the Richards’ motion for summary judgment and entered an award of no liability in his favor based on the running of the statute of limitations. Newell filed a notice of rejection of the award, a complaint and demand for jury trial, and a motion to vacate the award in the Circuit Court for Baltimore County. The motion to vacate the award was denied. Both Newell and Richards filed motions for summary judgment, which were also denied.

Richards’ motions to bifurcate 1 were granted and the case went to trial on the sole issue of the statute of limitations. At the conclusion of the trial the case was submitted to the jury in the form of a special verdict. The jury decided that Newell had implied knowledge of her injury more than three years before the claim was filed. On this basis, the court ruled that Newell’s claim was time-barred.

The judgment was affirmed by the Court of Spe ⁷²¹ cial Appeals in Newell v. Richards, 83 Md.App. 371 , 574 A.2d 370 (1990). The Court of Special Appeals ruled on several of Newell’s arguments on appeal, including the contention that the trial court committed reversible error by incorrectly placing the burden of proof on Newell to show that the statute of limitations had not run. The Court of Special Appeals held that the trial court did err in placing on the plaintiff the burden of proof on the limitations defense, but that the error was harmless in light of the procedural posture of the case. We granted certiorari to consider two important issues raised by the Court of Special Appeals opinion.

The Facts In July of 1980, Estella Newell was admitted to GBMC for post-menopausal bleeding. Newell was diagnosed as having cancer of the uterus and treated by Stanley Rosendorf, M.D. On August 13, 1980, in an attempt to treat the cancer, Dr. Rosendorf and George J. Richards, Jr., M.D., inserted a radium implant into Newell’s uterus. The implant did not eliminate the cancer, and on September 30, 1980, Dr. Rosendorf performed a total hysterectomy on Newell. Radiation therapy under the direction of Dr. Richards was prescribed as follow-up treatment to the hysterectomy.

Newell received external radiation treatments at GBMC on eighteen separate occasions during the period beginning October 30, 1980 to November 25, 1980. During this time, Dr. Richards was Chief of Radiology at GBMC. Following the radiation therapy, Newell experienced diarrhea, frequent urination, rectal bleeding, blood in her urine, and blood in her stool on a recurrent basis. Newell testified that she was aware of her urinary and bowel problems and that she related both to the radiation therapy.

Dr. Richards testified that the symptoms Newell experienced were usual side effects of radiation treatment, and probably would have been discussed with the patient. Dr. Richards consistently denied throughout the proceedings that the radiation given Newell was improper or excessive. ⁷²² When Newell complained of her symptoms, GBMC referred her to gastroenterologist Ibrahim Razzak, M.D. In February, March, and August of 1981, Dr. Razzak performed various diagnostic tests on Newell. Dr. Razzak testified that there were several possible causes for the problems Newell was experiencing. According to his records, he first diagnosed Newell as suffering from diverticulosis, a condition which, in Dr. Razzak’s opinion, “is not related to radiation therapy.” Along with this original diagnosis, Dr. Razzak had written the words “radiation damage” with a question mark on Newell’s medical chart.

Dr. Razzak testified that he felt Newell’s problems may be secondary to radiation. However, he testified that at no time did he advise Newell that her problems resulted from excessive or improper radiation. Dr. Razzak performed several biopsies, or tests of tissue, on samples taken from the wall of Newell’s intestine. The results of the biopsies taken before August of 1981 were read by Dr. Razzak as negative, showing no evidence to confirm that Newell had radiation damage.

The biopsy taken in August of 1981 was the first medical confirmation that Newell had radiation damage, according to Dr. Razzak. We should note however, that July of 1981, and not August, is the critical month. If Newell had sufficient knowledge before July 25, 1981 then her lawsuit, which was filed on July 25, 1984, was too late. Newell stopped seeing Dr. Razzak because she felt she “wasn’t getting any better.” In November of 1982, she sought care from Dr. James Powder.

Dr. Powder discovered a crystallizedcspot on Newell’s bladder and explained to Newell that it was caused by excessive radiation. It is at this time that Newell claims she first discovered her potential cause of action against Richards. I. Statute of Limitations In Action For Medical Malpractice Historically, Maryland, as well as the majority of jurisdictions, applied the “date of the wrong” (or time of injury) ⁷²³ rule to pinpoint the date that triggered the running of the statute of limitations. Note, Poffenberger v. Risser: The Discovery Principle Is the Rule and Not the Exception, 41 Md.L.Rev. 451, 453, n. 25 (1982) (hereinafter The Discovery Principle).

Because some injuries are latent or otherwise difficult to discover, the “date of the wrong” rule could have the effect of barring some claims before plaintiffs could discover that a wrong or a resulting injury had occurred. The discovery rule is an exception that has evolved to avoid this harsh result. Under the discovery rule, a cause of action accrues at the time the plaintiff first knows or reasonably should have known of the alleged wrong. Poffenberger v. Risser, 290 Md. 631, 636 , 431 A.2d 677, 680 (1981).

The development of the discovery rule can be traced to this Court’s decision in Hahn v. Claybrook, 130 Md. 179 , 100 A. 83 (1917). Hahn involved a claim for medical malpractice brought by a woman who alleged that she had suffered permanent skin discoloration as a result of her doctor’s negligence in prescribing argentum oxide. In that case, the Court held that the plaintiff’s claim was barred, but intimated that her right of action accrued when her injury became apparent. Id. at 184 , 100 A. at 84 .

Years later, in Waldman v. Rohrbaugh, 241 Md. 137, 145 , 215 A.2d 825, 830 (1966), this Court clearly articulated the discovery rule and held it applicable to claims for medical malpractice. After Waldman , the Court extended the discovery rale to other types of professional malpractice. See, e.g., Leonhart v. Atkinson, 265 Md. 219 , 289 A.2d 1 (1972) (malpractice by accountant); Mumford v. Staton, Whaley & Price, 254 Md. 697 , 255 A.2d 359 (1969) (malpractice by attorney); Mattingly v. Hopkins, 254 Md. 88 , 253 A.2d 904 (1969) (malpractice by engineer). In Harig v. Johns-Manville Prods.

Corp., 284 Md. 70 , 394 A.2d 299 (1978), the development of the discovery rule continued as this Court extended its application to cases involving latent disease. Finally, in Poffenberger v. Risser, this Court held that the discovery rule was applicable to civil actions generally, and ⁷²⁴ that a plaintiff must have knowledge, either implied or express, in order to trigger the running of the statute of limitations. Poffenberger, 290 Md. at 637 , 431 A.2d at 681 . Thus, the Poffenberger decision culminated over fifty years of judicial expansion of the application of the discovery principle to the general statute of limitations.

The Discovery Principle, 41 Md.L.Rev. at 451 n. 7. Although the discovery rule can be more difficult to apply than the “date of the wrong” rule, the decision to adopt the discovery rule reflects a policy decision that plaintiffs “ought not be charged with slumbering on rights they were unable to ascertain.” Pennwalt Corp. v. Nasios, 314 Md. 433, 441 , 550 A.2d 1155, 1159 (1988) (quoting Harig, 284 Md. at 83 , 394 A.2d at 306 ). In malpractice actions against health care providers, in lieu of the general statute of limitations, there is a special statute of repose, § 5-109 of the Maryland Code, (1974, 1989 Repl.Vol.), Courts & Judicial Proceedings Article, 2 which provides: “Actions against health care providers. (a) Limitations.—An action for damages for an injury arising out of the rendering of or failure to render professional services by a health care provider, as defined in Section 3-2A-01 of this article, shall be filed within the earlier of: (1) Five years of the time the injury was committed; or (2) Three years of the date when the injury was discovered.” The question presented in this case is which party bears the burden of proof when a defendant asserts that the three-year “discovery” provision of § 5-109(a)(2) should bar a claim that is filed within the five-year provision of § 5-109(a)(1).

While the parties to this action do not dispute that Newell filed her claim within the five-year limitations ⁷²⁵ period, Richards contends that Newell did not bring suit within three years from the date she discovered her injury. Moreover, he argues that Newell, as plaintiff at trial, had the burden of proving that her suit was filed in accordance with § 5-109(a)(2). As a general rule, the party raising a statute of limitations defense has the burden of proving that the cause of action accrued prior to the statutory time limit for filing the suit. Kolker v. Biggs, 203 Md. 137 , 99 A.2d 743 (1953); McCormick on Evidence § 337 at 950.

(E. Cleary, 3d ed. 1984). And, in the ordinary situation, defendants will have the burden to both plead and prove the statute as an affirmative defense. See Maryland Rule 2-323(g)(16) (requiring defendant to specially plead the limitations defense). Richards cites Finch v. Hughes Aircraft Co., 57 Md.App. 190 , 469 A.2d 867 , cert. denied, 300 Md. 88 , 475 A.2d 1200 (1984), cert. denied, 469 U.S. 1215 , 105 S.Ct. 1190 , 84 L.Ed.2d 336 , reh’g denied, 471 U.S. 1049 , 105 S.Ct. 2043 , 85 L.Ed.2d 341 (1985), and Comptroller v. World Book Childcraft Int’l, Inc., 67 Md.App. 424 , 508 A.2d 148 (1986) for the proposition that the plaintiff should carry the burden of proof on this limitations defense.

Richards argues that the following language from the court’s opinion in World Book should be controlling: “[A] party relying on a matter in avoidance of the statute of limitations defense bears the burden of proving such a matter where it is shown that the cause of action accrued earlier than permitted by applicable statute. In applying this Rule to common law fraud or breach of contract actions, and in civil actions generally ... we have held that the ‘burden is on [the plaintiffs] to prove that they did not discover the alleged wrong’ until after the limitations period had expired.” World Book, 67 Md.App. at 444 , 508 A.2d at 158 . These cases are distinguishable from the case at bar. The issue in World Book was whether or not a tax assessment could be ⁷²⁶ maintained where the defendant could show that the claim was, on its face, barred by limitations.

In that case, the rationale for placing the burden of proof on the plaintiff to show the statute of limitations had not run was that the plaintiff was trying to evoke an exception to the statute of limitations and should have the burden to prove the exception. Finch involved a plaintiff who alleged that fraudulent concealment had prevented filing an action for breach of contract within the statutory period. Probably the most typical situation where courts apply the cited principle is in cases of fraudulent concealment, such as Finch . In these cases, the burden is on the plaintiff to show that an expired limitations period should not bar a claim.

Thus, the legal principle cited by Richards is usually applied where a plaintiff concedes that the statutory period has run but asserts that some equitable reason or exception exists which prevents the claim from being barred. This was the situation in both Finch and World Book. The instant case is distinguishable for at least two reasons. First, Newell’s claim was filed within the five-year limitations period.

Second, although Richards argues that Newell is attempting to avoid the three-year limitation in the statute, Newell may just as logically argue that Richards is attempting to avoid the five-year limitation in the statute. The rule of law Richards cites from Finch and World Book might support either argument. Depending on how the statute is read, either party could be considered to be asserting a matter in avoidance of this statute. From the plain language of the statute, it is not clear whether the General Assembly intended § 5-109 to be either (A) a five-year statute of repose with a provision that allows a defendant to cut that period short by up to two years if the defendant can show that the plaintiff did not comply with the three-year discovery provision, or (B) a three-year statute of limitations with a provision that could allow the plaintiff to extend that period up to five years if the plaintiff can show that he or she filed the claim within the three-year discovery provision. ⁷²⁷ We reviewed the legislative history of this statute in Hill v. Fitzgerald, 304 Md. 689 , 501 A.2d 27 (1985), in response to a certified question which also required construction of the limitations statute at issue.

We observed that: “[T]he words of § 5-109 expressly place an absolute five-year period of limitation on the filing of medical malpractice claims calculated on the basis of when the injury was committed, i.e., the date upon which the allegedly negligent act was first coupled with harm. The purpose of the statute, readily evident from its terms, was to contain the ‘long-tail’ effect of the discovery rule in medical malpractice cases by restricting, in absolute terms, the amount of time that could lapse between the allegedly negligent treatment of a patient and the filing of a malpractice claim that related to that treatment. The statute is a response to the so-called crisis in the field of medical malpractice claims, see Attorney General v. Johnson, 282 Md. 274 , 385 A.2d 57 , appeal dismissed, 439 U.S. 805 , 99 S.Ct. 60 , 58 L.Ed.2d 97 (1978), and contains no room for implied exceptions.... The three- and five-year periods of limitations must, therefore, be calculated in accordance with the literal language of § 5-109.

Indeed, the five-year maximum period under the statute will run its full length only in those instances where the three-year discovery provision does not operate to bar an action at an earlier date. And this is so without regard to whether the injury was reasonably discoverable or not.” Hill, 304 Md. at 699-700 , 501 A.2d at 33 . In Hill , we concluded the legislature intended to restrict the operation of the discovery rule when it enacted this statute. The common law discovery rule would have allowed plaintiffs to bring a claim after the five-year limitations period if the claim was undiscoverable; this statute bars any claim filed five years after the injury,