Newell v. Richards

ROSALYN B. BELL, Judge. Estella Newell, appellant, filed a medical malpractice claim with the Health Claims Arbitration Office (HCAO) against Dr. George J. Richards, Jr., Greater Baltimore Medical Center (GBMC), and Richards, Hirschfeld & Associates, P.A., appellees, on July 25, 1984. On August 4, 1986, based on the statute of limitations, the arbitration panel chairman 1 granted appellees’ motion for summary judgment and entered an award of no liability in their favor. Appellant then filed a Complaint and Action to Nullify the Award and Motion to Vacate in the Circuit Court for Baltimore County.

The Motion to Vacate was denied. Each appellee then filed a Motion for Separate Trials 2 which was granted and a Motion for Summary Judgment which was denied. The case went to trial before a jury on the issue of the application of the discovery rule and whether appellant’s claim was barred by the governing statute of limitations. The jury found that appellant’s suit was filed after the expiration of the statute of limitations; hence, it ³⁷⁵ was barred.

Appellant’s motions for a new trial and judgment notwithstanding the verdict were denied and she appeals, contending: — appellant was entitled to judgment as a matter of law as there was no evidence from which jurors could find appellant knew, or reasonably could have known, of a wrong caused by appellees prior to July 25, 1981; — the trial court committed reversible error by placing the burden of proving the affirmative defense of statute of limitations on appellant; — the trial court erred by allowing appellees to rely on an opinion of a health claims panel chairman which was rendered in excess of his statutory authority, and was therefore a nullity; — the trial court erred by granting appellees’ motion in limine preventing appellant from discussing the sole issue of the trial, the statute of limitations; and by bifurcating trial of merits from limitations; and — the trial court erred by allowing the medical records concerning an alleged phone call by appellant into evidence. We disagree with all of appellant’s claims and affirm the judgment. We explain. FACTS In July of 1980, Dr. Stanley Rosendorf diagnosed appellant as having cancer of the uterus.

As part of her treatment, which began in late October and continued throughout November of 1980, she received a radium implant and radiation therapy. Dr. Richards was responsible for the administration of appellant’s radiation therapy. Shortly after appellant started radiation, she began to experience physical problems, such as incontinence, blood in her stool and frequent urination. In early 1981, the additional problem of blood in her urine arose.

In March of 1981, appellant saw her family physician, Dr. Cotter. According to her deposition, appellant was in the habit of telling Dr. Cotter everything that was wrong ³⁷⁶ with her, though she did not specifically recall whether she had told him about her urinary problems. He advised her that these ailments were probably due to the radiation therapy. GBMC sent appellant to Dr. Razzak, a gastroenterologist, for her bowel problems.

Dr. Razzak performed several tests which showed that her colon was not entirely normal. He suspected that appellant’s colon problems were caused by her radiation treatment. According to Dr. Rosendorf’s records, on June 17, 1981, appellant telephoned Dr. Rosendorf and asked who she should see for radiation treatment if she was no longer going to see Dr. Richards. Appellant, however, did not recall making this telephone call and testified that it was not until November of 1982, when she went to see Dr. Powder, tha't she realized something was wrong.

She had problems she had “never had before” and was “getting worse.” She testified that it was not until her visit to Dr. Powder, where she learned she had a crystallized spot on her bladder which he would have to remove, that she realized she had a potential cause of action against appellees. Appellant filed her claim with the HCAO on July 25, 1984. Since the applicable statute of limitations is three years, in order to have complied with the statute of limitations, appellant must not have known or have had reason to know of her cause of action before July 25, 1981. INSUFFICIENCY OF THE EVIDENCE Appellant challenges the trial court’s failure to grant judgment on her behalf as a matter of law.

She claims there was no evidence from which the jury could have found that she knew or reasonably should have known of her cause of action prior to July 25, 1981, three years before she filed her claim with the HCAO. Poffenberger v. Risser, 290 Md. 631, 636 , 431 A.2d 677 (1981) (actual or constructive knowledge of condition required). We disagree. Preliminarily, the jury did find that appellant knew or reasonably should have known of the existence of her potential cause of action prior to July 25, 1981.

It is not the function of this Court to overturn a jury verdict unless no ³⁷⁷ legally sufficient evidence was presented upon which the jury could have based its decision. Royal v. State, 236 Md. 443, 448 , 204 A.2d 500 (1964). See also Ralph Pritts & Sons v. Butler, 43 Md.App. 192, 199-200 , 403 A.2d 830 (1979). In the case at bar, there was evidence which tended to support the claim that appellant knew or reasonably should have known about her cause of action prior to July 25,1981.

Dr. Razzak testified that his testing of appellant conducted in February and March, 1981 indicated that the radiation therapy was probably the cause of her colon irregularities. A reasonable person could be expected to investigate further whether the radiation treatment was rendered properly. Moreover, there was testimony which showed that appellant had called Dr. Rosendorf’s office on June 17, 1981, asking who she should see instead of Dr. Richards. A fact finder could infer from this that she knew Dr. Richards had been negligent in her treatment.

In addition, appellant’s own daughter, who is a nurse, averred that appellant had complained to her of physical problems associated with the radiation therapy as early as November, 1980. From this evidence, the jury could justifiably find, as it did, that appellant knew or reasonably should have known about her cause of action before July 25, 1981. Appellant’s reliance on Baysinger v. Schmidt Products Co., 307 Md. 361 , 514 A.2d 1 (1986), is misplaced. In Baysinger , a products liability case, the Court of Appeals reversed the trial court’s grant of summary judgment on the issue of when the claimant should have known of her cause of action.

The Baysinger Court simply held that, since reasonable minds could differ about whether the claimant should have undertaken further investigation concerning the relationship between the intrauterine device and the cause of her infection, summary judgment was inappropriate. In the instant case, the trial judge followed Bay-singer by not granting appellees’ Motions for Summary Judgment and submitting the statute of limitations’ issue to the jury. ³⁷⁸ In addition to Baysinger , appellant contends that Pennwalt v. Nassios, 314 Md. 433 , 550 A.2d 1155 (1988), supports her claim that she was entitled to judgment as a matter of law. We disagree. Pennwalt focused on a certified question from the United States District Court for the District of Maryland: “Whether under the discovery rule, knowledge of the manufacturer’s wrongdoing or of product defect is required, in addition to knowledge of possible causation, to trigger the statute of limitations in a medical products liability action.” Pennwalt, 314 Md. at 435 , 550 A.2d 1155 .

As appellees observe, the breadth of Pennwalt is arguably restricted to product liability cases. Nonetheless, the Court answered the question in the following fashion: “If the District Court used the word knowledge to mean clear and unequivocal proof that a certain manufacturer’s negligence produced a defective product causing the plaintiff’s injury, then we would answer the question no. If use of the term knowledge means express or implied knowledge of injury, its probable cause, and probable manufacturer wrongdoing or product defect, then we would answer the question yes.” Pennwalt, 314 Md. at 456-57 , 550 A.2d 1155 . The jury in the instant case found that appellant had implied knowledge, meaning that she had knowledge which would cause a reasonably prudent person to inquire.

We have already articulated the evidence produced at trial which supported the jury’s finding that appellant had reason to suspect that negligence caused her conditions. BURDEN OF PROOF ON STATUTE OF LIMITATIONS Appellant urges that the trial court erred by ruling that she had the burden of proving that she filed her claim before the statute of limitations ran out on her claim. Appellant reasons that, since the statute of limitations is an affirmative defense which appellees had to raise, they therefore have the burden of showing that she did not comply ³⁷⁹ with the statute. While we do agree with appellant, we conclude that, in view of the posture of this case, the trial court did not err.

The question of where lies the burden of proof when the award of the HCAO is presumed to be correct is addressed by Md.Cts. & Jud. Proc.Code Ann. § 3-2A-06(d) (1974, 1984 Repl.Vol., 1989 Cum.Supp.): 3 “Unless vacated by the court ... the unmodified arbitration award is admissible as evidence in the judicial proceeding. The award shall be presumed to be correct, and the burden is on the party rejecting it to prove that it is not correct.” (Emphasis added.) This provision has been analyzed before by Maryland appellate courts. 4 See Hahn v. Suburban Hosp. Ass’n, 54 Md. App. 685, 692-93 , 461 A.2d 7 (1983).

In Hahn , the HCAO found Suburban Hospital liable for compensatory damages resulting from the death of Gloria Hahn. Consequently, in accordance with § 3-2A-06(d), we held that the burden of proof on the issue of negligence was imposed upon Suburban. Speaking for this Court, Judge Alpert wrote: “Similar to a Workmen’s Compensation appeal, sub-section (d) of § 3-2A-06 places the burden of proof upon the party rejecting the award, whether he be plaintiff or defendant. It establishes no new rule when the plaintiff happens to be the party rejecting the award, as the burden was always upon the plaintiff to prove his case by a preponderance of the evidence.

But the statute shifts the burden from the plaintiff to the defendant where the defendant, in effect, loses before the Health Claims Arbitration Panel and rejects the award, requiring the defendant in such a case (after filing an action to ³⁸⁰ nullify the award) to satisfy a jury by a preponderance of evidence that the plaintiff is not entitled to the award made by the Panel. Thus, in the instant case the burden was cast upon Suburban to overcome the presumption that the award of the Panel is correct and it must do this to the satisfaction of the trier of the facts. Under the circumstances, Suburban had to prove by a preponderance of the evidence that it was not negligent, that indeed, it did comply with the appropriate standards of care as discussed infra. By the same token, the plaintiffs were required to prove by a preponderance of the evidence that the damages awarded by the Panel were inadequate.” (Citation omitted.) (Emphasis added.) Hahn, 54 Md.App. at 693 , 461 A.2d 7 .

Similarly, in the case at bar, where the HCAO found appellant’s cause of action barred by the statute of limitations, the burden was on appellant to overcome the presumption that the decision was correct. Appellant had to prove by a preponderance of the evidence that she did not know or have reason to know of appellees’ negligent treatment of her before the required date. The jury found she did have reason to know of her claim before July 25, 1981. The trial judge gave the following instructions to the jury regarding the burden of proof: “Now, you are instructed that the party who asserts a claim, such as the plaintiff in this case, has the burden of proving it by what we call a preponderance of the evidence.

Now, to prove by a preponderance of the evidence means to prove that something is more likely so than not so. In other words, a preponderance of the evidence means such evidence as when considered and compared with that opposed to it has more convincing force and produces in your minds a belief that it is more likely true than not true. In determining whether a party has met the burden of proof, you should consider the quality of all of the evidence regardless of who called the witness or introduced the exhibit and the number of witnesses which one party or the other may have produced. If you believe ³⁸¹ that the evidence is evenly balanced on an issue, then your finding on that issue must be against the party who has the burden of proving it____ “Now, you are instructed that injury in this case means wrongful harm resulting from the rendering or failure to render health care, and that wrongful harm or wrongly harmed means unusual symptoms or reactions beyond what should reasonably be anticipated as a result of a patient’s treatment and overall condition of health. “The only issues for you to decide in this case are: one, whether prior to July 25, 1981, [appellant] knew that she had been wrongly harmed; and, two, whether prior to July 25, 1981, [appellant] had knowledge of circumstances which ought to have put her as a person of ordinary prudence on inquiry whether she had been wrongly harmed.

For it is as of this time, that is when she had knowledge of such circumstances to make inquiry, that she is charged with notice of all facts which an inquiry or investigation would in all probability have disclosed if it had been properly pursued. “Now, specifically, as is right on the verdict sheets, copies of which each of you have, you must determine whether [appellant] has proven by a preponderance of the evidence, first, that she did not know that she had been wrongly harmed prior to July 25, 1981; and, second, that she did not have knowledge of circumstances which ought to have put her on inquiry whether she had been wrongly harmed prior to July 25, 1981. “Now, Maryland law requires a medical malpractice claim, such as this case, to be first submitted to arbitration before it can be tried in this Court. The claim in this case was submitted to arbitration before the health claims arbitration office. You are instructed that the Health Claims Arbitration Chairman found that [appellant] knew or had knowledge of circumstances that should have put her as a person of ordinary prudence on inquiry whether she had been wrongly harmed prior to July 25, 1981. ³⁸² “Now, under the law, the decision of the Health Claims Arbitration Chairman is presumed to be correct and the burden is upon [appellant] to