Rios v. Montgomery County

BATTAGLIA, J. This case arises under the 180-day notice provision of the Local Government Tort Claims Act [hereinafter “LGTCA”], Md.Code (1987, 2002 Repl.Vol., 2004 Cum.Supp.), § 5-304 of the Courts and Judicial Proceedings Article. 1 We have been asked to determine whether the 180-day notice provision as applied to minors violates the Federal Constitution and Article ¹¹² 19 of the Maryland Declaration of Rights. We also have been asked to review the Circuit Court’s holding that the “good cause” exception contained in Section 5-304(c) of the LGTCA was not satisfied under the facts of this case. Because we find that the 180-day notice requirement of the LGTCA is constitutional as applied to minors, and that the Circuit Court did not abuse its discretion in concluding that good cause did not exist, we shall affirm. I. Background Nelly Rios Saravia [hereinafter “Ms. Rios”], formerly of Bolivia, immigrated to the United States in 1983.

She subsequently returned to Bolivia and later re-entered the United States in 1987 with her husband, Luis Rios [hereinafter “Mr. Rios”]. In 1991, Ms. Rios became pregnant, and a friend referred her to a clinic in Rockville operated by the Montgomery County Health Department to obtain prenatal care. During an appointment at the clinic on June 17, 1991, Ms. Rios signed a form written in Spanish, entitled “Maternity Programa De Maternidad Pruebra De Domicilio,” on which she represented that she was a resident of Montgomery County, Maryland. The words “Montgomery County Government” appeared in large letters at the top of the form with the County seal, and at the bottom of the form appeared the words “Department of Health, Division of Family Health Services” -with the Department’s address.

The'form instructed the “person requesting service” to “report all changes in ... residency (within 14 days) to the Montgomery County Health Department.” Ms. Rios also signed a document called a “Face Sheet” that contained the words “Montgomery County” at the top. In 1991, Dr. Richard Footer, M.D. was employed part-time by Montgomery County in a program called, “Project Delivery.” On December 31, 1991, while Ms. Rios was in labor at Holy Cross Hospital of Silver Spring, Inc. [hereinafter “Holy Cross”], Dr. Footer was on call. Although Dr. Footer had never previously met Ms. Rios and had never provided prenatal care to her at the clinic, he delivered Mr. and Ms. Rios’s ¹¹³ son, Luis, on that date. The only payment made by Ms. Rios for Luis’s delivery was made to Holy Cross Hospital.

Luis weighed ten pounds, five ounces at birth, and his size apparently complicated the delivery. During labor, Luis’s anterior shoulder became lodged, and Dr. Footer used forceps to deliver him, which resulted in a sulcar tear 2 and a fourth degree tear of the brachial plexus. 3 Luis now suffers from Erb’s Palsy, 4 a permanent condition. Ms. Rios paid Holy Cross, not Montgomery County, for the costs accrued from Luis’s birth. Although Luis’s injury was apparent at birth, Petitioner did not provide notice of the malpractice claim to the County until almost a decade later on April 6, 2001.

On May 11, 2001, Petitioner filed a claim for negligence with the Maryland Health Claims Arbitration Office. After arbitration was waived, Ms. Rios filed a negligence suit against Dr. Footer and Montgomery County on July 24, 2002, as Luis’ next friend, 5 seeking to recover for Luis’s injuries. 6 ¹¹⁴ Ms. Rios was deposed through a Spanish interpreter on June 6, 2002. She testified that she spoke very little English in 1991 and did not know how to read English when she went to the clinic on her initial visit. She acknowledged, however, that the “nurses spoke Spanish” and helped her to complete the forms and to communicate with the doctor.

Ms. Rios estimated that she visited the clinic approximately twelve times and paid $ 8.00 per appointment, but maintained that she “did not know that it was a clinic run by the County” or that Dr. Footer was a County employee. The following deposition testimony is pertinent to the issues at bar: [COUNSEL FOR APPELLEES]: What was your status here in the United States in 1990 and 1991? [MS. RIOS]: I was still here illegally. [COUNSEL FOR APPELLEES]: You indicated that a friend of yours told you to go to the clinic at 50 Monroe Street? [MS. RIOS]: Yes. [COUNSEL FOR APPELLEES]: You indicated that she [Ms. Rios’s friend] said that if you went there, they could help.

What did they say they could do for you? [MS. RIOS]: Because I was told to have a baby and to have — to give childbirth in a hospital would cost about $5,000, and I did not have those resources, sufficient resources to pay that bill, so I was told there at the clinic that they could do that for me for $1,500. [COUNSEL FOR APPELLEES]: And this was your understanding that this clinic was a clinic that was run by Montgomery County, Maryland? [MS. RIOS]: No. I just knew it was — I was under the impression that it was a clinic that would help people, but I didn’t know anything more about it. [COUNSEL FOR APPELLEES]: Did you know who ran the clinic? [MS. RIOS]: No. ¹¹⁵ [COUNSEL FOR APPELLEES]: Did you know anything about the clinic other than you just go there and you get help? [MS.

RIOS]: Just that I would have to pay less, and that’s why I went there. [COUNSEL FOR APPELLEES]: Was it your understanding that the clinic was not run by Montgomery County? [MS. RIOS]: No. I did not know that it was clinic run by the County. I though it was just a public clinic, and that’s why you pay the $l,500.[ 7 ] [COUNSEL FOR APPELLEES]: So it was your understanding that it was a public clinic; is that right? [MS. RIOS]: Yes, but one where you had to pay, but I did not know it was run by the County. [COUNSEL FOR APPELLEES]: Did you understand that it was run by the government or a government? [MS.

RIOS]: No, I never knew that. I would go once a month for my appointments. I would just sign in, have my appointment, and go back. [COUNSEL FOR APPELLEES]: At any point in time did you ask any of the individuals there who they worked for? [MS. RIOS]: No, never.

I never would ask anything. I would just go in and come back out. [COUNSEL FOR APPELLEES]: After your son was born did you ever ask any of the individuals at the clinic who they worked for? [MS. RIOS]: No, never. I never asked anybody there. [COUNSEL FOR APPELLEES]: You also understood when you signed up at the clinic that the clinic was going to ¹¹⁶ provide — was going to have someone deliver your baby; correct? [MS.

RIOS]: Yes. I thought it would be the same doctor that would give me the checkups. Ms. Rios recalled that, by six months of age, Luis still could not move his hand, and that her husband had visited a lawyer to discuss the matter before Luis was a year old; however, she had “no idea who that lawyer would be.” At his deposition, Dr. Footer stated that he learned of Luis’s size “at the time of delivery,” and acknowledged that he was surprised at the baby’s size. He also recalled that, after the delivery he explained to Ms. Rios that “the baby had nerve damage” and required further examination.

Dr. Footer stated that he told Ms. Rios “that we would have to wait and see whether this resolved totally or not.” He did not, however, remember discussing with Ms. Rios the risks associated with a forceps delivery, nor did he know whether Ms. Rios was aware that he was paid by the County to deliver her son. On September 23, 2002, Petitioner filed a “Motion to Waive Requirement of Timely Notice Under the Local Government Tort Claims Act and to Permit Action to Proceed.” The motion claimed that “[p]rior to consulting with her current attorney she did not know, and had no reason to know,” that Dr. Footer was paid by the County when he delivered Luis. Petitioner also asserted that the defendants would not be prejudiced if the motion were granted because Holy Cross’s records regarding Luis’s birth are available, and Dr. Footer and Dr. David Solberg, the obstetrical resident who participated in the delivery, “are still available to testify.” At the motions hearing on January 29, 2003, Petitioner urged the Circuit Court to find good cause to justify the belated notice based upon the concept of “excusable neglect or mistake.” At the close of the motions hearing, the presiding judge, the Honorable Patrick L. Woodward, determined that even if Ms. Rios lacked actual knowledge that the clinic was a County facility and that there was a relationship between Dr. Footer and the County, she had “an affirmative duty to inquire as to ¹¹⁷ the legal identity of the Defendant.” According to the Circuit Court, even a “minimum inquiry” would have led Ms. Rios to discover Dr. Footer’s connection to the County. In expressing his reasoning, Judge Woodward determined that the appropriate standard to apply is that of due diligence and that Ms. Rios failed to exercise any due diligence, stating: The problem is that for a period of over eight and a half years, there’s no evidence that [Ms. Rios] did anything to investigate or prosecute her claim.

This was a situation where it was a patent injury, it was not a latent injury; she was aware of that injury, she was aware of the circumstances surrounding the occurrence of the injury. She was aware that her husband wanted to talk to a lawyer and may have talked to a lawyer about what had happened to their child. So there was clear notice to her that there was a potential legal claim against the doctors for the injuries sustained by her child. Yet there’s no evidence that anything was done.

We don’t know what an investigation would have revealed ... we simply don’t know that because it was never accomplished; it was never done. The Circuit Court then considered whether Ms. Rios “was on some kind of inquiry notice about whether the doctor was an employee of the County.” The court stated that it was satisfied that Ms. Rios had inquiry notice of the County’s ' involvement. In reaching that conclusion, Judge Woodward noted: The clinic is run by the County, exclusively by the County, has the County logo on it, so there seems to me to be evidence here over and above the actual knowledge that would put a reasonable person on notice that somehow the County would be involved in this case, as the employer. And she went to this clinic because she couldn’t afford the delivery, the regular cost of delivery; and that was another indication that the County, or some other entity was involved in the delivery. ¹¹⁸ So I think from the facts of this case, while she may not have actually known the employment status, she certainly had reasonable indication that the County was involved, and potentially responsible for what had happened in the course of the delivery.

The court then considered whether Ms. Rios established good cause for her failure to comply with the notice requirement. Concluding that she did not, the court stated: I can’t get past the fact that there simply was no evidence of investigation, no evidence of prosecution of this claim for over eight and a half years after the injury occurred. The requirement of notice is 180 days. She had an obligation under the law to make that investigation.

And if that investigation had not disclosed employment, if that investigation had been reasonably conducted and there was a delay in discovery of employment status, then I think it would be a whole different picture. But that investigation simply was not done, and I think the standard for good cause requires me to find or determine where there was a prosecution of the claim with the degree of diligence of an ordinary prudent person. I think an ordinary prudent person would have done some investigation and none was done over eight and a half years, according to the evidence in the record. I simply cannot find good cause on the record in this case.

And accordingly, and for these reasons and reluctantly, the Court will deny the motion to waive the requirement of timely notice. In an order dated January 29, 2008, Judge Woodward denied the Motion to Waive Requirements of Timely Notice Under the Local Government Tort Claims Act and to Permit Action to Proceed and dismissed with prejudice Petitioner’s Third Amended Complaint with respect to Montgomery County and Dr. Footer. 8 Petitioner filed a Motion for Reconsidera ¹¹⁹ tion on February 28, 2003, which asked the Circuit Court to reconsider whether good cause excused the failure to comply with the timely notice requirement. Additionally, Petitioner asserted, for the first time, that the notice requirement was unconstitutional as applied to minors. The Circuit Court denied the motion on April 2, 2003, without a hearing.

On May 2, 2003, Petitioner noted an appeal to the Court of Special Appeals. Faced with similar arguments, the Court of Special Appeals affirmed the decision of the Circuit Court and held that because Ms. Rios was “ ‘on notice that there may have been an invasion of ... legal rights ... ’ by the doctor, it was incumbent upon her to ‘investigate.’ ” It observed that the burden was on Ms. Rios to discover Dr. Footer’s identity and his relationship with Montgomery County, and she did not do so. The court found particularly important the fact that Ms. Rios did not claim that Dr. Footer or the County thwarted her effort to uncover such information. Therefore, the Court of Special Appeals concluded that the Circuit Court correctly determined that Ms. Rios’s failure to make any inquiry whatsoever as to the doctor’s identity or employment status did not constitute good cause.

With respect to the assertion that the notice requirement of the LGTCA is unconstitutional as applied to minors, the Court of Special Appeals also found the argument to be without merit. The court held that the effect of the notice requirement on a minor whose claim arises under the LGTCA does not violate Article 19 of the Maryland Declaration of Rights because it is a reasonable restriction upon access to the courts. Moreover, the court stated that because the legislature has waived sovereign immunity in limited contexts, it also has the power to establish the conditions for such a waiver to be effective and to exempt minors from compliance with those ¹²⁰ conditions. Thus, the court held that it would usurp the legislature’s power to judicially create an exception not contained in the statute.

Petitioner filed a petition for writ of certiorari with this Court on July 16, 2004, presenting two issues for our consideration: I. Whether the Court of Special Appeals erred in finding that the 180-day notice requirement of Section 5-304(a) of the Local Government Tort Claims Act is not unconstitutional as applied to minors?

II

Whether the Court of Special Appeals erred in affirming the Circuit Court’s finding that Petitioner had not shown good cause for waiving the requirement of timely notice under Section 5-304(a) of the Local Government Tort Claims Act? 9 On September 15, 2004, we granted the petition and issued the writ of certiorari. Rios v. Montgomery County, 383 Md. 211 , 857 A.2d 1129 (2004). We find that the 180-day notice requirement of Section 5-304(a) of the LGTCA is constitutional under the Federal Constitution and the Maryland Declaration of Rights 10 as applied to minors where the underlying local governmental action was governmental as opposed to proprietary in nature. Moreover, we hold that the Circuit Court did not abuse its discretion in determining that Petitioner failed to show good cause for the failure to comply with the notice requirement under the LGTCA.

Therefore, we affirm the Court of Special Appeals’s determination that the Circuit Court properly granted Montgomery County and Dr. Footer’s motion to dismiss with prejudice. ¹²¹ II. Standard of Review When determining a statute’s constitutionality under the Equal Protection Clause or Due Process Clause, unless a suspect or quasi-suspect class is created or a fundamental or important right is implicated, the appropriate standard of review of constitutionality is whether there is a rational basis for the created class or limited process afforded. See Murphy v. Edmonds, 325 Md. 342, 355-56 , 601 A.2d 102, 108-09 (1992). “We have consistently followed ‘the principle that a court will, whenever reasonably possible, construe and apply a statute to avoid casting serious doubt upon its constitutionality.’ ” R.A. Ponte Architects, Ltd. v. Investors’ Alert, Inc., 382 Md. 689, 718 , 857 A.2d 1, 18 (2004), quoting Becker v. State, 363 Md. 77, 92 , 767 A.2d 816, 824 (2001). The question of whether good cause for a waiver of a condition precedent exists is clearly within the discretion of the trial court.

Heron v. Strader, 361 Md. 258, 270 , 761 A.2d 56, 62 (2000). As we stated in Wilson v. Crane, 385 Md. 185, 867 A.2d 1077 (2005): There is an abuse of discretion “where no reasonable person would take the view adopted by the [trial] court[ ]” ... or when the court acts “without reference to any guiding principles.” An abuse of discretion may also be found where the ruling under consideration is “clearly against the logic and effect of facts and inferences before the court[ ]” ... or when the ruling is “violative of fact and logic.” Questions within the discretion of the trial court are “much better decided by the trial judges than by appellate courts, and the decisions of such judges should only be disturbed where it is apparent that some serious error or abuse of discretion or automatic action has occurred.” In sum, to be reversed “[t]he decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” Id., quoting In re Adoption/Guardianship No. 3598, 347 Md. 295, 312-13 , 701 A.2d 110, 118-19 (1997) (citations omitted). ¹²² Thus, “an abuse of discretion should only be found in the extraordinary, exceptional, or most egregious case.” Id.

III

Discussion Petitioner contends that the 180-day notice requirement of the LGTCA is an unreasonable restriction on his access to the courts in violation of Article 19 of the Maryland Declaration of Rights. He argues that although the notice requirement is not a statute of limitations, it functions as one by restricting a minor’s access to the courts when notice is not given. In support of his position, Petitioner asserts that it is unreasonable to require minors to rely on their parents to provide the notice mandated by statute. Therefore, he concludes that the notice is unconstitutional under Article 19 of the Maryland Declaration of Rights.

Petitioner also argues that the notice requirement of the LGTCA violates the Equal Protection Clause and due process requirements of the Fourteenth Amendment of the United States Constitution. He asserts that the distinction between private tortfeasors and local government entities is irrational and serves no real beneficial or legitimate purpose. He also contends that the notice requirement divides the victims of local government tortfeasors into two arbitrary classes: adults and minors. Petitioner posits that such a distinction creates an unreasonable hurdle that, denies minors their right to equal protection under the law.

With respect to his claims of due process violations, Petitioner contends that the notice requirement denies him a vested property right without due process of law. He argues that because the LGTCA created more than a remedy, but rather a new cause of action, it follows that the cause of action is subject to due process protections. Finally, Petitioner argues that the Circuit Court abused its discretion when it determined that a minor child must comply with the requirement of timely notice under the LGTCA. He contends that because he was only six months old when the notice period expired, he could not satisfy the notice requirement independently.

Thus, Petitioner asserts that minority per se constitutes good cause for waiving the requirement of ¹²³ timely notice under the LGTCA, because to find otherwise would assume that a legally disabled minor could have given notice or that an adult could have done so on his behalf. He argues that his status as a minor and the fact that Ms. Rios did not know, and had no reason to know, that Dr. Footer was employed by Montgomery County, establishes good cause for waiving the notice requirement under the LGTCA. Montgomery County argues that the notice requirement of the LGTCA neither violates the Federal Constitution nor the Maryland Declaration of Rights. It notes that minors have the same access to courts as other claimants do because all claimants are required to serve notice to protect their ability to file suit.

The County asserts that the notice requirement does not violate constitutional principles of equal protection or due process and does not unreasonably interfere with the access to courts protected in Article 19 of the Maryland Declaration of Rights because it is reasonable in light of the legitimate purpose of the LGTCA. In addressing Petitioner’s claim that minority should constitute good cause per se, the County notes that Section 5-304(b) of the Courts and Judicial Proceedings Article provides that notice may be given by the representative of the claimant as well as to the claimant himself. The County argues that the statute lacks a tolling provision for minority; as such, any consideration of minority as good cause must be made on a case-by-case basis by the trial court in its discretion, which in the present case appropriately exercised such discretion. Furthermore, Montgomery County contends that the Circuit Court properly found that Petitioner failed to show good cause for his failure to give notice during the statutory period.

The County asserts that failure to take any action during the statutorily prescribed period does not establish good cause for waiver and that mere ignorance of Dr. Footer’s employment status does not constitute good cause under the LGTCA. Montgomery County opines that although Ms. Rios had the opportunity to discover such information, she did not do so, and therefore, the Circuit Court should be affirmed. ¹²⁴ A. The History of Local Governmental Immunity and the LGTCA To understand the purposes and constitutionality of the notice provision of the LGTCA and the “good cause” exception, we must examine the status of local governmental immunity from the initiation of a suit, up to, and including the enactment of the LGTCA. We had the opportunity to explicate the historical development of local governmental tort immunity in Housing Authority v. Bennett, 359 Md. 356 , 754 A.2d 367 (2000). As we noted in that opinion, “[u]ntil the twentieth century, local governments generally had no immunity under Maryland common law in either tort or contract actions.” Id. at 358 , 754 A.2d at 368 .

In the early twentieth century, however, we “adopted a distinction that had been developed earlier in other jurisdictions, and held that local governments enjoyed immunity in certain types of tort actions based on activity categorized as ‘governmental’ but had no immunity in tort actions based on activity categorized as ‘private’ or ‘corporate’ or ‘proprietary.’ ” Id. at 359 , 754 A.2d at 368 ; see also DiPino v. Davis, 354 Md. 18, 47 , 729 A.2d 354, 369-70 (1999) (“A local governmental entity is liable for its torts if the tortious conduct occurs while the entity is acting in a private or proprietary capacity, but, unless its immunity is legislatively waived, it is immune from liability for tortious conduct committed while the entity is acting in a governmental capacity.”). We recognized that regardless of the capacity in which the local government was functioning, it possessed no immunity for certain types of torts, such as nuisance actions, see e.g., Board of Education of Prince George’s County v. Mayor & Common Council of Town of Riverdale, 320 Md. 384, 389-90 , 578 A.2d 207, 210 (1990); tort actions arising under the Maryland Constitution, see e.g., DiPino, 354 Md. at 50-51 , 729 A.2d at 371 ; and tort liability for violations of federal constitutional or statutory rights, see e.g., Ashton v. Brown, 339 Md. 70, 110-113 , 660 A.2d 447, 467-68 (1995). ¹²⁵ Prior to the LGTCA, the immunity of local governments afforded through the common law based on activities categorized as “governmental,” was waived under specific circumstances by enactments of the General Assembly. See e.g., Md.Code (1957, 1998 Repl.Vol., 2004 Cum.Supp.), Art. 44A (authorizing the creation of housing authorities and effecting a limited waiver of any governmental immunity). Also, prior to the enactment of the LGTCA, some county governments were empowered to waive any governmental immunity that they would otherwise be entitled to under the common law.

See e.g., Bradshaw v. Prince George’s County, 284 Md. 294, 297-99 , 396 A.2d 255, 258-59 (1979), overruled on other grounds by James v. Prince George’s County, 288 Md. 315 , 418 A.2d 1173 (1980) (holding under former Md.Code (1957, 1998 Repl.Vol.), Art. 25A, § 5(S) that Prince George’s County possessed the power to waive its governmental immunity through its county charter); Md.Code (1957, 1981 Repl.Vol., 1986 Cum.Supp.), Art 25A, § 5(CC) (repealed) (limiting waivers of governmental immunity to the greater of $250,000.00 or the amount of insurance coverage). 11 Thus, prior to the enactment of the LGTCA, local governments enjoyed immunity from tort liability only with respect to non-constitutional torts based on activity classified as “governmental,” and such immunity could be waived by the General Assembly or local enactments. This limitation on the immunity from tort action with respect to local governments remains applicable today under the LGTCA. In 1987, the General Assembly enacted Chapter 594 of the Acts of 1987, which repealed prior statutory provisions and replaced them with the LGTCA. 1987 Md. Laws, Chap. 594, § 1. “[T]he purpose of the LGTCA is to ‘provide a remedy for those injured by local government officers and employees acting without malice and in the scope of employment.’ ” Faulk v. Ewing, 371 Md. 284, 298 , 808 A.2d 1262 , 1272 ¹²⁶ (2002); Moore v. Norouzi, 371 Md. 154, 165 , 807 A.2d 632, 639 (2002); Ashton, 339 Md. at 107-08 , 660 A.2d at 465 . The Act affords a remedy to those injured by acts of local government officers and employees, while “ensuring that the financial burden of compensation is carried by the local government ultimately responsible for the public officials’ acts.” Ashton, 339 Md. at 108 , 660 A.2d at 466 .

Sections 5-304(a) and (b) of the LGTCA provide that potential claimants must give notice of impending claims within 180 days of the injury, and that such notice be given to designated government officials or other representatives: (a) Notice required. — Except as provided in subsection (c) of this section, an action for unliquidated damages may not be brought against a local government or its employees unless the notice of the claim required by this section is given within 180 days after the injury. (b) Manner of giving notice. — (1) Except in Anne Arundel County, Baltimore County, Harford County, and Prince George’s County, the notice shall be given in person or by certified mail, return receipt requested, bearing a postmark from the United States Postal Service, by the claimant or the representative of the claimant, to the county commissioner, county council, or corporate authorities of a defendant local government, or: (I) In Baltimore City, to the City Solicitor; (ii) In Howard County, to the County Executive; and (iii) In Montgomery County, to the County Executive. (Emphasis added). Md.Code, § 5-304(a), (b) of the Courts and Judicial Proceedings Article.

The notice requirement of Sections 5-304(a) and (b) are intended to apprise a local government “of its possible liability at a time when it could conduct its own investigation, i.e., while the evidence was still fresh and the recollection of the witnesses was undiminished by time, ‘sufficient to ascertain the character and extent of the injury and its responsibility in connection with it.’ ” Faulk, 371 Md. at 298-99 , 808 A.2d at 1272 , quoting Williams v. Maynard, 359 Md. 379, 389-90 , ¹²⁷ 754 A.2d 379, 385 (2000), quoting in turn Jackson v. Bd. of County Comm’rs, 233 Md. 164, 167 , 195 A.2d 693, 695 (1963). We have expressly held that the LGTCA notice requirements are a condition precedent to maintaining an action against a local government or its employees to the extent otherwise not entitled to immunity under the LGTCA. Faulk, 371 Md. at 304 , 808 A.2d at 1276 ; Grubbs v. Prince George’s County, 267 Md. 318, 320-21 , 297 A.2d 754, 755-56 (1972) (stating “we have regarded it [the predecessor statute to the LGTCA, Md.Code (1957, 1972 Repl.Vol.), Art. 57, § 18] as a condition precedent to the right to maintain an action for damages”); see also Neuenschwander v. Washington Suburban Sanitary Comm’n, 187 Md. 67, 77 , 48 A.2d 593, 599 (1946) (stating that “the notice is a condition precedent to the right to maintain the suit”), overruled on other grounds by statute as stated in Arnold v. Prince George’s County, 270 Md. 285 , 311 A.2d 223 (1973); Leppo v. State Highway Admin., 330 Md. 416, 423 , 624 A.2d 539, 542 (1993) (interpreting a statutory notice requirement in the Maryland Tort Claims Act to be a condition precedent to institution of a third-party action against the State); Redfem v. Holtite Mfg. Co., 209 Md. 106, 111-12 , 120 A.2d 370, 372-73 (1956) (finding that statutory notice was a condition precedent to applying for payment for deaths pursuant to the Workmen’s Compensation Act).

We have previously defined a “condition precedent” as “a condition attached to the right to sue at all.” Waddell v. Kirkpatrick, 331 Md. 52, 59 , 626 A.2d 353, 356 (1993). It “operates as a limitation of the liability itself as created, and not of the remedy alone.” Id., quoting State v. Parks, 148 Md. 477, 480 , 129 A. 793, 794 (1925). “The liability and the remedy are created by the same statutes, and the limitations of the remedy are, therefore, to be treated as limitations of the right.” Id. Conversely, “a statute of limitations affects only the remedy, not the cause of action.” Id. A condition precedent cannot be waived under the common law and a failure to satisfy it can be raised at any time because the action itself is fatally flawed if the condition is not satisfied.

This requirement of strict or substantial compliance with a ¹²⁸ condition precedent is of course subject to abrogation by the General Assembly, see, e.g., State v. Manck, 385 Md. 581 , 870 A.2d 196 (2005) (recognizing the legislature’s ability to enact statutes that abrogate the common law); Davis v. Slater, 383 Md. 599, 615-16 , 861 A.2d 78, 87-88 (2004) (same); State v. Green, 367 Md. 61, 76-77 , 785 A.2d 1275, 1283-84 (2001) (same), which it has done through the creation of the “good cause” exception to the LGTCA. B. Governmental and Proprietary Activities Before we can address Petitioner’s arguments with respect to the Equal Protection Clause, the Due Process Clause, and Article 19 of the Maryland Declaration of Rights, we must determine whether Montgomery County’s provision of health care through the operation of a clinic and subsidization of hospital services is a governmental or proprietary function because this conclusion will determine whether the County may properly assert immunity as a defense in the present action. In Mayor and City Council of Baltimore v. Blueford, 173 Md. 267 , 195 A. 571 (1937), and reaffirmed in Austin v. Mayor and City Council of Baltimore, 286 Md. 51 , 405 A.2d 255 (1979), we “recognized the difficulty in distinguishing between those functions which are governmental and those which are not, [and] established guidelines in [Blueford].” E. Eyring & Sons Co. v. City of Baltimore, 253 Md. 380, 382-83 , 252 A.2d 824, 825 (1969). We stated, “in truth there is no universally accepted or all-inclusive test to determine whether a given act of a municipality is private or governmental in its nature, but the question is usually determined by the public policy recognized in the jurisdiction where it arises.” Blueford, 173 Md. at 275-76 , 195 A. at 576 .

Therefore, we crafted the following guidelines: Where the act in question is sanctioned by legislative authority, is solely for the public benefit, with no profit or emolument inuring to the municipality, and tends to benefit the public health and promote the welfare of the whole ¹²⁹ public, and has in it no element of private interest, it is governmental in its nature. Id. at 276 , 195 A. at 576 . Moreover, we explained that: [I]t is better that the adequate performance of such an act be secured by public prosecution and punishment of officials who violate the duties imposed upon them in respect to it than to disburse public funds dedicated to the maintenance of such public conveniences as public parks, playgrounds, hospitals, swimming pools, and beaches maintained at the public expense to private persons who have suffered loss through the negligence or default of municipal employees or agents charged with their management. Id.

In Gutowski v. Mayor and City Council of Baltimore, 127 Md. 502 , 96 A. 630 (1916), we created a temporal means of categorizing local government action as either proprietary or governmental in nature, and we noted that all of the cases imposing liability on municipalities had involved proprietary functions. Id. at 508 , 96 A. at 632 . Extensive research has revealed no case prior to Gutowski where this Court has determined that a local government’s provision of subsidized health care to less affluent residents, or more generally the administration of a hospital by a municipality, created liability on the part of the local government as a proprietary function. In fact, our cases appear to indicate the contrary.

In Finan v. Mayor and City Council of Cumberland, 154 Md. 563 , 141 A. 269 (1928), we recognized that “[f]or many years there has been general statutory authority given to municipal and county authorities in Maryland to provide hospitals or temporary places for the reception of the sick.... And during a large part of the existence of state government, hospitals of various kinds have been maintained here by governmental agencies, and it has generally been regarded and treated as a normal governmental activity.” Id. at 564-65 , 141 A. at 270 ; see also Thomas v. Bd. Of County Commissioners of Prince George’s County, 200 Md. 554, 559 , 92 A.2d 452, 454 (1952) (noting that “[p]erhaps it has been assumed by ¹³⁰ litigants that a municipality is no more liable than a charitable corporation. In at least two cases in this Court, operation of a hospital is mentioned as an illustration of just such a governmental function”); Blueford, 173 Md. at 276 , 195 A. at 576 (stating, in dicta, that hospitals are considered governmental functions of the municipality).

Moreover, it is beyond question that the County’s program providing prenatal health care to low-income mothers residing therein is solely for the public benefit and tends to benefit the public health and promote the welfare of the public. The County’s program enables mothers who otherwise would not be able to afford prenatal care or to have their child delivered in a hospital to do so in an amount reduced from $5,000.00 to $1,500.00 payable solely to the hospital. 12 As a result, the County’s program, “Project Delivery,” in this circumstance is entitled to absolute governmental immunity under the terms of the LGTCA. Therefore, Petitioner cannot prevail on the claim directly against Montgomery County due to its governmental immunity. Thus, the only issue remaining is the applicability of the 180-day notice requirement with respect to Petitioner’s claim against Dr. Footer and Montgomery County’s obligation to defend and indemnify Dr. Footer under the LGTCA.

C. Constitutional Claims Petitioner argues that the