Rivera v. Edmonds

RODOWSKY, Judge. This case involves the medical malpractice statute of repose, Maryland Code (1974, 1995 RepLVoL), § 5-109 of the Courts and Judicial Proceedings Article (CJ). We issued the writ of certiorari to review the application, on summary judgment, of that statute in Edmonds v. Cytology Servs. of Md., Inc., 111 Md.App. 233 , 681 A.2d 546 (1996), a case involving allegedly negligent failures by pathologists to diagnose microscopic, invasive cancer of the uterine cervix. ²¹⁰ I Understanding the legal issues in the instant matter will be assisted by a preliminary review- of Maryland law. CJ § 5-109(a) (the Act) reads: “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 § 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 the injury was discovered.” The triggering events for the running of the alternative periods and the length of the periods have not changed since the Act was first enacted by Chapter 545 of the Acts of 1975. 1 Section 2 of Chapter 545 provided that it “shall apply only to injuries occurring after July 1,1975.” This Court interpreted “injuries occurring” in § 2 of Chapter 545 in Hill v. Fitzgerald, 304 Md. 689 , 501 A.2d 27 (1985).

In that case the plaintiff was first seen by the physician on January 7, 1975, and was seen on a number of occasions thereafter, with treatment ending on November 5, 1975. The plaintiff brought suit in December 1983, contending that limitations were governed by the discovery rule under the general three year statute of limitations, CJ § 5-101. 304 Md. at 692 -OS, 501 A.2d at 28-29 . See, e.g., Geisz v. Greater Baltimore Med. Center, 313 Md. 301 , 306-07 & n. 3, 545 A.2d 658 , 660 & n. 3 (1988).

Under the patient’s submission the Act did not apply because the injury occurred when the misdiagnosis was made, as early as the first visit. Hill, 304 Md. at 692 , 501 A.2d at 29 . The defendant argued that the injury should be considered to occur on the last day of treatment. Id. at 693 , 501 A.2d at 31 .

We did not adopt either position. ²¹¹ This Court in Hill looked to Oxtoby v. McGowan, 294 Md. 83 , 447 A.2d 860 (1982), where we construed the term “medical injuries occurring” in § 5 of Chapter 235 of the Acts of 1976 which enacted the Health Care Malpractice Claims Act (HCMCA), CJ §§ 3-2A-01 through 3-2A-09. In Hill we saw “no substantive distinction in the legal application” of “injuries occurring” for purposes of the Act and “medical injuries occurring” for purposes of the HCMCA. Hill, 304 Md. at 697 , 501 A.2d at 30-31 . Quoting Oxtoby, 294 Md. at 93-94 , 447 A.2d at 866 , we said in Hill : “ ‘The General Assembly obviously was not concerned with invasions of a legally protected interest which do not cause harm in the sense of “loss or detriment in fact....” Restatement (Second) Torts § 7(2) (defining “harm”).

The Act is concerned with the invasion of legally protected interests coupled with harm.’ ” 304 Md. at 695 , 501 A.2d at 30 . In Hill we described the holding of Oxtoby to be “that the surgeon’s negligent act, coupled with the harm which resulted from leaving part of a fallopian tube and ovary in the patient, amounted to a legally cognizable wrong and hence a medical injury” which occurred prior to the operative date of the HCMCA. 304 Md. at 696 , 501 A.2d at 30 . We also adopted in Hill , for purposes of the Act, the statement from Oxtoby, 294 Md. at 97 , 447 A.2d at 868 , “ ‘that a medical injury occurs, within the meaning of the effective date clause, even though all of the resulting damage to the patient has not been suffered prior to the [HCMCA’s] effective date.’ ” Hill, 304 Md. at 696 , 501 A.2d at 30 . Under the Oxtoby-Hill principle, “[wjhether the original allegedly negligent misdiagnosis of Hill’s condition caused some harm and therefore ‘injury’ prior to July 1, 1975 is a question of fact....” Hill, 304 Md. at 697 , 501 A.2d at 31 .

Rejecting in Hill the defendant’s continuing treatment approach to when the injury occurred, we said “that the words of § 5-109 expressly place an absolute five-year period of limitation on the filing of medical malpractice ²¹² 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.” Id. at 699-700, 501 A.2d at 32 (emphasis added). In other words, “the five-year maximum period under the [Act] 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.” Id. at 700 , 501 A.2d at 33 . Hill came to this Court on certified questions from the United States District Court for the District of Maryland.

Id. at 691 , 501 A.2d at 28 . Consequently, we had no occasion there to apply or to review the application of the principles set forth in Hill to the facts of the case. The opinion is silent on whether the misdiagnosis of Hill’s spinal tumor resulted in harm as of the time of the initial misdiagnosis. II The action now before us consists of wrongful death and survival claims against two pathologists and their respective employers..

The claims are brought by Wallace Newton Edmonds, widower and personal representative of Deborah Ann Edmonds, and by their daughter, Amanda Bree Edmonds (Plaintiffs). The pathologists are William J. Jaffurs, M.D. and Myrna Rivera, M.D., and their respective employers are Cytology Services of Maryland, Inc. and Ivan R. Mattei, M.D., P.A. Following waiver by the parties of the health claims arbitration process, the action proceeded in the Circuit Court for Prince George’s County. As alleged by the Plaintiffs, the general facts are these. Mrs. Edmonds came under the care of Dr. Joseph Murgalo in May 1980.

Pap smears taken in the fall of 1981 and the spring of 1982 were “class II.” 2 Dr. Murgalo took a biopsy ²¹³ specimen from the epithelium of Mrs. Edmonds’s cervix which was examined by Dr. Jaffurs. His report of July 19, 1983, diagnosed “severe epithelial dysplasia—epidermoid carcinoma-in-situ.” 3 Dr. Murgalo ordered another cervical biopsy to be performed on Mrs. Edmonds at Prince George’s General Hospital and Medical Center. The pathologist who examined this specimen was Dr. Rivera. She reported on July 28, 1983, a diagnosis of “foci of severe epithelial dysplasia.” In their answers to interrogatories in this action the Plaintiffs state that two of their experts, Dr. Stanley Burrows of Episcopal Hospital in Philadelphia and Dr. Edward Weiner of Mamaronek, New York, are of the opinion that “defendants Jaffurs and Rivera breached the applicable standards of care by failure to diagnose invasive carcinoma evident in the microscopic slides of the biopsies obtained on July 15,1983 and July 28, 1983.” Dr. Burrows rendered a written report in December 1990, but it is not part of the record.

On August 1,1983, Dr. Murgalo performed a cone biopsy on Mrs. Edmonds that was examined by a pathologist who is not a party to the present action. 4 The August 1, 1983 report on ²¹⁴ that cone biopsy diagnosed “two minute foci of severe dysplasia. All margins are free—5.” 5 Mrs. Edmonds remained free of medical complaints until August 1988 when her gallbladder was removed. Pain experienced by Mrs. Edmonds during that period was not related to cervical cancer, in the opinion of another of Plaintiffs’ experts, Dr. Thomas S. Rocereto of Haddonfield, New Jersey. On May 1, 1989, Mrs. Edmonds complained to Dr. Murgalo of severe pain in the right buttocks, radiating down the right thigh.

Dr. Rocereto is of the view that the spread of the malignant cervical tumor was causing nerve root irritation at this time. Mrs. Edmonds was referred to an orthopedist. On October 17, 1989, a CT scan revealed a mass in Mrs. Edmonds’s right pelvic area. On November 8, 1989, she was diagnosed as having fully differentiated squamous cancer.

She underwent radiation and chemotherapy treatments. Mrs. Edmonds died on April 11,1990, at age thirty-four, during her second admission to Georgetown University Hospital. The autopsy report did not reach any conclusion as to the primary site of the cancer. The instant legal action was filed on April 9, 1993.

Drs. Rivera and Mattei moved for summary judgment, attaching as exhibits to their motion the Plaintiffs’ statement of claim, the three pathology reports in 1983, certain Georgetown Hospital records, and the Plaintiffs’ answers to the interrogatories of those defendants. In their supporting memorandum those defendants argued, imprecisely as we have seen in Part I, supra, that “the alleged negligent acts or omissions by the defendants occurred nearly ten years prior to the filing of the Statement of Claim” and consequently, “are time barred, as a matter of law under the [Act].” Dr. Jaffurs and his employer also moved for summary judgment. Their exhibits added no new material.

Their memorandum recognized the rule of Hill v. Fitzgerald and argued that the alleged act of misdiagnosis ²¹⁵ satisfied Hill’s definition of “injury” under the circumstances of this case. In their opposition to summary judgment the Plaintiffs contended that the injury to Mrs. Edmonds occurred no earlier than May 1,1989. Excerpts from the deposition of Dr. Rocereto supplied the principal material for the Plaintiffs’ factual opposition. In an oral ruling from the bench the circuit court granted summary judgment in favor of the Defendants, without articulating the court’s rationale.

Plaintiffs appealed to the Court of Special Appeals. In a lengthy analysis of the Act, of cases decided under it, and of statutory and decisional law from other states, the Court of Special Appeals concluded that the Act operates in the fashion described in Part I hereof. The court, disclaiming that it was presenting “an exhaustive checklist,” stated that “the patient could suffer an ‘injury’ as a result of a negligent misdiagnosis, when (1) he or she experiences pain or other manifestation of an injury; (2) the disease advances beyond the point where it was at the time of the misdiagnosis and to a point where (a) it can no longer effectively be treated, (b) it cannot be treated as well or as completely as it could have been at the time of the misdiagnosis, or (c) the treatment would entail expense or detrimental side effects that would not likely have occurred had treatment commenced at the earlier time; or (3) the patient dies.” Edmonds, 111 Md.App. at 270 , 681 A.2d at 564 . The court then vacated the judgment of the circuit court on the following rationale: “[Plaintiffs] did not proffer any expert opinion that Ms. Edmonds’s cancer had not spread at any time prior to April 9, 1988 (i.e., the date five years prior to the filing of the claim) or April 11,1985 (i.e., the date five years prior to Ms. Edmonds’s death).

But [Defendants] did not advance any evidence, beyond conclusory assertions, to show that Ms. Edmonds’s cancer had advanced during those time periods. Nor do [Defendants] contend that Edmonds suffered any ²¹⁶ symptoms from the cancer prior to August 1988. Therefore, we conclude that the circuit court erred____” Id. at 272 , 681 A.2d at 565 . This Court granted the Defendants’ petitions for certiorari in order to review this application by the Court of Special Appeals of the rule of Hill v. Fitzgerald.

Briefs amici have also been filed by the Maryland Association of Defense Trial Counsel and, in response, by the Maryland Trial Lawyers Association. Ill The issue in this case is the application of the Act, as construed in Hill , to the facts presented in the record for purposes of the summary judgment motion. Inasmuch as no Defendant argues for applying the Act’s alternative bar of three years from the discovery of injury as a basis for summary judgment, the issue is limited to the operation of the bar against an action filed more than “[f]ive years from the time the injury was committed.” The Defendants contend that the injuries were committed on or immediately after the alleged misdiagnoses of July 1983, while the Plaintiffs contend that the injuries were committed when the cancer caused the radiating leg pain of which Mrs. Edmonds complained to her physician on May 1,1989. In its application of the Act the Court of Special Appeals considered that the date five years prior to the filing of the Plaintiffs’ action was the earliest date on which the injury could have been committed for a viable survival claim and considered that the date five years prior to Mrs. Edmonds’s death was the earliest date on which the injury could have been committed for a viable wrongful death claim.

Edmonds, 111 Md.App. at 272 , 681 A.2d 546 . 6 Underlying the different ²¹⁷ dates is a two-step approach to determining the timeliness of the wrongful death claim. Under that analysis one first determines whether the patient’s medical malpractice claim was time barred on the date of death. If the claim was not time barred on the date of death, then, under CJ § 3-904(g)(1), the wrongful death claimants have three years from the date of death within which to file the Lord Campbell’s action. The analysis underlying the dates used by the Court of Special Appeals is argued to us by the Defendants in support of a judgment in their favor, and that analysis is not disputed by the Plaintiffs.

Consequently, no issue is presented in this case as to how the Act operates on wrongful death claims. 7 IV Maryland appellate courts have addressed whether an injury occurred before or after a given date that was critical to a legal determination. Some of these cases have involved undiagnosed conditions, and they shed some light on the resolution of the issue before us. Johns Hopkins Hosp. v. Lehninger, 48 Md.App. 549 , 429 A.2d 538 (1981), involved the failure to diagnose an undisplaced fracture in the plaintiffs right hip in x-rays taken on January 11, 1971. The plaintiff thereafter was treated for a separate accidental injury involving a displaced fracture of the femoral neck of the right hip.

Treatment, including periodic x-rays, continued until December 1973. Thereafter the plain ²¹⁸ tiff resumed Ms usual activities wMch included running long distances and playing tenms daily. Id. at 552 , 429 A.2d at 541 . In the summer of 1977 the plaintiff was diagnosed with avascular necrosis, a bone deterioration resulting from disrupted blood supply.

In an action filed in 1979 the plaintiff claimed that the defendant’s negligence in 1971 and 1973 was a proximate cause of the deterioration. The defendant argued that the action should have been sent to health claims arbitration because the medical injuries continued to manifest themselves after the critical date of July.l, 1976. The Court of Special Appeals held that the plaintiff sustained medical injuries prior to that date. Id. at 556-57 , 429 A.2d at 543 .

Although, “[djuring the late summer of 1977, while playing tenms, Lehninger felt ‘sometMng snap’ in his leg,” followed by chrome pain in his right Mp, all of wMch led to the diagnosis of the disease, those facts did not operate to postpone the date of injury. Id. at 552-53 , 429 A.2d at 541 . The plaintiff in Dennis v. Blanchfield, 48 Md.App. 325 , 428 A.2d 80 (1981), was erroneously diagnosed as having an incurable cancer and immediately underwent chemotherapy that caused nausea, vomiting, diarrhea, and weakness. Id. at 327 , 428 A.2d at 82 .

The chemotherapy was discontinued April 27, 1976, by wMch date, the court held, “the harm was done and the medical injuries had occurred.” Id. at 330 , 428 A.2d at 84 . The instant matter is not so clear cut. The five-year alternative bar under the Act was involved in Jones v. Speed, 320 Md. 249 , 577 A.2d 64 (1990), in a misdiagnosis context. Complaining of severe headaches, the plaintiff first visited the defendant on July 17, 1978, at which time the defendant failed to diagnose a brain tumor wMch could have been determined by a brain scan.

There were fifteen additional visits to the defendant between August 1978 and September 1985. The brain tumor was discovered in February 1986 when the plaintiff had a seizure that led to successful brain surgery. Id. at 254 , 577 A.2d at 66 . Suit was brought in July 1986, well within three years of discovery but more than five years after the imtial consultation.

Id. at 255 , 577 A.2d at 66 . ²¹⁹ The plaintiff in Jones pled each visit as a separate claim. Moving for summary judgment on all counts based on the Act, the defendant argued that all of the plaintiffs harm proximately resulted from the negligent failure to diagnose in July 1978. In opposition the plaintiff filed the affidavit of a neurological surgeon. It included the opinion that “[e]ach time that Mrs. Jones saw Dr. Speed, a separate medical injury occurred, because of the failure of Dr. Speed, at each of these visits, to detect a progressively worsening and changing medical condition.” Id. at 256 , 577 A.2d at 67 .

We held that the defendant was entitled to summary judgment only on those counts alleging harm resulting from the failure to diagnose on visits made more than five years before the suit was brought, i.e., made prior to the visit of September 10, 1981. Id. at 261-62 , 577 A.2d at 70 . Summary judgment was denied,