Russo v. Ascher

GARRITY, Judge. We shall examine whether summary judgment was properly granted on the basis of the statute of limitations pertaining to medical negligence. The appellant, Ethel Russo, filed a complaint with the Health Claims Arbitration Office on November 7, 1985, alleging medical negligence on the part of the appellee, Eduard Ascher, M.D., who had administered psychiatric ⁴⁶⁷ treatment to her. The arbitration panel granted the appellee’s motion for summary judgment on the basis of the expiration of the statute of limitations.

Thereafter, the the Circuit Court for Baltimore City (Ward, J.) granted the appellee’s motion for summary judgment, again on statute of limitations grounds. Facts On September 15, 1971, the appellee began psychiatric treatment of the appellant, who had been complaining of vomiting and nausea. Prior to that date, the appellant had been admitted to the Greater Baltimore Medical Center where a brain scan and other tests were performed. All findings were negative.

The appellant remained under the appellee’s treatment until December 2, 1982. During the course of her treatment, she experienced headaches, vomiting, dizziness, a gait problem and recurrent episodes of falling. By the time the appellant terminated treatment, her symptoms had deteriorated to the point where she was unable to walk without assistance. In August 1982, the appellant, who is a registered nurse, consulted Edward P. Costlow, M.D., in reference to her worsened condition.

At that time, Dr. Costlow advised the appellant that he believed her problems to be physiological rather than psychological and recommended that she undergo a CAT scan. 1 The appellant did not undergo a CAT scan, however, until October, 1982. On November 8, 1982, the appellant was notified that the results of the scan revealed a Dandy-Walker cyst located in the posterior fossa of her brain. 2 Thereafter, on November 7, 1985, the appel ⁴⁶⁸ lant filed a complaint with the Health Claims Arbitration Office, alleging that the appellee committed medical malpractice by failing to correctly diagnose her physical condition or refer her for a physical evaluation and/or appropriate diagnostic tests during the course of rendering psychiatric treatment over a period of eleven years. The appellee identified Dr. Richard J. Otenasek, Jr., a neurological surgeon, as an expert witness, during the Health Claims Arbitration Hearing. Dr. Otenasek testified, by deposition, that the only effective test to diagnose the presence of a Dandy-Walker cyst was a CAT scan.

Furthermore, he testified that the CAT scan first became available for use by the appellee in 1978. Discussion of Law I. Statute of Limitations The primary purpose of statutes of limitations is to protect individuals against claims brought after a period of time which the legislature deems to be sufficient for a person of ordinary diligence to have brought an action. In this manner, defendants are protected from faded memories, lost evidence, missing witnesses and other mishaps that may occur over time. Additionally, statutes of limitations encourage promptness in instituting actions and spare the courts from the litigation of stale claims.

Johns Hopkins Hospital v. Lehninger, 48 Md.App. 549, 561 , 429 A.2d 538 (1981). The statute of limitations applicable to the case at bar is Section 5-109 of the Cts. & Jud. Proc. Art., which provides: § 5-109.

Actions against physicians. 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 (1) within five years of the time the injury was committed or (2) within three years of the date when the injury was discovered, whichever is the shorter ... (Emphasis added). ⁴⁶⁹ A. Three Year Limitation The appellant asseverates that her claim is not barred by the three year statute of limitations under Md. Cts. & Jud. Proc.Code Ann. § 5-109(2). 3 The appellant contends that she did not have actual notice of her injury until she was advised of the results of the CAT scan on November 8, 1982.

The Court of Appeals, in Hahn v. Claybrook, 130 Md. 179, 184 , 100 A. 83 (1917), held that the statute of limitations, in a medical malpractice action, “begins to run from the time a right of action accrues and not from the time that the damage is developed or becomes definite.” In Hahn , the plaintiff was treated by a physician from 1904-1910. The plaintiff noticed a skin discoloration in 1908 and filed a medical negligence action more than three years later. The Court held that the plaintiffs claim was time-barred because she had failed to exercise ordinary care and diligence in seeking to discover the cause of her alleged injury. Id. at 186 , 100 A. 83 .

Also, in Leonhart v. Atkinson, 265 Md. 219, 224 , 289 A.2d 1 (1972), the Court of Appeals observed that the cause of action in medical malpractice cases “accrues when the wrong is discovered or when with due diligence it should have been discovered.” Maryland recognizes the “discovery rule” whereby a cause of action accrues at the time the claimant first knew or reasonably should have known of the alleged wrong. This rule has been repeatedly applied in medical negligence cases. Hill v. Fitzgerald, 304 Md. 689 , 501 A.2d 27 (1985); Poffenberger v. Risser, 290 Md. 631 , 431 A.2d 677 (1981); Waldman v. Rohrbaugh, 241 Md. 137 , 215 A.2d 825 (1966); and Lutheran Hospital v. Levy, 60 Md.App. 227 , 482 A.2d 23 (1984), cert. denied, 302 Md. 288 , 487 A.2d 292 (1985). In Poffenberger v. Risser, 290 Md. 631, 637 , 431 A.2d 677 (1981), the Court of Appeals extended the “discovery rule” to all actions and held that actual knowledge is required.

It ⁴⁷⁰ defined actual knowledge as either an express cognition, or awareness implied from 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. Id. at 637 , 431 A.2d 677 (quoting Fertitta v. Bay Shore Dev. Corp., 252 Md. 393, 402 , 250 A.2d 69 (1969), quoting Blondell v. Turover, 195 Md. 251, 257 , 72 A.2d 697 (1950)). The dispositive issue is when was the appellant put on notice that she may have been injured.

The Court of appeals stated, in O’Hara v. Kovens, 305 Md. 280, 301 , 503 A.2d 1313 (1986), that being “on notice” means “having knowledge of circumstances which would cause a reasonable person in the position of the plaintiff to undertake an investigation which, if pursued with reasonable diligence, would have led to knowledge of the alleged [wrong].” In Lutheran Hospital v. Levy, supra, we held that a plaintiff, who had only a ninth grade education and was unskilled in medicine, had knowledge of circumstances which ought to have put her on inquiry (i.e., the deteriorating condition of her ankle) and that her failure to diligently investigate such injury within the time period of the statute, barred her claim. We held that “the crucial date is the date the claimant is put upon inquiry, not the date an expert concludes there has been malpractice.” Id. 60 Md.App. at 240 , 482 A.2d 23 . The above cases clearly illustrate that when a