Young v. Medlantic Laboratory Partnership

THEODORE G. BLOOM, Judge, Retired, Specially Assigned. Ruth E. Young appeals from an order issued by the Circuit Court for Montgomery County, dismissing her action against appellee, Medlantic Laboratory Partnership, on grounds that it was barred by the statute of limitations governing actions against health care providers. Maryland' Code (1974, 1995 RepLVol., 1997 Supp.), § 5-109(a) of the Courts and Judicial Proceedings Article. Upon our careful review of the relevant law and facts, we shall reverse the circuit court’s ruling.

FACTUAL SUMMARY On 19 November 1992, Ms. Young presented herself for a voluntary abortion to Dr. Alan J. Ross’s office in Montgomery County, Maryland. A urine test established that Ms. Young was pregnant, and Dr. Ross performed an abortion procedure by suction curettage that day. After performing that procedure, he discharged her, and she scheduled a follow-up appointment in two weeks. The tissues extracted by the suction curettage were submitted to appellee.

Ten days after the procedure, on 29 November 1992, appellant was admitted to the emergency room at Holy Cross Hospital, complaining of severe abdominal pain. While there she was diagnosed as having an ectopic pregnancy, which is the development of the fetus outside of the uterus, in the fallopian tubes. An examination revealed that her right fallopian tube was in the process of rupturing. A right salpingec-tomy, the removal of the fallopian tube, was performed in emergency surgery.

As a result of the surgery, appellant’s reproductive capacity was diminished. On 16 November 1995, appellant filed a medical malpractice claim against Dr. Ross in the Health Claims Arbitration Office. In her claim, appellant alleged that Dr. Ross failed to properly diagnose and treat her ectopic pregnancy. Arbitration was waived, and the complaint ³⁰³ was transferred to the Circuit Court for Montgomery County on 30 May 1996.

On 29 January 1997, Dr. Ross was deposed in connection with appellant’s claim against him. During his deposition, Dr. Ross testified that he reviewed the pathology report on 1 December 1992, and that the report was probably received by him by mail that same day. He further testified that, upon discovering that there was no placental or fetal parts found in the specimen, appellee should have contacted him by telephone, instead of sending him a written report. Based upon Dr. Ross’ testimony, appellant filed a claim against appellee in the Health Claims Arbitration Office on 31 March 1997.

Arbitration was waived, and the complaint was transferred to the Circuit Court for Montgomery County on 7 October 1997. Thereafter, the court granted appellant’s motion to consolidate the two actions. Appellee filed a motion to dismiss the claim against it, pursuant to Maryland Rule 2-322, on the ground that the applicable statute of limitations barred her claim. The court granted appellee’s motion.

This appeal is from that dismissal. STANDARD OF REVIEW In determining whether the trial court erred in granting the motion to dismiss, we are obliged to “accept as true all well-pleaded facts and allegations in the complaint[ ], together with reasonable inferences properly drawn therefrom.” Faya v. Almaraz, 329 Md. 435, 443 , 620 A.2d 327 (1993). Dismissal is proper only if the facts and allegations so viewed would fail to give plaintiff relief as a matter of law. Id.

Thus, a motion to dismiss is proper when there is no “justiciable controversyf.]” Broadwater v. State, 303 Md. 461, 467 , 494 A.2d 934 (1985). It is clearly inappropriate in the context of a motion to dismiss for the judge to make a finding of fact. Morris v. Osmose Wood Preserving, 99 Md.App. 646, 658 , 639 A.2d 147 (1994), rev’d on other grounds, 340 Md. 519 , 667 A.2d 624 (1995). Nonetheless, when a limitations defense is apparent on the face of the complaint, the complaint fails to state a cause of action upon which relief can be granted, and the opposing party may move for dismissal on that basis.

Subur ³⁰⁴ ban Hosp. v. Dwiggins, 83 Md.App. 97, 120-21 , 573 A.2d 835 , rev’d on other grounds, 324 Md. 294 , 596 A.2d 1069 (1991). DISCUSSION The primary purpose of a statute of limitations is to ensure fairness by preventing stale claims. Edmonds v. Cytology Services, 111 Md.App. 233, 244 , 681 A.2d 546 (1996). The statute of limitations applicable in this case is codified in Md.Code (1974, 1995 Repl-Vol., 1997 Supp.), § 5-109(a) of the Courts and Judicial Proceedings Article which provides: 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 five-year maximum period under the statute has been interpreted to run its full length only in those instances when the three-year discovery provision does not bar an action at an earlier date. Hill v. Fitzgerald, 304 Md. 689, 700 , 501 A.2d 27 (1985). The five-year limit, however, runs regardless of whether the injury was discovered or could have been reasonably discovered during that time. Id.

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. See Poffenberger v. Risser, 290 Md. 631, 636 , 431 A.2d 677 (1981). Actual knowledge, either expressed or implied, is required. Poffenberger, 290 Md. at 637 , 431 A.2d 677 .

Actual knowledge has been defined as 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. In other words, a [plaintiff] cannot fail to investigate when the propriety of the investigation is naturally suggested by circumstances known to him; and if he ³⁰⁵ neglects to make such inquiry, he ... must suffer from his neglect. Id. (citations omitted).

See also O’Hara v. Kovens, 305 Md. 280, 302 , 503 A.2d 1313 (1986). Asserting that appellant was aware that she had been injured when, on 29 November 1992, she learned that she suffered a ruptured right ectopic pregnancy as a result of an unsuccessful abortion, appellee argues to this Court, as it did below, that “Maryland courts have long held that the right of action for malpractice accrues when the patient knows, or should know, that he or she has suffered damage.” Appellee cites Waldman v. Rohrbaugh, 241 Md. 137 , 215 A.2d 825 (1966), as authority for that legal proposition. By taking a sentence from Judge Hammond’s opinion in Waldman out of context and omitting one key word from it, appellee has inadvertently distorted the meaning of that opinion. The gist of the holding in Waldman is contained in the penultimate paragraph of the opinion, which states: On reason and principle and the authority in Hahn [v. Claybrook, 130 Md. 179 , 100 A. 83 (1917)] and cases of like import elsewhere which have been cited and referred to, we conclude that the right of action for injury or damage from malpractice may accrue when the patient knows or should know he has suffered injury or damage.

In many cases he will or should know at the time of or soon after the wrongful act that he has been the victim of negligent medical care; in other settings of fact it may be impossible for him, as a layman, unskilled in medicine, reasonably to understand or appreciate that actionable harm has been done to him. If this is fairly the fact, we think he should have the statutory time from the moment of discovery, the moment he knows or should know he has a cause of action, within which to sue. In a medical malpractice case, the element of harm is the last to occur, but, as this case illustrates, that element is not necessarily the last to be discovered. Under the discovery rule, a cause of action accrues (thereby triggering the limita ³⁰⁶ tions period) when the patient discovers, or should have discovered, that he or she has a cause of action.

Waldman is consistent with more recent cases that explain the discovery rule and the accrual of a cause of action. In Owens-Illinois v. Armstrong, 326 Md. 107, 120-21 , 604 A.2d 47 (1992), an asbestos-related injury case, the Court of Appeals, quoting from the earlier case of Harig v. Johns-Manville Products, 284 Md. 70, 83 , 394 A.2d 299 (1978), stated that “a plaintiffs cause of action accrues when he ascertains, or through the exercise of reasonable care and diligence should have ascertained, the nature and cause of his injury.” (Emphasis added in Armstrong.) In Harig , the Court compared an asbestos related injury to a medical malpractice injury and reasoned that “a person incurring disease years after exposure cannot have known of the existence of the tort until some injury manifests itself. In neither case can the tort victim be charged with slumbering on his rights, for there is no notice of the existence of a cause of action.” 284 Md. at 80 , 394 A.2d 299 . “[A] cause of action in negligence or strict liability arises Vhen facts exist to support each element.’” Armstrong, 326 Md. at 121 , 604 A.2d 47 , quoting from this Court’s opinion in Owens-Illinois v. Armstrong, 87 Md.App. 699, 724-25 , 591 A.2d 544 (1991). (Emphasis added). “In a negligence claim, the fact of injury would seemingly be the last element to come into existence.

The breach, duty, and causation elements naturally precedes the fact of injury.” 326 Md. at 121 , 604 A.2d 47 . It is clear therefore, that a medical malpractice cause of action arises when harm results from the tortious act, but it accrues, and the statute of limitations begins to run, when the patient is aware, or in the exercise of due care and diligence should be aware, that the cause of action has arisen, that the medical care provider has breached a duty owing to the patient and that harm to the patient has resulted from that breach. In this case, appellant was unquestionably aware of the harm element as of 29 November 1992. She then was ³⁰⁷ aware that Dr. Boss, having undertaken a duty to perform an abortion, had not succeeded in doing so and that harm — a ruptured ectopic pregnancy — had resulted from that failure.

It was not until about four years later, however, that she learned, during a deposition of Dr. Boss, that appellee had allegedly breached a separate duty of due care to her by failing to notify Dr. Boss expeditiously that there was no fetal tissue in the matter he had removed from appellant by suction curettage. Appellee, relying on Conaway v. State, 90 Md.App. 234 , 600 A.2d 1133 (1992), argues that knowledge of the identity of the defendant that allegedly caused the harm suffered by appellant was not required to trigger the running of the statute of limitations. Appellee’s reliance on Conaway is misplaced. In Conaway , a prisoner in the custody of the Maryland Division of Correction suffered a broken finger which, allegedly as a result of improper medical treatment, was permanently disfigured and painful.

He filed a claim against the State, pursuant to the Maryland Tort Claims Act. Eventually, the State denied the claim, asserting that the required notice of the intention