Dispute of Fact: Thomas v. Shear 2

The Baltimore Medical Malpractice Lawyer Blog, a platform that delves into medical malpractice opinions from the Maryland appellate courts, presents part 2 of the Blog post. Here, we unravel the process of generating a genuine dispute of material fact to oppose the granting of a summary judgment motion.  The case under scrutiny is a reported opinion by the Court of Special Appeals of Maryland, Thomas v. Shear, 247 Md. App. 430 (2020).

In part 1 of this Blog post, I discussed what happens when affidavits opposing a summary judgment motion contradict the affiant’s prior testimony.

Factual Background & Dispute of Fact

In 2000, the plaintiff underwent an aorto-bifemoral bypass graft at GBMC. This procedure created a new path around an obstructed blood vessel. (Op. at 3). Sixteen years later, the plaintiff filed a malpractice claim against the surgeon.  The complaint alleges that the doctor placed a surgical clip on the plaintiff’s right ureter, which then caused the plaintiff to start having abdominal pain in 2014. (Id. at 1, 4-5).

Discovery revealed a 2006 CT Scan of the plaintiff, which revealed kidney stones. In addition, it showed hydronephrosis, which is excessive fluid in the kidney due to urine backup. The scan also showed clips from the bypass. (Id. at 6). 

The parties filed motions for summary judgment on the statute of limitations. The defense argued that the five-year statute of limitations in CJP 5-109(a) barred the plaintiff’s claim. The defense contended that if it put a clip on the ureter in 2000, that is when the injury occurred. Additionally, the defense asserted that a CT scan 2006 showed hydronephrosis that the clip caused the plaintiff’s claim. Under this argument, the claim was barred by 2011. (Id. at 9).

Expert Affidavits

The plaintiff sought to create a dispute of fact. plaintiff’s submission of expert affidavits that contradicted their previous deposition testimony, attributing the change to a review of the entire file relating to the 2006 visit, was a significant development. The experts initially claimed in depositions that the clips caused the 2006 hydronephrosis. They now contended that the 2006 admission was not due to the defendant’s negligence but rather to kidney stones. The plaintiff argued that there was no injury in 2006 from the negligence. The defense filed a motion to strike the affidavits contradictory to prior testimony. (Id. at 9-10).

The Circuit Court for Baltimore County ruled that the statute of limitations ran at the latest from 2006. The court rejected the inconsistent affidavits from the plaintiff’s experts. Consequently, the court found no dispute of fact and granted the defense motion for summary judgment, as the statute of limitations had expired. (Id. at 12-13).

Court of Special Appeals

In opposing the defense’s motion for summary judgment, the plaintiff attempted to create a dispute of fact. She used the defense experts’ testimony that the defendant doctor’s negligence did not cause the 2006 hydronephrosis. Of course, the plaintiff did not seek to adopt the defense expert testimony that the defendant did not put a clip across the ureter in the first place. The plaintiff also contended that the defense had the burden of proving an injury in 2006 for purposes of the statute of limitations. (Id. at 32).

To defeat the defense’s motion for summary judgment, the plaintiff was required to create a dispute of fact. She had to present admissible evidence upon which the jury could reasonably find for the plaintiff. The defense experts did not testify only that there was no injury in 2006. Instead, they testified that the defendant never placed a clip across the ureter and that there was never an injury. The plaintiff cannot adopt the defense experts’ testimony without sinking her prima facie case. Accordingly, summary judgment was appropriate. (Id. at 34).

The CSA also rejected the plaintiff’s claim that the defense had the burden of proving injury in 2006 to show an expired statute of limitations. In its motion, the defense demonstrated that it was entitled to summary judgment because the procedure was in 2000, and the plaintiff filed suit in 2016, eleven years past the expiration of the statute of limitations. CJP 109(a). (Id.)

The defense met its burden of establishing the absence of a genuine issue of material fact. Then, the burden shifted to the plaintiff to show why the statute of limitations did not bar her claim as a matter of law or identify disputed material facts. The plaintiff failed to do so. (Id. at 35). 

Commentary by the Baltimore Medical Malpractice Lawyer on Dispute of Fact

The plaintiff’s attempt to use only a portion of the defense expert’s expert testimony to create a dispute of fact and defeat the defense motion for summary judgment would fail. Under the plaintiff’s argument, a plaintiff can always defeat a statute of limitations claim by invoking defense expert testimony that the defendant never caused an injury.

The plaintiff’s argument that the defense had the burden of establishing a 2006 injury was so unusual that the CSA called it enigmatic. The plaintiff filed suit 16 years after the alleged negligent act. The defense could then file a motion saying that the filing was beyond the 3-5 year statute of limitations. Then, the burden shifted to the plaintiff to create a dispute of fact and show that the filing was within 3-5 years of the injury. As discussed in part 1 of the Blog series, the plaintiff was stuck with her expert’s testimony that there was injury in 2006, 10 years before the plaintiff filed suit.

In part 3 and the final Blog post on this case, I will discuss the courts’ application of the statute of limitations.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.