Injury Timing: Thomas v. Shear 3
The Baltimore Medical Malpractice Lawyer Blog delves into the intricate nuances of medical malpractice opinions from the Maryland appellate courts. In part 3 of the Blog post, we will provide a thorough analysis of the complexities surrounding injury timing and the application of the 5-year medical malpractice statute of limitations. 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 the Blog post, I discussed what happens when affidavits opposing a summary judgment motion contradict the affiant’s prior testimony. In part 2, I then examined the issue of generating a genuine dispute of material fact to avoid granting a summary judgment motion.
Factual Background
In 2000, the plaintiff underwent an aortic-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).
Summary Judgment Motions
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 placed a clip on the ureter in 2000, that is when the injury timing occurred. Alternatively, 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).
The plaintiff submitted expert affidavits that contradicted their previous deposition testimony, explaining that they made the change after reviewing the entire file relating to the 2006 visit. The experts first contended in depositions that the clips caused the 2006 hydronephrosis. They now claimed that the defendant’s negligence did not cause the 2006 admission, but rather kidney stones did. The plaintiff contended that there was no injury timing in 2006 from the negligence. (Id. at 7, 9-10). The defense filed a motion to strike the affidavits contradictory to prior testimony. (Id. at 10).
The Circuit Court for Baltimore County determined that the statute of limitations had expired in 2006. It dismissed the inconsistent affidavits from the plaintiff’s experts, thereby granting the defense motion for summary judgment. (Id. at 12-13).
Court of Special Appeals on Injury Timing
The CSA turned to the application of the medical malpractice statute of limitations. The statute of limitations for suits against health care providers is in CJP § 5-109: An action for damages for an injury arising out of the rendering of or failure to render professional services by a health care provider . . . 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. CJP § 5-109(a). (Id. at 16).
Injury timing occurs when the negligent act was first coupled with harm. (Id. at 18). The key is when damages first arise, not when all the damages have arisen. (Id. at 20-21).
The issue in this case is when the injury timing occurred. The defense argued that the evidence demonstrated two possible injury dates. The first was the 2000 procedure, in which any clip would have caused at least a partial blockage and increased pressure in the ureter. The second was the 2006 diagnosis of hydronephrosis. (Id. at 36).
The 5-year period depends on the date of injury timing. It does not matter whether the injury was reasonably discoverable or not. (Id. at 37).
CSA Analysis
The CSA agreed that the plaintiff suffered a medical injury during the 2000 procedure. The plaintiff’s expert testified that a clip was placed on the ureter during the procedure, causing a narrowing. (Id. at 42). This narrowing occurred even though the plaintiff may not have experienced pain then. (Id. at 43). Summary judgment for the defense was proper because the plaintiff needed to file within five years of the injury or by 2005. (Id. at 44).
The Court of Special Appeals also concurred with the defense’s stance on the statute of limitations. The court agreed that the statute began to run at the latest from the time of the 2006 diagnosis. The CT scan unequivocally showed clips and hydronephrosis, constituting a clear injury. The plaintiff’s experts, in their depositions, testified that the clip placed in 2000 caused the hydronephrosis in 2006. The court’s decision effectively barred the plaintiff’s claim due to the statute of limitations, highlighting the importance of understanding and adhering to these legal timelines in medical malpractice cases. (Id. at 45).
Commentary by the Baltimore Medical Malpractice Lawyer on Injury Timing
The fact from this case that leaps out at medical malpractice lawyers is that the plaintiff filed her suit 16 years after the procedure at issue. How will that comply with the Maryland medical malpractice statute of limitations?
Maryland lawmakers have harshly cut off the discovery rule for other injury cases. A patient can file a medical malpractice claim after the three-year period if they have not reasonably discovered their claim. But they cannot go past five years, even if finding the claim by then was impossible. However, there is an exception to this rule. If the plaintiff can prove ‘fraudulent concealment ‘, which is the intentional hiding of the existence of an injury or the cause of an injury, then the statute of limitations may be extended. (This assumes that the plaintiff cannot prove fraudulent concealment).
Injury Timing
Since the discovery rule is limited, the plaintiff’s only chance is to establish that there was a delay in the occurrence of an injury that would start the running of the statute of limitations. The Thomas opinion noted that this issue usually comes up in delayed diagnosis cases, such as cancer, where the debate is when an injury occurred.
Here, the alleged malpractice was placing a clip on the ureter. The court found that such placement would have immediately caused an effect on the ureter that constituted an injury, even if no symptoms had started yet.
The court also noted that the filing still would have been late if the injury had been in 2006 when a CT scan showed the clips and the plaintiff was diagnosed with hydronephrosis.
In this case, the plaintiff never had much of a chance to avoid the statute of limitations defense.
You can read other Blog posts on the Maryland medical malpractice 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.