Statute of Limitations Savings Clauses: Earl v. SSC

The Appellate Court of Maryland has issued a statute of limitations savings clause decision in a Maryland medical malpractice case. On March 18, 2024, the Appellate Court released an unreported opinion in Cannon-Earl v. SSC Silver Operating Company, LLC.

Circuit Court Facts

In March 2020, the plaintiffs filed a wrongful death claim in the Health Care Alternative Dispute Resolution Office (HCADRO). They contended that medical malpractice had caused a death in June of 2018. (Op. at 1). HCADRO then transferred the case to the Circuit Court for Montgomery County. Afterward, the court dismissed it without prejudice in July 2022 because of multiple deficient Certificates of Qualified Expert (CQE). In September of 2022, the plaintiffs then filed a new claim with HCADRO. The HCADRO transferred it to the circuit court. The circuit court subsequently dismissed it as failing to meet the statute of limitations. (Id.).

The plaintiffs had alleged the death occurred while in a nursing home and related to problems with the patient’s G-Tube, which provided nutrition and hydration. Afterward, the patient ultimately became septic and died. (Id. at 2). 

After the close of discovery in the first case, the defense filed a motion for summary judgment, specifically arguing that the plaintiff’s CQE was deficient and that the plaintiff’s nurse was not qualified to opine on causation. The circuit court reserved the motion and correspondingly ordered the plaintiffs to file a substitute CQE (Id. at 2-3).

Refile CQE

The plaintiffs filed a substitute CQE, and the defense later moved to strike it for failure to identify the names of the individuals charged with breaching the standard of care. In July 2022, the circuit court dismissed the complaint without prejudice, ruling that both CQEs had been deficient. (Id. at 4).

Refile in HCADRO

Plaintiffs refiled their claim in HCADRO in September of 2022, more than four years after the death. The plaintiffs transferred the case with a CQE to the circuit court in March 2023. The defense filed a motion to dismiss, arguing that the statute of limitations barred the complaint. The circuit court ruled in July of 2023 that the statute of limitations had expired in July of 2021 and that the savings provisions invoked by the plaintiffs were inapplicable. (Id.).

Appellate Court – Statute of Limitations Savings Clauses

Two provisions, known as savings clauses, can allow a plaintiff to refile after the statute of limitations has expired. They are found in CJP 5-119 and CJP 3-2A-04(b)(4)(iv). CJP 5-119 allows a plaintiff 60 days to refile if the complaint was dismissed for failure to attach a report to the CQE. 

CJP 3-2A-04(b)(4)(iv) allows a plaintiff to refile within 120 days if the expert fails to meet the requirements of that subsection. That subsection states that the health care provider who signs the CQE on the standard of care cannot devote more than 25% of their professional activities to activities that directly involve testimony in personal injury claims during the 12 months immediately before the date the plaintiff claim first filed the case.

CJP 5-119 Statute of Limitations Savings Clause

The plaintiffs argued that under CJP 5-119, filing an improper report is the same as failing to file a report. Also, the plaintiffs contended that the CJP 3-2A-04(b)(4)(iv) reference to subsection is not limited to the (b)(4)(iv) 25% requirement but applies to the (b) CQE requirement generally. (Id. at 8).

The Appellate Court noted that the circuit court had dismissed the first complaint for deficiencies with the CQE, not the report, so the CJP 5-119 savings clause did not apply. (Id. at 11).

CJP 3-2A-04(b)(4)(iv) Statute of Limitations Savings Clause

The Appellate Court found that the savings clause in CJP 3-2A-04(b)(4)(iv) was ambiguous as to whether it applies to all of (b) or only (b)(4)(iv). The Court looked at the legislative intent and noted that the amendment focused only on (b)(4) and the legislative process centered on the expert’s professional activities. (Id. at 16). The testimony also only focused on the professional activities component and expert exclusion based on failure to comply. The legislators did not discuss any other provision within (b). (Id. at 17). As a result, The Appellate Court concluded that the savings clause is limited to dismissal for failure to comply with the 25% rule. (Id. at 18). The Court also found that principles of statutory construction support the conclusion. (Id. at 19-20).

Commentary By the Baltimore Medical Malpractice Lawyer

I believe the Appellate Court correctly analyzed the savings clauses. Although the language in CJP 3-2A-04(b) is not well drafted, the court’s conclusion is well reasoned.

This case involves multiple setbacks that seem avoidable. The plaintiff’s selection of a nurse to sign the CQE is unusual. Admittedly, there may not be well-established case law for this point. There is an unreported opinion from 2020 in Gore v. Calvert Mem. Hosp. (May 26, 2020), holding that a nurse could not sign the CQE. Even so, as a matter of practice, I have never considered a nurse for the CQE and do not recall seeing other practitioners do it.

However, the requirement of identifying healthcare providers by name has been clear since the 2007 decision in Carroll v. Konits, 400 Md. 167 (2007). Of course, identifying the responsible healthcare provider can occasionally be challenging. Still, there are means available to make that determination, including conducting discovery in HCADRO before filing a CQE.

This litigation has taken four years and during that time the courts never considered the merits of the plaintiff’s claim.

Update 5/2/24

The Appellate Court of Maryland has subsequently issued a reported opinion in Robinson v. Canton Harbor Healthcare, Center, Inc. The Court specifically held that a nurse can sign a CQE in a nursing home bed sore case.

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.