545 A.2d 714 (Md.App. 1988), 1657, Russo v. Ascher

Docket Nº:1657,
Citation:545 A.2d 714, 76 Md.App. 465
Opinion Judge:[10] Garrity
Party Name:Ethel RUSSO v. Eduard ASCHER.
Attorney:[7] R. David Adelberg, Towson, Maryland, for appellant.
Case Date:August 09, 1988
Court:Court of Special Appeals of Maryland

Page 714

545 A.2d 714 (Md.App. 1988)

76 Md.App. 465



Eduard ASCHER.

No. 1657,

Court of Special Appeals of Maryland.

August 9, 1988

       [76 Md.App. 466] R. David Adelberg, Towson, for appellant.

       Susan A. Polis (Charles N. Ketterman, Angus R. Everton and Donahue, Ehrmantraut & Montedonico, Chartered, on the brief), Baltimore, for appellee.

       Argued before GARRITY, ROBERT M. BELL and POLLITT, JJ.

Page 715


       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 [76 Md.App. 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.


       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 appellant [76 Md.App. 468] 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

  1. 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.

    Page 716

    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). [76 Md.App. 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 plaintiff's claim was time-barred...

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