Edmonds v. Cytology Services of Maryland, Inc.

• Decision Date: 01 September 1995
• Docket Number: No. 1619,1619
• Citation: 111 Md.App. 233,681 A.2d 546
• Parties: Wallace Newton EDMONDS, et al. v. CYTOLOGY SERVICES OF MARYLAND, INC., et al. ,
• Court: Court of Special Appeals of Maryland

Page 233

111 Md.App. 233

681 A.2d 546

Wallace Newton EDMONDS, et al. v. CYTOLOGY SERVICES OF MARYLAND, INC., et al.

No. 1619, Sept. Term, 1995.

Court of Special Appeals of Maryland.

Aug. 29, 1996.

Certiorari Granted Dec. 23, 1996.

Terrell N. Roberts, III (Roberts & Wood, on the brief), Riverdale, for Appellants

Edward A. Gonsalves (Gary A. Godard and Godard, West & Adelman, P.C., on the brief, for appellees Jaffurs and Cytology Services), Fairfax, VA, Larry A. Ceppos (Andrew J. Marter and Armstrong, Donohue & Ceppos, Chartered, on the brief, for appellees Rivera and Mattei), Rockville, for Appellees.

Argued before MOYLAN, HOLLANDER and EYLER, JJ.

HOLLANDER, Judge.

This appeal requires us to interpret Maryland Code (1974, 1995 Repl.Vol.), § 5-109(a) of the Courts and Judicial Proceedings Article ("C.J."), which sets forth the statute of limitations governing actions against health care providers.

Debra Ann Edmonds succumbed to cancer in 1990, following an alleged misdiagnosis in 1983. In 1993, Wallace Newton Edmonds and Amanda Bree Edmonds (the husband and daughter of Ms. Edmonds), and the Estate of Debra Edmonds, all appellants, filed wrongful death and survival claims against Dr. William Jaffurs, Cytology Services of Maryland, Inc. ("Cytology"), Dr. Myrna Rivera, and Ivan Mattei, M.D., P.A., appellees, alleging that, in 1983, appellees had negligently failed to diagnose Ms. Edmonds's cervical cancer. When the matter proceeded to court, appellees moved for summary judgment, contending that appellants' claims were barred by limitations under C.J. § 5-109(a). The Circuit Court for Prince George's County granted the motion as to all claims. Appellants now present two questions for our consideration:

I. Did the lower court err by granting summary judgment against Wallace Newton Edmonds and Amanda Bree Edmonds on the grounds that their wrongful death claims were barred by the applicable statute of limitations?

II. Did the lower court err by granting summary judgment against the Estate of Debra Edmonds on the grounds that the survival claim was barred by the applicable statute of limitations?

For the reasons stated below, we conclude that the court erred in granting summary judgment. Accordingly, we shall vacate the judgment and remand the case for further proceedings.

FACTUAL SUMMARY

In 1980, Debra Edmonds, who was then twenty-four years old and the mother of a young child, came under the care of Dr. Joseph Murgalo, a gynecologist who is not a party to this litigation. While under Dr. Murgalo's care, Ms. Edmonds experienced vaginal bleeding, abnormal discharge, and cervical eversion ¹ and erosion. On February 19, 1981, Dr. Murgalo Ms. Edmonds continued to experience problems associated with cervical eversion. In September 1981 and April 1982, she had abnormal Pap smears. ³ In October 1982, Dr. Murgalo noted that the cervix needed attention.

performed a cryoconization of Ms. Edmonds's cervix. ²

On July 15, 1983, Dr. Murgalo performed a biopsy on a portion of white epithelium of the cervix. ⁴ The biopsy specimen was sent to Cytology, where Dr. Jaffurs, a Cytology employee, examined it. Dr. Jaffurs diagnosed "severe epithelial dysplasia--epidermoid carcinoma-in-situ (cervical intraepithelial neoplasia--3)." ⁵ In a "comment" on his written report On July 28, 1983, Dr. Murgalo ordered an additional biopsy of Ms. Edmonds's cervix. The specimen was examined by Dr. Rivera, an employee of the laboratory of Ivan R. Mattei, M.D., P.A. ⁶ Dr. Rivera diagnosed "foci of severe epithelial dysplasia--5." Shortly thereafter, Dr. Murgalo performed a cervical conization. ⁷ The specimen was sent to the pathology department of Prince George's Hospital and Medical Center. Dr. Abolghassem Hatef, a pathologist who is not a party to this litigation, examined the specimen and stated in a subsequent report: "Cervical cone showing two minute foci of severe dysplasia. All margins are free--5."

Dr. Jaffurs stated: "Patient should be considered for further diagnostic surgery."

Following the cervical conization, Ms. Edmonds remained under Dr. Murgalo's care. Between the evaluation of the conization in 1983 and August 1988, Dr. Murgalo continued to follow Edmonds and took periodic Pap smears that were benign. ⁸ During this period, Ms. Edmonds apparently did not report any symptoms suggestive of cervical cancer, and she did not undergo any further diagnostic procedures.

In August 1988, Edmonds began to experience pain in her right sacroiliac and low back regions. X-rays taken at that time showed a "density" in the right mid-abdomen. That same month, Edmonds was admitted to the hospital for removal of her gallbladder. At that time, she complained of "continuous low back pain."

On May 1, 1989, Edmonds returned to Dr. Murgalo for an office visit, complaining of "severe pain" in the right buttocks, radiating down the right thigh. She also indicated that the pain had been "off and on for four months." ⁹ She saw Dr. Murgalo again on June 5, 1989 and complained of pain in the right sacroiliac area, radiating down to the groin and to the interior thigh. Dr. Murgalo referred her to an orthopedist. Despite the orthopedic care, Ms. Edmonds's back pain persisted.

On August 28, 1989, an electromyogram and nerve conduction study revealed "profound denervation of the adductors in the right leg consistent with a severe neuropathy involving the right obdurator nerve." ¹⁰ Ms. Edmonds continued to suffer excruciating pain in her right mid-lumbar spine and low back areas. She also began to lose a significant amount of weight.

Dr. Guy Gargour examined Ms. Edmonds on October 17, 1989 and performed a CT scan. He discovered a "mass" in On April 5, 1990, Edmonds was re-admitted to the hospital with symptoms of jaundice, anorexia, nausea, and vomiting. She died on April 11, 1990, at the age of thirty-four.

                the right pelvic area.  On November 5, 1989, Edmonds was admitted to Georgetown University Hospital for a cancer evaluation.  She was diagnosed on November 8, 1989 as having "squamous cell cancer of unknown origin." 11  She began to receive chemotherapy and radiation treatment.  After twenty-five days in the hospital, Edmonds was discharged.  She returned to the hospital for cancer treatment on an outpatient basis
                

On April 9, 1993, Wallace and Amanda Edmonds filed a statement of claim in the Health Claims Arbitration Office. ¹² The claim included both wrongful death and survival actions. They alleged that Dr. Jaffurs, Dr. Rivera, Cytology, and Ivan R. Mattei, M.D., P.A. were negligent. After the parties waived the jurisdiction of the Health Claims Arbitration Office, appellants filed a complaint in the circuit court on June 3, 1994. ¹³ They alleged that appellees (1) failed to diagnose "invasive cancer" in the cervical specimens that they had analyzed in 1983; (2) failed to advise Dr. Murgalo "of the need for surgical treatment to remove the tumor"; (3) failed "to obtain an adequate history" from Edmonds and Dr. Murgalo; and (4) failed "to consider the diagnosis of invasive cancer and discuss appropriate treatments."

Dr. Thomas F. Rocereto, one of appellants' experts, testified at deposition that Ms. Edmonds had "microscopic cervical cancer" at the time the original biopsies were taken in July 1983. He stated that, at that time, she had "at least ... Stage I" cervical cancer, meaning that "[t]he tumor, as far as I could tell from the record, was confined to the cervix." He added, however, that, with Stage I tumors, there is a "ten to fifteen percent chance" that the lymph nodes are also involved.

Dr. Rocereto also opined that, had Ms. Edmonds been correctly diagnosed, the standard of care for her treatment would have been a radical hysterectomy and lymph node dissection. Moreover, he said that, if she had been treated properly in 1983, she would have had at least a seventy-five to eighty-five percent probability of survival. Dr. Rocereto added that Ms. Edmonds's chances of survival could have been more than ninety percent if her cervical cancer were truly microscopic in 1983. He also testified that, by 1989, when Ms. Edmonds complained of severe pain, she had no chance of survival. He was unable to identify, however, the point in time when Ms. Edmonds's cancer became incurable.

Appellees disputed appellants' contentions and denied all liability. They asserted that the biopsy specimens were correctly analyzed in 1983. They also claimed that Ms. Edmonds did not die from cervical cancer. Appellees based this contention, in part, on the autopsy report from Georgetown University Hospital, which stated in its "History" section that "Primary cervical ... carcinoma[ ] had been previously excluded." The autopsy report also said, in its "Summary," that "the major part of the tumor appeared to be located within the pancreas," although the pathologist was unable to determine the origin of the cancer. Further, the Summary indicated that "[c]areful gross and microscopic examination did not reveal any other possible site [other than the pancreas] for primary carcinoma." ¹⁴ In addition, Dr. James F. Barter testified at a deposition that "there was no evidence that [Ms.

Edmonds] had an invasive squamous cell carcinoma of the cervix."

Notwithstanding these factual disputes, appellees filed motions for summary judgment, asserting that appellants' claims were time-barred under C.J. § 5-109(a), which requires that an action be filed within three years of the date on which "the injury was discovered" (C.J. § 5-109(a)(2)), or within five years from the time "the injury was committed" (C.J. § 5-109(a)(1)), whichever is shorter. In their opposition, appellants contended that there was a genuine dispute of material fact as to when the five year limitations period in C.J. § 5-109(a)(1) had commenced; they argued that an "injury" within the meaning of that provision occurred only when Ms. Edmonds's cervical cancer metastasized to other parts of her body, and the...