Piselli v. 75th Street Medical

• Citation: 371 Md. 188,808 A.2d 508
• Decision Date: 08 October 2002
• Docket Number: Misc. No. 2 Sept. Term 2001.
• Parties: Donato PISELLI, et al., v. 75th STREET MEDICAL, et al.
• Court: Court of Appeals of Maryland

808 A.2d 508

371 Md. 188

Donato PISELLI, et al., v. 75th STREET MEDICAL, et al.

Misc. No. .

Court of Appeals of Maryland.

October 8, 2002.

Richard S. Phillips (Walsh & Phillips, P.A., on brief), Easton, for appellants.

Kurt D. Karsten (Curtis H. Booth of Cowdrey, Thompson & Karsten, P.A., on brief), Annapolis, for appellees.

BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

ELDRIDGE, Judge.

This case comes to us by a Certified Question from the United States Court of Appeals for the Fourth Circuit, pursuant to the Maryland Uniform Certification of Questions of Law Act, Maryland Code (1974, 1998 Repl.Vol.), §§ 12-601 through 12-613 of the Courts and Judicial Proceedings Article, and Maryland Rule 8-305. The question of Maryland law set forth in the Certification Order is as follows:

"[W]hether, when a claim is brought by parents on behalf of a child who was injured before reaching age eleven, the three-year statute of limitations of section 5-109(a)(2) [of the Courts and Judicial Proceedings Article] begins to accrue upon the discovery of the injury by the child or upon discovery of the injury by the parents." ¹

The Certification Order acknowledged "that the Court of Appeals of Maryland may reformulate this question." See also § 12-604 of the Courts and Judicial Proceedings Article, providing that "[t]he Court of Appeals of this State may reformulate a question of law certified to it." The Certification Order also indicated that the term "discovered" in § 5-109(a)(2) referred to Maryland's traditional "discovery rule," under which, in the language of the United States Court of Appeals, "a statute of limitations begins to accrue when a person acquires knowledge sufficient to cause a reasonable person to make an inquiry that, if pursued with reasonable diligence, would have disclosed the existence of the allegedly negligent act and harm." See Lumsden v. Design Tech Builders, Inc., 358 Md. 435, 441-447, 749 A.2d 796, 799-802 (2000),

cited by the federal court in its Certification Order.

We shall reformulate the certified question and shall hold that, in light of Article 19 of the Maryland Declaration of Rights, in an action under § 5-109(a) by or on behalf of a claimant who was a minor at the time the injury occurred, the time limitations prescribed in § 5-109(a) shall commence running when the claimant reaches the age of 18 years.

I.

On August 2, 1993, Christopher Piselli, who was at that time 10 years and 11 months old, was on vacation in Ocean City, Maryland, with his family. That morning, Christopher and his father went fishing at a pier in Ocean City for approximately three hours. When they left the pier and were walking back toward their car, Christopher's father noticed that his son was limping and that, as his son was walking, he was throwing out his left leg in an unusual circular, outward motion. Christopher also complained of a great deal of pain in his left hip area. Christopher's father then took Christopher to the 75th Street Medical Center, located in Ocean City, for a medical examination.

At the 75th Street Medical Center, Dr. Lynn Yarborough examined Christopher, and she ordered a series of hip X-rays to be taken by the X-ray technician at the Medical Center. Based upon her examination of Christopher and the X-rays, Dr. Yarborough informed Christopher's father that Christopher had most likely suffered a pulled hamstring muscle. She prescribed a muscle relaxant and ibuprofen for Christopher, and she instructed Christopher's father to use a warm compress on Christopher's leg. Dr. Yarborough also directed that Christopher should return to the Medical Center in two to four days if his condition did not improve.

Three days later, on August 5th, Christopher further injured his left leg while standing in shallow water at the edge of the ocean, when a wave broke near him and caused him to fall over. Christopher was transported by ambulance from the beach to a nearby hospital, and he was ultimately taken to Johns Hopkins Hospital in Baltimore. Christopher had suffered a slipped capital epiphysis at the top of his left leg, a condition in which the capital epiphysis of the femur moves out of place. At Johns Hopkins, the fracture was placed in traction and then pinned. A medical expert further explained at the trial of this case that a slipped capital epiphysis is a "slippage through the growth plate of the ball of the hip joint," the growth plate being made of "cartilage and relatively soft." During August and September 1993, Christopher was required at all times to use crutches, and he needed to restrict his mobility so as to facilitate the healing process in his leg. By the beginning of October, Christopher was able to use the crutches on a more intermittent basis.

Subsequently, in the fall of 1993, Christopher's hip developed a condition referred to as avascular necrosis, a complication of the injury which he had suffered. Avascular necrosis is the "pathologic death of one or more cells, or a portion of tissue or organ, resulting from irreversible damage... due to deficient blood supply." See STEDMAN'S MEDICAL DICTIONARY 1185 (27th ed.2000). In Christopher's case, the upper portion of his left femur ceased growing as a result of avascular necrosis. This condition began to create a significant gap between the length of his right leg and the length of his left leg. At the recommendation of Christopher's doctors, a procedure was performed to kill the growth plate in Christopher's right leg in order to help alleviate the growth disparity between the two legs. Following this surgery, Christopher's left hip remained malformed because of necrosis and arthritis in the joint. Christopher's mobility and his ability to participate in a range of activities were limited. Christopher's physicians informed his parents that his disability would last throughout his lifetime and that Christopher would need a series of operations.

In 1998, the Pisellis filed a medical malpractice claim in the Health Claims Arbitration Office of Maryland, pursuant to § 3-2A-02 of the Courts and Judicial Proceedings Article. Thereafter, the parties elected to waive arbitration, and the Pisellis filed this medical malpractice action. The facts concerning the judicial proceedings are recited in the United States Court of Appeals' Certification Order as follows (footnotes omitted):

"On July 24, 1998, Donate and Marie Piselli filed this medical malpractice action, individually and as Christopher's `next friends,' against Dr. Yarborough and the Medical Center. The action was filed in the United States District Court for the District of Maryland and was referred to Magistrate Judge Paul W. Grimm for all proceedings, including a jury trial.

"Prior to trial, Dr. Yarborough and the Medical Center moved for summary judgment based on the affirmative defense of the statute of limitations. The district court found that there was a genuine factual dispute as to when Christopher's injury was or should have been discovered, and the court therefore denied the motion for summary judgment and put these questions to the jury.

"The jury returned a verdict in favor of Dr. Yarborough and against the Medical Center, finding that the Medical Center had deviated from the accepted standard of care in its treatment of Christopher and that this deviation was the proximate cause of Christopher's injury on August 5, 1993. The jury awarded damages of $410,000 to Christopher and $28,000 to Donato and Marie Piselli. By answer to the special interrogatories, the jury also found that Donato and Marie Piselli discovered Christopher's injury in November 1993 and that Christopher did not discover his injury until 1999, after this action was filed.

"Following the jury's verdict, the district court ruled as a matter of law that this action is time-barred, holding that the statute of limitations in Md.Code Ann., Cts. & Jud. Proc. § 5-109 began to accrue in November 1993, when Christopher's parents had knowledge of his injury. Therefore, the court entered judgment in favor of Dr. Yarborough and the Medical Center.

* * *

"It is undisputed that Christopher was not yet eleven years old at the time the injury was committed in August 1993. It is also undisputed that this action, commenced in July 1998, was filed within `[f]ive years of the time the injury was committed,' § 5-109(a)(1). The relevant question, therefore, is whether this action is time-barred as not filed within `[t]hree years of the date the injury was discovered' as required by section 5-109(a)(2), the answer to which, in this case, depends upon whether the referenced `discovery' is that of the parents or that of the child.

"No Maryland case addresses the question of whether, when a claim is brought by parents on behalf of a child who was injured before reaching age eleven, the three-year statute of limitations of section 5-109(a)(2) begins to accrue upon discovery of the injury by the child or upon discovery of the injury by the parents. The answer to this question is dispositive here because the action was filed within three years of the date the injury was discovered by Christopher, but more than three years after discovery of the injury by Christopher's parents."

The plaintiffs have been designated as the appellants in this Court, and the defendants have been designated as the appellees.

II.

Expressly invoking this Court's statutory authority to reformulate the certified question, the parties' arguments before us range beyond the certified question to a considerable degree.

The plaintiffs' initial argument is "that Maryland law should be interpreted to always provide a minor five years to bring a Medical Malpractice claim, and ... that a rational reading of the law reveals that this is what the Maryland Legislature truly intended when it enacted § 5-109...." (Appellants' brief at 7). Second, largely accepting the legal issue as framed by the certified question, the...