Anderson v. United States

• Decision Date: 22 June 2012
• Docket Number: Sept. Term, 2011.,Misc. No. 14
• Citation: 46 A.3d 426,427 Md. 99
• Parties: Angelia M. ANDERSON v. UNITED STATES of America.
• Court: Maryland Court of Appeals

427 Md. 99

46 A.3d 426

Angelia M. ANDERSON

v.UNITED STATES of America.

Misc. No. 14, Sept. Term, 2011.

Court of Appeals of Maryland.

June 22, 2012.

Byron Leslie Warnken (Warnken, LLC, Towson, MD; Kerry D. Staton and Jonathan Schochor, Federico & Staton, P.A., Baltimore, MD), on brief, for Appellant.

Lewis S. Yelin, (Rod J. Rosenstein, United States Attorney, Stuart F. Delery, Acting Asst. Atty. Gen., and Thomas M. Bondy, U.S. Department of Justice, Washington, D.C.), on brief, for Appellee.

Michael Wein, Law Offices of Michael Wein, Greenbelt, MD, for Amicus Curiae brief of the Maryland Association of Justice.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA, and McDONALD, JJ.

HARRELL, J.

“What's in a name? That which we call a rose by any other name would smell as sweet.” Romeo and Juliet, William Shakespeare. For most plaintiffs in medical malpractice actions in our State courts, it would not matter whether we denominate Maryland Code (1973, 2006 Repl.Vol.) Courts & Judicial Proceedings Article, § 5–109(a)(1) (addressed to the time within which a medical malpractice claim must be commenced) a statute of limitation or a statute of repose. The time period allowed for bringing a medical malpractice action under § 5–109(a)(1) is five years from the time the injury was committed, after which, the claim is barred by the passage of the time period. Thus, in a typical situation governed by Maryland law, once five years passes after the plaintiff's alleged injuries (subject to express tolling situations regarding the age of a claimant), the claim is barred whether the statute is considered one of repose or limitation.

In the unusual scenario in the present case underlying the Certified Question of Law from the federal Court of Appeals for the Fourth Circuit, the label we shall place on the statute is more than an academic exercise. The answer to that query determines whether Appellant Angelia Anderson's claim against the United States of America may proceed or is barred. Anderson brought a medical malpractice action in the United States District Court for the District of Maryland against the United States under the Federal Tort Claims Act (“FTCA”). ¹ The FTCA permits a plaintiff to maintain an action against the federal government if that person would have a cause of action under state law against a private person under similar conditions. See28 U.S.C. § 2677 (2012). The FTCA contains a two-year statute of limitations regarding the timeliness of bringing claims against the government; however, if there is substantive law in the state where the claim arose governing the timeliness of a similar claim, the state provision controls over the FTCA's statute of limitations. Miller v. United States, 932 F.2d 301, 303 (4th Cir.1991). Ordinarily under the FTCA, a state statute of limitations is considered to be a procedural control that limits an available remedy. See First United Methodist Church of Hyattsville v. U.S. Gypsum Co., 882 F.2d 862, 865 (4th Cir. 1989). A state statute of repose, which regulates also the timeliness of claims, however, is considered substantive law and prevails over the procedural FTCA statute of limitations. First United, 882 F.2d at 866. Thus, if we declare § 5–109(a)(1) to be a statute of repose, application of its substantive provisions determine the timeliness of Anderson's action. For reasons to be explained, we hold that the plain language of § 5–109(a)(1), confirmed by its legislative history, demonstrates that § 5–109(a)(1) is a statute of limitations, rather than repose.

I. FACTUAL AND LEGAL BACKGROUND

This case reaches us as a certified question of law from the Federal Court and, therefore, we are constrained in deciding the question by the facts provided in the Certification Order. Md.Code (1973, 2006 Repl.Vol.) Cts. & Jud. Proc. Art., § 12–606; see also Guttman v. Wells Fargo Bank, 421 Md. 227, 230, 26 A.3d 856, 858 (2011) (citing Piselli v. 75th St. Med., 371 Md. 188, 202, 808 A.2d 508, 516 (2002)). The following factual statement appears in the Certification Order from the federal appellate court:

Anderson first visited the VA Hospital [in Baltimore, Maryland] in February 2002, complaining of lower back pain. An MRI revealed scattered bone abnormalities in Anderson's lumbar spine and a radiologist recommended a bone scan, which was performed in May 2002 and showed abnormal results. Subsequently, a bone marrow biopsy was performed, resulting in a diagnosis of B-cell lymphoproliferative disease in Anderson's spine. Anderson was scheduled to begin chemotherapy in August 2002, but her doctors determined instead that a course of observation was more appropriate. Anderson was given a fentanyl patch to control her pain. Anderson returned to the VA Hospital in September 2002, reporting continuing pain on her left side; her doctors responded by increasing her pain medication.

On December 19, 2002, Anderson complained at the VA Hospital of increased pain and new symptoms, including pain and numbness radiating to her foot. She was discharged and instructed to report to the neurology clinic four days later. Anderson returned to the VA Hospital the next day complaining of increased pain in her back and an inability to move her legs. An MRI revealed no evidence of compression. Anderson again returned to the VA Hospital on December 23, reporting an inability to walk or stand and complaining of numbness up to her breasts. She was again discharged with instructions to return for another MRI on December 26. Anderson instead sought treatment at another hospital on December 24, where a physical examination and diagnostic tests revealed an epidural spinal tumor compressing her spinal cord. Anderson underwent immediate surgery to relieve the spinal compression and remained hospitalized until December 30.

Nearly a year later, on December 17, 2003, Anderson initiated an administrative claim with Veterans Administration in Baltimore by filing a completed Standard Form 95 (Claim for Damage, Injury, or Death). She alleged that the VA Hospital failed to recognize the symptoms of progressive spinal cord compression due to an epidural spine tumor that developed as a result of her known cancer. She also alleged that the negligent care she received at the VA Hospital necessitated emergency surgery on her spine, and that, notwithstanding the emergency surgery, the VA Hospital's negligence left her with significant, permanent neurological deficits, severe and permanent disability, and incessant pain and emotional anguish.

For nearly four years, Anderson's claim proceeded through the administrative process, including significant settlement discussion, until it was denied as not amenable to administrative resolution by letter dated September 26, 2007. Anderson filed suit in the district court on January 2, 2008. The government moved to dismiss arguing that Anderson had failed to file a claim and an expert certificate with the Maryland Health Care Alternative Dispute Resolution Office (“HCADRO”), as required by Maryland's Health Care Malpractice Claims Act (codified at Md.Code Ann., Cts. & Jud. Proc. § 3–2A–04). The district court stayed the case to allow Anderson to file the complaint and certificate with the HCADRO. Anderson complied and the district court lifted the stay.

The government then filed a second motion to dismiss, arguing that Section 5–109(a)(1), which it characterized as Maryland's statute of repose for health care malpractice claims, divested the court of subject matter jurisdiction because Anderson did not file her federal suit within the five-year statutory period. In its order granting the motion, the district court noted that Maryland courts have referred to Section 5–109 as a statute of limitations and that it contains tolling provisions that are generally inconsistent with statutes of repose. However, the district court concluded that, “particularly in light of the recent reference by the Court of Appeals in Burnside [ v. Wong, 412 Md. 80, 986 A.2d 437 [427] (2010) ],” it was “constrained to conclude that the state's highest court views § 5–109(a)(1) as a statute of repose.” [Anderson v. United States, 2010 WL 1346409, *4, 2010 U.S. Dist. LEXIS 30759, *11 (D.Md.2010) ] (citing Burnside, 986 A.2d at 440). Thus, the district court granted the government's motion to dismiss for lack of subject matter jurisdiction.

The district court denied Anderson's subsequent motion for reconsideration, and Anderson timely appealed to this Court, assigning error to the district court's conclusion that Section 5–109(a)(1) is a statute of repose.¹

The original version of the Maryland Health Care Malpractice Claims statute was enacted in 1975 in response to a perceived crisis in Maryland in the medical malpractice insurance industry. See Chapter 545 of the Acts of 1975; Att'y Gen. of Md. v. Johnson, 282 Md. 274, 385 A.2d 57 (1978). Section 5–109 was added to the Courts Article “ [f]or the purpose of providing the statute of limitations for actions based on malpractice by physicians.

” Ch. 545 of the Acts of 1975 (emphasis added). As enacted originally, § 5–109 read:

An action for damages for an injury arising out of the rendering of or failure to render professional services by a physician 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. In no event shall this time run against a minor until he has attained majority.

Section 5–109 was amended a year later based on recommendations from the Medical Malpractice Insurance Study Committee, which was comprised of legislators; a representative for the Governor; and members of medical, legal, hospital, and insurance interests. Glenn v. Morelos, 79 Md.App. 90, 92–93, 555 A.2d 1064, 1066 (1989). The Committee expressed concern about the narrowness of the 1975 version of § 5–109 because it applied only to physicians...