Cotham v. Board of County Com'rs for Prince George's County

• Decision Date: 02 February 1971
• Docket Number: 266,Nos. 15,s. 15
• Citation: 260 Md. 556,273 A.2d 115
• Parties: Durley COTHAM v. BOARD OF COUNTY COMMISSIONERS FOR PRINCE GEORGE'S COUNTY, Maryland. Benjamin MALDONADO, Jr. v. BOARD OF COUNTY COMMISSIONERS FOR PRINCE GEORGE'S COUNTY, Maryland.
• Court: Maryland Court of Appeals

Page 556

260 Md. 556

273 A.2d 115

Durley COTHAM v. BOARD OF COUNTY COMMISSIONERS FOR PRINCE GEORGE'S COUNTY, Maryland.

Benjamin MALDONADO, Jr. v. BOARD OF COUNTY COMMISSIONERS FOR PRINCE GEORGE'S COUNTY, Maryland.

Nos. 15, 266.

Court of Appeals of Maryland.

Feb. 2, 1971.

William L. Kaplan, Hyattsville (Karl G. Feissner, Thomas P. Smith, Fred R. Joseph, Andrew E. Greenwald and Feissner, Kaplan & Smith, Hyattsville, on the brief) for Durley Cotham.

Joseph Montedonico, Rockville (Edward C. Donahue, William A. Ehrmantraut and James P. Gleason, Rockville, on the brief) for Benjamin Maldonado, Jr.

James P. Salmon, Upper Marlboro (Jerrold V. Powers and Sasscer, Clagett, Powers & Channing, Upper Marlboro, on the brief in No. 15; and Sasscer, Clagett, Channing & Bucher, Upper Marlboro, on the brief in No. 266) for appellee.

Argued before HAMMOND, C. J., and BARNES, SINGLEY, SMITH and DIGGES, JJ.

SMITH, Judge.

We are here called upon to decide the proper interpretation of what is now Code (1970 Cum.Supp.), Art. 57, § 18 relative to the notice required of claims against certain counties in a situation where the plaintiff's declaration does not recite giving the notice within the statutory period, but says 'upon discovery of the negligence of the Defendants (she) gave timely notice.' We are also obliged to construe the statute relative to its application to a third party claim. The facts are not in dispute.

Durley Cotham (Cotham), appellant in No. 15, was a patient in Prince George's County General Hospital in September, 1966, and for some time subsequently. It is an institution operated by the County Commissioners of Prince George's County. ¹ She filed suit against the County Commissioners of Prince George's County (County) and Dr. Benjamin Maldonado, Jr., on August 21, 1969. In the amended declaration she said:

'Plaintiff, upon discovery of the negligence of the Defendants, gave timely notice in accordance with Article 57, Section 18 of the Maryland Code to the Defendant, Board of County Commissioners for Prince George's County, Maryland, said notice having been sent by certified mail, the 19th day of May, 1969.'

To this declaration the County filed a demurrer on the ground 'the amended declaration does not allege that the notice prescribed by Article 57, Section 18, of the Annotated Code of Maryland was duly presented.' Code (1970 Cum.Supp.), Art. 57, § 18 has been amended several times since the occurrence of this incident, but the provision applicable to this incident remains basically unchanged. It now reads:

'No action shall be maintained and no claim shall be allowed against (Prince George's County) for unliquidated damages for any injury or damage to person or property unless * * * written notice thereof setting forth the time, place or cause of the alleged damage, loss, injury or death shall be presented * * * to the county commissioners * * *.'

and then goes on since 1967 to provide that the notice must be presented within 180 days 'after the injury or damage was sustained'. At the time of this hospitalization the provision relative to Prince George's County was 90 days. Judge Loveless sustained the County's demurrer without leave to amend. Pursuant to Maryland Rule 605 a, he made 'an express determination that there (was) no just reason for delay' and directed that judgment be entered in favor of the County against Cotham for costs. We shall affirm this judgment.

Dr. Maldonado, appellant in No. 266, filed a third party claim for indemnification against the County. His declaration did not mention any notice to the County under § 18. The County likewise demurred to the third party claim on the basis that it did 'not allege that the notice prescribed by Article 57, Section 18, of the Annotated Code of Maryland was duly presented.' Judge Meloy sustained the demurrer. He likewise made a determination under Rule 605 and directed entry of judgment in favor of the County against Dr. Maldonado for costs. We shall reverse that judgment.

We are presented with two specific questions. The first is whether there is any exception in this notice provision where, as it is claimed here, the injury was not immediately discovered. In the posture in which the case reaches us the well pleaded facts are that Cotham was a patient at the hospital for quite some period of time and that she gave 'timely notice' upon 'discovery of the negligence.' It was conceded at argument that her condition was apparent at the time of her discharge from the hospital more than a year prior to the notice here given and that the negligence was discovered when counsel was consulted on her behalf. The case is decided upon that premise. The second question has to do with whether notice is required in the matter of a third party claim and if so, when it is required to be given.

I.

Cotham calls to our attention Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d 825 (1966), in which this Court said:

'On reason and principle and the authority of Hahn (v. Claybrook, 130 Md. 179, 100 A. 83 (1917)) and cases of like import elsewhere which have been cited and referred to, we conclude that the right of action for injury or damage from malpractice may accrue when the patient knows or should know he has suffered injury or damage. In many cases he will or should know at the time of or soon after the wrongful act that he has been the victim of negligent medical care; in other settings of fact it may be impossible for him, as a layman, unskilled in medicine, reasonably to understand or appreciate that actionable harm has been done him. If this is fairly the fact, we think he should have the statutory time from the moment of discovery, the moment he knows or should know he has a cause of action, within which to sue.' Id. at 145, 215 A.2d at 830.

He might well have also referred to Mattingly v. Hopkins, 254 Md. 88, 253 A.2d 904 (1969), a case involving a surveyor, and Mumford v. Staton, Whaley & Price, 254 Md. 697, 255 A.2d 359 (1969), a case involving an attorney. To refer to any of these cases, however, as authority for application of the discovery theory contended for to this situation overlooks the basic difference in the posture of the cases. Those cases involved application of Code (1957), Art. 57, § 1 providing for the bringing of suits within a given period of time 'from the time the cause of action accrued'. Each of those cases held that in a malpractice suit the cause of action accrues and the statute begins to run when the injuries are noted, although reiterating the rule relative to contracts generally that the statute begins to run from the date of the alleged breach. The last sentence of Waldman on the facts of this case as conceded at argument would actually be authority for holding for the County.

We here start with the proposition that counties and municipalities are creatures of the State or, as it was put in Daly v. Morgan, 69 Md. 460, 467, 16 A. 287, 290 (1888), 'Cities and counties are but local divisions of the state, organized and chartered for the more efficient and economical administration of the government.' Or, as Judge Delaplaine put it in Neuenschwander v. Washington Suburban San. Comm., 187 Md. 67, 48 A.2d 593 (1946):

'It is universally recognized that every municipal corporation is subject to absolute control by the Legislature. However great or small its sphere of action, it remains the creature of the State exercising privileges and powers subject to the sovereign will.' Id. at 74, 48 A.2d at 597.

At another point, in considering the statute we here have under consideration, he said:

'It is a fundamental doctrine that the Legislature may grant or deny to individuals a right of action against municipal corporations for injuries resulting from the negligent manner in which streets are maintained. When the Legislature creates a municipal corporation as part of the machinery of government of the State, it is within its province to adjust the relative rights of the corporation and the citizens. The Legislature has thus the power to enact a statute requiring that, before suit for damages shall be instituted against a municipal corporation, a written notice of the claim shall be presented to the municipal authorities within a specified period after injury or damage is sustained.' Id. at 76, 48 A.2d at 598.

At page 78, 48 A.2d at page 599, he further described this act as 'creat(ing) a condition precedent to the right to maintain an action for damages'. Cotham seizes upon the next words in Neuenschwander which described this act as '(having) the effect of a statute of limitations.'

Basically the same argument was presented in State v. Parks, 148 Md. 477, 129 A. 793 (1925), relative to suits arising under the Maryland wrongful death statute, now Code (1970 Repl.Vol.), Art. 67, § 4, which at that time provided 'that every such action shall be commenced within twelve calendar months after the death of the deceased person.' (Now two years.) The contention was made that this was merely a limitation on the time within which the action should be brought and therefore could only be availed of by a plea of limitations and not attacked by way of demurrer. In an opinion by Judge Walsh the Court held the provisions of the statute to be 'a condition precedent to the right to maintain the action' and said that the characterization of the statute in an earlier opinion as a 'statute of limitations' was not binding upon the Court in Parks.

As a matter of fact, even if this statute were regarded as a statute of limitations, in Pendergast v. Young, 188 Md. 411, 53 A.2d 11 (1947), in an opinion by Chief Judge Marbury, the Court quoted the Supreme Court of the United States as follows:

"The exemptions from the operation of statutes of limitation, usually accorded to infants and married women, do not rest upon any general doctrine of the law that they cannot be subjected to their action, but in every instance upon express language in those...