Hill v. Fitzgerald

• Decision Date: 01 September 1985
• Citation: 501 A.2d 27,304 Md. 689
• Parties: William L. HILL v. Katherine R. FITZGERALD, Pers. Rep. of the Estate of Joseph C. Fitzgerald, M.D., deceased. Misc. 6,
• Court: Maryland Court of Appeals

Page 689

304 Md. 689

501 A.2d 27

William L. HILL v. Katherine R. FITZGERALD, Pers. Rep. of the Estate of Joseph C. Fitzgerald, M.D., deceased.

Misc. 6, Sept. Term, 1985.

Court of Appeals of Maryland.

Dec. 10, 1985.

Robert C. Verderaime (Verderaime & DuBois, P.A., Baltimore, on the brief), for appellant.

Ronald U. Shaw and Mark D. Gately (Miles & Stockbridge, Baltimore, on the brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ.

MURPHY, Chief Judge.

The questions presented in this case have been certified by the United States District Court for the District of Maryland, pursuant to the Uniform Certification of Questions of Law Act, Maryland Code (1974, 1984 Repl.Vol.), §§ 12-601 through 12-609 of the Courts and Judicial Proceedings Article. The questions involve Maryland's statute of limitations for medical malpractice claims, codified as Maryland Code (1974, 1984 Repl. Vol.), § 5-109 of the Courts Article. That statute, which was enacted by ch. 545 of the Acts of 1975, effective July 1, 1975, provides in pertinent part as follows:

"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."

By an uncodified provision in Section 2 of ch. 545, the statute is applicable "only to injuries occurring after July 1, 1975." The certified questions are as follows:

I. Where there is a continuous course of medical treatment for a single medical condition, where such treatment begins before July 1, 1975, and concludes after July 1, 1975, is § 5-109 the applicable statute of limitations?

II. If § 5-109 is the applicable statute of limitations under such circumstances, when does the five (5) year portion of that statute begin to run, and when does the three (3) year portion of that statute begin to run?

III. Is § 5-109 unconstitutional as being in violation of Article 19 of the Maryland Declaration of Rights?

I.

The "Statement of Facts" contained in the Order of Certification reveals that William L. Hill filed a complaint in the federal district court on December 2, 1983, alleging medical malpractice by Joseph C. Fitzgerald, M.D., now deceased. Hill consulted Dr. Fitzgerald on referral from another physician for diagnosis and treatment of a urinary tract infection and was seen for the first time on January 27, 1975. He consulted Fitzgerald thereafter on a number of occasions and treatment ended on November 5, 1975. Specifically, Hill alleges that Dr. Fitzgerald was negligent in diagnosing his ailment to be multiple sclerosis when, in fact, he was suffering from a spinal tumor.

Hill contends that the incorrect diagnosis of multiple sclerosis was made as early as his first visit on January 27, 1975 and certainly not later than February 14, 1975. It is furthermore alleged that the incorrect diagnosis was adhered to throughout the subsequent course of Hill's treatment, including his last visit to Dr. Fitzgerald on November 5, 1975. Eventually, Hill's condition deteriorated to the extent that he sought other medical care, at which time a surgical procedure revealed that he had a spinal tumor and not multiple sclerosis.

Katherine R. Fitzgerald, personal representative of the deceased, moved for summary judgment on the ground that Hill's cause of action was barred by the provision of § 5-109 which places a five-year maximum limitation on the filing of medical malpractice claims. Fitzgerald argues that the statute commenced to run on the last date of treatment, November 5, 1975, and that Hill's claim is time-barred because he failed to file "within five years of the time when the injury was committed," as required by the statute.

Hill maintains that since the alleged misdiagnosis occurred prior to July 1, 1975, § 5-109 is not applicable in this case. He asserts that § 5-101 of the Courts Article is the statute of limitation which was applicable to malpractice claims prior to the enactment on July 1, 1975 of § 5-109. Under § 5-101 a lawsuit must be filed within three years from the date of accrual of the cause of action. ¹

The parties acknowledge that Maryland recognizes the "discovery rule" whereby a cause of action accrues at the time the claimant first knew or reasonably should have known of the alleged wrong. See Poffenberger v. Risser, 290 Md. 631, 431 A.2d 677 (1981). That the rule has long been applicable in medical malpractice cases is equally clear. See Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d 825 (1966); Hahn v. Claybrook, 130 Md. 179, 100 A. 83 (1917); Lutheran Hospital v. Levy, 60 Md.App. 227, 482 A.2d 23 (1984); Jones v. Sugar, 18 Md.App. 99, 305 A.2d 219 (1973). Hill alleges that he first learned of Dr. Fitzgerald's misdiagnosis on December 5, 1980 when surgery was performed by another physician. Accordingly, he asserts that as suit was filed on December 2, 1983, it was within the three-year limitation period applicable prior to the enactment of § 5-109.

The parties have stipulated that Hill was undergoing a continuous course of treatment for a single medical condition and that treatment commenced before July 1, 1975 and terminated after that date. Furthermore, Fitzgerald has conceded that the initial misdiagnosis of multiple sclerosis was made not later than in February of 1975.

II.

The first certified question seeks a determination of whether § 5-109 is applicable under the certified facts of this case. As earlier noted, § 2 of ch. 545 of the 1975 Act provides that the statute "shall apply only to injuries occurring after July 1, 1975." (Emphasis supplied.)

We considered the meaning of the term "injury," within the context of medical malpractice, in Oxtoby v. McGowan, 294 Md. 83, 447 A.2d 860 (1982). That case involved the Health Care Malpractice Claims Act (HCMCA), §§ 3-2A-01 through 3-2A-09 of the Courts Article, which requires that certain medical malpractice claims be submitted to an arbitration panel before resort is made to a court of law. The HCMCA, which was adopted by ch. 235 of the Acts of 1976, provided in uncodified Section 5 that the Act

"shall take effect July 1, 1976, and shall apply only to medical injuries occurring on and after that date."

The defendant in Oxtoby undertook to perform a hysterectomy and a bilateral salpingo oophorectomy (the removal of both fallopian tubes and ovaries) in order to prevent the development of ovarian cancer. However, he allegedly failed to remove part of one ovary and tube. As an alleged result, the patient died of cancer and the family brought a wrongful death action in the circuit court against the surgeon. Following a defendant's verdict, the plaintiff claimed on appeal that the trial court was without jurisdiction because the case had not previously been submitted to an arbitration panel as required by the HCMCA. The plaintiff argued that the HCMCA was applicable because, while the negligent act had occurred prior to the July 1, 1976 effective date, the patient died and the family incurred expenses after that date. In other words, the plaintiff claimed that the HCMCA was applicable because much of the harm resulting from the negligent act occurred after the effective date.

In concluding that the HCMCA was inapplicable because the "injury" had occurred prior to its effective date, we noted:

"The General Assembly obviously was not concerned with invasions of a legally protected interest which do not cause harm in the sense of 'loss or detriment in fact....' Restatement (Second) Torts, § 7(2) (defining 'harm'). The Act is concerned with the invasion of legally protected interests coupled with harm." 294 Md. at 93-94, 447 A.2d 860.

We then quoted as follows from State ex rel. McManus v. Board of Trustees of Policemen's Pension Fund, 138 Wis. 133, 135-36, 119 N.W. 806, 807 (1909):

"The word 'injury,' in ordinary modern usage, is one of very broad designation. In the strict sense of the law, especially the common law, its meaning corresponded with its etymology. It meant a wrongful invasion of legal rights and was not concerned with the hurt or damage resulting from such invasion. It is thus used in the familiar law phrase damnum absque injuria. In common parlance, however, it is used broadly enough to cover both the damnum and the injuria of the common law, and indeed is more commonly used to express the idea belonging to the former word, namely, the effect on the recipient in the way of hurt or damage, and we cannot doubt that at this day its common and approved usage extends to and includes any hurtful or damaging effect which may be suffered by any one."

We went on to say:

"Thus, in general, 'medical injuries' as used in the effective date clause refers to legally cognizable wrongs or damage arising or resulting from the rendering or failure to render health care." 294 Md. at 94.

We thus held in Oxtoby that the surgeon's negligent act, coupled with the harm which resulted from leaving part of a fallopian tube and ovary in the patient, amounted to a legally cognizable wrong and hence a medical injury which occurred prior to July 1, 1976, rendering the HCMCA inapplicable. While most of the harm resulting from the negligent act in Oxtoby occurred after the HCMCA's effective date, we indicated that all that is required is that the negligent act be coupled with some harm in order for a legally cognizable wrong--and, therefore, injury--to have occurred.

Indeed, in Oxtoby, we noted our agreement with an earlier decision of the Court of Special Appeals in Johns Hopkins Hospital v. Lehninger, 48 Md.App. 549, 429 A.2d 538, cert. denied, 290 Md. 717 (1981). The court in Lehninger sought to construe the effective date clause of the HCMCA. The plaintiff filed suit alleging that the defendant...