Jones v. Speed

• Decision Date: 02 August 1990
• Docket Number: No. 6,6
• Parties: Elizabeth C. JONES, et al., v. William G. SPEED, III, M.D. Sept. Term 1989.
• Court: Maryland Court of Appeals

Page 249

320 Md. 249

577 A.2d 64

Elizabeth C. JONES, et al., v. William G. SPEED, III, M.D.

No. 6 Sept. Term 1989.

Court of Appeals of Maryland.

Aug. 2, 1990.

Brian D. West, Sandground Smolen Barondess West & Plevy, P.C., all on brief, Vienna, Va., for appellants.

Carol A. Zuckerman, William B. Whiteford, Whiteford, Taylor & Preston, all on brief, Baltimore, for appellee.

Argued before MURPHY, C.J., ELDRIDGE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL ^*, JJ., and JAMES F. COUCH, Jr., ^** Retired, Specially Assigned, J.

McAULIFFE, Judge.

This case involves the effect of Maryland's statute of limitations upon a medical malpractice claim. Some of the questions presented by the parties may be determined by reference to existing principles in the law of limitations. Other questions generated by an alternative approach advanced by the plaintiffs require consideration of the rule of res judicata and of the prohibition against splitting a cause of action.

I.

On 24 July 1986, Elizabeth C. Jones and her husband filed a claim in the Health Claims Arbitration Office against Dr. William G. Speed, III, alleging negligent failure to properly diagnose Mrs. Jones's condition. The defendant moved for summary judgment, contending the claim was barred by the five year limitation provision of Maryland Code (1974, 1989 Repl.Vol.), § 5-109(a) of the Courts and Judicial Proceedings Article. Specifically, the defendant argued that if he had been negligent in his care of the plaintiff, that negligence must have occurred during the initial visit of 17 July 1978, which was more than eight years before the complaint was filed. Accordingly, he posited, that action was not brought within the absolute limitation of "[f]ive years of the time the injury was committed" as required by § 5-109(a)(1). The Chairman of the Health Claims Arbitration Panel granted the defendant's motion, finding as a matter of law that the injury occurred on 17 July 1978, and therefore, that the action was barred by the statute of limitations.

The plaintiffs filed a notice of rejection of the order of the panel chairman, and concurrently filed a complaint against the defendant in the Circuit Court for Baltimore City. The complaint contained 17 counts. In the first count, Mrs. Jones alleged that Dr. Speed was negligent on 17 July 1978, the date of her first visit with him, in failing to diagnose the presence of a brain tumor and in failing to order tests that would have disclosed the presence of the tumor. In counts two through 16, Mrs. Jones incorporated by reference the allegations of negligence she had set forth in the first count, but in each of the later counts alleged a different date on which the act of negligence occurred. These dates, beginning with 3 August 1978 and ending with 16 September 1985, corresponded to the visits of Mrs. Jones to Dr Speed during the time she was under his continuous care for the condition that first brought her to him. The 17th count was a joint claim for loss of consortium, and incorporated the allegations of the preceding counts.

The defendant answered and moved for summary judgment, again relying on § 5-109 as a complete bar to the action. In their memorandum filed in opposition to the motion, the plaintiffs argued that 1) section 5-109 violates the "right of access" provision of Article 19 of the Maryland Declaration of Rights and, 2) in any event, not all of the plaintiffs' claims are barred by the statute because in some of their counts they have alleged actionable negligence occurring within five years of the bringing of the action. After a hearing, Judge Thomas E. Noel granted the motion and entered final judgment in favor of the defendant. Plaintiffs appealed that judgment to the Court of Special Appeals, and we issued a writ of certiorari on our own motion before action by the intermediate appellate court.

II.

In their brief, plaintiffs posed the question:

Is § 5-109 of the Courts and Judicial Proceedings Article of the Maryland Code unconstitutional as being violative of Article 19 of the Maryland Declaration of Rights?

We answered this precise question in the negative in Hill v. Fitzgerald, 304 Md. 689, 700-705, 501 A.2d 27 (1985). Nothing that these plaintiffs have argued persuades us to change that ruling.

III.

The more novel and interesting issues raised by plaintiffs grow out of their contention that Dr. Speed committed medical malpractice not only on the occasion he first saw Mrs. Jones, but on subsequent occasions as well. The facts upon which the plaintiffs rely are as follows.

Beginning in 1975, Mrs. Jones suffered from severe and often debilitating headaches. On 17 July 1978, she consulted Dr. Speed, who held himself out as an expert in the speciality of evaluating, managing, and treating headaches. Although Mrs. Jones discussed with Dr. Speed her concern that her problems might be related to an intracranial abnormality, the doctor did not order or obtain a Computerized Axial Tomography study (CAT scan) or other diagnostic study. Dr. Speed's records of the first visit contained the following note:

I doubt that she has any underlying organic intracranial abnormality, but I think she's concerned about this possibility and if we do not control her reasonably soon, a CAT scan will be obtained.

Mrs. Jones returned to Dr. Speed for a follow-up diagnostic evaluation on 3 August 1978, at which time the matter of ordering a CAT scan as a diagnostic tool in evaluating Jones' condition was again discussed. Dr. Speed's notes indicated:

I have discussed the pros and cons of a CAT scan and at the moment I see no reason to pursue this. She seems to have good insight and I think believes that the explanation as given her is correct.

Mrs. Jones continued under the care and treatment of Dr. Speed until 16 September 1985. During this time, Dr. Speed saw her approximately every six months, comprising 16 visits. Mrs. Jones continued to suffer from severe headaches on a regular basis, including nausea and vomiting. At no time during the period of treatment did Dr. Speed order a CAT scan or X-ray or other diagnostic study of Mrs. Jones' brain.

Mrs. Jones suffered a nocturnal seizure on 13 February 1986. A neurologist ordered a CAT scan, which revealed a calcified right frontal parasagittal tumor. The brain tumor was surgically removed. Mrs. Jones was discharged from the hospital on 1 March 1986, and has been free of headaches and related symptoms since the excision of the tumor.

The plaintiffs filed their claim against Dr. Speed on 14 July 1986. Section 5-109 requires ¹ that:

An action for damages for an injury arising out of the rendering of or failure to render professional services by a health care provider ... shall be filed within the earlier of:

(1) Five years of the time the injury was committed; or

(2) Three years of the date the injury was discovered.

For purposes of this appeal, the defendant admits that the plaintiffs filed their claim within three years of the date the injury was discovered. He contends, however, that the injury that is the gravamen of the complaint occurred on 17 July 1978, at the first visit when the initial misdiagnosis was allegedly made. Because more than five years elapsed between that injury and the filing of the claim, he argues, the claim is barred.

Dr. Speed is correct in his assertion that if one accepts the allegations of the plaintiffs, negligence producing an "injury" within the meaning of the statute occurred on 17 July 1978. See Hill v. Fitzgerald, supra, 304 Md. at 694-97, 501 A.2d 27; Oxtoby v. McGowan, 294 Md. 83, 93-99, 447 A.2d 860 (1982). Claims for that medical injury are therefore barred by § 5-109(a)(1).

There remains the question of whether subsequent conduct of the defendant, alleged to have produced its own injury and damages, which occurred within five years of the filing of the claim, may be made the subject of an action that does not run afoul of the statute of limitations. The theory of the plaintiffs is rather straightforward. They do not retreat from their assertion that Dr. Speed was negligent on 17 July 1978 when he failed to order a CAT scan or other radiographic studies and failed to diagnose the presence of Mrs. Jones's brain tumor. They argue, however, that each time Mrs. Jones returned to Dr. Speed with unabated complaints of her chronic symptoms, the doctor had a duty to reconsider his original diagnosis, and to obtain additional diagnostic studies. The breach of that duty, they urge, constitutes negligence.

The plaintiffs support this contention with the affidavit of Dr. Ronald J. Bortnick, the neurological surgeon who removed Mrs. Jones's tumor. Dr. Bortnick's affidavit states, in part: ²

It is my opinion that if a CT Scan had been performed by Mrs. Jones' doctor, Dr. Speed, at any time during their eight year professional relationship, that the brain tumor would certainly have been detected.

Each time that Mrs. Jones saw Dr. Speed, a separate medical injury occurred, because of the failure of Dr. Speed, at each of these visits, to detect a progressively worsening and changing medical condition.

Each severe and prolonged headache, and the final seizure, grew out of a series of medical injuries directly caused by the carelessness of the treatment administered by Dr. Speed.

To round out their claim of actionable negligence, the plaintiffs argue that each such breach of duty proximately caused harm that is readily identifiable. For example, had Dr. Speed correctly diagnosed Mrs. Jones's condition on 10 September 1981, (the date of a visit alleged in count 10 of the complaint) the successful surgery that was performed in 1986 would have been accomplished at the earlier time, and the pain, suffering, disability, and expense suffered from late 1981 until 1986, would have been avoided.

The defendant argues in opposition to this theory of liability that to accept it would be to resuscitate the "continuous course of treatment rule"...