Jones v. Sugar

• Citation: 305 A.2d 219,18 Md.App. 99
• Decision Date: 06 June 1973
• Docket Number: No. 581,581
• Parties: Nellie Maude JONES v. S. Jack SUGAR et al.
• Court: Court of Special Appeals of Maryland

Page 99

18 Md.App. 99

305 A.2d 219

Nellie Maude JONES v. S. Jack SUGAR et al.

No. 581.

Court of Special Appeals of Maryland.

June 6, 1973.

Robert A. Diemer, Lanham, with whom were Bill L. Yoho, Robert S. Hoyert, Roy W. Hooten, Joseph F. McBride, Kenneth A. Lechter, Hoyert, Diener, Yoho, Hooten & McBride, Lanham, Calvin E. Cohen, Wright & Cohen, Annapolis, on the brief, for appellant.

Joseph Montedonico and James A. Welch, Rockville, with whom were William A. Ehrmantraut, Donahue & Ehrmantraut, Rockville, on the brief, for appellees.

Argued before ORTH, C. J., and THOMPSON and MENCHINE, JJ.

ORTH, Chief Judge.

I

LIMITATIONS OF ACTIONS

Fraudulent Concealment

'All actions of account, actions of assumpsit, or on the case, except as hereinafter provided, . . . shall be commenced sued or issued within three years from the time the cause of action accrued . . ..' Code, Art. 57, § 1. An exception is provided in § 14: 'In all actions where a party has a cause of action of which he has been kept in ignorance by the fraud of the adverse party, the right to bring suit shall be deemed to have first accrued at the time at which such fraud shall or with ordinary diligence might have been known or discovered.'

On 13 December 1971 Nellie Maude Jones (appellant) commenced an action based on medical malpractice in the Circuit Court for Prince George's County against S. Jack Sugar, M.D., and Eugene Leland Memorial Hospital, a body corporate (appellees). The first count of the declaration brought an action in tort against both appellees, and the second the third counts alleged the breach of an implied warranty on the part of Sugar and the Hospital, respectively. Each of the appellees filed general issue pleas, Maryland Rule 342 b, and a special plea of limitations, Rule 342 c 1(d) and c 2(a). Appellant did not file a replication. Rule 312. On 30 June 1972 the Hospital filed a motion for summary judgment, and on 11 August Sugar so moved. Each alleged that the action had not been filed within the period permitted by the statute of limitations. The court granted the Hospital's motion on 30 August and Sugar's motion on 26 September.

In her brief and in oral argument before us, appellant attempts to invoke the provisions of Code, Art. 57, § 14 to toll the period of limitations established by § 1. The exception is not available to her. Section 14, by its own terms, is made to apply only in those cases where two conditions are shown to exist: where a party (1) has been kept in ignorance of his cause of action by the fraud of the adverse party, and (2) has exercised usual or ordinary diligence for the discovery and protection of his rights. For fraudulent concealment to be invoked, the replication of the plaintiff to a plea of limitations must affirmatively show that the plaintiff was kept in ignorance of his right of action by the fraud of the defendant, and specifically aver:

(1) how the defendant kept the plaintiff in ignorance of his right of action; and

(2) how the plaintiff made the discovery of the fraud; and

(3) why the plaintiff did not make the discovery sooner than he did; and

(4) what diligence the plaintiff exercised to discover the fraud.

Piper v. Jenkins, 207 Md. 308, 319, 113 A.2d 919. Piper is quoted with approval in Mettee v. Boone, 251 Md. 332, 338-339, 247 A.2d 390 and summarized and followed in Leonhart v. Atkinson, 265 Md. 219, 226-227, 289 A.2d 1. The requirements necessary to invoke § 14 are not present in the case before us; no replication was even filed. In fact, the words 'fraud' or 'fraudulent' are not used in any of appellant's pleadings. See Brack v. Evans, 230 Md. 548, 187 A.2d 880.

The Rule of Limitations in Professional Malpractice Actions

As the exception provided by § 14 is not to be applied, the issue of limitations must be resolved under § 1. Under that statute the action may be barred if not commenced within three years from the time the cause of action accrued. The initial question is, therefore, when did the cause of action accrue?

The general ruel is that the statute of limitations begins to run from the date of the wrong. Killen v. Geo. Wash. Cemetery, 231 Md. 337, 343, 190 A.2d 247. There are exceptions to the general rule. In addition to the fraudulent concealment exception provided by statute, there are two exceptions applicable by judicial decision in this jurisdiction to cases of medical malpractice. The first is that '. . . if the treatment by the doctor is a continuing course and the patient's disease or condition is of such a nature as to impose on the doctor the duty of continuing treatment and care, the statute (of limitations) does not commence running until treatment by the medical man for the particular disease or condition involved has terminated . . ..' Waldman v. Rohrbaugh, 241 Md. 137, 140, 215 A.2d 825, 827. The second exception is both a proviso to the first exception and the rule when there is no continuing course of treatment. As stated, where there is a continuing course of treatment, the statute does not commence running until the treatment is terminated. The second exception adds this condition: '. . . unless during the course of treatment the patient learns or should reasonably have learned of the harm, in which case the statute runs from the time of knowledge, actual or constructive.' Id., 140-141, 215 A.2d at 827. '(W)here there is no continuing course of treatment and the injury does not become immediately known by or apparent to the patient, the statute begins to run in favor of the doctor only when the injury is, or reasonably should have become, known . . ..' Id., 141, 215 A.2d 828. The second exception espouses the doctrine known as the 'divcovery rule.' ¹

Our inquiry turns to what is meant by the 'harm' or 'injury' as used in the second exception, which, upon becoming known, actually or constructively, by the patient, starts the running of the period of limitations. As we understand it, Sugar would have us construe 'harm' or 'injury' literally as an 'untoward injury or result from a medical procedure.' He expressly repudiates that the action does not accrue until the patient was aware, or should have been aware, that the injury reasonably was due to malpractice.

We find it clear from the decisions of the Court of Appeals that it is not the mere discovery by the patient that he is injured that starts the statute running, but the knowledge, actual or constructive, that he may have the basis for an actionale claim as a result of the injury. In Hahn v Claybrook, supra, the Court said, 130 Md. at 186, 100 A. at 86: 'The discoloration of her skin of which she complained to her husband in 1908, was a sufficient indication of an injury, to have put her upon notice and inquiry, and it is clear from the evidence that if she had exercised ordinary care and diligence to have ascertained her rights she could have discovered the cause of her allebed injury.' (emphasis added). In Waldman v. Rohrbaugh, supra, 241 Md. at 145, 215 A.2d at 830, after concluding 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,' the Court stated:

'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 in 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.' (Emphasis added).

It supports this assertion upon the authority of Hahn and of cases in other jurisdictions which spoke of the rule of discovery in terms of knowledge or reason to believe on the part of the patient that he had 'a cause of action' and which held that '. . . limitations fairly and justly should run from the time of discovery of the right of action . . ..' In Mattingly v. Hopkins, 254 Md. 88, 92-94, 253 A.2d 904 the Court referred to the time the plaintiff '. . . discovers the wrong . . .' and quoted Waldman as we have above set out. In Feldman v. Granger, 255 Md. 288, 293, 257 A.2d 421, 424, the Court deemed the statute to have commenced running when '. . . the mistake caused by the appellees' negligence was discovered . . . or with the exercise of reasonable diligence should have beeen discovered.' In Leonhart v. Atkinson, supra, 265 Md. at 224, 289 A.2d at 4, the Court said that the problem to be resolved was '. . . of determining the day that the appellants discovered or should have discovered they had a cause of action.' And in Watson v. Dorsey, 265 Md. 509, 512, 290 A.2d 530, 533 the Court flatly said, after stating the general rule: 'But in Maryland in cases of professional malpractice the cases have established the 'discovery rule'-the rule that the cause of action accrues when the claimant discovers or reasonably should have discovered that he has been wronged.' ²

There is no doubt but that in medical malpractice cases in this jurisdiction, the limitation period starts to run when the patient discovers, or by reasonable diligence should have discovered, the negligent act which caused his injury, or in other words that he may have the basis for an actionable claim, whether or not there is a continuing course of treatment. ³

There is one more observation necessary. The question when a cause of action accrues is a judicial one; it is for the court to determine, and not the trier of fact. Waldman v. Rohrbaugh, supra, 241 Md. at 145, 215 A.2d 825 quoting, patently with approval, 1 Wood, Limitation of Actions, 685, 686 (4th Ed. 1916). ⁴

II

The travail of Nellie Maude Jones is best gathered from the telling of it by her when she was deposed and from the various medical records before us. She became a registered nurse in 194...