Lutheran Hosp. of Maryland v. Levy, 1718

• Decision Date: 01 September 1983
• Docket Number: No. 1718,1718
• Citation: 60 Md.App. 227,482 A.2d 23
• Parties: LUTHERAN HOSPITAL OF MARYLAND v. Elizabeth LEVY. ,
• Court: Court of Special Appeals of Maryland

Page 227

60 Md.App. 227

482 A.2d 23

LUTHERAN HOSPITAL OF MARYLAND v. Elizabeth LEVY.

No. 1718, Sept. Term, 1983.

Court of Special Appeals of Maryland.

Oct. 8, 1984.

Jeanette A. Plante and Ward B. Coe, Jr., Baltimore, with whom were Anderson, Coe & King, Baltimore, on the brief, for appellant.

Benjamin Lipsitz, Baltimore, with whom was Howard J. Needle, Towson, on the brief, for appellee.

Argued Before MOYLAN, BISHOP and ADKINS, JJ.

ADKINS, Judge.

Appellee Elizabeth Levy sued appellant Lutheran Hospital of Maryland for medical malpractice. A jury in the Circuit Court for Baltimore City awarded Ms. Levy $258,000. From the judgment entered on that verdict Lutheran appeals. The sole issue is whether Ms. Levy's claim was barred by limitations.

Lutheran raised the issue by plea and by motion for summary judgment which was denied. It fought the same battle with like lack of success at a separate trial of that issue held pursuant to former Md.Rule 501. We reverse because we conclude that the judge who heard the latter proceeding made findings that were not supported by the evidence and that were, therefore, clearly erroneous. We hold that Ms. Levy's claim was barred by limitations as a matter of law.

The pertinent statute of limitations is § 5-101 of the Courts and Judicial Proceedings Article which provides:

A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period within which an action shall be commenced.

Under this statute and its predecessors a fundamental question is when a cause of action accrues. As long ago as 1917 the Court of Appeals decided that in a medical malpractice case the time of accrual is when the plaintiff discovered the alleged injury--a date that often occurs much later than the date of performance of the alleged negligent act. Hahn v. Claybrook, 130 Md. 179, 100 A. 83 (1917). This "discovery rule" was made applicable to all tort actions in Poffenberger v. Risser, 290 Md. 631, 431 A.2d 677 (1981). It is, of course, applicable to the case at bar and the question of when Ms. Levy "discovered" the "injury" for which she sued Lutheran is critical to the disposition of this appeal. ¹

Under the discovery rule as stated in Poffenberger, a "cause of action accrues when the claimant actually knew or reasonably should have known of the wrong." 290 Md. at 636, 431 A.2d 677 [emphasis supplied]. Constructive knowledge, moreover, is not enough. The rule

contemplates actual knowledge--that is, express cognition, or awareness implied from

knowledge of circumstances which ought to have put a person of ordinary prudence on inquiry [thus charging the individual] with notice of all facts which such an investigation would in all probability have disclosed if it had been properly pursued.

Id. at 637, 431 A.2d 677 (quoting Fertitta v. Bay Shore Dev. Corp., 252 Md. 393, 402, 250 A.2d 69 (1969) quoting Blondell v. Turover, 195 Md. 251, 257, 72 A.2d 697 (1950)) [bracketing in original].

We turn now to the application of these teachings to the largely undisputed facts before us.

Ms. Levy broke her ankle on October 25, 1973. She was taken to Lutheran Hospital where the ankle was put in a cast. Eventually, a Lutheran physician told her to throw away her crutches, get orthopedic shoes, and walk on the ankle. She was in effect discharged by Lutheran in February 1974.

The ankle continued to give her trouble. In April 1974, Ms. Levy saw a Dr. Wiedmann at Mercy Hospital. According to her testimony, Dr. Wiedmann said her ankle "was all messed up," asked "who the hell told you to walk on that ankle?" and told her her ankle "wouldn't get any better." Ms. Levy said that it was then she first formed the belief that there was a problem.

Nevertheless, Ms. Levy did not then begin to explore the possibility of legal redress. This was apparently because she didn't "know of an attorney to take my case" and because she thought "you can't do anything to a hospital." In early 1975, however, in a chance conversation in a department store, Ms. Levy was told that a hospital could be sued for negligence and was given the name of a Baltimore City lawyer.

In early 1975 she consulted that lawyer, recounting the history of her ankle problems. So far as the record discloses, the lawyer gave her no legal advice. He did ask her for $50. Because she did not have the money, Ms. Levy proceeded no further with that lawyer. She did consult other physicians. One of them, Dr. Decker, operated on her in March 1975 replacing her ankle joint with an artificial joint.

On April 22, 1975, Ms. Levy retained Baltimore County counsel. On May 2 he wrote Lutheran requesting medical records and x-rays pertaining to Ms. Levy's 1973 treatment there. On the same day he asked for all of Dr. Decker's reports. On June 11 counsel received the Lutheran records and x-ray reports, but the x-ray films were not included. The material received was insufficient to indicate malpractice on Lutheran's part.

Ms. Levy's ankle continued to pain her and to cause her difficulty in walking. On January 12, 1977, almost a year and nine months after Ms. Levy had retained him, counsel asked Dr. Decker for an opinion as to whether there had been malpractice by Lutheran. Dr. Decker replied that without the 1973 x-rays, he could not tell. The next day those x-rays were again requested. On January 14 Lutheran sent them to Dr. Decker.

In July 1977 Dr. Decker fused Ms. Levy's ankle. Later that month (on the 25th) he reviewed the 1973 x-rays and rendered an opinion that malpractice had occurred. Almost a year after that--on June 15, 1978--Ms. Levy filed suit against Lutheran.

On this state of the record, the trial judge found

that the plaintiff [Ms. Levy] became suspicious concerning her physical condition in early 1975 when she visited the office of [the Baltimore City] attorney. This court further concludes that with the exercise of due diligence a period of approximately six months from that date would have disclosed the existence of a viable claim, although the first lawyer took no action and the second [Baltimore County] lawyer was obviously not diligent in the pursuit of investigation of the claim. Such lack of diligence does not benefit the defendant [Lutheran] inasmuch as suit was actually filed within three years from the date from which the existence of a viable claim should have been known.

Under this reasoning, the cause of action accrued six months after "early 1975"; presumably sometime after mid-1975. Thus, the suit (filed in June 1978) was within the three-year period of limitations. Ms. Levy, although comfortable with the trial judge's conclusion, in addition argues that her cause of action actually accrued in July 1977, when Dr. Decker gave his opinion as to malpractice. It was only then, she contends, that she had "actual knowledge" of a viable claim against Lutheran. She also suggests that because she was "kept in ignorance of a cause of action by" Lutheran's fraud the statute of limitations should be further extended pursuant to § 5-203 of the Courts Article, and that Lutheran was estopped to raise the issue of limitations. We reject all these contentions.

As to the trial judge's findings, we recognize that they are to be tested by the clearly erroneous requirement of Md.Rule 1086. Herring v. Offutt, 266 Md. 593, 599, 295 A.2d 876 (1972). Moy v. Bell, 46 Md.App. 364, 369, 416 A.2d 289, cert. denied, 288 Md. 740 (1980). See also Johnson v. Nadwodny, 55 Md.App. 227, 231-33, 461 A.2d 67 (1983) (explaining the discovery rule and the standard of review). But even under the rigorous restrictions of Md.Rule 1086, we hold that the trial judge was clearly erroneous when he decided that Ms. Levy first became "suspicious concerning her condition" (that is "suspicious" that malpractice was involved) when she visited the Baltimore City lawyer. That visit produced no information about malpractice or about the viability of Ms. Levy's claim. From it she learned only that access to our system of justice is not always easy for the impecunious.

The true significance of the contract with the Baltimore lawyer lies in its manifestation that Ms. Levy had by then been put upon inquiry and was in the process, however halting, of investigating her potential claim. Her notions as to hospital immunity removed, her ignorance of attorneys remedied, she sought a lawyer to discuss redress for the wrong she thought she had suffered. But the critical date was not that of her visit to the Baltimore lawyer; it was the date of her examination by Dr. Wiedmann.

The evidence bearing on this examination permits no conclusion other than that Ms. Levy became aware that she might have been wronged when she consulted Dr. Wiedmann in April of 1974. Although the doctor could not recall just what he had said to Ms. Levy on that occasion, and although he asserted that he had never discussed possible malpractice with her, she insisted that he had asked her "who in hell told you to walk on that ankle?" Regardless of what was actually said, Ms. Levy came away from the visit with a belief that "something wrong had been done." She expressly so stated in her deposition and confirmed this in her testimony at trial.

We are aware that Ms. Levy, with only a ninth-grade education, was a layperson "unskilled in medicine." Waldman v. Rohrbaugh, 241 Md. 137, 145, 215 A.2d 825 (1966). Unlike the unsuccessful registered nurse appellant in Jones v. Sugar, 18 Md.App. 99, 305 A.2d 219 (1973), she was totally lacking in medical expertise. But the visit to Dr. Wiedmann did not occur in a vacuum. The ankle had given Ms. Levy continuing pain and trouble. The more she walked on it, she said, the worse it got. Between her discharge from Lutheran and her consultation with Dr. Wiedmann she saw another physician. He also asked her who had told her to walk on the ankle. And she herself was the one "who figured something wrong had been...