Mummert v. Alizadeh, 5

CourtCourt of Appeals of Maryland
Citation77 A.3d 1049,435 Md. 207
Docket NumberSept. Term, 2013.,No. 5,5
PartiesSusan MUMMERT, et al. v. Massoud B. ALIZADEH, et al.
Decision Date18 October 2013

435 Md. 207
77 A.3d 1049

Susan MUMMERT, et al.
Massoud B. ALIZADEH, et al.

No. 5, Sept. Term, 2013.

Court of Appeals of Maryland.

Oct. 18, 2013.

[77 A.3d 1050]

Paul D. Bekman and Emily C. Malarkey (Salsbury, Clements, Bekman, Marder & Adkins, L.L.C., Baltimore, MD), on brief, for appellants.

Matthew Fogelson (Varner & Goundry, Frederick, MD), on brief, for appellees.

Submitted before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, McDONALD, WATTS, ALAN M. WILNER (Retired, Specially Assigned), JJ.


[435 Md. 210]The Circuit Court for Washington County granted a motion to dismiss this wrongful death action, brought by the family of the decedent, Margaret Varner, on the grounds that Mrs. Varner could not have brought timely a claim for medical negligence at the time of her death. When it granted the motion, the Circuit Court lacked clear guidance from this Court on the meaning of key language in Maryland's wrongful death statute, including the requirement

[77 A.3d 1051]

that a “wrongful act” be one “which would have entitled the party injured to maintain an action and recover damages if death had not ensued.” 1 Today, we provide that guidance regarding the meaning of this language. We hold that the Legislature did not intend to define “wrongful act” so as to render a wrongful death claim contingent on the decedent's ability to file timely a tort claim prior to death. In response to an additional argument raised here, we hold that the statute of limitations for bringing tort claims against health care providers in instances of alleged medical negligence does not apply to a claim for wrongful death. Accordingly, we reverse the Circuit Court's judgment and remand the case for further proceedings.


On 8 March 2011 effectively,2 survival and wrongful death claims were filed in the Health Care Alternative Dispute Resolution Office of Maryland by the surviving husband (Roger P. Varner, Sr.) and three adult children (Susan Mummert, Roger Varner, and Travis Varner) (referred to collectively as “the Beneficiaries”), of the decedent Margaret Varner (“Mrs. Varner”), against Massoud B. Alizadeh, M.D., and his eponymous professional association employer (referred to collectively as “Dr. Alizadeh”). The parties waived arbitration, and the [435 Md. 211]case was transferred to the Circuit Court for Washington County.

The complaint filed in the Circuit Court contained four wrongful death counts, 3 alleging the following pertinent facts: In 1997, Mrs. Varner, then 58 years old, became a patient of Massoud B. Alizadeh, M.D., a physician in family practice. Between 1997 and early 2004, over the course of visiting routinely Dr. Alizadeh, Mrs. Varner lost a significant amount of weight and experienced eventually alternating diarrhea and constipation. During that period and despite these symptoms, Dr. Alizadeh did not order or perform a screening colonoscopy, annual digital rectal examination, or annual hemoccult testing. After conducting ultimately a digital rectal examination and hemoccult testing on 25 May 2004, Dr. Alizadeh referred immediately Mrs. Varner to a general surgeon, who performed additional tests, including a colonoscopy, which revealed a relatively large tumor in her colon. The general surgeon diagnosed Mrs. Varner with Stage IV colorectal cancer with liver metastasis. Despite ensuing treatment, the cancer spread to Mrs. Varner's spine and led to her death on 14 March 2008. All of the wrongful death counts alleged that Dr. Alizadeh was negligent and careless in failing to conduct timely the appropriate tests and failing to diagnose timely Mrs. Varner's colorectal cancer.

Dr. Alizadeh filed a motion to dismiss, arguing that, although the Beneficiaries filed their wrongful death claims within three years of Mrs. Varner's death, their claims were precluded because Mrs. Varner had not brought timely a personal injury lawsuit against Dr. Alizadeh, nor could she have at the time of her death as it would have been time-barred by the statute of limitations applicable to medical negligence claims. Maryland Code (1974, 2013 Repl.Vol.), Courts and Judicial Proceedings Article § 5–109(a). After

[77 A.3d 1052]

hearings, the Circuit Court entered, on 5 December 2011, an order granting Dr. Alizadeh's motion to dismiss. The Beneficiaries [435 Md. 212](sometimes referred to hereafter as “Appellants”) filed timely a notice of appeal to the Court of Special Appeals. We issued a writ of certiorari on 14 December 2012, on our own initiative, while the case was pending in the intermediate appellate court. Mummert v. Alizadeh, 429 Md. 528, 56 A.3d 1241 (2012). We consider the following two questions in this appeal:

Under Maryland law, is a wrongful death beneficiary's right to file a lawsuit contingent upon the decedent's ability to bring a timely negligence claim on the date of her death?

In addition or in the alternative, does § 5–109 of the Courts and Judicial Proceedings Article apply directly to a wrongful death action arising out of alleged medical negligence and, if so, does it bar Appellants' wrongful death action?

We answer both questions in the negative and shall reverse the Circuit Court's judgment.


On appeal from the grant of a motion to dismiss, our task is to determine whether the trial court was legally correct. Sprenger v. Pub. Serv. Comm'n, 400 Md. 1, 21, 926 A.2d 238, 250 (2007) (citing Pendleton v. State, 398 Md. 447, 921 A.2d 196 (2007)). In doing so, we “must assume the truth of, and view in a light most favorable to the nonmoving party, all well-pleaded facts and allegations contained in the complaint, as well as all inferences that may reasonably be drawn from them,” and we may “order dismissal only if the allegations and permissible inferences, if true, would not afford relief to the plaintiff.” RRC N.E., LLC v. BAA Md., Inc., 413 Md. 638, 643, 994 A.2d 430, 433 (2010). The questions before us in this appeal involve statutory interpretation, which are legal issues that we view without deference to the legal analysis of the trial court. Harvey v. Marshall, 389 Md. 243, 257, 884 A.2d 1171, 1179 (2005) (citing Mohan v. Norris, 386 Md. 63, 66–67, 871 A.2d 575, 577 (2005); Davis v. Slater, 383 Md. 599, 604, 861 A.2d 78, 80–81 (2004)).


In a relatively recent opinion, we explained several principles of statutory construction that are pertinent also to this case:

The cardinal rule of statutory interpretation is to ascertain and effectuate the real and actual intent of the Legislature. A court's primary goal in interpreting statutory language is to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by the statutory provision under scrutiny.

To ascertain the intent of the General Assembly, we begin with the normal, plain meaning of the language of the statute. If the language of the statute is unambiguous and clearly consistent with the statute's apparent purpose, our inquiry as to legislative intent ends ordinarily and we apply the statute as written, without resort to other rules of construction. We neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute, and we do not construe a statute with “forced or subtle interpretations” that limit or extend its application.

We, however, do not read statutory language in a vacuum, nor do we confine strictly our interpretation of a statute's plain language to the isolated section alone. Rather, the plain language must be viewed within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of

[77 A.3d 1053]

the Legislature in enacting the statute. We presume that the Legislature intends its enactments to operate together as a consistent and harmonious body of law, and, thus, we seek to reconcile and harmonize the parts of a statute, to the extent possible consistent with the statute's object and scope.

Where the words of a statute are ambiguous and subject to more than one reasonable interpretation, or where the words are clear and unambiguous when viewed in isolation, but become ambiguous when read as part of a larger [435 Md. 214]statutory scheme, a court must resolve the ambiguity by searching for legislative intent in other indicia, including the history of the legislation or other relevant sources intrinsic and extrinsic to the legislative process. In resolving ambiguities, a court considers the structure of the statute, how it relates to other laws, its general purpose, and the relative rationality and legal effect of various competing constructions.

In every case, the statute must be given a reasonable interpretation, not one that is absurd, illogical, or incompatible with common sense.

Lockshin v. Semsker, 412 Md. 257, 274–76, 987 A.2d 18, 28–29 (2010) (internal citations omitted). We highlight one additional principle for present purposes—that “[s]tatutes in derogation of the common law are strictly construed, and it is not to be presumed that the [L]egislature by creating statutory assaults intended to make any alteration in the common law other than what has been specified and plainly pronounced.” Cosby v. Dep't of Human Res., 425 Md. 629, 645, 42 A.3d 596, 606 (2012) (quoting Breslin v. Powell, 421 Md. 266, 287, 26 A.3d 878, 891 (2011)) (alterations in original) (internal quotation marks omitted).

I. Maryland's Wrongful Death Statute.

Our analysis begins with a brief retrospective on the history of Maryland's wrongful death statute. We discussed previously the origins of our wrongful death statute in Walker v. Essex:

“The common law not only denied a tort recovery for injury once the tort victim had died it also refused to recognize any new and independent cause of action in the victim's dependents or heirs for their own loss at his death.” In response to this harsh rule, the English legislature created a...

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