Newell v. Richards

Decision Date01 September 1990
Docket NumberNo. 121,121
Citation323 Md. 717,594 A.2d 1152
PartiesEstella NEWELL v. George J. RICHARDS, Jr. et al. ,
CourtMaryland Court of Appeals

Edward T. Pinder (William J. Blondell, Jr., William J. Blondell, Jr., Chartered, all on brief), Baltimore, for petitioner.

Angus R. Everton (Roy L. Mason, Montedonico & Mason, Chartered, all on brief), Baltimore, Jonathan E. Claiborne (Whiteford, Taylor & Preston, both on brief), Towson, Ronald U. Shaw, Jeffrey G. Cook (Miles & Stockbridge, all on brief), Towson, for respondents.

Argued before MURPHY, C.J., ELDRIDGE, RODOWSKY, McAULIFFE and CHASANOW, JJ., H. CHESTER GOUDY, Jr., Judge of the Fifth Judicial Circuit of Md., Specially Assigned, and ERNEST A. LOVELESS, Jr., Administrative Judge of the Seventh Judicial Circuit of Md., Specially Assigned.


Estella Newell (Newell) filed a claim for medical malpractice with the Health Claims Arbitration Office on July 25, 1984 against health care providers George J. Richards, Jr., M.D.; Richards, Hirschfeld and Associates P.A. (the partnership); and the Greater Baltimore Medical Center (GBMC) (hereinafter collectively Richards). In a two-count complaint Newell alleged that she had sustained injuries as a result of Dr. Richard's negligence in administering excessive and improper radiation treatments and joined the partnership and GBMC on the basis of respondeat superior. In a written opinion, the Health Claims Arbitration Panel chairperson granted the Richards' motion for summary judgment and entered an award of no liability in his favor based on the running of the statute of limitations.

Newell filed a notice of rejection of the award, a complaint and demand for jury trial, and a motion to vacate the award in the Circuit Court for Baltimore County. The motion to vacate the award was denied. Both Newell and Richards filed motions for summary judgment, which were also denied. Richards' motions to bifurcate 1 were granted and the case went to trial on the sole issue of the statute of limitations. At the conclusion of the trial the case was submitted to the jury in the form of a special verdict. The jury decided that Newell had implied knowledge of her injury more than three years before the claim was filed. On this basis, the court ruled that Newell's claim was time-barred. The judgment was affirmed by the Court of Special Appeals in Newell v. Richards, 83 Md.App. 371, 574 A.2d 370 (1990).

The Court of Special Appeals ruled on several of Newell's arguments on appeal, including the contention that the trial court committed reversible error by incorrectly placing the burden of proof on Newell to show that the statute of limitations had not run. The Court of Special Appeals held that the trial court did err in placing on the plaintiff the burden of proof on the limitations defense, but that the error was harmless in light of the procedural posture of the case. We granted certiorari to consider two important issues raised by the Court of Special Appeals opinion.

The Facts

In July of 1980, Estella Newell was admitted to GBMC for post-menopausal bleeding. Newell was diagnosed as having cancer of the uterus and treated by Stanley Rosendorf, M.D. On August 13, 1980, in an attempt to treat the cancer, Dr. Rosendorf and George J. Richards, Jr., M.D., inserted a radium implant into Newell's uterus. The implant did not eliminate the cancer, and on September 30, 1980, Dr. Rosendorf performed a total hysterectomy on Newell. Radiation therapy under the direction of Dr. Richards was prescribed as follow-up treatment to the hysterectomy. Newell received external radiation treatments at GBMC on eighteen separate occasions during the period beginning October 30, 1980 to November 25, 1980. During this time, Dr. Richards was Chief of Radiology at GBMC.

Following the radiation therapy, Newell experienced diarrhea, frequent urination, rectal bleeding, blood in her urine, and blood in her stool on a recurrent basis. Newell testified that she was aware of her urinary and bowel problems and that she related both to the radiation therapy. Dr. Richards testified that the symptoms Newell experienced were usual side effects of radiation treatment, and probably would have been discussed with the patient. Dr. Richards consistently denied throughout the proceedings that the radiation given Newell was improper or excessive.

When Newell complained of her symptoms, GBMC referred her to gastroenterologist Ibrahim Razzak, M.D. In February, March, and August of 1981, Dr. Razzak performed various diagnostic tests on Newell. Dr. Razzak testified that there were several possible causes for the problems Newell was experiencing. According to his records, he first diagnosed Newell as suffering from diverticulosis, a condition which, in Dr. Razzak's opinion, "is not related to radiation therapy." Along with this original diagnosis, Dr. Razzak had written the words "radiation damage" with a question mark on Newell's medical chart. Dr. Razzak testified that he felt Newell's problems may be secondary to radiation. However, he testified that at no time did he advise Newell that her problems resulted from excessive or improper radiation.

Dr. Razzak performed several biopsies, or tests of tissue, on samples taken from the wall of Newell's intestine. The results of the biopsies taken before August of 1981 were read by Dr. Razzak as negative, showing no evidence to confirm that Newell had radiation damage. The biopsy taken in August of 1981 was the first medical confirmation that Newell had radiation damage, according to Dr. Razzak. We should note however, that July of 1981, and not August, is the critical month. If Newell had sufficient knowledge before July 25, 1981 then her lawsuit, which was filed on July 25, 1984, was too late.

Newell stopped seeing Dr. Razzak because she felt she "wasn't getting any better." In November of 1982, she sought care from Dr. James Powder. Dr. Powder discovered a crystallized spot on Newell's bladder and explained to Newell that it was caused by excessive radiation. It is at this time that Newell claims she first discovered her potential cause of action against Richards.

I. Statute of Limitations In Action For Medical Malpractice

Historically, Maryland, as well as the majority of jurisdictions, applied the "date of the wrong" (or time of injury) rule to pinpoint the date that triggered the running of the statute of limitations. Note, Poffenberger v. Risser: The Discovery Principle Is the Rule and Not the Exception, 41 Md.L.Rev. 451, 453, n. 25 (1982) (hereinafter The Discovery Principle ). Because some injuries are latent or otherwise difficult to discover, the "date of the wrong" rule could have the effect of barring some claims before plaintiffs could discover that a wrong or a resulting injury had occurred.

The discovery rule is an exception that has evolved to avoid this harsh result. Under the discovery rule, a cause of action accrues at the time the plaintiff first knows or reasonably should have known of the alleged wrong. Poffenberger v. Risser, 290 Md. 631, 636, 431 A.2d 677, 680 (1981). The development of the discovery rule can be traced to this Court's decision in Hahn v. Claybrook, 130 Md. 179, 100 A. 83 (1917). Hahn involved a claim for medical malpractice brought by a woman who alleged that she had suffered permanent skin discoloration as a result of her doctor's negligence in prescribing argentum oxide. In that case, the Court held that the plaintiff's claim was barred, but intimated that her right of action accrued when her injury became apparent. Id. at 184, 100 A. at 84. Years later, in Waldman v. Rohrbaugh, 241 Md. 137, 145, 215 A.2d 825, 830 (1966), this Court clearly articulated the discovery rule and held it applicable to claims for medical malpractice. After Waldman, the Court extended the discovery rule to other types of professional malpractice. See, e.g., Leonhart v. Atkinson, 265 Md. 219, 289 A.2d 1 (1972) (malpractice by accountant); Mumford v. Staton, Whaley & Price, 254 Md. 697, 255 A.2d 359 (1969) (malpractice by attorney); Mattingly v. Hopkins, 254 Md. 88, 253 A.2d 904 (1969) (malpractice by engineer). In Harig v. Johns-Manville Prods. Corp., 284 Md. 70, 394 A.2d 299 (1978), the development of the discovery rule continued as this Court extended its application to cases involving latent disease. Finally, in Poffenberger v. Risser, this Court held that the discovery rule was applicable to civil actions generally, and that a plaintiff must have knowledge, either implied or express, in order to trigger the running of the statute of limitations. Poffenberger, 290 Md. at 637, 431 A.2d at 681. Thus, the Poffenberger decision culminated over fifty years of judicial expansion of the application of the discovery principle to the general statute of limitations. The Discovery Principle, 41 Md.L.Rev. at 451 n. 7. Although the discovery rule can be more difficult to apply than the "date of the wrong" rule, the decision to adopt the discovery rule reflects a policy decision that plaintiffs "ought not be charged with slumbering on rights they were unable to ascertain." Pennwalt Corp. v. Nasios, 314 Md. 433, 441, 550 A.2d 1155, 1159 (1988) (quoting Harig, 284 Md. at 83, 394 A.2d at 306).

In malpractice actions against health care providers, in lieu of the general statute of limitations, there is a special statute of repose, § 5-109 of the Maryland Code, (1974, 1989 Repl.Vol.), Courts & Judicial Proceedings Article, 2 which provides:

"Actions against health care providers.

(a) Limitations.--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 Section 3-2A-01 of this article, shall be filed within the earlier of:

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

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


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