Newell v. Richards

• Decision Date: 01 September 1989
• Docket Number: No. 1579,1579
• Citation: 83 Md.App. 371,574 A.2d 370
• Parties: Estella NEWELL v. George J. RICHARDS, Jr., et al
• Court: Court of Special Appeals of Maryland

Page 371

83 Md.App. 371

574 A.2d 370

Estella NEWELL v. George J. RICHARDS, Jr., et al.

No. 1579 Sept. Term, 1989.

Court of Special Appeals of Maryland.

June 6, 1990.

As Amended Aug. 8, 1990.

William J. Blondell, Jr. (Edward T. Pinder and William J. Blondell, Jr., Chartered, on the brief), Baltimore, for appellant

Jonathan E. Claiborne (Whiteford, Taylor & Preston, on the brief), Towson, for appellee, Greater Baltimore Medical Center.

Angus R. Everton (Roy L. Mason, Montedonico & Mason, Chartered, Ronald U. Shaw, Mark A. Wesker, Jeffrey C. Cook and Miles & Stockbridge, on the brief), Baltimore, for appellees, Richards, Hirschfeld & Associates, P.A.

Argued before ROSALYN B. BELL, KARWACKI and WENNER, JJ.

ROSALYN B. BELL, Judge.

Estella Newell, appellant, filed a medical malpractice claim with the Health Claims Arbitration Office (HCAO) against Dr. George J. Richards, Jr., Greater Baltimore Medical Center (GBMC), and Richards, Hirschfeld & Associates, P.A., appellees, on July 25, 1984. On August 4, 1986, based on the statute of limitations, the arbitration panel chairman ¹ granted appellees' motion for summary judgment and entered an award of no liability in their favor.

Appellant then filed a Complaint and Action to Nullify the Award and Motion to Vacate in the Circuit Court for Baltimore County. The Motion to Vacate was denied. Each appellee then filed a Motion for Separate Trials ² which was granted and a Motion for Summary Judgment which was denied. The case went to trial before a jury on the issue of the application of the discovery rule and whether appellant's claim was barred by the governing statute of limitations. The jury found that appellant's suit was filed after the expiration of the statute of limitations; hence, it Appellant's motions for a new trial and judgment notwithstanding the verdict were denied and she appeals, contending:

was barred.

-- appellant was entitled to judgment as a matter of law as there was no evidence from which jurors could find appellant knew, or reasonably could have known, of a wrong caused by appellees prior to July 25, 1981;

-- the trial court committed reversible error by placing the burden of proving the affirmative defense of statute of limitations on appellant;

-- the trial court erred by allowing appellees to rely on an opinion of a health claims panel chairman which was rendered in excess of his statutory authority, and was therefore a nullity;

-- the trial court erred by granting appellees' motion in limine preventing appellant from discussing the sole issue of the trial, the statute of limitations; and by bifurcating trial of merits from limitations; and

-- the trial court erred by allowing the medical records concerning an alleged phone call by appellant into evidence.

We disagree with all of appellant's claims and affirm the judgment. We explain.

FACTS

In July of 1980, Dr. Stanley Rosendorf diagnosed appellant as having cancer of the uterus. As part of her treatment, which began in late October and continued throughout November of 1980, she received a radium implant and radiation therapy. Dr. Richards was responsible for the administration of appellant's radiation therapy. Shortly after appellant started radiation, she began to experience physical problems, such as incontinence, blood in her stool and frequent urination. In early 1981, the additional problem of blood in her urine arose.

In March of 1981, appellant saw her family physician, Dr. Cotter. According to her deposition, appellant was in the habit of telling Dr. Cotter everything that was wrong According to Dr. Rosendorf's records, on June 17, 1981, appellant telephoned Dr. Rosendorf and asked who she should see for radiation treatment if she were no longer going to see Dr. Richards. Appellant, however, did not recall making this telephone call and testified that it was not until November of 1982, when she went to see Dr. Powder, that she realized something was wrong. She had problems she had "never had before" and was "getting worse." She testified that it was not until her visit to Dr. Powder, where she learned she had a crystallized spot on her bladder which he would have to remove, that she realized she had a potential cause of action against appellees. Appellant filed her claim with the HCAO on July 25, 1984. Since the applicable statute of limitations is three years, in order to have complied with the statute of limitations, appellant must not have known or have had reason to know of her cause of action before July 25, 1981.

with her, though she did not specifically recall whether she had told him about her urinary problems. He advised her that these ailments were probably due to the radiation therapy. GBMC sent appellant to Dr. Razzak, a gastroenterologist, for her bowel problems. Dr. Razzak performed several tests which showed that her colon was not entirely normal. He suspected that appellant's colon problems were caused by her radiation treatment.

INSUFFICIENCY OF THE EVIDENCE

Appellant challenges the trial court's failure to grant judgment on her behalf as a matter of law. She claims there was no evidence from which the jury could have found that she knew or reasonably should have known of her cause of action prior to July 25, 1981, three years before she filed her claim with the HCAO. Poffenberger v. Risser, 290 Md. 631, 636, 431 A.2d 677 (1981) (actual or constructive knowledge of condition required). We disagree.

Preliminarily, the jury did find that appellant knew or reasonably should have known of the existence of her potential cause of action prior to July 24, 1981. It is not the function of this Court to overturn a jury verdict unless no In the case at bar, there was evidence which tended to support the claim that appellant knew or reasonably should have known about her cause of action prior to July 25, 1981. Dr. Razzak testified that his testing of appellant conducted in February and March, 1981 indicated that the radiation therapy was probably the cause of her colon irregularities. A reasonable person could be expected to investigate further whether the radiation treatment was rendered properly. Moreover, there was testimony which showed that appellant had called Dr. Rosendorf's office on June 17, 1981, asking who she should see instead of Dr. Richards. A fact finder could infer from this that she knew Dr. Richards had been negligent in her treatment. In addition, appellant's own daughter, who is a nurse, averred that appellant had complained to her of physical problems associated with the radiation therapy as early as November, 1980. From this evidence, the jury could justifiably find, as it did, that appellant knew or reasonably should have known about her cause of action before July 25, 1981.

legally sufficient evidence was presented upon which the jury could have based its decision. Royal v. State, 236 Md. 443, 448, 204 A.2d 500 (1964). See also Ralph Pritts & Sons v. Butler, 43 Md.App. 192, 199-200, 403 A.2d 830 (1979).

Appellant's reliance on Baysinger v. Schmidt Products Co., 307 Md. 361, 514 A.2d 1 (1986), is misplaced. In Baysinger, a products liability case, the Court of Appeals reversed the trial court's grant of summary judgment on the issue of when the claimant should have known of her cause of action. The Baysinger Court simply held that, since reasonable minds could differ about whether the claimant should have undertaken further investigation concerning the relationship between the intrauterine device and the cause of her infection, summary judgment was inappropriate. In the instant case, the trial judge followed Baysinger by not granting appellees' Motions for Summary Judgment and submitting the statute of limitations' issue to the jury.

In addition to Baysinger, appellant contends that Pennwalt v. Nassios, 314 Md. 433, 550 A.2d 1155 (1988), supports her claim that she was entitled to judgment as a matter of law. We disagree. Pennwalt focused on a certified question from the United States District Court for the District of Maryland:

"Whether under the discovery rule, knowledge of the manufacturer's wrongdoing or of product defect is required, in addition to knowledge of possible causation, to trigger the statute of limitations in a medical products liability action."

Pennwalt, 314 Md. at 435, 550 A.2d 1155. As appellees observe, the breadth of Pennwalt is arguably restricted to product liability cases. Nonetheless, the Court answered the question in the following fashion:

"If the District Court used the word knowledge to mean clear and unequivocal proof that a certain manufacturer's negligence produced a defective product causing the plaintiff's injury, then we would answer the question no. If use of the term knowledge means express or implied knowledge of injury, its probable cause, and probable manufacturer wrongdoing or product defect, then we would answer the question yes."

Pennwalt 314 Md. at 456-57, 550 A.2d 1155. The jury in the instant case found that appellant had implied knowledge, meaning that she had knowledge which would cause a reasonably prudent person to inquire. We have already articulated the evidence produced at trial which supported the jury's finding that appellant had reason to suspect that negligence caused her conditions.

BURDEN OF PROOF ON STATUTE OF LIMITATIONS

Appellant urges that the trial court erred by ruling that she had the burden of proving that she filed her claim before the statute of limitations ran out on her claim. Appellant reasons that, since the statute of limitations is an affirmative defense which appellees had to raise, they therefore have the burden of showing that she did not comply The question of where lies the burden of proof when the award of the HCAO is presumed to be correct is addressed by Md.Cts. & Jud. Proc.Code Ann. § 3-2A-06(d) (1974, 1984 Repl.Vol., 1989 Cum.Supp.): ³

with the statute. While we do agree with appellant, we conclude that, in view of the posture of this...