Thomas v. Shear

• Decision Date: 27 August 2020
• Docket Number: No. 2669, Sept. Term, 2018,2669, Sept. Term, 2018
• Parties: Linda THOMAS v. David SHEAR
• Court: Court of Special Appeals of Maryland

247 Md.App. 430

236 A.3d 781

Linda THOMAS

v.David SHEAR

No. 2669, Sept. Term, 2018

Court of Special Appeals of Maryland.

August 27, 2020

Argued by: Mark E. Herman of Baltimore, MD, for Appellant.

Argued by: Steffany K. Bender (Mary Alane Downs, Downs, Ward, Bender, Hauptmann & Herzog, PA on the brief), all of Hunt Valley, MD, for Appellee.

Nazarian, Leahy, Friedman, JJ.^*

Leahy, J. Linda Thomas appeals from the decision of the Circuit Court for Baltimore County granting summary judgment in favor of David Shear, M.D., appellee. Ms. Thomas alleges that Dr. Shear committed medical negligence by placing a surgical clip

on her right ureter¹ during a surgical procedure performed on May 26, 2000 at Greater Baltimore Medical Center ("GBMC"). On May 2, 2016, she filed a Statement of Claim before the Health Care Alternative Dispute Resolution Office and, on June 12, 2017, she filed a complaint in the circuit court.

More than a year later, after deposing plaintiff's experts, Dr. Shear moved for summary judgment on the ground that Ms. Thomas's claim was barred by the statute of limitations under Maryland Code (2006, 2013 Repl. Vol.), Courts and Judicial Proceedings Article ("CJP"), § 5-109. Dr. Shear asserted that any alleged medical injury occurred on the date of the surgery in 2000 or, alternatively, in 2006 when Ms. Thomas visited GBMC and was diagnosed with hydronephrosis

.²

Ms. Thomas countered that, although Dr. Shear's negligent act of placing the surgical clip

occurred in 2000, her injury did not occur until 2014 when she was admitted to Northwest Hospital Center with severe abdominal pains. In support of her opposition to summary judgment, Ms. Thomas submitted two affidavits in which her expert witnesses renounced their earlier deposition testimony that her 2006 hydronephrosis was caused by the surgical clip. Instead, they newly opined that the hydronephrosis in 2006 was caused by kidney stones

. Ms. Thomas also tendered the deposition testimony of Dr. Shear's experts—that he did not negligently cause her harm in 2000, 2006, or 2014—in support of her experts’ revised opinions that the injury did not occur in 2006. Dr. Shear moved to strike the affidavits on the basis that they were materially inconsistent with Ms. Thomas's experts’ prior sworn statements.

At a hearing on October 23, 2018, the court agreed with Dr. Shear that the affidavits were materially inconsistent and granted his motion for summary judgment on the basis that Ms. Thomas's claim was barred by the statute of limitations.

Ms. Thomas timely noted her appeal and presents four questions for our review,³ which we have consolidated and rephrased:

1. Did the circuit court err in determining that Ms. Thomas could not rely on the affidavits of her experts to support her opposition to Dr. Shear's motion for summary judgment?

2. Did the defense experts’ testimony create a material issue of fact precluding summary judgment?

3. Did the circuit court err in granting summary judgment in favor of Dr. Shear on the basis that Ms. Thomas's claim was time barred under CJP § 5-109 ?

For the reasons that follow, we discern no error in the court's decision to disregard Ms. Thomas's experts’ affidavits, and we hold that the court properly determined that her claim was time barred under CJP § 5-109.

BACKGROUND

A. The Complaint

On May 26, 2000, David Shear, M.D., performed an aorto-bifemoral bypass graft⁴

on Linda Thomas at GBMC. Sixteen years later, on May 2, 2016, Ms. Thomas filed a medical malpractice claim against Dr. Shear with the Health Care Alternative Dispute Resolution Office.⁵ Dr. Shear elected to waive arbitration and the matter was transferred to the Circuit Court for Baltimore County.

In her complaint against Dr. Shear, filed on June 12, 2017, Ms. Thomas alleged that "[o]n May 26, 2000 , [Dr. Shear] performed an ao[rt]o-bifemoral bypass graft

" and that certain surgical clips used during the procedure "were not appropriate or not properly removed." (Emphasis added). The complaint further alleged that:

3. On January 6, 2014, [Ms. Thomas] began to have severe abdominal pains. She was admitted to Northwest Hospital Center at which time after discussing with the urologist, a cystoscopy

was recommended.

4. On February 5, 2014, at Northwest Hospital Center, cy[s]toscopy was attempted, but multiple clips were encountered. ...

5. As a result of the ongoing presence of the clips, [Ms. Thomas's] medical condition has remained complicated and she has experienced considerable pain and suffering, had multiple surgical procedures to address the matter and was otherwise injured and damaged.

(Emphasis added). The complaint concluded that Dr. Shear "breached the standard of care by leaving the clips behind and was otherwise negligent" and, "[a]s a direct and proximate result, [Ms. Thomas] was injured and damaged[.]"

B. Motion to Dismiss

On July 31, 2017, Dr. Shear filed a motion to dismiss, arguing that Ms. Thomas's claims were time barred under CJP § 5-109(a). Although Dr. Shear denied Ms. Thomas's allegations that he "inappropriately placed a surgical clip

on the right ureter during the aorto-femoral bypass surgery," he argued, "for purposes of th[e] motion only, there could be no dispute that IF [he] actually did place an occluding surgical clip

on the right ureter during the 2000 surgery, then Ms. Thomas sustained a medical injury as of the date of that surgery." In her opposition to Dr. Shear's motion, Ms. Thomas agreed that, under CJP § 5-109(a), she was "obligated to file her complaint within five years [of] the time the injuries [were] committed or three years of the date the injury was discovered[.]" In Ms. Thomas's view, the "injury was committed not when the clips were left behind," but "when [she] began to experience severe abdominal pain from the presence of the clips" in 2014. The court held Dr. Shear's motion for further information in an order entered on October 27, 2017.

C. Expert Depositions

Ms. Thomas designated several expert witnesses, including Dr. Paul Brown, Dr. Mark Kaye, and Dr. Carl Blond, who were all deposed prior to the summary judgment motion.⁶ As experts for the defense, Dr. Shear designated, among others, Dr. James Black and Dr. Joseph Harryhill, who were not deposed by Ms. Thomas's counsel until after the motion for summary judgment was filed.

During the discovery period, Ms. Thomas produced records documenting her 2006 visit to GBMC. She presented with right flank pain, nausea and vomiting, and hematuria, or blood in the urine. The Radiology Department performed a CT scan

of Ms. Thomas's abdomen and pelvis, and reported the following findings:

CT ABDOMEN FINDINGS: The right kidney contains a 4 mm stone anteriorly. A 3 mm stone posteriorly, both in the lower pole. There is moderate right hydronephrosis

present. The right ureter is dilated and can be followed for

a short distance. No definite stone is seen at the transition

zone. The ureter in the upper pelvis is normal in caliber.

The left kidney contains a 3 mm stone in the lower pole. No hydronephrosis is present.

Cholecystectomy clips are present . The lung bases show minor fibrosis. The liver, spleen, pancreas, and adrenal glands show no acute findings.

The [sic] are clips present adjacent to the aorta , that appear related to aortic bypass graft. There are clips present along the right psoas muscle and adjacent to the ascending colon .....

CT PELVIS FINDINGS: Aortobi-femoral bypass graft has been performed. There are multiple clips present. Clips are present in the inguinal region.

No stone is seen in the bladder. No definite stone is shown along the course of either ureter. There is a clip in the pelvis. ....

IMPRESSION:

1. Small stones in the lower pole calyces of each kidney.

2. Moderate right hydronephrosis and proximal right hydroureter, without definite stone identified.

3. Aorto-femoral bypass graft .

4. Chronic changes as described.

(Emphasis added). Walter Hettinger, a physician in the Emergency Department, completed Ms. Thomas's departure information. He indicated that her diagnosis was "right kidney stone

" and her condition was "satisfactory."

As more fully described in our discussion below, plaintiff's expert, Dr. Brown, testified during his deposition, upon examination of the CT scan

of Ms. Thomas's abdomen from July 2006, that the hydronephrosis "would be from the clip [placed in 2000], because we know that there was a clip across the ureter." He further agreed that a kidney stone did not cause an obstruction of Ms. Thomas's ureter in 2006 because the report "says, [s]mall stones in the lower pole of the kidney, but there[’]s no kidney stone causing the problem." Similarly, Dr. Blond testified that, to a reasonable degree of medical probability, he believed the cause of the hydronephrosis

in 2006 "was from [ ] the original clip in 2000." In a later email to defense counsel, however, Ms. Thomas's counsel supplemented Dr. Blond's testimony "[r]egarding the 7/19/2006 GBMC Er visit":

Dr. Blond will testify that if the hydronephrosis

caused the right flank pain, then the pain would continue from that day forward. If the pain subsided, then the hydronephrosis did not cause the right flank pain. His opinion is that the treaters were much more concerned about the [kidney] stones and the stones better explain the pain complaints. Dr. Blond is of the opinion that the clip did not cause the right flank pain.

Defense expert, Dr. Black, deposed that "kidney stones

" was a "reasonable diagnosis" following Ms. Thomas's complaint of right flank pain and hematuria. In light of his opinion that there was no clip on the ureter from 2000 on, Dr. Black stated that he did "not believe anything in 2006 had anything to do with a clip that would have, hypothetically, been placed in 2000 on the ureter." Dr. Harryhill, during his deposition, agreed that the documents from the 2006 GBMC visit indicated a "final diagnosis [of] renal colic. And it looks like it says right kidney stones." He testified that "it's not likely that a...