Waldman v. Rohrbaugh

• Decision Date: 07 January 1966
• Citation: 241 Md. 137,215 A.2d 825
• Parties: Ivan N. WALDMAN v. Austin B. ROHRBAUGH, Jr. no. 100.
• Court: Maryland Court of Appeals

Page 137

241 Md. 137

215 A.2d 825

Ivan N. WALDMAN v. Austin B. ROHRBAUGH, Jr.

no. 100.

Court of Appeals of Maryland.

Jan. 7, 1966.

George A. Wilkinson, Jr., Riverdale (Thomas B. Yewell and Haynes, Fitzgerald, Wanner, Haislip, MacHale & Yewell, Marlow Heights, on the brief), for appellant.

Walter J. Murphy, Jr., Rockville (H. Mason Welch, J. Harry Welch, J. Joseph Barse and James A. Welch, Rockville, on the brief), for appellee.

Before HAMMOND, HORNEY, OPPENHEIMER, BARNES and McWILLIAMS, JJ.

HAMMOND, Judge.

The appellant, plaintiff below, on September 2, 1964, sued at law to recover damages from his former doctor for, in the words of his brief, 'malpractice through negligence in the conduct of an operation performed on plaintiff by defendant on June 16, 1961 and alleging continuing malpractice through negligence thereafter in the care and treatment of plaintiff following this operation.' The operation and treatment were to cure or alleviate a fracture of the ankle. Counsel for the doctor filed a plea that he did not commit the wrongs alleged and a plea of limitations stating that the cause of action set forth did not accrue within three years, and some months later, apparently not realizing that they had strayed from customary surroundings in the District of Columbia into Maryland, filed a 'Motion for Judgment on the Pleading,' a procedure not provided for in the Maryland Rules or contemplated by Maryland practice, but authorized by Rule 12(c) of the Federal Rules of Civil Procedure. Judge Shook, apparently having become infected with the same federal virus that felled counsel for the doctor, heard arguments on the motion, at which the doctor urged that limitations began to run when the operation was performed on June 16, 1961, this being 'the time of the commission of the alleged negligence,' and the claimant contended that the right of action accrued only when the patient discovered the injury complained of and the statute began to run as of that time. Judge Shook granted the motion a reason undisclosed by the record but which the parties agree was that the statute of limitations was a bar. The claimant was not granted leave to amend, after he could not tell the court within half an hour substantially what an amended declaration would allege.

We think that the substantial merits of the case cannot be determined and the purposes of justice advanced unless the case is remanded under Maryland Rule 871 a for further proceedings. The entry of judgment was erroneous in the posture of the case when it was entered. The motion for judgment on the pleadings was not to be treated as a demurrer because the defense of limitations may not be raised in an action at law by demurrer. Hoover v. Williamson, 236 Md. 250, 255-256, 203 A.2d 861. The motion should not have been treated as one for summary judgment because the facts were not before the court by deposition or otherwise and it was not agreed that there was no dispute as to material facts as contemplated by Maryland Rule 610 if there is be a summary judgment.

Apart from the procedural errors in entering judgment for the doctor, it may well have been wrong to do so as a matter of substantive law. There is no doubt that as a general rule limitations against a right or cause of action begin to run from the date of the alleged wrong and not from the time that wrong is discovered by the claimant. Killen v. Geo. Wash. Cemetery, 231 Md. 337, 343, 190 A.2d 247. Although it did not find the rule there applicable under the facts, this Court said in Hahn v. Claybrook, 130 Md. 179, 182, 100 A. 83, 84, L.R.A.1917C, 1169, that the general rule was that in cases of negligent performance by a physician of a contract or of his neglect of some duty arising therefrom, that the cause of action accrues to the patient and the statute begins to run from '* * * the time of the breach or neglect, not from the time when consequential damages result or become ascertained * * *.' The often peculiarly harsh consequences of this theory in cases in which lack of reasonably capable medical knowledge or skill produced serious injurious effects and the victim did not know of the initial wrong until after limitations had run, and so found himself, without any fault of his own, without a remedy (there are a number of such cases in the books), have led many courts and some legislatures to offer exceptions to the general rule which produced (and in some jurisdiction is still producing) this unreasonable and inequitable result in various classes of cases.

'The effect of * * * [the general rule] has frequently been to bar the plaintiff's claim not only before he sustained any perceptible harm, but before it was feasible for him to learn that the negligence had taken place. * * * Especially where the plaintiff is unqualified to ascertain the imperfection, as in the case of negligent performance of expert or professional services, it seems harsh to begin the period at the time of the defendant's act.' Developments in The Law--Statutes of Limitations, 63 Harv.L.Rev. 1177, 1201 (1950).

Apart from fraudulent concealment of the facts constituting negligence, which is a statutory exception in Maryland, Code (1957), Art. 57, § 14, and which is not here claimed, two main exceptions to the old--and formerly almost standard--rule have evolved (with some variations in and overlapping of the exceptions). One line of cases construing statutory language like that of Code (1957), Art. 57, § 1 (that limitations begin to run from 'the time the cause of action accrued') holds that if the treatment by the doctor is a continuing course and the patient's disease or condition is of such a nature as to impose on the doctor a duty of continuing treatment and care, the statute does not commence running until treatment by the medical man for the particular disease or condition involved has terminated, unless during the course of treatment the patient learns or should reasonably have learned of the harm, in which case the statute runs from the time of knowledge, actual or constructive. There is another line of decisions holding that where there is no continuing course of treatment and the injury does not become immediately known by or apparent to the patient, the statute begins to run in favor of the doctor only when the injury is, or reasonably should have become, known. 41 Am.Jur. Physicians and Surgeons § 123 (1942, Cum.Supp.1965); Annot., Statute of Limitations--Malpractice, 80 A.L.R.2d 368, 379 (Termination of treatment) and 377 (Wrongful act or omission as distinguished from injury); Annot., 144 A.L.R. 209, 227 and 229; Louisell and Williams, Trial of Medical Malpractice Cases § 13.08 (and see 13.09) as to continuing treatment, and § 13.07 as to discovery of the injury.

Since about 1940 there has been a slow but steady trend towards judicial acceptance of the continuing treatment rule. See Shives v. Chamberlain, 168 Or. 676, 126 P.2d 28; Hotelling v. Walther, 169 Or. 559, 130 P.2d 944, 144 A.L.R. 205; Williams v. Elias, 140 Neb. 656, 1 N.W.2d 121; Peteler v. Robison, 81 Utah 535, 17 P.2d 244; Schmit v. Esser, 183 Minn. 354, 236 N.W. 622, 74 A.L.R. 1312 (ankle fracture); Thatcher v. De Tar, 351 Mo. 603, 173 S.W.2d 760; Hundley v. St. Francis Hospital, 161 Cal.App.2d 800, 327 P.2d 131, 80 A.L.R.2d 360. In Borgia v. City of New York, 12 N.Y.2d 151, 237 N.Y.S.2d 319, 187 N.E.2d 777, the Court of Appeals of New York, in a careful opinion, for the first time chose the 'continuous treatment' rule as the 'fairer one,' holding that where a course of treatment which includes wrongful acts or omissions has run continuously and is related to the same original condition or complaint, a right of action accrues only at end of treatment (which must be for same or related illnesses or injuries and not be merely a continuity of physician-patient relationship).

This Court, in construing the words of Maryland's statute of limitations--'the time the cause of action accrued'--in cases not involving malpractice has recognized the theory of the continuation of events, only the last of which starts the running of the statute. In Washington, B. & A. Elec. R. R. Co. v. Moss, 130 Md. 198, 204-205, 100 A. 86, 89, in which compensation was sought for services rendered over a period of time, the Court said:

'The general rule seems also settled that in the computation of the statutory period, in cases, where there is an undertaking which requires a continution of services, or the party's right depends upon the happening of an event in the future, the statute begins to run only from the time the services can be completed or from the time the event happens.'

In Vincent v. Palmer, 179 Md. 365, 374, 19 A.2d 183, 189, a suit by an employee for a share of the profits under an agreement to pay them, the Court said:

'* * * the statute begins to operate at the time the cause of action becomes vested and enforceable, not from the time of the making of the promise. * * * Where a contract does not mention the period of employment, and the claim of the employee is based upon 'continuous employment,' indicating one entire contract, even though the work may be interrupted from time to time, the statute will not run until the completion of the contract.'

In our view, if the facts show continuing medical or surgical treatment for a particular illness or condition in the course of which there is malpractice producing or aggravating harm, the cause of action of the patient...