The Maryland Court of Appeals granted certiorari in Christopher W. Mee, et al. v. Robert Peterson, et al. to review a decision by the Maryland Court of Special Appeals (CSA) concerning the statute of limitations in medical malpractice cases in Maryland. The Court of Special Appeals opinion, unreported, was authored by Judge Frederick Sharer (Senior Judge, Specially Assigned).
Maryland law, § 5-109(a) of the Courts and Judicial Proceedings Article, provides that any injury arising out of the rendering, or failure to render professional services by a health care provider must be filed within the earlier of:
- Five years of the time the injury was committed; or
- Three years of the date the injury was discovered.
In the case below, the Plaintiff, a 24-year-old policeman, was referred to a Pulmonologist with symptoms including cough and shortness of breath. He was initially treated with Prednisone, a corticosteroid. Then, beginning on April 28, 2010, Cytoxan (a chemotherapy drug) was added to the regimen. The dose of Cytoxan was increased gradually from 50mg/day to 150mg/day. In February 2011, after more than a year of this treatment, the Plaintiff was not improving, and the Pulmonologist referred him to Johns Hopkins for further evaluation.
The Hopkins physician continued the regimen until February 2013, when the dose of Cytoxan was reduced to 100mg/day. The Plaintiff finished the prescription for Cytoxan in May 2013, more than three years after its introduction.
In 2016, the Plaintiff got married and, after a year of unsuccessful attempts to conceive, he and his wife saw a fertility specialist. The fertility specialist found that the Plaintiff's prolonged use of Cytoxan caused a condition called azoospermia, rendering him infertile.
On May 8, 2018, the Plaintiff filed a medical malpractice lawsuit alleging that his physicians, including the Pulmonologist, failed to warn him about the infertility risks associated with Cytoxan, preventing him from either refusing the medication or taking steps to preserve his ability to have children. The Pulmonologist filed a motion for summary judgment under CJP §5-109(a), arguing that, even if the Cytoxan caused the Plaintiff's infertility, the injury occurred more than five years before he filed his lawsuit, and was time-barred.
The Plaintiff argued that, under Maryland law, his “injury” could not have occurred until 2017 because he did not know that he was injured until he was diagnosed with infertility. This would mean that his case was timely filed. The trial court agreed with the Pulmonologist and dismissed the Plaintiff's claim.
The Plaintiff appealed to the Court of Special Appeals, but CSA affirmed the trial court, holding that the claims were time-barred. CSA interpreted CJP §5-109(a) to mean that the five-year limitations period in medical malpractice cases begins to run the moment any harm occurs as a result of the negligence of a health care provider, regardless of whether the injured person knows that they are injured.
The Court of Appeals has agreed to hear arguments in this case to review the decision of the Court of Special Appeals. The question presented to the Court of Appeals is:
Did CSA err in its interpretation of Md. Code §5-109(a) of the Courts & Judicial Proceedings Article (“CJP”), as interpreted by this Court's decision in Anderson v. United States of America, 427 Md. 99, 46 A.3d 426 (2012), which held that CJP § 5-109 is a statute of limitations in its entirety, not a statute of repose, and that the triggering period for limitations is when the victim of an alleged medical malpractice sustained cognizable legal harm, not a subclinical medical condition that has caused no apparent injury or concern and that would not have triggered any investigation until a much later time period?
This case illustrates the critical difference between the statute of limitations in an ordinary negligence case (for example, an injury caused by a defective product) and a medical malpractice case. In an ordinary negligence case, the statute of limitations does not begin to run until the injured person (or person holding the claim) knows, or should know, that they have an injury caused by someone else's wrongful conduct. This principle, called the discovery rule, can extend the time available to file a claim by many years. The Maryland Legislature, however, through CJP §5-109(a), has limited the discovery rule in medical malpractice cases.
Although Maryland courts have struggled to consistently apply the five-year limitation in medical malpractice cases, it is critically important that if you or someone you know has been the victim of medical negligence, you contact an experienced attorney as soon as possible. If you wait, a judge may rule that your claim is permanently barred by CJP §5-109(a).
If you think you may have been injured by a medical mistake, contact the experienced attorneys at Keilty Bonadio today for a free consultation.
