Medical Malpractice and Wrongful Death under Maryland’s Statutes of Limitations and Repose

By Alex Stein

On October 18, Maryland’s Court of Appeals has delivered a precedential ruling on the applicability of the state’s limitation and repose statutes to suits for wrongful death that allegedly resulted from medical malpractice.  Mummert v. Alizadeh— A.3d —-, 2013 WL 5663105 (Md. 2013).

This ruling dealt with the following set of facts:

A family doctor failed to address his patient’s cancer symptoms between 1997 and 2004. In 2004, the patient was diagnosed with cancer that could not be treated successfully. The patient died of cancer on March 14, 2008. On March 8, 2011, her surviving family members filed a wrongful death action against the doctor, who claimed in response that the action was time-barred. The doctor relied on the 3-year limitations period set for wrongful death actions generally and on Maryland’s Health Care Malpractice Claims Act that sets two alternative expiration dates for suits against physicians: “(1) Five years of the time the injury was committed; or (2) Three years of the date the injury was discovered.” (§ 5–109 of the Courts and Judicial Proceedings Article of the Maryland Code).

The Court dismissed both defenses and allowed the plaintiffs to proceed with their suit.

CLAIM I
The Court properly ruled that the wrongful death action—that amasses all death-related damages—had not expired because it was filed six days prior to the end of the 3-year limitations period. The doctor argued that this ruling was precluded by the language of Maryland’s wrongful death statute that requires that a “wrongful act” be one “which would have entitled the party injured to maintain an action and recover damages if death had not ensued.” Based on this language, the doctor claimed that, in order to allow the decedent’s survivors to sue him, the decedent must have had a legally viable suit against him at the time of her death. Because the decedent’s right to sue the doctor had expired prior to her death, the doctor claimed that the survivors’ right to sue him had expired as well.

The Court rejected this interpretation of the wrongful death statute because of its absurdity. Prior to a tort victim’s death, neither she nor her survivors accrue a death-related cause of action against the tortfeasor. For that reason, the victim’s passing away marks the beginning of the limitations period (her pre-death injuries, on the other hand, may not be actionable due to their statutory expiration).

The Court dismissed the doctor’s first claim for other reasons as well, but I see no need to discuss those reasons.

CLAIM II
This claim strikes me as absolutely correct, as far as the statutory repose provision (Courts and Judicial Proceedings Article § 5–109 (1)) is concerned. This provision extinguishes a patient’s right to sue her doctor upon expiration of a five year period following the alleged malpractice. In the case at bar, the doctor’s negligent misdiagnosis of the decedent ended in 2004. Hence, after 2009, the doctor could no longer be sued in connection with that misdiagnosis.

The Court, however, decided that the repose statute does not bar the plaintiffs’ wrongful death action because it refers to suits for “injury,” as opposed to “death.” According to the Court, medical malpractice that kills the patient is not subject to repose.

This part of the Court’s decision strikes me as unpersuasive, if not patently wrong. Courts across the nation are split over what the word “injury” means in the limitations and repose context. Some courts interpret this word as injury as a matter of fact, which makes it different from “death” (especially when the statute uses the “injury or death” terminology). Other courts, however, take it to stand for “legal injury” or “wrongdoing.” See, e.g., Rathje v. Mercy Hospital, 745 N.W.2d 443 (Iowa 2008) (discussing the abovementioned split). Maryland’s statute of repose sets the repose period at “five years of the time the injury was committed.” As a matter of ordinary language, a person cannot commit injury, nor can s/he commit a wrongful death. There is therefore every reason to believe that the statute’s drafters had in mind the legal, as opposed to factual, meaning of “injury.” If so, then “legal injury” clearly encompasses wrongful death. The Court therefore should have accepted the doctor’s second claim.

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About Alex Stein

Alex Stein is a Professor of Law at Brooklyn Law School. Before joining Brooklyn, Alex was a Professor of Law at Cardozo Law School (2004-2016) and served for more than a decade at the Hebrew University of Jerusalem Faculty of Law (1991-2004). He also held visiting professorial appointments at Alabama, Columbia, Miami, and Yale Law Schools. In Fall 2016, he visited Harvard Law School, where he taught Torts and a seminar on Medical Malpractice. Alex's specialty areas include Torts, Medical Malpractice, Evidence, as well as general legal theory and economic analysis of law. He authors three books, An Analytical Approach to Evidence (with Ronald J. Allen et al.) (6th ed. 2016); Foundations of Evidence Law (2005) and Tort Liability under Uncertainty (2001, with Ariel Porat), and over sixty articles of which many have appeared in leading journals. Alex was one of the founding editors of Theoretical Inquiries in Law and is on the editorial board of the International Journal of Evidence & Proof. In 2013, he launched an e-journal STEIN on Medical Malpractice, http://www.steinmedicalmalpractice.com, that covers all significant developments in medical malpractice laws across the United States. He graduated from the Hebrew University of Jerusalem and earned a Ph.D. from the University of London.