Jon Lodwick Brunenkant presented at the Emergency Department of Suburban Hospital in Bethesda, Maryland on October 10, 2015 with symptoms of abdominal pain, persistent nausea, and vomiting. After ordering a CT scan of Brunenkant’s abdomen — along with an electrocardiogram and an ultrasound — an attending physician in Suburban’s Emergency Department suspected that Brunenkant was afflicted with “cholecystitis” (gallbladder disease).
On the day that Brunenkant presented at Suburban Hospital, a 72-year-old general surgeon named Dr. Said Daee was scheduled as the “on-call” trauma and emergency services surgeon. Pursuant to the allegations of the fraud and conspiracy complaint, Suburban and Dr. Daee each represented to Brunenkant that Dr. Daee was an employee, agent, or apparent agent of the Hospital, and that Dr. Daee was acting on behalf of Suburban as its employee, agent, or apparent agent. To that end, Dr. Daee confirmed the Emergency Department attending physician’s diagnosis of cholecystitis, and Dr. Daee recommended prompt emergency surgery to remove Brunenkant’s diseased gallbladder.
On October 11, 2015, Dr. Daee removed Brunenkant’s gallbladder at Suburban Hospital’s Bethesda facility. Due to complications from the gallbladder removal surgery, Brunenkant underwent another surgery about a month later at Georgetown Hospital in November 2015. That second procedure revealed medical malpractice arising out of the gallbladder removal surgery performed a month earlier by Dr. Daee at Suburban.
In January 2020, Brunenkant filed a pro se medical malpractice lawsuit against Suburban Hospital and Dr. Daee in the District of Marlyand. During that litigation, Brunenkant alleged that he discovered — in May 2022 — that Suburban’s contract with Dr. Daee, who it turns out was not an employee of the Hospital but rather an independent contractor, disclaimed any supervision of Dr. Daee’s activities as a surgeon at the Hospital.
In July and August of 2022, Brunenkant twice sought leave from the district court to amend his complaint in the medical malpractice lawsuit to pursue additional claims against Suburban Hospital, but the court denied such relief in March 2023. Brunenkant thereupon commenced a civil action against Suburban in May 2023, invoking the district court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332. By his two-count fraud and conspiracy complaint, Brunenkant alleged that Suburban fraudulently misrepresented itself as Dr. Daee’s employer at the time of the gallbladder removal surgery in October 2015, and that the Hospital conspired to conceal its “on-call” services contract with Dr. Daee.
In July 2023, Suburban Hospital moved to dismiss Brunenkant’s fraud and conspiracy complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). Specifically, Suburban maintained that Brunenkant’s claims are time barred under Maryland’s medical malpractice five-year statute of limitations. See Md. Code Ann., Cts. & Jud. Proc. § 5-109 (establishing five-year statute of limitations for “[a]n action for damages for an injury arising out of the rendering of or failure to render professional services by a health care provider”). (§ 5-101 specifies that “[a] civil action at law shall be filed within three years from the date it accrues unless another provision of the Maryland Code provides a different period of time within which an action shall be commenced.”)
By its eight-page Dismissal Order of November 2023, the district court granted Suburban Hospital’s Rule 12(b)(6) motion to dismiss Brunenkant’s fraud and conspiracy complaint. Although the Dismissal Order initially recognized Maryland’s general three-year statute of limitations for civil claims, see Md. Code Ann., Cts. & Jud. Proc. § 5-101, it summarily resolved to apply the five-year statute of limitations applicable to medical malpractice claims, see Md. Code Ann., Cts. & Jud. Proc. § 5-109. According to the Dismissal Order, “[t]he complaint in this case makes clear that [Brunenkant’s] fraudulent misrepresentation and conspiracy to commit fraud claims are untimely under [s]ection 5-
109.” Because Brunenkant “was aware of [Suburban’s] alleged medical negligence no later than on November 20, 2015,” the Dismissal Order ruled that Brunenkant therefore “had five years from that date, up to and until November 20, 2020 to file his claims.” In that light, the Dismissal Order deemed the claims asserted against Suburban in the fraud and conspiracy complaint to be untimely under section 5-109, since Brunenkant “commenced this matter on May 23, 2023, well-beyond this five[-]year limitations period” that ran from the date of surgery on October 11, 2015. Brunenkant appealed.
The United States Court of Appeals for the Fourth Circuit held in its May 21, 2026 published Opinion: “we are of opinion that the claims alleged by Brunenkant in his fraud and conspiracy complaint fall well within the ambit of section 5-101, and not section 5-109. Although Suburban Hospital maintains on appeal that Brunenkant’s fraud and conspiracy claims relate to the emergency gallbladder removal surgery that Brunenkant underwent at Suburban in October 2015 — and thus appear to arise in the health care context — they are simply not the “traditional malpractice claims” subject to section 5-109’s five-year statute of limitations … rather than invoking section 5-109, the district court should have applied Maryland’s general three-year statute of limitations for civil claims to assess whether the claims alleged in Brunenkant’s fraud and conspiracy complaint are time barred.”
“Furthermore, in applying section 5-101’s three-year statute of limitation, Maryland courts utilize the so-called “discovery rule,” which provides that “the cause of action accrues when the claimant in fact knew or reasonably should have known of the wrong” … having concluded that section 5-101 is the statute of limitations applicable to the civil claims asserted by Brunenkant in the fraud and conspiracy complaint, we refrain from undertaking the analysis — for the first time in this appeal — of whether those claims were timely brought against Suburban Hospital … we vacate the district court’s Dismissal Order of November 2023 and remand for further proceedings.”
Source Brunenkant v. Suburban Hospital, Inc., No. 24-1197.
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