Maryland Appellate Court Affirms Infertility Medical Malpractice Case Filed Too Late

In its unreported opinion filed on September 24, 2021, the Court of Special Appeals of Maryland (“Maryland Appellate Court”) held: “We agree that the court’s finding that the “experts agree” that Mr. Mee was infertile by the time he presented to Dr. Horton for continued care was supported by the deposition testimony of both parties’ experts. The only dispute of fact is related to the permanence of the infertility with respect to Dr. Horton’s continued prescription of Cytoxan. This dispute is not material to the claims against Dr. Peterson, and, therefore, cannot defeat the grant of summary judgment.”

The Underlying Facts

The plaintiff, Christopher Mee (“Mee”), was treated by defendant Robert Peterson, M.D. beginning in March 2010 for bronchiolitis obliterans pneumonia (BOOP), chronic organizing pneumonia (COP), hypersensitivity pneumonia (HP), bronchiocentric pneumonia, and eventually nonspecific interstitial pneumonia (NSIP). Mr. Mee was initially treated with Prednisone, without improvement, which was then supplemented by the addition of increasing doses of Cytoxan from 50 mg/day, beginning April 28, 2010, until reaching the maintenance dose of 150mg/day, beginning July 6, 2010. Mr. Mee continued regular treatment visits with Dr. Peterson, maintaining a dosage of 150 mg/day of Cytoxan without significant improvement, until January 7, 2011 when, at the recommendation of Dr. Peterson, his care was transferred to the interstitial lung disease clinic at Johns Hopkins Medicine. On February 8, 2011, Dr. Maureen Horton assumed Mr. Mee’s care and treatment and continued Dr. Peterson’s treatment plan with 150 mg/day of Cytoxan until February 2013 when she reduced the prescription to 100 mg/day of Cytoxan, at Mr. Mee’s request, to begin weaning him off that medication. At that point, Mr. Mee’s regular treatment visits with Dr. Horton concluded, and he finished his remaining prescription of Cytoxan under her care until May 2013.

In 2016, Mr. Mee was diagnosed with “azoospermia due to Cytoxan toxicity” and underwent a procedure to identify and retrieve any viable sperm, without success. The plaintiffs alleged in their Maryland medical malpractice complaint that Dr. Peterson and Dr. Horton breached the standard of care in prescribing Cytoxan and that Mr. Mee was not properly informed of the high infertility risks, or of other viable alternative treatment options. Because of that, he was not aware that he could have, and likely should have, had his fertility monitored and/or undertaken pre-emptive preservation efforts.

The trial court granted summary judgment to Dr. Peterson, determining that the Maryland medical malpractice lawsuit should have been filed by February 8, 2016, or five years after February 8, 2011, when Mr. Mee left Dr. Peterson’s care and was first seen by Dr. Horton.

Maryland Medical Malpractice Statute Of Limitations

The applicable Maryland medical malpractice timing statute, CJP 5-109(a), provides that: (a) An action for damages for an injury arising out of the rendering of or failure to render professional services by a health care provider, as defined in § 3-2A-01 of this article, shall be filed within the earlier of: (1) Five years of the time the injury was committed; or (2) Three years of the date the injury was discovered.

The Maryland Appellate Court held: “we conclude that the circuit court did not err in granting summary judgment on the basis that the Mees’ claims against Dr. Peterson were time barred. The circuit court found that “because all experts agree that he was sterile in 2011, … the statute of limitations for his claim was triggered in 2011 and his claim against Defendants Peterson and AAPSS are time-barred” … the “cause of action” did not occur until the injury was sustained, which was Mr. Mee’s infertility in 2011. There is no assertion in appellants’ complaint of fraudulent concealment by Dr. Peterson with respect to Mr. Mee’s infertility as of 2011 … The “continuous treatment” issue may have applied with respect to claims against Dr. Horton, who continued the treatment plan implemented by Dr. Peterson without further disclosures. But, despite appellants’ arguments to the contrary, such assertion has no bearing on the issues with respect to Dr. Peterson and, therefore, are not before this Court.”

Source Mee v. Peterson, M.D., No. 1618 September Term, 2019.

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This entry was posted on Monday, October 25th, 2021 at 5:25 am. Both comments and pings are currently closed.


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