In its unreported opinion dated August 6, 2021, the Court of Special Appeals of Maryland (“Maryland Appellate Court”) addressed a Maryland dental malpractice case where the plaintiff alleged that the defendant dentist negligently caused a nerve injury during an extraction procedure, stating: “The mere fact that a plaintiff suffers an injury does not alone place the plaintiff on inquiry notice. We conclude that the plaintiff must have some notice that the physician breached the applicable standard of care, in addition to the injury.”
Maryland’s Discovery Rule
Maryland Code Annotated, (1973, 2020 Rep’l Vol.), Courts and Judicial Proceedings (“CJ”) § 5-109(a)(2) states that “[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, 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 Court of Appeals of Maryland (Maryland’s highest appellate court) adopted what is known as the discovery rule because of the “unfairness inherent in charging a plaintiff with slumbering on rights not reasonably possible to ascertain.” The discovery rule now applies in all civil actions, and generally provides that a cause of action accrues “when a plaintiff in fact knows or reasonably should know of the wrong.” The discovery rule requires that the plaintiff have notice of a claim to start the running of the statute of limitations, which is an objective standard. The discovery rule tolls the accrual date of the action until such time as the potential plaintiff either discovers their injury or should have discovered it through the exercise of due diligence. The discovery rule protects plaintiffs in a position where it was not reasonably possible to have obtained notice of the nature and cause of an injury.
Knowledge of the accrual of a cause of action is measured by whether circumstances existed that should have put a person of ordinary prudence on inquiry. It is ordinarily a question for the jury or the ultimate factfinder as to whether the plaintiff failed to discover the cause of action because they failed to exercise due diligence or whether they were unable to discover it (and, as a result, unable to exercise due diligence) because the defendant concealed the wrong.
The discovery rule employs a two-pronged test. The first prong concerns the nature and extent of actual knowledge necessary to cause an ordinarily diligent plaintiff to make an inquiry or investigation that an injury has been sustained. For inquiry notice, a person must have actual notice, either express or implied. Express knowledge is direct, whether written or oral, from sources cognizant of the facts. Implied notice occurs when a plaintiff gains knowledge sufficient to prompt a reasonable person to inquire further. Constructive notice or knowledge will not suffice for inquiry notice.
The second prong requires that after a reasonable investigation of facts, a reasonably diligent inquiry would have disclosed whether there is a causal connection between the injury and the wrongdoing. The requirement for inquiry notice is that if a person investigates diligently, the causal connection between injury and the suspected negligence would be revealed.
Hence, the discovery rule fixes accrual at the time the plaintiff first becomes aware of both (1) the existence of an injury and (2) the cause of the injury.
In the case it was deciding, the Maryland Appellate Court stated: “It was only after consulting with Dr. Toothman could it be said that there were enough objective facts for Mr. Shaut to suspect that Dr. Butler breached the applicable standard of care … the fact that Mr. Shaut’s tongue was still numb approximately seven months after surgery, Dr. Butler’s comments that recovery of sensation in the tongue could take several months, coupled with Dr. Toothman’s comment supplied Mr. Shaut with sufficient information that a diligent inquiry would have established if there was in fact a breach in the standard of care … Mr. Shaut’s deposition testimony similarly indicated that while he suspected Dr. Butler caused his tongue to go numb, the evidence also suggests he did not have knowledge that Dr. Butler might have committed malpractice until sometime after he consulted with Dr. Toothman in December 2015. Considering the evidence in this record in the light most favorable to Mr. Shaut, we conclude that summary judgment was improper because there was a genuine dispute of material fact regarding when Mr. Shaut was on inquiry notice of a malpractice claim against Dr. Butler and the dental center.”
Source Shaut v. Robinwood Dental Center, P.C., No. 626 September Term, 2020.
If you or a loved one may have been harmed as a result of dental malpractice in Maryland or in another U.S. state, you should promptly find a Maryland dental malpractice lawyer, or a dental malpractice lawyer in your state, who may investigate your dental malpractice claim for you and represent you or your loved one in a dental malpractice case, if appropriate.
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