October 22, 2013

162017_132140396847214_292624_nOn October 18, 2013, the Court of Appeals of Maryland (“Court of Appeals”) held that the Legislature did not intend to define “wrongful act” so as to render a wrongful death claim contingent on the decedent’s ability to timely file a tort claim prior to death in a medical malpractice case and that the statute of limitations for bringing tort claims against health care providers in medical negligence cases does not apply to a claim for wrongful death.

The Underlying Facts

A 58-year-old woman was treated by a Maryland family practice physician beginning in 1997. Between 1997 and early 2004, during which time the woman was routinely seen by the physician, she lost a significant amount of weight and alternatively experienced diarrhea and constipation, but her physician did not order a screening colonoscopy, perform an annual digital rectal examination, or order annual hemoccult testing.

On May 25, 2004, the physician finally performed a digital rectal examination and ordered hemoccult testing after which he referred the woman to a general surgeon, who performed a colonoscopy and additional testing that found a large tumor in her colon. The woman was diagnosed with Stage IV colorectal cancer with liver metastasis. Despite medical treatment, her cancer spread to her spine and resulted in her death on March 14, 2008.

The Litigation

On March 8, 2011, after receiving leave to dismiss their original claims without prejudice on May 12, 2010 due to a procedural error, the woman’s husband and her three adult children filed both survival and wrongful death claims in the Health Care Alternative Dispute Resolution Office of Maryland. The parties waived arbitration and the case was transferred to the Circuit Court where a complaint containing four wrongful death counts was filed (the survival action count was voluntarily dismissed because it was not filed within the applicable statute of limitations). The wrongful death counts alleged that the physician committed medical negligence in failing to timely conduct the appropriate tests and in failing to timely diagnose the woman’s colorectal cancer.

The medical malpractice defendant filed a motion to dismiss in which he acknowledged that the wrongful death claims were filed within three years of the woman’s death but argued that the claims were precluded because the woman had not brought a timely a personal injury lawsuit against the physician nor could she have at the time of her death as it would have been time-barred by the statute of limitations applicable to medical negligence claims. The defendant’s motion to dismiss was granted and the plaintiffs appealed.

The Appeal

The two issues before the Court of Appeals were: (1) Under Maryland law, is a wrongful death beneficiary’s right to file a lawsuit contingent upon the decedent’s ability to bring a timely negligence claim on the date of her death? and (2) In addition or in the alternative, does § 5-109 of the Courts and Judicial Proceedings Article apply directly to a wrongful death action arising out of alleged medical negligence and, if so, does it bar Appellants’ wrongful death action?

Because the Court of Appeals determined that the relevant Maryland statute was ambiguous, it held that “[in light of the Legislature’s purpose of creating a new and independent cause of action when it passed the Maryland wrongful death statute and the reasoning of many of those courts interpreting similar statutes, we think that, by requiring 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,” the Legislature did not intend for a wrongful death action to be barred by expiration of the statute of limitations applicable to the decedent’s underlying claim. Accordingly, we hold that a wrongful death claimant’s right to sue is not contingent on the decedent’s ability to file a timely negligence claim prior to her death.”

The Court of Appeals concluded: “When the Beneficiaries filed this wrongful death action, they did so within the only time limitation imposed on such a claim by Maryland’s wrongful death statute, the three-year limitation found in § 3-904(g)(1). [The woman’s] failure or inability to file a timely claim for medical negligence prior to her death does not bar the action filed timely by her Beneficiaries, nor does § 5-109 apply to bar the Beneficiaries’ claim. Therefore, we reverse the Circuit Court’s judgment and remand this case to that court for further proceedings.”

Source Susan Mummert, et al. v. Massoud B. Alizadeh, et al., No. 5, September Term, 2013.

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