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Rivera v. Edmonds9/12/1997
Opinion by Rodowsky, J.
Filed: September 12, 1997
This case involves the medical malpractice statute of repose, Maryland Code (1974, 1995 Repl. Vol.), § 5-109 of the Courts and Judicial Proceedings Article (CJ). We issued the writ of certiorari to review the application, on summary judgment, of that statute in Edmonds v. Cytology Servs. of Md., Inc., 111 Md. App. 233, 681 A.2d 546 (1996), a case involving allegedly negligent failures by pathologists to diagnose microscopic, invasive cancer of the uterine cervix.
I
Understanding the legal issues in the instant matter will be assisted by a preliminary review of Maryland law. CJ § 5-109(a) (the Act) reads:
"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 § 3-2A01 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 triggering events for the running of the alternative periods and the length of the periods have not changed since the Act was first enacted by Chapter 545 of the Acts of 1975. Section 2 of Chapter 545 provided that it "shall apply only to injuries occurring after July 1, 1975."
This Court interpreted "injuries occurring" in § 2 of Chapter 545 in Hill v. Fitzgerald, 304 Md. 689, 501 A.2d 27 (1985). In that case the plaintiff was first seen by the physician on January 7, 1975, and was seen on a number of occasions thereafter, with treatment ending on November 3, 1975. The plaintiff brought suit in December 1983, contending that limitations were governed by the discovery rule under the general three year statute of limitations, CJ § 5-101. 304 Md. at 692-93, 501 A.2d at 28-29. See, e.g., Geisz v. Greater Baltimore Med Center, 313 Md. 301, 306-07 & n.3, 545 A.2d 658, 660 & n.3 (1988). Under the patient's submission the Act did not apply because the injury occurred when the misdiagnosis was made, as early as the first visit. Hill, 304 Md. at 692, 501 A.2d at 29. The defendant argued that the injury should be considered to occur on the last day of treatment. Id. at 693, 501 A.2d at 31. We did not adopt either position.
This Court in Hill looked to Oxtoby v. McGowan, 294 Md. 83, 447 A.2d 860 (1982), where we construed the term "medical injuries occurring" in § 5 of Chapter 235 of the Acts of 1976 which enacted the Health Care Malpractice Claims Act (HCMCA), CJ §§ 3-2A-01 through 3-2A-09. In Hill we saw "no substantive distinction in the legal application" of "injuries occurring" for purposes of the Act and "medical injuries occurring" for purposes of the HCMCA. Hill, 304 Md. at 697, 501 A.2d at 30-31. Quoting Oxtoby, 294 Md. at 93-94, 447 A.2d at 866, we said in Hill:
"'The General Assembly obviously was not concerned with invasions of a legally protected interest which do not cause harm in the sense of "loss or detriment in fact ...." Restatement (Second) Torts § 7(2) (defining "harm"). The Act is concerned with the invasion of legally protected interests coupled with harm.'"
304 Md. at 695, 501 A.2d at 30.
In Hill we described the holding of Oxtoby to be "that the surgeon's negligent act, coupled with the harm which resulted from leaving part of a fallopian tube and ovary in the patient, amounted to a legally cognizable wrong and hence a medical injury" which occurred prior to the operative date of the HCMCA. 304 Md. at 696, 501 A.2d at 30. We also adopted in Hill, for purposes of the Act, the statement from Oxtoby, 294 Md. at 97, 447 A.2d at 868, "'that a
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