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Newell v. Richards6/6/1990
Estella Newell, appellant, filed a medical malpractice claim with the Health Claims Arbitration Office (HCAO) against Dr. George J. Richards, Jr., Greater Baltimore Medical Center (GBMC), and Richards, Hirschfeld & Associates, P.A., appellees, on July 25, 1984. On August 4, 1986, based on the statute of limitations, the arbitration panel chairman granted appellees' motion for summary judgment and entered an award of no liability in their favor.
Appellant then filed a Complaint and Action to Nullify the Award and Motion to Vacate in the Circuit Court for Baltimore County. The Motion to Vacate was denied. Each appellee then filed a Motion for Separate Trials which was granted and a Motion for Summary Judgment which was denied. The case went to trial before a jury on the issue of the application of the discovery rule and whether appellant's claim was barred by the governing statute of limitations. The jury found that appellant's suit was filed after the expiration of the statute of limitations; hence, it
was barred.
Appellant's motions for a new trial and judgment notwithstanding the verdict were denied and she appeals, contending:
-- appellant was entitled to judgment as a matter of law as there was no evidence from which jurors could find appellant knew, or reasonably could have known, of a wrong caused by appellees prior to July 25, 1981;
-- the trial court committed reversible error by placing the burden of proving the affirmative defense of statute of limitations on appellant;
-- the trial court erred by allowing appellees to rely on an opinion of a health claims panel chairman which was rendered in excess of his statutory authority, and was therefore a nullity;
-- the trial court erred by granting appellees' motion in limine preventing appellant from discussing the sole issue of the trial, the statute of limitations; and by bifurcating trial of merits from limitations; and
-- the trial court erred by allowing the medical records concerning an alleged phone call by appellant into evidence.
We disagree with all of appellant's claims and affirm the judgment. We explain.
FACTS
In July of 1980, Dr. Stanley Rosendorf diagnosed appellant as having cancer of the uterus. As part of her treatment, which began in late October and continued throughout November of 1980, she received a radium implant and radiation therapy. Dr. Richards was responsible for the administration of appellant's radiation therapy. Shortly after appellant started radiation, she began to experience physical problems, such as incontinence, blood in her stool and frequent urination. In early 1981, the additional problem of blood in her urine arose.
In March of 1981, appellant saw her family physician, Dr. Cotter. According to her deposition, appellant was in the habit of telling Dr. Cotter everything that was wrong
with her, though she did not specifically recall whether she had told him about her urinary problems. He advised her that these ailments were probably due to the radiation therapy. GBMC sent appellant to Dr. Razzak, a gastroenterologist, for her bowel problems. Dr. Razzak performed several tests which showed that her colon was not entirely normal. He suspected that appellant's colon problems were caused by her radiation treatment.
According to Dr. Rosendorf's records, on June 17, 1981, appellant telephoned Dr. Rosendorf and asked who she should see for radiation treatment if she was no longer going to see Dr. Richards. Appellant, however, did not recall making this telephone call and testified that it was not until November of 1982, wh
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