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Burris v. Richards6/7/1989
Leonard H. Burris and his wife, appellants, appeal from the judgment of the Circuit Court for Baltimore County granting summary judgment, on the basis of limitations, in favor of George R. Richards, M.D.; Robert L. Hirschfeld, M.D., Richards, Hirschfeld and Associates, P.A., and Greater Baltimore Medical Center. They present three questions:
1. Whether the trial court erred in granting the defendants summary judgment on the basis that the plaintiffs' claims were barred by the statute of limitations where a factual dispute regarding fraudulent concealment existed.
2. Whether the trial court erred in vacating the default judgments entered against the defendants, Robert L. Hirschfeld, M.D. and Richards, Hirschfeld and Associates, P.A.
3. Whether the trial court erred in refusing to strike the affirmative defenses of the statute of limitations and latches as to the defendants, Robert L. Hirschfeld, M.D. and Richards, Hirschfeld and Associates.
We will affirm.
Appellants filed a claim against appellees on May 11, 1984 in the Health Claims Arbitration Office. The panel chairman granted motions for summary judgment premised on the statute of limitations in favor of each of appellees and entered awards accordingly. Appellants filed a notice of rejection of the Decision, Order, Findings and Awards of Health Claims Arbitration Panel Chairman. They also timely filed a Notice of Appeal From and Action to Nullify Decision, Order, Findings and Award of Health Claims Arbitration Panel Chairman and a Complaint and Election
for Jury Trial in the Circuit Court for Baltimore County. The complaint, like the claim before the arbitration panel, contained several counts, including medical negligence, loss of consortium, lack of informed consent, negligent entrustment and fraud, misrepresentation and concealment, and fraudulent concealment.
The certification attached to the complaint acknowledges that the complaint was mailed to counsel for each appellee, as opposed to being served by process on each appellee. Appellees Richards and Greater Baltimore Medical Center filed answers denying the allegations of the complaint and setting up affirmative defenses. Appellees Hirschfeld and Richards, Hirschfeld and Associates did not, which prompted appellants to request orders of default. Within 30 days of the entry of the orders of default, appellees Hirschfeld and Richards, Hirschfeld and Associates moved to vacate, maintaining that "plaintiffs have never caused service of process of the complaint to be made upon these Defendants. Accordingly, since the Complaint has never been served upon these Defendants, the time for their filing a response to this action in this Court has not yet started to run." They also alleged:
Furthermore, the Orders for Default should be vacated because these Defendants have very strong legal and factual defense to the Plaintiff's claim under the statute of limitations. Plaintiff's action is governed by the statute of limitations found in ยง 5-109 of the Courts & Judicial Proceedings Article. Under that Section, a claim for medical malpractice must be brought within three
years of the date of discovery or within five years after the injury was committed, whichever is shorter. Plaintiff's claim is barred under both the three year discovery rule and the five year provision.
Following a hearing, the trial court granted appellees' motions to vacate the orders of default. Notwithstanding that appellees argued that they had not been served properly, the court made clear that it was not for that reason that it granted the motions. It explained:
Yes, I have no pro
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