Swam v. Upper Chesapeake Medical Center, Inc.

that, acknowledged here is in an effort to What is evident any term of respect induce the court to be lenient with not to the of restitu- imprisonment, appellant only agreed $955 court, money totaling tion orders made brought but $955 not identified the record but payable persons them and delivered agreed appellant prosecutor, to between Thus, only does the record prosecutor. them to restitution for counterfeited CDs and right demonstrate a in the amount of express request and an for restitution DVDs $955, appellant agreement by but documents as well he was a amount of restitution and whomever proper $955 money payable orders to—information not actually made the proper recipients revealed in the record—were the restitu- hardly any complaint tion. could clearer waiver of a There recipient(s). about either the amount AFFIRMED; AP- BE PAID BY JUDGMENT COSTS TO PELLANT.

919A.2d 33 Mary SWAM, C. et ux. CENTER, MEDICAL INC. UPPER CHESAPEAKE Term, Sept. No. 2005. Appeals Maryland. Court of March (Rosen- Benjamin H. Baida Rosenberg Andrew and Baltimore, LLP of Mark Co- berg/Martin/Funk/Greenberg, S. Mills), of Mark on Owings hen of the Law Office S. Cohen brief, for appellants. (Whiteford, L. & Preston L.L.P. of Ayres Taylor

Barbara brief, Towson), for appellee. BELL, C.J., *, CATHELL, before

Argued WILNER HARRELL, BATTAGLIA, GREENE JOHN C. (Retired, Specially Assigned), JJ. ELDRIDGE ELDRIDGE, J. general

The issue in this case is whether the statute of forum, initially wrong limitations barred claim filed Dispute the Health Care Alternative Resolution Office * Wilner, J., retired, participated hearing now in the and conference of Court; being active after this case while an member recalled Constitution, IV, 3A, participated pursuant to the Article Section he also adoption opinion. in the decision and of this filed in the (“Health Office”), subsequently and then Care County.1 for Harford forum, the Circuit appropriate Swam, and Scott Swam Mary C. plaintiffs-appellants, upon Office based with the Health Care their claim hypoder- from an abandoned injury resulting personal alleged defendant-appellee, Upper of the premises on the syringe mic was a “medical Center, injury Inc. If the Medical Chesapeake Malpractice Health Care meaning of the injury” within (“Health Act”), of the claim with filings Act Claims Claims have would been and Circuit Court Health Care Office not a medically-related, injury, although If the timely. Act, Claims of the Health injury” meaning within the “medical filing untimely unless in the Circuit Court filing in the Health Care Office. filing to the time related back injury that Mrs. Swam’s with the Circuit Court agree We of the meaning Health injury” within was not a “medical Nonetheless, that the Swams’ medi- we shall hold Act. Claims timely under claim was cally-related (1974, actions, Maryland Code to civil applicable Proceed- and Judicial § 5-101 Courts Repl.Vol.), forum, the Article, wrong in the filing the initial because ings Office, of limitations. The tolled the statute Health Care Court, therefore, related back filing the Circuit subsequent of limitations. and satisfied the statute to the initial I. adjacent in an area waiting while

On December rooms, Mary C. Swam operating Upper Chesapeake’s one of uncapped was stuck hand on a counter and put right her Upper not an Chesa- Mrs. Swam was hypodermic needle. accompa- she was injury, at the time of the but peake patient arose, Dispute Care Alternative case the Health 1. At the time this Arbitration Office. See the Health Claims Resolution Office was called Act, (1974, Maryland Repl. Malpractice Code Care Claims Health Vol.), Proceedings Article. The § the Courts and Judicial 3-2A-03 of changed, and we key statutory provisions involved in this case have not to the office its new name. shall refer nying undergo surgery hospital. her father who was being Upper Chesapeake’s emergency After examined room, Mrs. Swam returned home with instructions to avoid 4, 2001, unprotected January sexual intercourse. On Mrs. Chesapeake Swam returned to after low Upper erythema, fever and increased grade experiencing swelling, Upper and tenderness in her hand. admit- right Chesapeake ted her and treated her with antibiotics for hand cellulitis. later, Upper Chesapeake days Mrs. returned to two Swam admitted, was and treated with In mid- again was antibiotics. for a January, Upper Mrs. Swam returned third time Chesapeake with diarrhea and an irritated due to esophagus and was instructed to ingestion, stop taking antibiotic prescribed antibiotics. 31, 2001, January physician diagnosed

On Mrs. Swam’s that she had a infection in the soft tissues after she deep experi- on the right enced redness and soreness back her hand. Upper Chesapeake again admitted Mrs. Swam and performed drainage discharged an incision and of an abscess. was She 4, 2001, from the hospital February on with instructions pain take antibiotics and medications. Act, (1974, Maryland

Pursuant to the Health Claims Code 3-2A-04(a) RepLVol.), § of the Courts and Judicial Pro Article,2 ceedings the Swams filed an action with the Health on against Upper Chesapeake. Care Office December exactly years was three from the date Mrs. Swam com injured premises hospital. was their plaint, alleged Upper Chesapeake negli the Swams gent storage in its “disposal regulated waste and/or and/or limitation, sharps including contaminated without needles.” Qualified The Swams filed a Ex subsequently Certificate M.D., pert report Stephen Goldberg, from in accordance 3-2A-04(b). Goldberg, with Dr. a board-certified physician, stated that it his within a opinion, degree reasonable probability, Upper Chesapeake medical and its agents Hereafter, statutory all references will be to the Courts and Judicial Proceedings Maryland Article of the Code. of care” standards applicable from “departed employees of’ and properly disposed “needles were that failing ensure this violation of the a result of injured as that Mrs. Swam of care. standards applicable 13, 2004, an election to waive filed May on the Swams

After ordered 3-2A-06B, Care Office § the Health under arbitration County.3 Harford Court for to the Circuit transferred the case later, complaint filed a the Swams 17, 2004, days four May On for Harford in the Circuit Court Chesapeake Upper against verba allegations, the same contained complaint The County. Upper Chesa Care Office. tim, in the Health filing as the 3-2A-04(a), the claim and responded §to peake, pursuant report by physi Expert and Qualified of a Certificate the care According Berg, to Dr. M.D. cian, Berg, Dr. Richard to, Chesapeake, “conformed Upper by provided and treatment care from, applica accepted standards and did deviate months About two in its class.” Providers to Health Care ble on the summary judgment later, Chesapeake moved Upper it was because suit was barred Court that the Circuit ground of limitations statute general three-year within the not filed for civil actions. actions, limitations to civil applicable statute at law shall be filed civil action 5-101,

§ provides “[a] unless another date it accrues from the years within three of time period a different provides of the Code provision commenced.” The Swams’ shall be which an action within three-year exceeded this filing Circuit May timely, their action contended limit. The Swams special however, it conformed with because Act. under the Health Claims for claims provided provid- health care 5—109(a), against “Actions entitled Section 3-2A-06B(b) provides: 3. Section claimant.—(1) Subject under to the time limitation by “Waiver section, (d) may any waive arbitration at claimant of this

subsection by expert required qualified any time after the certificate 3-2A-04(b) by filing with the Director a written of this subtitle or the claimant's signed the claimant waive arbitration election to ” * * * proceeding. attorney arbitration of record in the ers,” special contains a period limitations for an action injury arising based “an out of the rendering of or failure professional render services a health provider____” care 5-109(a) that requires Section claims be filed with the Health “(1) Care Office years within earlier Five of the time the (2) committed; injury was or years Three of the date the 5-109(d) injury was discovered.” Section filing states that the Office, of a claim with the Health Care in accordance with the Act, Health Claims “shall filing be deemed the of an action.” 3-2A-06B(f) Section provides 60-day a a period, plain- after arbitration, tiffs waiver of plaintiff for the to file a complaint appropriate circuit court. In response to Upper Chesapeake’s motion for summary judgment, the argued Swams that their action was timely filed it because was filed the Health Care Office within three years injury and was filed the Circuit Court within 60 days after their waiver of arbitration.

The Circuit with agreed Upper Chesapeake that the Swams’ action was barred 5-101 general statute of granted hospital’s and motion for summary judgment. The court reasoned that injury Mrs. Swam’s was injury” a “medical as contemplated by the Health Claims Act, that, therefore, and inappropriately Swams filed a claim that, with the Health Care Office. The court held Court, the time the action was filed in the Circuit the three- year general statute of limitations had run and barred the action. appealed Swams to the Court of Special Appeals. Prior argument court, the intermediate appellate this Court

issued the writ of certiorari. Upper Swam v. Chesapeake Medical, (2005). 885 A.2d 823

The Swams contend that the Circuit Court erred when that held Mrs. Swam did not suffer a medical injury statute of limitations barred claim. They their argue subject that the claim was Act, the Health Claims properly Office, was filed with the Health Care timely and was under the special limitations applicable to such that, if even their the Swams submit Alternatively, claims. Act, the nature Health Claims subject to the was not claim unclear, forum was appropriate such that injury years within three Care Office with the Health filing and the limitations. statute of satisfy the injury should not suffer did that Mrs. Swam Chesapeake argues Upper Act. Section by the Health Claims injury” as defined “medical 3-2A-04(a) person provides “[a] Act of the Health Claims damage due provider care a health having against a claim Director ...” claim with the file his injury a medical shall added). of the Act defines 3-2A-01(g) Section (emphasis from the arising resulting “injury as an injury” “medical to the According care.” to render health rendering or failure time of not a at the patient Mrs. because Swam hospital, from precludes Act her the Health Claims injury, her Chesapeake argues Upper with the Health Care Office. filing with the Health makes the the Swams’ this preclusion the the time the Swams By irrelevant. Care Office their forum, Upper Chesapeake, to according appropriate of limita- by three-year general the claim was barred tions.

II.

A. 3-2A-02(a) indicated, of the Health previously As claims, ... aby suits and actions states that “[a]ll Claims Act injury” for must provider a health care medical against person 3-2A-01(g) Section filed with the Health Care Office. injury” “injury “medical as Health Act defines the Claims or failure to render resulting rendering or from the arising special in the definition is also reflected health care.” This 5-109(a), which, § to an action applies statute of limitations rendering of or failure arising out of the injury on “an based In provider.” care by services a health professional to render Act, the of the Health Claims the ambit order to fall within to render of or failure rendering the claim must involve Chesapeake and Upper with agree services. We professional injury, although the Circuit Court that Mrs. Swam’s medical- ly-related, did not result from the or “rendering failure render health care.” cases dealing scope Our with the Act Health Claims demonstrate that the Health Care Office forum for appropriate only professional those cases where care, thereof, or the lack is involved. McKen, Cannon v.

In 296 Md. 459 A.2d 196 emphasized rendering of professional services re- in Cannon quirement. The an action patient brought against injuries her dentist for part sustained when of a dental chair part x-ray equipment broke loose and fell on her. The Cannon opinion explained scope of the Health Claims (296 200): Act as follows Md. at 459 A.2d at “It is legislature therefore clear us that the intended scope include of the Act only those claims for damages from, done to or suffered a person originating in pertinent part, giving of or failure to give health care. view, legislature our did not intend that claims for damages against a health care provider, arising from non- professional circumstances where there was no violation of provider’s care, professional duty to exercise to be covered Act. It is patent that the legislature intended only those claims which traditionally the courts have viewed as professional malpractice be covered Act.” by the Wilson, See also Nichols v. (“In

(1983) view, our legislature did not intend that claims damages a health care against provider, arising from non- professional circumstances where there was no violation of the provider’s professional care, duty exercise be covered Act”).

Ultimately, this Court remanded the Cannon case to the trial court on the that ground pleadings were “too sparse to allow a determination whether plaintiffs] injury [the arose because of the defendant’s breach of his professional duty owed her because of a breach of duty may which he have premises owed her as a owner or in some other non-profes- 37-38, McKen, 296 Md. at supra v. capacity.” Cannon sional at 459 A.2d fit the Cannon precisely does not injury

Mrs. Swam’s she Health Act because scope of the of the Claims description when the Upper Chesapeake of care at recipient not the fact, premises as In she was not occurred. injury her father who was accompanying a person but as patient Cannon, at 296 Md. As the Court noted surgery. undergo from 36-37, 201, damages arising A.2d at “those claims non-professional failure to exercise due care a professional’s assault, etc., slander, premises liability, such as situations Act should covered under the not intended to be were injury tort claim manner.” Mrs. Swam’s the usual proceed matches this of claim which should appropriately type more court. directly to a circuit proceed Health explained scope further Claims

This Court 719, 694 A.2d 474 Langworthy, Act in v. 345 Md. Goicochea (1997). Goicochea, the issue the Court was whether before battery an assault and physician a civil claim that a committed examination, was cov- a routine medical patient, during on a that as as long Act. The Court held ered the Health Claims rendering of medical alleged injury during occurs treatment, implicated regardless “the Act is whether Goicochea, negligence claim sounds in or intentional tort.” type 694 A.2d at 479. clarified what 345 Md. We (ibid.): of the Act scope claim would be outside the showing “If the sets forth facts claimed complaint rendering of medical injury during was not inflicted services, complete- from conduct injury or that the resulted medical validity in medical relation to the care ly lacking rendered, may pro- Act and the action inapplicable, resorting ceed without first arbitration.” (1991) Malamet, also 587 A.2d 474 See Jewell Md. health would not con- (holding provider where the care no medi- complained cede that the conduct of had conceivable initial validity, appropriate cal the Health Care Office was the Rabbitt, forum); Brown v.

538 (1984) (“the

1169 critical is the claim question whether on or rendering based failure to render health care and claim”). not on placed label claim in Goicochea did not fall outside the plaintifPs plaintiff specifically alleged Health Claims Act because that the his con groin injury by improperly doctor “caused Goicochea, ducting a hernia examination.” 345 Md. at supra, 729, 694 A.2d at 479. held that the to set plaintiff We “fail[ed] forth any upon properly factual basis which the court could physician’s] conclude that actions had no conceivable [the validity totally medical or were unrelated to the performance a injury, routine hernia examination.” Ibid. Mrs. Swam’s Goicochea, not a physician unlike one did occur while fact, In rendering injury care. her did not involve care at all until she sustained the she injury, medical and after post-injury has made no such care. also complaint about See Inc., Hospital, v. 385 Md. Suburban Afamefune (2005) (holding A.2d that the need not file plaintiff her “allegations claim with the Health Care Office ... because plaintiffs] injuries during do not show that were incurred [the and, indeed, of medical rendering they the active services show that a injuries] were inflicted medical care [the a result of that or provider provider’s as treatment failure treat”).4 Although agree injury we that the to Mrs. Swam was not a "medical injury,” Upper Chesapeake mistakenly we note that relies on this Edgecombe, Court’s decision in Dehn 865 A.2d 603 arguing doctor-patient relationship present a must be for injury.” there to be a "medical The issue in Dehn did not concern the Act, scope physician of the Health Claims but was whether owed any duty patient's pregnant following at all to the wife who became a Dehn, vasectomy. patient brought malprac- a and a his wife medical against physician negligence post-operative tice a action care following vasectomy performed by surgeon. a another The Court held patient's malpractice did not have a wife claim for because the duty. holding purport doctor did not owe her This did not interpret injury” scope "medical or the of the Health Claims Act. Indeed, explicitly the Court stated that "the law common does not possibility imposing duty foreclose of care in the absence of a doctor-patient relationship party to a third who never received treat- bar, negligence allegations to the case Turning of medical waste disposal to the all relate complaint is not within alleged conduct medical treatment. Such not to Act, the Swams and therefore Health Claims scope filed with the they forum when wrong in the filed their action avenue for the Swams appropriate The Office. Health Care injury Court because directly Circuit proceed was by the Health Claims injury” as defined was not a “medical Act.

B. “medical did not incur a hold that Mrs. Swam While we “medical phrase that the opinions recognized our have injury,” ambiguous. statutory its definition are somewhat injury” and Court, involving Furthermore, of the cases before this many situations injuries, presented borderline medically-related entirely not forum for the claim was appropriate where the case, medically- alleged injury present clear. In the in a instruments and occurred related in that involved medical defendant, caused the alleged negligence whose hospital. and the plaintiffs’ Both the injury, provider. is a health care as to whether experts filed certifications defendant’s medical from stan departed applicable and its hospital personnel of health care. dards of the word interpretation a broad applied

This Court 3-2A-02(a), Act, § in the Health “claims” as used Claims Association, Blumenthal, 295 Health Inc. v. Md. Group (1983). held that a In Blumenthal the Court 453 A.2d claim, against a respondeat superior based on the doctrine of the Health Claims Act. provider, non-health care fell within “claims,” of the word applying interpretation” a “broad underlying intent the Health legislative Court examined the Legislature contemplated Act concluded that “the Claims malpractice medical far-reaching requirement arbitrate Blumenthal, Association, Inc. v. su- Group claims.” Health Edgecombe, supra 384 Md. at ment from the doctor....” Dehn v. 865 A.2d at 612. at 1204. The discussion in 453 A.2d pra, scope demonstrates that the of the Health Claims Blumenthal narrowly construed as inclusive. Act should Blumenthal, Hyman, decision in Adler v. Echoing the 1100, 1103 (1994), pointed to the “broad Md. injury’ of ‘claim ... for medical that our cases construction Adler, Act.” In an insurer for one placed physician have on the against a second brought an action the Circuit Court contribution, that the second claiming physician physician claim, tortfeasor. The trial court dismissed the joint affirmed, claim holding subject and this that the Act. pursuant to the Health Claims We stated arbitration by restricting “the of the Act would not be served purpose part of claims for contribution to those asserted as arbitration that includes the claim the individual litigation the same Hyman, a Adler v. directly personal injury.” who suffered Blumenthal, 575, at 640 A.2d at 1103. Like supra, 334 Md. cautioned of the Health against restricting scope Adler too narrowly. Claims Act of our have recognized potential difficulty

Several cases is determining appro- in whether the Health Care Office McKen, In priate forum for a claim. Cannon v. supra, from the Court was unable to determine record whether the injury sustained the claimant the dental chair constituted discussed, injury.” a “medical As earlier the Court remanded proceedings the case for further determine whether the analysis claim fell within the Act. The focused the definition injury” statutory of “medical and determined that the defini- at 199. ambiguous,” tion is “somewhat Md. A.2d medically-related a ambiguity, injury, may This combined with is not proper entirely create a situation where the forum clear a claimant. again This Court confronted situations where the definition injury” proper of “medical made the forum somewhat unclear Malamet, Langworthy, and Goicochea v. supra, Jewell Jewell, action, a supra. plaintiff brought alleging In civil battery by treating physician. argued an assault and her She purview that her claim was not included within the that, Health Claims Act. The Court held the face of the “[i]n law, allegations, say, we cannot as a matter of that the claims injury allegedly as set out were not for medical as suffered Malamet, supra, Jewell.” Jewell v. 322 Md. at complaint at 480. Jewell’s not a claim sufficiently allege did Therefore, injury.” could not be considered a “medical we that the claim required be submitted to arbitration. Jewell,

In v. Langworthy, Goicochea like supra, we were not able to conclusively plaintiff determine whether the injury” suffered a “medical as Health contemplated by the Therefore, plaintiff, alleged Claims Act. who an assault examination, and battery by physician during his required to submit to arbitration. The Court held that the “initially Health Care Office will determine if claim alleges injury’ subject a ‘medical and is Act.” therefore Goico v. Langworthy chea 345 Md. at 694 A.2d at 479. supra, Jewell and Goicochea underscore the fact that the proper forum for the of a borderline claim medically-related hold, may always apparent. As these cases the Health possesses authority Care Office to determine whether claim injury” constitutes a “medical a borderline case subject therefore to the Health Claims Act. case, present while we have held that the Swams’ Act,

claim is outside the purview the Health Claims we are aware that forum proper may entirely not have been discussed, obvious to the claimant. As previously Mrs. much injury very medically-related, occurring Swam’s hospital, and inflicted because of the of a alleged negligence provider. health care In light interpreta- the Court’s broad Act, tion of the willingness Health Claims and its to be over- in opposed inclusive as to under-inclusive terms of covered claims, we approach proper should a claimant’s choice of the forum, limitations, as it in spirit. affects the same

C. that, It emphasized should be was the only Swams’ claim medically-related, but it also conformed to the statutori- the Health Care filing restraints for with time

ly prescribed within with the Health Care Office The Swams filed Office. of limita- satisfied the statute injury. This years three 5-109(a). Act, for the Except in Claims tions the Health filed, satisfy also this would initially in it was forum which actions, § 5- to civil applicable of limitations statute general was filed Furthermore, action in the Circuit Court after the waiver arbitration. period prescribed within the repeated in claim Circuit Court Additionally, the Swams’ with the Health Care Office. the claim filed verbatim information or contained no new complaint Circuit Court com- Therefore, time the Circuit Court by the allegations. already put on notice filed, Chesapeake was Upper plaint claim filed with the Health the initial allegations by of all the Care Office. Hillman, 216 A.2d 723 Bertonazzi to the tolling exception recognized

this Court filed, in wrong but timely a case of limitations when forum, forum is after limitations have in the correct Bertonazzi, mistakenly believing in plaintiff run. The than Baltimore County rather resided Baltimore defendant County in Baltimore map, filed suit City misreading after subsequently He period. month limitations within the six Baltimore venue, City, Baltimore after the appropriate venue. The improper the case County court dismissed however, the applicable occurred after City filing, Baltimore and the court passed, of limitations had six-month statute reversed, that the holding This the action. dismissed during limitations was tolled of the statute of County. of the suit Baltimore pendency that, to The Bertonazzi preclude reasoned opinion venue would be proper from forward going claim limitations. “Statutes of statutes of contrary purpose fairness to defen to assure designed primarily limitations are claims, evidence is asserted after theory on the dants faded, are so disappeared, and witnesses memories have gone, at 726. In 241 Md. at unjust.” as to be stale

543 Bertonazzi, the concluded that of tolling Court the the statute during of limitations the of in pendency the suit filed the wrong forum was consistent with primary purpose limitations because “the ... appellee fully put on notice of the in appellant’s by County claim suit Baltimore as she would in have been suit Baltimore Ibid. City.” See Leiman, (1880) also Weaver v. 52 Md. 718 (observing that the may a statute of limitations if suspended there is a “certain and exception clearly well-defined estab- lished by judicial authority”). Christensen,

In Philip Morris USA v. 905 A.2d tolling we revisited and reaffirmed the rule set out Bertonazzi. The tolling Court distilled the rule and established two necessary components recognizing “(1) tolling in a exception particular case: there is persuasive authority persuasive policy supporting considerations the (2) recognition of the tolling exception, recognizing and the tolling exception is generally consistent with the recognized purposes for the enactment of statutes of limitations.” The Morris, Philip finding that these two components satisfied, were held “that if the conditions for the application met, of class action tolling are a class action complaint suspends the running of the statute of limitations at minimum from the time putative class action is filed until the time that class Morris, certification is denied.” Philip Md. at 905 A.2d at 362.

Here, components both tolling exception rule have been persuasive satisfied. The policy supporting the excep- tion in this case is the ambiguity regarding the appropriate forum for medically-related claim and basic fairness parties. The difficulty determining proper forum is analogous to difficulty faced plaintiff Bertonazzi. Bertonazzi, the defendant’s home was map situated closely so dividing the line County Baltimore and Baltimore City that the appropriate Likewise, venue was unclear. al- though we hold that Mrs. injury Swam’s was not a “medical our injury,” cases broadly interpreting scope of the Health Act, Claims ambiguous definition injury, of medical problematical. forum proper made the determination pursue allowed to should be the Swams difficulty, Given wrong in filing the timely the despite on the merits their claim their timely filed that the Swams again emphasize forum. We in the Health contained of limitations the statute claim under satisfy general filing also would Act, and that this Claims in the initially had if the Swams of limitations statute proper forum. merits also is on the proceed claim to the Swams’

Allowing exception tolling of the component the second in accord with purpose general not contravene the it would rule because Bertonazzi, in As the Court stated the statute of limitations. to the to assure fairness designed are of limitation statutes un- no Here, Chesapeake experience will Upper defendants. to toll the filing Office the Health Care by allowing fairness of the had notice Chesapeake Upper of limitations. statute years three allegations within specific and the Swams’ claim in claim Circuit Court way In no was the Swams’ injury. Bertonazzi, 241 Md. at See unjust.” as to be “so stale plays claim also of the Swams’ The timeliness A.2d at 726. rule tolling exception of the component second role under this is not faced Chesapeake Upper emphasizes because and “memories gone” after “evidence is defending a claim with Ibid. have faded.” erred conclusion, the Circuit Court we hold

In that it was barred ground on the Swams’ action dismissing the filing initial of limitations. The statute by general 5-101 of the tolled the Health Care Office with the medically- brought Swams’ statute of because claim, and ambiguous, forum proper related satisfy components both These factors timely. otherwise addition, Morris. Philip set out tolling exception of the allowing no unfairness will suffer Upper Chesapeake had notice of already because it on the merits proceed claim to limitations is Thus, of the statute of purpose the claim. satisfied. THE

JUDGMENT OF CIRCUIT COURT FOR HAR- FORD AND COUNTYREVERSED CASE REMANDED TO THAT FOR COURT FURTHER PROCEEDINGS CONSIS- TENT WITH THIS APPELLEE PAY OPINION. TO COSTS. JJ., HARRELL,

CATHELL and Concur. CATHELL, HARRELL, J., J. which Concurring opinion joins.

I concur the result majority reached that the limitations is available as a defense in so, however, I present do entirely case. different reasons expressly disavow the reasoning majority holds, State, which for the first in this begun time that action in an agency executive branch can toll the of a of limitations to applicable judicial proceedings. branch More- over, view, in my it is totally unnecessary in case to go this majority gone. where the has

Waiver view, In my the respondent waived the of defense limita- it, raising tions not in prior 13, to or its On May answer. 2004, plaintiffs the elected to waive arbitration Health Care Office ordered the case transferred to Circuit 17, Harford County. 2004, Then on May the plaintiffs filed complaint their in the Circuit Court for Harford County. 2004, On July Upper Chesapeake Center, Medical below, defendant having filed no other or pleading motion its previously, complaint. filed answer to in Included that following answer was the “Upper language: Chesapeake Med- Center, Inc., ical reserves the to right rely applicable any statute of limitations.” There no replication was filed to the Thereafter, answer. on December the defendant filed a motion for summary for the judgment, first time directly asserting particular limitations, as a defense a statute of (1974, Maryland Code 2006 RephVol.), 5-101 of the Courts then a plaintiff Article. The filed Proceedings and Judicial in Mo- i.e., “Response Defendant’s Opposition a response, Summary Judgment.” tion for Rules,5 right not reserve the Maryland may one

Under the in, pled It later raise a limitations defense. must answer; to, defense of limitations is prior otherwise the 2-323(g) that certain defenses must be provides Rule waived. A complaint a circuit court. raised the answer a of limitations” must be raised based on a “statute defense view, 2-323(g)(15). my though Rule even the answer. raising of the limitations defense issue of timeliness (as reflects), as the record directly challenged below far not we, nonetheless, and resolve as we should reach the issue one involving recent case in a somewhat similar did rule. Rule the same other affirmative defenses contained present in the 2-323(g)(15) like at issue 2-323(g)(13), Rule case, judicata also that affirmative defense res provides In Anne plead no later than answer. must be Norville, Education v. County Arundel Board of 104-05, we similar 1035-36 reached view, issue, and, this issue. in our we should resolve plea in this case It is clear from the record at the time the defendant’s answer pled limitations was Instead, “reserved” purportedly filed. the defendant time, I a later it then plea to file which did. right such a defendant any authority permits unaware of am right plead “any” the to unilaterally arbitrarily and “reserve” in the period the which rule re- affirmative defenses after to plead. sought them What the defendant to be quires is, effect, in the Maryland in this to amend accomplish case to To such effort without comment risks pass Rules. allow an infer the Court’s tacit having subsequent litigants approval. view, for it not issue that be left another my In should rule, may may If a this one ignore particular day. party "Rule(s).” 5. Hereinafter

547 presume litigants power modify rule any have view, when, in a their reason exists to do so.

It is clear to me that limitations be no than pled must later filing of position consistently the answer. That is the construing taken our law. of applicability case When of predecessor relating the defense limitations under the rule limitations, for filing the time of defenses of we said 35, (1967) 37, 79, 247 Steinberg, Foos v. Md. 230 A.2d that: 80 “In the lower court need no further than reversing go we appellee’s plea hold that the of was not filed limitations within the contemplated by Maryland time Rules and stricken____Rule thus should have been provides 342 plea of must limitations ... and specially pleaded further provides ‘plea that the of limitations must be filed within the (Time required by time Rule for Defendant’s Initial ” Pleading).’ also, Glore, Barshack, See Dupont, Forgan, Inc. 271 Md. 527, 316 A.2d (stating proposi- tion “Maryland that: 342 d 2 provides plea Rule that a limitations ‘must be filed within the time required by Rule 307 (Time ”). for Defendant’s Initial Pleading)’ Dupont, the that, rule, defendant filed preliminary motions extended the time for thus, of the answer and time raising plea also extended. In the present case, defendant, when the respondent this answer, appeal, filed its the plea did raise of limitations. it unilaterally Instead and arbitrarily attempted to extend the required time for the filing any plea relating any of limitations. recently,

Much more albeit as dicta that the Court was distinguishing between precedent conditions statutes limitation, Court, case, relying the Foos noted Waddell v. Kirkpatrick,

(1993), that:

“In contrast precedent], condition [to a statute of limita- tions affects only remedy, not the cause of action. The

548 limitations, timely, of a to raise the bar of

failure defendant in the waiver of see 2-323(g)(16),[6] Rule results Maryland limitations, with the proceed which to permits plaintiff omitted.) (Citations (Footnote his her trial of case.” omitted.) 2—323(g)[(15)] Rule Waddell “Maryland noted in that

We also pleaded as an specially of limitations to be the statute requires Waddell, 6, at 59 n. 626 A.2d at defense.” 331 Md. affirmative n. 356 Snider, 435, 451, 109 101, 108 (1954), v. A.2d

Foard 205 Md. Stockett case, in an language that there was earlier does note Sasscer, (1855), if is that indicated that there 377 answer, answer, i.e., filed to the replication a is reply to failure file defense with the effect of the the waiver however, That, not is may answer itself be waived. judice. was no sub case There situation filed merely opposition Petitioner response to answer. respondent. summary judgment the motion has followed our Appeals consistently of Special Court, judge Foos Bell of this while holding. Judge Chief State, Foos, Brooks v. court, Md.App. citing wrote (1991): agree with the State that ‘We ... in the court challenge prosecution his appellant’s failure in his statute of limitations resulted on the basis below Later, he noted: waiver of defect....” clear that the comparable plea Rule makes rule] “This [the plead- an affirmative defense which must be of limitation is ... It, predecessors, have been so ed its specially. limitations within specially plead Failure interpreted. plea. set Rule results a waiver the time forth waivable, that it is necessarily follows plea Because jurisdictional. (16) has been re-codified as subsec- 6. Since what was subsection holding in applicable in the case at bar. The tion the subsection has not modified. Foos and Waddell been appellant “Because did not raise limitations in the timely (Citations omitted.) below, court the defense waived.” Brooks, 364-66, at 584 A.2d at 87-88. of v. Special Appeals Meleski Pinero Interna- Restaurant, Inc., 784,

tional 47 424 Md.App. A.2d (1981), Foos, 794 on relying stated that: of “Three the the appellants, two Meleskis and H. Chas. Inc., not of Steffey, timely pleas did file limitations to the against counterclaim filed them.... The untimeliness of the plea to as them was raised the to appellee response its their motion pre-trial summary for on judgment limitations grounds. correctly The court that ruled the defense was (Citations omitted.) not available to them.” I Accordingly, would hold that the defense of limitations was being

waived with the defendant’s I answer. would not reach the issue majority the finds determinative.

Tolling of the Statute of Limitations

by Filing Wrong in the Forum I additionally disagree majority with the opinion that the filing of the claim Office, with the Health Care an administra- entity, tive within of years alleged three the injury, tolled the general relates, statute of which the of context present case, only to filing negligence claims with the courts. The majority first to attempts justify this drastic Hillman, extension our holding in v. Bertonazzi 241 Md. 361, (1966), by 216 A.2d 723 describing difficulty that persons have, may have, determining injuries whether they have injuries” received are “medical purpose for determin- ing whether it was necessary file a claim with the Health Care prior Office action in a circuit court. The majority states: we “While hold that Mrs. Swam did not incur injury,’ ‘medical our opinions recognized have that phrase injury’ ‘medical statutory and its definition are some- 539, what ambiguous.” Ante at at A.2d 39. I agree While phrase injuries” may “medical give rise to some calls, ambig- I do not understand what such judgment difficult relating in a statute administrative language uous clear, injuries,” has to do with of “medical processing statute of limitations unambiguous, language i.e., actions, § 5-101 of the Courts to civil applicable Proceedings Article. Judicial Philip Mor- issue, discussing majority relies Christensen, USA, v.

ris Inc. 394 Md. 905 A.2d men- the Bertonazzi majority case. The also in addition Leiman, tions the 1880 case Weaver “ authority can establish ‘certain judicial proposition Ante at exceptions]....”’ and well-defined of the three any holding I in either do not believe that the now All three of justifies doing. what the Court is cases strictly judicial in actions and only proceedings cases involved Bertonazzi the of a case in the filing involved proceedings. it should have been wrong county, County in Baltimore when Christensen concerned actions con- City. in Baltimore judicial government. within the branches of exclusively ducted Christensen, In the no agencies. It involved administrative that, class limitations, the of a with certain Court held toll of the statute of limita- running in court the might action the as the members of class.” “putative tions to the Weaver involved only single court case and whether It, totality, in the supports its applied. statute of opinion. the majority of this concurrence—not views had the statute of limitations not been tolled held Court case, the present relevant to the specially in that case. As stated: safely have his suit immedi- complainant brought “The could sale, if it have been difficult for ately after this even would rights him to have his before. asserted short, nothing any, objec- “In in all of these we find or limitations. Mere combined, tions to affect of way or its right, difficulty as to the in doubt of assertion, do. will not from Apart savings disabili- itself, must, in order ties in the Statute there expressed operation, barrier, defeat its insuperable some or some certain and exception well-defined established clearly Johnson, judicial 394, In authority. Green v. G. & J. expressed very court of strong disapproval terms its all attempts the safeguards, away remove and fritter of provisions Statute, this important by judicial most refine- ments and exceptions, subtle or to of increase number interpolations constructive already innovations that have added.) been it.” engrafted upon (Emphasis Weaver, view, 52 Md. at In little, 717-18. if my Weaver offers any, support position majority takes case. appears

Bertonazzi be the seminal ease this state for judicial attacks on legislatively created statutes of limita- Only however, tions. years eleven after its filing, even this Court was reluctant to extend holding. Corp. its Walko Inc., Burger Systems, 281 Md. 378 A.2d 1100 Chef courts, a certification from federal we discussed the gener- al rule of law and application its Bertonazzi: policy repose

“This has fostered a rule traditional concerning tolling of statutes of limitation can be fairly termed one strict Early construction. on we adopted this rigorous stance: ‘The principle law is indis- putable, that when the Statute Limitations once begins run, nothing stop will or impede operation.’ its The rule has vitality.... lost little its McMahan v. [S]ee Dorches- Co., (1944) (‘where ter Fert. 40 A.2d 313 the Legislature has made an in exception express words in Limitations, the Statute of the Court cannot any allow implied and equitable exception to be engrafted the upon merely ground on the exception that such would statute.’) spirit within the or reason of the rule, “This legislative venerable which defers the intent in expressed itself, the statute of and avoids implied exceptions constructions, or strained is also applica- ble cases such as the one at bar an where action filed initially required technical, within the period fails for some procedural defect of falling short a full decision on the merits. Absent a statutory provision saving plaintiffs the

552 has run where limitations

rights, remedy the is barred the of the defective suit. during pendency Hillman, Bertonazzi v. blush, 361, Md. “At first authority to stand as appear A.2d 723 would of Maryland under law the broad proposition by a defective period procedurally the limitations is tolled however, out, timely action filed. This not borne which is There, of that case. suit was commenced analysis limitations, of but year period well within the three where the County City Baltimore instead Baltimore resided.... defendant Bertonazzi, a narrow exception

“In the Court carved out exceptions implied rule against engrafting to the traditional of limitations in certain situations where upon the statute action prior for the dismissal sole reason venue____Just how narrow the Bertonazzi excep- improper promptly tion to be was demonstrated was intended (1966) 423[, ], Aldridge, Burket v. 216 A.2d 910 There, within the day initially later. suit was decided period, the sheriffs return ‘mor- required three-year but had plaintiff to the defendant tuus est’ revealed upon personal representa- made died. Service was then 112, Art. but required by tive six months within the In affirm- three-year statute of limitations. not within the dismissal, for the suit ing necessary we held that it years within from the date to be filed ‘both three from injuries qualification six months within Id. at 216 A.2d 910. Berto- representative.’ personal alone, then, special to the circum- nazzi stands confined the suit in stances which culminated county. wrong in Bertonazzi v. may present

“Whatever facts have been Hillman, 370-71, that moved us Md. rule, they do not exist here.... anti-tolling relax the our addition, considerations on which estab- policy “In departure weigh heavily against any rule is lished founded If, statute, despite case. of a saving absence plaintiff permitted were to toll the of by statute limitations filing suit which was later dismissed as being procedurally defective, he could effectively postpone the of running statute an indefinite period of time. Even the typical restriction, saving imposes a time usually year, one on suspension of limitations.

“Arguably, appellees were notice of claim Walko’s once the motion to indicated, intervene was filed. As we have however, approach Walko’s to this case was hardly one of vigilance. The statute a legislative of reflects judgment what is deemed an adequate period time in of of which ‘a person ordinary diligence’ bring should his (Footnote omitted.) (Some omitted.) action.” citations (Some added.) emphasis

Walko, 210-215, 378 281 Md. at A.2d at 1101-04.

Although this Court has crafted other rules that have limited the applicability limitations, i.e., statutes rule, has, now, discovery until up sought, generally, to defer policy branch, created the legislative never, and has discovered, as far as I have looked to actions initiated outside judicial branch in order to toll the the statute of limitations. Overholtzer, Gary 631 A.2d 429

case which parents were asserting their claim for medical expenses incurred for a minor child should joined be with the child’s claim in order that limitations, the statute of parents’ claim, as to the would be tolled until the child reached majority, the Court stated:

“For reasons explain, we now in this state the parents’ claim for medical expenses is not required joined the same action brought injured minor to recover for its own personal injuries. Consequently, the assertion parents’ claim for medical expenses may be tolled during minority by § the child 5-201 of the Courts Article is without merit.

“Furthermore, parents’ not the claim for by requiring claim joined to be with the minor’s own expenses medical §by to be tolled 5-201 of the Courts allowing both Article, loyal principle to the well we remain established for an legislature expressly provided ‘that the has where limitations, of the will not allow exception in a statute court it.” upon to be any implied equitable exception engrafted or of the years file an within three “By failing to action accident, in- expenses for all medical parents’ the claim the to of prior emancipation curred result of accident as a by minor limitations.” the is barred 353-60, A.2d Md. at 631 at 436-40. 332 615, 500 Huntingfield Corp. In Booth Glass Co. (1985), the involving attempt apply A.2d 641 a case the to defect of rule construction continuous course treatment cases,7 a a leak in a commercial property owner discovered attempted The contractor building caused contractor. than leak, More repair apparently but was unsuccessful. brought of the leak the owner years discovery three after raised an action the contractor. When contractor against malpractice of cases 7. The continuous course treatment rule medical abrogated Fitzgerald, Md. apparently in the later case of Hill v. was 27, said; provisions we A.2d 32-33 where "The statute, 5-109, underlying § the enactment of that are and the intent plainly continuing rule. inconsistent with survival of treatment abrogated We thus the common law rule was conclude must, five-year periods legislature.... three-and of limitations therefore, § language of 5- in accordance with the literal be calculated Indeed, five-year period under statute will run maximum three-year discovery only length its full in those instances where operate provision to bar an action an earlier date. And does not injury reasonably regard so without to whether the was discoverable is added.) (Emphasis not." case, injury dispute over In the instant there no when the discovered Swam the needle stick in discovered. It was when suffered Thus, injury began a non-medical treatment context. run at that time. limitations, the defense of property argued owner that the period during which the contractor attempting repair the leak tolled the limitations. We said case: Article,

“Under 5-101 of the Courts an action must be years filed within three that it date ‘accrues.’ The question judicial when cause of action accrues is left to determination. knew,

“Because Huntingfield or reasonably should have negligence known Booth’s June its cause of action accrued at that time and by suit was therefore barred the three-year period under 5-101. long

“We have adhered to principle that where the legislature has not expressly provided for an in exception limitations, statute of the court will not any implied allow it.[8] equitable exception to engrafted upon be Indeed the General Assembly has expressly provided exceptions to § 5-101 in those instances where it determined that a time limitation should computed be differently....

“Where repairs limitations, have been held to toll courts have largely done so on principles equitable estoppel.... however, Maryland, it is well settled that equitable estoppel will not toll the running of limitations absent showing that the defendant any ‘held out inducements not to file suit or indicated that pleaded.’ limitations would not be “The record does not disclose that Booth any held out inducements to Huntingfield suit, not to file or that in indicated any way that limitations pleaded. would not be Nor any is there showing unconscionable, of an inequitable or fraudulent act of commission or omission Booth by upon argued It principle can be by has been observed the Court more in the breach than in the observance. in the initiation its delaying relied Huntingfield

which omitted.) (Citations lawsuit.” 619-24, at 642-45. Glass, 500 A.2d Md. at Booth can in instant case that by appellee no act There is as to the misled Swam having construed as remotely not a This is of limitations. general of the statute applicability instance, if it in but even the first estoppel of equitable case that the no the record were, absolutely evidence there is ability with Swam’s interfered way improperly in any appellee of the from the moment any in court at time file her action needle stick. Hill, that the supra, opinion our are reminded

We the medical arbitra- creating scheme statutory purpose and re- of limitation its own statutes (including tion statute discovery rule effect of the ‘long-tail’ “to contain the pose) terms, absolute restricting, cases malpractice in medical allegedly between the lapse that could amount of time malpractice of a of a and the patient treatment negligent 304 Md. at to that treatment.” claim related added). (emphasis case is to create present does majority What of limitations to the exception extraordinary with the Health Care involvement Swam that the by holding filing limit the time for the designed a statute Office under of a claims, the time for the actually extends of certain first For the judicial claim in a forum. different distinctly discovered, extending I the Court time, as have as far legislatively being any there limitations without period of admin- something happened because exception created Now that the of government. in another branch istratively difficult, line, if not will has crossed majority fashion, Court, to retreat principled in any for this impossible, who have first litigants myriads the line when back across then agencies, number of administrative any before proceeded court, authority to Swam as and cite belatedly file claims limita- for the of the statute of tolling tions. joins HARRELL in this concurrence.

Judge

919A.2d 49 Garrison THOMAS Maryland. STATE 59, Sept. Term, 2006. No. Appeals Maryland.

Court of March

Case Details

Case Name: Swam v. Upper Chesapeake Medical Center, Inc.

Court Name: Court of Appeals of Maryland

Date Published: Mar 16, 2007

Citation: 919 A.2d 33

Docket Number: 75, September Term, 2005

Court Abbreviation: Md.