E-Alert Case Updates

Wrongful death claims not limited by deceased’s failure to file malpractice claim.

Mummert, et al. v. Alizadeh, et al.
No. 5, September Term, 2013, 2013 WL 5663105, A.3d (2013)
by Gregory S. Emrick, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Plaintiffs, Beneficiaries to the Estate of Margaret Varner, filed a lawsuit against Mrs. Varner’s former physician, Dr. Alizadeh, and his practice, alleging that Alizadeh’s failure to diagnose a colon tumor for seven (7) years resulted in her death. Alizadeh filed a motion to dismiss the complaint arguing the claims were barred by the statute of limitations governing medical malpractice claims, as the Deceased had not filed a lawsuit, and would have been barred from bringing a lawsuit at the time of her death. The trial Court accepted Alizadeh’s argument and dismissed the case. Plaintiffs appealed, and while the appeal was pending in the Court of Special Appeals, the Court of Appeals issued a writ of certiorari.

In 1997, Mrs. Varner came under the care of Dr. Alizadeh as her primary physician. Over the course of the next seven (7) years, Mrs. Varner lost substantial weight and experienced alternating diarrhea and constipation. Despite these symptoms, Dr. Alizadeh did not order or perform any investigative colon tests. In 2004, Dr. Alizadeh finally conducted a digital rectal examination and hemoccult test, and immediately referred her to a general surgeon. After additional testing, Mrs. Varner was diagnosed with Stage IV colorectal cancer with liver metastasis. Despite subsequent treatment, the cancer spread to her spine and led to her death in March 2008. In March 2011, Mrs. Varner’s beneficiaries filed a wrongful death suit with the Health Care Alternative Dispute Resolution Office of Maryland, which was subsequently transferred to the Circuit Court for Washington County, prior to its dismissal.

The Court of Appeals issued the writ to determine if the Maryland’s wrongful death statute found in Maryland Courts and Judicial Proceedings Art., § 3-901, et seq. was limited the statute of limitations applicable to the deceased, or if it created a new cause of action that accrued at the injured party’s death and was subject to a separate statute of limitations. The case was a matter of first impression in Maryland and involved § 3-901, which provides that an actionable “wrongful act” is one “which would have entitled the party injured to maintain an action and recovered damages if death had not ensued” and § 3-904 (g)(1), which provides that “an action under this subtitle shall be filed within three (3) years after the death of the injured person.”

After a review of the principles of statutory construction, the Court observed that the wrongful death statute is ambiguous. The Court rejected Alizadeh’s arguments that the wrongful death claims were derivative of the deceased’s claim, and therefore were barred if the deceased’s claim was barred, and that a wrongful death claim, based on a claim of medical negligence, and was therefore governed by the statute of limitations found in Cts. & Jud. Proc., § 5-109. In rejecting these arguments, the Court differentiated between prior case holdings where the deceased had purposefully extinguished their claim (e.g., release) from the deceased’s failure to assert his/her claim within the statute of limitations. The Court also observed that the legislative history did not provide any guidance on the application of the statute to the statute of limitations, and the weight of authority from other jurisdictions weighed in favor of holding that the wrongful death statute created a new cause of action, which did not accrue until the death. The Court acknowledged that its interpretation could lead to wrongful death claims being asserted twenty or more years after the alleged negligent act, as long as it was filed within three (3) years of the injured person’s death. The Court held that “[w]hen 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). Mrs. Varner’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.” The Court then remanded the case to the trial Court for further proceedings.