Medical Malpractice and Wrongful Death under Maryland’s Statutes of Limitations and Repose

By Alex Stein

On October 18, Maryland’s Court of Appeals has delivered a precedential ruling on the applicability of the state’s limitation and repose statutes to suits for wrongful death that allegedly resulted from medical malpractice.  Mummert v. Alizadeh— A.3d —-, 2013 WL 5663105 (Md. 2013).

This ruling dealt with the following set of facts:

A family doctor failed to address his patient’s cancer symptoms between 1997 and 2004. In 2004, the patient was diagnosed with cancer that could not be treated successfully. The patient died of cancer on March 14, 2008. On March 8, 2011, her surviving family members filed a wrongful death action against the doctor, who claimed in response that the action was time-barred. The doctor relied on the 3-year limitations period set for wrongful death actions generally and on Maryland’s Health Care Malpractice Claims Act that sets two alternative expiration dates for suits against physicians: “(1) Five years of the time the injury was committed; or (2) Three years of the date the injury was discovered.” (§ 5–109 of the Courts and Judicial Proceedings Article of the Maryland Code).

The Court dismissed both defenses and allowed the plaintiffs to proceed with their suit. Read More

Using Malpractice Laws to Sabotage Roe v. Wade

By Alex Stein

This method was pioneered by South Dakota and Indiana that set up special “informed consent” requirements for abortion procedures, SDCL § 34-23A-10.1 and IC 16-34-2-1.1. Under these requirements, physicians must tell the pregnant woman (inter alia) that “the abortion will terminate the life of a whole, separate, unique, living human being” with whom she has a relationship that enjoys constitutional protection; that “human physical life begins when a human ovum is fertilized by a human sperm”; that the abortion might lead to depression, suicide ideation, and suicide; and that she should “view the fetal ultrasound imaging and hear the auscultation of the fetal heart tone”; and also have the name, address, and telephone number of a nearby pregnancy help center.

The prize for innovation and ingenuity in this area, however, squarely belongs to Louisiana, whose special abortion-malpractice statute—Act 825, La. Rev. Stat. § 9:2800.12—was upheld this week in K.P. v. LeBlanc, — F.3d —-, 2013 WL 4746488 (5th Cir. 2013).  Act 825 complements Louisiana’s “Woman’s Right to Know Act,” La. Rev. Stat. § 40:1299.35.6, that established “informed consent” requirements for abortion similar to those of South Dakota and Indiana. Read More