Maryland Personal Injury Blog
In a recently published opinion, the Maryland Court of Appeals examined the issue of whether or not the statutory savings clause for medical malpractice actions applies to a voluntary dismissal by stipulation between the parties. The court in Wilcox v. Orellano clarified that the exception to the limitations period does not apply to any voluntary dismissal, including one filed pursuant to stipulation, and held that the plaintiff was barred from re-filing her claim.
In Maryland, the Health Care Malpractice Claims Act (HCMCA) governs actions against a health care provider for a medical injury. A plaintiff must first file the claim with the Health Care Alternative Dispute Resolution Office (HCADRO), and within 90 days, file a certificate of a qualified expert along with a report of the attesting expert. The plaintiff may then arbitrate or file a claim in circuit court.
In Wilcox, the plaintiff filed a claim against her doctor with HCADRO and subsequently filed a certificate of qualified expert, but not a report. The plaintiff choose to proceed with her claim in circuit court, where the defendant-doctor moved to dismiss for failure to include the required report. Since the defendant had already filed an answer, the plaintiff voluntarily dismissed the action by stipulation of both parties. The plaintiff filed a second claim with HCADRO and again chose to proceed in circuit court. However, while the plaintiff’s first action was filed within the period of limitations, her second action was not.
The statute of limitations provides that a medical malpractice claim must be filed within five years from the date the injury was suffered, or three years from the date the injury was discovered. There is an exception under CJ § 5-119 for complaints that have been timely filed and dismissed without prejudice due to failure to file an expert report. In such cases, the plaintiff has 60 days to re-file the action with the required certificate and report, even if the statute of limitations has expired. This exception, however, does not apply when the initial complaint was voluntarily dismissed by the party who filed the claim.
The Court of Appeals confirmed that the exception to the limitations period pursuant to CJ § 5-119 will not save any actions that were voluntarily dismissed, regardless of whether it was by stipulation. In addressing the arguments of the plaintiff, the court looked to the plain meaning of the statute and the legislative history, which indicated that the savings provision does not apply to any medical malpractice claim that was previously voluntarily dismissed. Unfortunately, for the plaintiff in Wilcox, due to these procedural missteps, her claim was barred, and she has no chance at recovery from the doctor.
It is important to have experienced attorneys represent you in a medical malpractice suit. The Maryland attorneys at Foran & Foran, P.A. assist victims in pursing compensation for their injuries, from car accidents to medical malpractice, workers’ compensation, and others. To discuss your claim with our experienced attorneys, contact us at (301) 441-2022 or online.
More Blog Posts:
Maryland Court Allows Habit Evidence of Doctor in Medical Malpractice Action, Maryland Personal Injury Blog Maryland Personal Injury Blog, published July 15, 2015
Maryland Court of Special Appeals Rules in Medical Malpractice Case, Maryland Personal Injury Blog, published June 24, 2015