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Family can sue doctor, though patient did not

A cancer victim’s failure to file a medical malpractice suit within the statute of limitations does not bar her family from suing the doctor, Maryland’s top court unanimously ruled Friday.

The Court of Appeals’ 7-0 decision revived the family’s wrongful death action against Dr. Massoud B. Alizadeh, of Hagerstown. The family claims Alizadeh’s failure to timely diagnose Margaret Varner’s colon cancer caused her death.

A Washington County Circuit Court judge had dismissed the family’s wrongful-death lawsuit, saying the claim could not be brought because Varner had not filed a malpractice claim against Alizadeh within three years of discovering his alleged negligence.

But the high court said wrongful-death claims are separate legal actions from medical negligence claims and do not arise and expire simultaneously.

Wrongful-death claims accrue on the date of death, while malpractice claims arise when the victim discovers or should have discovered the alleged negligence, the court added, citing Maryland’s distinct statutes for each cause of action.

Each claim has a three-year statute of limitations.

“Under Maryland’s wrongful death statute, a wrongful death claimant’s right to sue is not contingent on the decedent’s ability to file a timely claim before death,” Judge Glenn T. Harrell Jr. wrote for the high court. “[W]e have long held that the legislature intended the wrongful death statute to be a new cause of action, separate and independent largely from the decedent’s own negligence or other action or a survival action.”

It would be “illogical” for the legislature to stop families from filing a wrongful-death claim before the event giving rise to the action — the death — has occurred, the court added.

The family’s attorney agreed, calling it “common sense.”

“The cause of action is not complete until there’s death,” said Paul D. Bekman, of Salsbury, Clements, Bekman, Marder & Adkins LLC. “That is pretty basic.”

Emily C. Malarkey, also of Salsbury Clements, served as co-counsel.

Alizadeh’s attorney, Matthew H. Fogelson, declined to comment on the decision, which came just over a month after the court heard argument in the case. Fogelson is with Varner & Goundry in Frederick.

In their wrongful death action, the family claims that Alizadeh failed to recognize Varner’s symptoms of colon cancer during nearly all of the seven years the general practitioner treated her between 1997 and 2004. Her symptoms included significant weight loss and alternating bouts of diarrhea and constipation.

The standard of medical care for a woman of Varner’s age, late 50s to early 60s, called for a screening colonoscopy, an annual digital rectal examination and a yearly stool test, the lawsuit claimed.

After performing the latter two exams on May 25, 2004, Alizadeh immediately referred Varner to a general surgeon, who performed a colonoscopy that revealed a large tumor, according to the complaint.

The surgeon diagnosed Varner with Stage IV colorectal cancer that had spread to her liver. Despite treatments, the cancer spread to Varner’s spine and she died on March 14, 2008.

Varner’s widower, Robert P. Varner Sr., and their three adult children filed a wrongful-death claim against Alizadeh and his self-named medical practice in the Health Care Alternative Dispute Resolution Office on March 8, 2011. The case was transferred to circuit court when both sides waived arbitration.

Alizadeh, who disputes the allegations of negligence, moved to have the case dismissed.

He argued that Varner’s opportunity to sue him for malpractice ended in 2007 based on the three-year statute of limitations. Because Varner did not file a malpractice claim in time, her family could not bring the subsequent wrongful-death action, he argued.

Washington County Circuit Judge Donald E. Beachley agreed and dismissed the case on Dec. 5, 2011.

The family sought review by the Court of Special Appeals. But the Court of Appeals chose, on its own motion, to hear the case without it first being considered by the intermediate court.

WHAT THE COURT HELD

Case:

Mummert et al. v. Alizadeh et al., CA No. 5, Sept. Term 2013. Reported. Opinion by Harrell, J. Argued Sept. 11, 2013. Filed Oct. 18, 2013.

Issue:

Is a wrongful-death claimant’s right to file a lawsuit contingent on the decedent’s ability to bring a timely medical-malpractice claim on the date of her death?

Holding:

No; wrongful death is “a new cause of action, separate and independent” from the decedent’s time-barred medical-malpractice claim.

Counsel:

Paul D. Bekman and Emily C. Malarkey for petitioners; Matthew H. Fogelson for respondents.

RecordFax # 13-1018-20 (29 pages).