Maryland family may bring wrongful death lawsuit over missed cancer diagnosis, court rules

by Michael Heygood

In 1997, Margaret Varner, then 58 years old, became a patient of Massoud B. Alizadeh, M.D., a physician in family practice. According to a 2011 lawsuit, between 1997 and early 2004, Mrs. Varner lost a significant amount of weight and experienced eventually alternating diarrhea and constipation. According to the suit, during that period and despite these symptoms, Dr. Alizadeh did not order or perform a screening colonoscopy, annual digital rectal examination, or annual hemoccult testing. Then, after ultimately conducting a digital rectal examination and hemoccult testing on 25 May 2004, Dr. Alizadeh immediately referred Mrs. Varner to a general surgeon, who performed additional tests, including a colonoscopy.

The tests revealed a relatively large tumor in her colon. The general surgeon diagnosed Mrs. Varner with Stage IV colorectal cancer with liver metastasis. Despite ensuing treatment, the cancer spread to Mrs. Varner’s spine and led to her death in March 2008.

The 2011 wrongful death lawsuit filed by Varner’s surviving husband and children alleges that Dr. Alizadeh was negligent and careless in failing to timely conduct the appropriate tests and failing to timely diagnose Mrs. Varner’s colorectal cancer.

Maryland law provides that wrongful death lawsuit must be filed within three years of the death. However, claims for an injury due to medical negligence must be brought within three years of the date the injury was discovered or five years of the time the injury was committed.

Because the lawsuit was not filed until 2011, Dr. Alizadeh filed a motion to dismiss. He argued that, although the wrongful death claims were filed within three years of Mrs. Varner’s death, the claims were precluded because Mrs. Varner had not timely brought a personal injury lawsuit against Dr. Alizadeh, nor could she have at the time of her death as it would have been time-barred by the statute of limitations applicable to medical negligence claims. The trial court agreed and dismissed the case. The Maryland court of appeals has now reversed that decision and reinstated the lawsuit.

The court of appeals held that, under Maryland law, a wrongful death beneficiary’s right to file a lawsuit is not contingent upon the decedent’s ability to bring a timely negligence claim on the date of her death. The court concluded that, when creating a statutory cause of action for wrongful death, the state legislature’s purpose was to create a new and independent cause of action. Therefore, the court of appeals concluded, when the legislature passed the wrongful death statute it did not intend for a statute of limitations defense against the decedent’s claim to bar a subsequent wrongful death claim brought by the decedent’s survivors.

The court noted that a number of jurisdictions have similarly concluded that a decedent’s failure to bring a timely negligence claim before death will not bar a subsequent wrongful death claim. The court cited to decisions from North Dakota, Colorado, Arizona, Idaho, Indiana, Missouri, New Jersey, Ohio and West Virginia. However, the court also acknowledged that the law is contrary in some states, citing decisions from Virginia, Delaware, Illinois, Kansas, New York, Oklahoma, Texas and Wyoming. In other words, some states will not allow a wrongful death lawsuit by the surviving beneficiaries unless the deceased had timely filed (or at least could have still timely filed) a suit for the injury prior to his or her death.

Wait Too Long and You Lose Your Right to Bring A Claim

The court of appeals decision regarding Mrs. Varner’s death is yet another reminder of the importance of acting quickly to protect your legal rights. Even one day too late is enough to completely bar a legal claim. It is important to understand that all property damage, personal injury and wrongful death claims must be brought within a certain period of time, called the “statute of limitations.” Claims not brought within such time are barred as a matter of law. Figuring out the statute of limitations for a particular claim can be extremely difficult. Different states have different statutory time periods.

Some states recognize the “discovery rule,” which allows a plaintiff to bring their claims within a certain time of learning they have a claim rather than within a certain time of suffering their injury. The classic example of such a claim is a one based on a doctor leaving a sponge or other foreign body inside a patient after surgery; in most states, the time to bring a claim under these facts does not begin to run until the patient actually learns that some foreign body was left inside him, rather than from the date of the surgery.

In the context of a claim for wrongful death, most states apply their statute of limitations beginning on the date of death, regardless of whether the decedent’s family knew they had a claim at the time. Statutes of limitations for personal injury and wrongful death claims vary from one to six years, with two years being the most common among the various states.

Because of the complexity involved in determining the applicable statute of limitations, it is very important that victims contact a qualified attorney the moment they feel they may have a claim for personal injury or wrongful death. If they delay, they can lose their claim forever.

At Heygood, Orr & Pearson, we have tried literally hundreds of cases to verdict and have settled hundreds more. In 2010 alone, we negotiated settlements of personal injury and wrongful death claims totaling more than $50 million. Heygood, Orr & Pearson also has the financial resources to handle personal injury cases from beginning to end.

If you or a loved one has been impacted by a personal injury or wrongful death, contact the attorneys at Heygood, Orr & Pearson to determine whether you have a case. You can reach us by calling toll-free at 1-877-446-9001, or by filling out the free case evaluation form located on this site.

by Michael Heygood

Michael Heygood is a licensed attorney and partner at HO&P who focuses on insurance and corporate litigation, and other civil arenas. Michael has been named multiple times to the Super Lawyers List.