HAMMOND, J., delivered the opinion of the Court.
The appellant, plaintiff below, on September 2, 1964, sued at law to recover damages from his former doctor for, in the words of his brief, "malpractice through negligence in the conduct of an operation performed on plaintiff by defendant on June 16, 1961 and alleging continuing malpractice through negligence thereafter in the care and treatment of plaintiff following this operation." The operation and treatment were to cure or alleviate a fracture of the ankle. Counsel for the doctor filed a plea that he did not commit the wrongs alleged and a plea of limitations stating that the cause of action set forth did not accrue within three years, and some months later, apparently not realizing that they had strayed from customary surroundings in the District of Columbia into Maryland, filed a "Motion for Judgment on the Pleading," a procedure not provided for in the Maryland Rules or contemplated by Maryland practice, but authorized by Rule 12 (c) of the Federal Rules of
We think that the substantial merits of the case cannot be determined and the purposes of justice advanced unless the case is remanded under Maryland Rule 871 a for further proceedings. The entry of judgment was erroneous in the posture of the case when it was entered. The motion for judgment on the pleadings was not to be treated as a demurrer because the defense of limitations may not be raised in an action at law by demurrer. Hoover v. Williamson, 236 Md. 250, 255-56. The motion should not have been treated as one for summary judgment because the facts were not before the court by deposition or otherwise and it was not agreed that there was no dispute as to material facts as contemplated by Maryland Rule 610 if there is to be a summary judgment.
Apart from the procedural errors in entering judgment for the doctor, it may well have been wrong to do so as a matter of substantive law. There is no doubt that as a general rule limitations against a right or cause of action begin to run from the date of the alleged wrong and not from the time that wrong is discovered by the claimant. Killen v. Geo. Wash. Cemetery, 231 Md. 337, 343. Although it did not find the rule there applicable under the facts, this Court said in Hahn v. Claybrook, 130 Md. 179, 182, that the general rule was that in cases of negligent performance by a physician of a contract or of his neglect of some duty arising therefrom, that the cause of action accrues to the patient and the statute begins to run from "* * * the time of the breach or neglect, not from the time when consequential
Apart from fraudulent concealment of the facts constituting negligence, which is a statutory exception in Maryland, Code (1957), Art. 57, § 14, and which is not here claimed, two main exceptions to the old — and formerly almost standard — rule have evolved (with some variations in and overlapping of the exceptions). One line of cases construing statutory language like that of Code (1957), Art. 57, § 1 (that limitations begin to run from "the time the cause of action accrued") holds that if the treatment by the doctor is a continuing course and the patient's disease or condition is of such a nature as to impose on the doctor a duty of continuing treatment and care, the statute does not commence running until treatment by the medical man for the particular disease or condition involved has terminated, unless during the course of treatment the patient learns or should reasonably have learned of the harm, in which case the statute runs from the time of knowledge, actual or constructive.
Since about 1940 there has been a slow but steady trend towards judicial acceptance of the continuing treatment rule. See Shives v. Chamberlain (Ore.), 126 P.2d 28; Hotelling v. Walther (Ore.), 130 P.2d 944; Williams v. Elias (Neb.), 1 N.W.2d 121; Peteler v. Robison (Utah), 17 P.2d 244; Schmit v. Esser (Minn.), 236 N.W. 622 (ankle fracture); Thatcher v. DeTar (Mo.), 173 S.W.2d 760; Hundley v. St. Francis Hospital (Cal. Dist. Ct. App.), 327 P.2d 131. In Borgia v. City of New York, 187 N.E.2d 777, the Court of Appeals of New York, in a careful opinion, for the first time chose the "continuous treatment" rule as the "fairer one," holding that where a course of treatment which includes wrongful acts or omissions has run continuously and is related to the same original condition or complaint, a right of action accrues only at end of treatment (which must be for same or related illnesses or injuries and not be merely a continuity of physician-patient relationship).
This Court, in construing the words of Maryland's statute of limitations — "the time the cause of action accrued" — in cases not involving malpractice has recognized the theory of the continuation of events, only the last of which starts the running of the statute. In W., B. & A. Elec. R.R. Co. v. Moss, 130 Md. 198, 204-05, in which compensation was sought for services rendered over a period of time, the Court said:
In Vincent v. Palmer, 179 Md. 365, 374, a suit by an employee for a share of the profits under an agreement to pay them, the Court said:
In our view, if the facts show continuing medical or surgical treatment for a particular illness or condition in the course of which there is malpractice producing or aggravating harm, the cause of action of the patient accrues at the end of the treatment for that particular illness, injury or condition, unless the patient sooner knew or reasonably should have known of the injury or harm, in which case the statute would start to run with actual or constructive knowledge.
The appellant apparently brought his action on the theory of continuing treatment (mixed with a violation of an obligation of the doctor to tell the patient of his negligence in operating and treating), as the early sentence in his brief quoted above suggests since he alleges in his declaration that "* * * the last time the plaintiff consulted the defendant concerning plaintiff's continued disability and pain * * * following the operation was less than three years past immediately preceding the filing of this Declaration * * *," but his almost total reliance below and in this Court was on the theory that limitations did not begin to run until he knew or should have known that the pain and suffering in his ankle was due to improper surgical or medical treatment. The declaration does not specifically state when this point in time occurred but presumably it was when he went
Generally Hahn has been read to hold and mean what the appellant urges it does. Louisell and Williams, op. cit. supra, say in § 13.07, "The Running of the Period: From Discovery of the Injury," p. 370: "Maryland may be applying the accrual-at-discovery concept," citing Hahn. 12 Wyo. L.J. 30, 34, in a discussion entitled "The Statute of Limitations in Actions for Undiscovered Malpractice," says:
Judges Thomsen and Northrop of the District Court of Maryland have indicated in Jackson v. United States, 182 F.Supp. 907, 911, and in Southern Maryland Oil Company v. Texas Company, 203 F.Supp. 449, respectively, that they share this view of Hahn. Judge Northrop said in the latter case at page 452 that Hahn "* * * held that the running of the statute commenced, not from the date of the first prescription, but from the time when the first trivial injuries were noted." See also Callahan v. Clemens, 184 Md. 520, 527, where Judge Henderson, for the Court, cited Hahn for the proposition that where there had been negligent erection of a stone wall on another's land in 1929 but no realization or discovery of the claimed defects until 1939 that the cause of action accrued in 1939.
An increasing number of states are following the discovery rule in various factual situations. California took this position in 1936 where a foreign substance was negligently left in a patient's body by a physician, in Huysman v. Kirsch, 57 P.2d 908, and the patient was ignorant of the fact; in more recent cases this holding has been extended to other kinds of malpractice. Agnew v. Larson (Cal. Dist. Ct. App.), 185 P.2d 851. The Supreme Court in a silicosis case under the Federal Employers' Liability Act began the running of the statute with the discovery of the injury in Urie v. Thompson, 337 U.S. 163, 93 L.Ed. 1282, and the Court of Appeals of the Fifth Circuit reached a similar result in a case of tuberculosis in Reid v. United States, 224 F.2d 102, where there had been a negligent failure to advise that the X-rays showed the disease. See also Thomas v. Lobrano (La. Ct. App.), 76 So.2d 599; Kozan v. Comstock (5th Cir., applying Louisiana law), 270 F.2d 839; Ayers v. Morgan (Pa.), 154 A.2d 788; City of Miami v. Brooks (Fla.), 70 So.2d 306. New Jersey and West Virginia have recently,
The Supreme Court of West Virginia in Morgan v. Grace Hospital, Inc., 144 S.E.2d 156, reached the same result on similar facts, expressly overruling its previous decisions to the contrary.
On reason and principle and the authority of Hahn and cases of like import elsewhere which have been cited and referred to, we conclude that the right of action for injury or damage from malpractice may accrue when the patient knows or should know he has suffered injury or damage. In many cases he will or should know at the time of or soon after the wrongful act that he has been the victim of negligent medical care; in other settings of fact it may be impossible for him, as a layman, unskilled in medicine, reasonably to understand or appreciate that actionable harm has been done him. If this is fairly the fact, we think he should have the statutory time from the moment of discovery, the moment he knows or should know he has a cause of action, within which to sue.
Upon remand, the appellant shall have the opportunity to
Case remanded without affirmance or reversal for further proceedings, costs to abide the result.