Court Declines to Dismiss Medical Malpractice Lawsuit over Allegations of Unnecessary Heart Surgeries

Published on Jul 14, 2013 at 2:47 pm in General Blogs.

A Maryland court has refused to throw out a medical malpractice lawsuit brought by a couple who were told by a local hospital that the husband’s multiple stent surgeries were necessary and then, who received a letter from the Department of Justice – which was investigating the doctor for criminal healthcare fraud – telling the man that the surgeries were not necessary.

Defendants Peninsula Regional Medical Center and Dr. John McLean had asked the court to dismiss the lawsuit, arguing that Julian Peacock had waited too long to bring his lawsuit. Maryland’s federal trial court disagreed.

“Reading the complaint in the light most favorable to the plaintiffs, the court finds that dismissal of the Peacocks’ claims on limitations grounds would be premature at this stage of the litigation. Maryland courts have repeatedly cautioned that whether a defendant fraudulently concealed a cause of action and whether a plaintiff exercised ordinary diligence in investigating a claim are usually questions for the jury,” the United States District Court for the District of Maryland said in Julian Peacock et al. v. Peninsula Regional Medical Center, et al.

Julian Peacock and Denise Peacock filed a lawsuit against Dr. John R. McLean and John R. McLean and Associates, P.A. and Peninsula Regional Medical Center and Peninsula Regional Health System, Inc. (PRMC) for damages related to allegedly fraudulent and unnecessary heart procedures performed by McLean upon Mr. Peacock at PRMC.

McLean is currently serving a term in federal prison for criminal health care fraud related to heart procedures he performed at PRMC between 2003 and 2006.

Mr. Peacock went to the emergency room in July 2004 complaining of chest pain, nausea and vomiting. Dr. McLean performed a catheterization and also placed a stent in Peacock’s heart. Two months later, Peacock again experienced chest pain and admitted once again. McLean performed another catheterization and placed three stents in Peacock’s heart. Peacock was back in October where another catheterization was performed. In July 2006, Peacock was again admitted to PRMC and Dr. McLean performed angioplasty and placed another stent in Mr. Peacock’s heart.

Peacock found out about an investigation of Dr. McLean in March 2007 stemming from accusations of unnecessary cardiac testing and treatment. Peacock called the telephone number PRMC set up for patients to find out if they had received unnecessary treatment. Peacock was told that the stenting procedures performed by Dr. McLean were indeed necessary. Relying on this information, Peacock did not pursue the matter.

However, on September 19, 2011, Peacock received a letter from the Department of Justice informing him that a review of his medical records indicated that cardiac stenting and certain other procedures performed on him at PRMC by McLean were unnecessary.

Peacock and his wife then filed a lawsuit against McLean in August 2012, alleging negligence, lack of informed consent, negligent supervision and privileging, loss of consortium and fraud by intentional misrepresentation.

McLean and PRMC filed motions, both primarily arguing that the Peacocks’ claims were barred by Maryland’s medical malpractice statute of limitations. There are two deadlines for filing a lawsuit in medical malpractice cases: (1) five years from the time the injury was committed; or (2) three years of the date the injury was discovered.

The defendants argued that the Peacocks had not filed their lawsuit in time under either situation. They argued that Peacock’s injuries occurred, at the latest, in July 2006, when he received his last allegedly unnecessary procedure from Dr. McLean. As a result, they said he should have filed his lawsuit either five years after the last procedure, which was July 2011 or by March 2010, which was the earlier possible date. They argued that he was put on notice by news reports in March 2007 that the treatment he received from Dr. McLean may have been unnecessary.

PRMC also argued that the Peacocks’ fraud claim was barred under Maryland’s general three-year statute of limitations because the alleged fraud occurred in March 2007, when PRMC called Mr. Peacock and informed him that the treatment he received was necessary.

The Peacocks argue they should have discovered the fraud only when Mr. Peacock received the letter from the Department of Justice alerting him that he had received unnecessary treatment, and thus, that the statute of limitations was tolled – suspended — for four years from the March 2007 PRMC phone call through September 2011.

The defendants replied that the Peacocks had not sufficiently alleged any fraudulent concealment, and that, even if they had, they did not exercise the “ordinary diligence” necessary to invoke Maryland law.

McLean also argued that the claims against him and his professional association could not be tolled by PRMC’s alleged fraud because he was not involved.

The federal trial court denied both motions. The Peacocks had pleaded enough facts from which a reasonable jury could conclude that they were defrauded by PRMC that the fraud concealed Mr. Peacock’s injuries and that an ordinary person acting diligently would have accepted PRMC assurances in March 2007 and ceased investigating the matter, the court said.

The court pointed out that McLean’s reliance upon the case he cited in making his argument that he was not involved in PRMC’s alleged fraud was misplaced because the court expressly noted that tolling of the statute of limitations did not apply.

After discovery, Dr. McLean might be able to demonstrate that the claims against him were factually distinct from those against PRMC and that he could not be subject to tolling under the statute for PRMC’s actions; but, at present, the Peacocks’ allegations against both McLean and PRMC were too related to warrant dismissal. Accordingly, Dr. McLean’s motion for judgment on the pleadings will also be denied, the court said.

Baltimore, Md.-based Belsky & Horowitz has been fighting for the victims of medical malpractice and negligence for many years. Call us at 410-234-0100 or email us for a free consultation and let our medical malpractice attorneys help you.



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