UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DONATO PISELLI; MARIE PISELLI, 

individually and as parents and next

friends of Christopher Donato

Piselli, a minor,

Plaintiffs-Appellants,

v.

75TH STREET MEDICAL, P.A.; LYNN  No. 00-2166

YARBOROUGH, M.D.,

Defendants-Appellees,

and

VICTOR GONG, M.D. & ASSOCIATES;

VICTOR GONG, M.D.,

Defendants. 

DONATO PISELLI; MARIE PISELLI, 

individually and as parents and next

friends of Christopher Donato

Piselli, a minor,

Plaintiffs-Appellees,

v.

75TH STREET MEDICAL,  No. 00-2200

Defendant-Appellant,

and

VICTOR GONG, M.D. & ASSOCIATES;

VICTOR GONG, M.D.; LYNN

YARBOROUGH, M.D.,

Defendants. 
Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Benson E. Legg, District Judge; Paul W. Grimm, Magistrate Judge.

(CA-98-2416-L)

Argued: May 9, 2001

Certified: June 19, 2001

Before LUTTIG, MOTZ,* and KING, Circuit Judges.

COUNSEL

ARGUED: Richard Salter Phillips, Sr., WALSH & PHILLIPS, P.A.,

Easton, Maryland, for Appellants. Kurt D. Karsten, COWDREY,

THOMPSON & KARSTEN, P.A., Annapolis, Maryland, for Appellees. ON BRIEF: Curtis H. Booth, COWDREY, THOMPSON &

KARSTEN, P.A., Annapolis, Maryland, for Appellees.

CERTIFICATION ORDER

To: The Honorable Chief Judge and Judges of the Court of Appeals

of Maryland 

Pursuant to Md. Code Ann., Cts. & Jud. Proc. §§ 12-603, 12-605,

and 12-606, we certify to the Court of Appeals of Maryland for

answer the following question:

Whether, for purposes of the limitations periods in Md.

Code Ann., Cts. & Jud. Proc. § 5-109(a), as tolled by section

5-109(b) for actions by claimants under age eleven, an

action by parents brought on behalf of a child who was

under age eleven at the time of his injury is time-barred

*Judge Motz heard oral argument in this case but subsequently recused

herself. The certification order is filed by a quorum of the panel. 28

U.S.C. § 46(d). 

2 PISELLI v. 75TH STREET MEDICAL
when the claim is filed more than three years after the parents discovered the child’s injury but within three years of

the child’s discovery of the injury. 

We acknowledge that the Court of Appeals of Maryland may reformulate this question. 

I.

The facts relevant to the certified question are not in dispute. Christopher Piselli ("Christopher"), born on September 6, 1982, was not

yet eleven years old on August 2, 1993, when his parents, Donato and

Marie Piselli, took him to the 75th Street Medical Center (the "Medical Center") because he was limping and walking irregularly. Dr.

Lynn Yarborough, the treating physician at the Medical Center, found

no abnormalities in an x-ray of Christopher’s upper left leg and hip

and therefore released Christopher from the Medical Center. 

Three days later, on August 5, 1993, Christopher was taken to the

Johns Hopkins University Hospital for emergency care of an acutely

slipped capital femoral epiphysis, a rare kind of hip fracture. Shortly

thereafter, Christopher developed a condition known as avascular

necrosis, as a result of which his left leg would not grow. He has since

suffered significant medical problems, including a dramatically

deformed hip. 

On July 24, 1998, Donato and Marie Piselli filed this medical malpractice action, individually and as Christopher’s "next friends,"

against Dr. Yarborough and the Medical Center. The action was filed

in the United States District Court for the District of Maryland and

was referred to Magistrate Judge Paul W. Grimm for all proceedings,

including a jury trial. 

Prior to trial, Dr. Yarborough and the Medical Center moved for

summary judgment based on the affirmative defense of the statute of

limitations. The district court found that there was a genuine factual

dispute as to when Christopher’s injury was or should have been discovered,1

 and the court therefore denied the motion for summary judgment and put these questions to the jury. 

1Under the discovery rule, a statute of limitations begins to accrue

when a person acquires knowledge sufficient to cause a reasonable perPISELLI v. 75TH STREET MEDICAL 3
The jury returned a verdict in favor of Dr. Yarborough and against

the Medical Center, finding that the Medical Center had deviated

from the accepted standard of care in its treatment of Christopher and

that this deviation was the proximate cause of Christopher’s injury on

August 5, 1993. The jury awarded damages of $410,000 to Christopher and $28,000 to Donato and Marie Piselli. By answer to the special interrogatories, the jury also found that Donato and Marie Piselli

discovered Christopher’s injury in November 1993 and that Christopher did not discover his injury until 1999, after this action was filed.

II.

Following the jury’s verdict, the district court ruled as a matter of

law that this action is time-barred, holding that the statute of limitations in Md. Code Ann., Cts. & Jud. Proc. § 5-109 began to accrue

in November 1993, when Christopher’s parents had knowledge of his

injury. Therefore, the court entered judgment in favor of Dr. Yarborough and the Medical Center. 

Section 5-109 provides, in pertinent part:

(a) Limitations. — An action for damages for an injury

arising out of the rendering of or failure to render professional service by a health care provider . . . shall be filed

within the earlier of: 

(1) Five years of the time the injury was committed; or

(2) Three years of the date the injury was discovered. 

(b) Actions by claimants under age 11. — Except as provided in subsection (c) of this section, if the claimant was

son to make an inquiry that, if pursued with reasonable diligence, would

have disclosed the existence of the allegedly negligent act and harm. See

Lumsden v. Design Tech Builder, Inc., 749 A.2d 796, 801-02 (Md.

2000). 

4 PISELLI v. 75TH STREET MEDICAL
under the age of 11 years at the time the injury was committed, the time limitations prescribed in subsection (a) of this

section shall commence when the claimant reaches the age

of 11 years. 

Md. Code Ann., Courts and Judicial Proceedings § 5-109 (emphasis

added). It is undisputed that Christopher was not yet eleven years old

at the time the injury was committed in August 1993.2 It is also undisputed that this action, commenced in July 1998, was filed within

"[f]ive years of the time the injury was committed,"3 § 5-109(a)(1).

The relevant question, therefore, is whether this action is time-barred

as not filed within "[t]hree years of the date the injury was discovered" as required by section 5-109(a)(2), the answer to which, in this

case, depends upon whether the referenced "discovery" is that of the

parents or that of the child. 

No Maryland case addresses the question of whether, when a claim

is brought by parents on behalf of a child who was injured before

reaching age eleven, the three-year statute of limitations of section 5-

109(a)(2) begins to accrue upon discovery of the injury by the child

or upon discovery of the injury by the parents. The answer to this

question is dispositive here because the action was filed within three

years of the date the injury was discovered by Christopher, but more

than three years after discovery of the injury by Christopher’s parents.

Therefore, the question is properly subject to review by the Maryland

Court of Appeals on certification. See Md. Code Ann., Cts. & Jud.

Proc. § 12-603. 

2While minority generally tolls the statute of limitations, see Md. Code

Ann., Cts. & Jud. Proc. § 5-201(a) (stating that minority is a disability

and that an applicable limitations period will run after the date the disability is removed), section 5-109(e) provides that the tolling provisions

of section 5-201 "that relate to a cause of action of a minor may not be

construed as limiting the application of subsection (b) . . . of this section." 

3The district court did not specifically address the interaction between

the five-year statute of repose contained in section 5-109(a)(1) and the

tolling provision in section 5-109(b) because it held that this action was

time-barred by Donato and Marie Piselli’s earlier discovery of the injury.

PISELLI v. 75TH STREET MEDICAL 5
Accordingly, it is hereby ORDERED: 

(1) That the question stated above be, and the same hereby

is, certified to the Court of Appeals of Maryland for answer;

and 

(2) That the clerk of this court forward to the Court of

Appeals of Maryland, under the official seal of this court, a

copy of this order, together with the original or copies of the

record before this court to the extent requested by the Court

of Appeals of Maryland; and 

(3) That any request for all or part of the record be fulfilled by the clerk of this court simply upon notification

from the clerk of the Court of Appeals of Maryland. 

The names and addresses of counsel of record for the parties are:

Counsel for Donato Piselli, et al.

Richard S. Phillips

Walsh & Phillips, P.A.

22 West Dover Street 

P.O. Box 240

Easton, MD 21601 

Counsel for 75th Street Medical Center, et al.

Kurt D. Karsten

Curtis H. Booth

Cowdrey, Thompson & Karsten, P.A.

621 Ridgely Avenue

Annapolis, MD 21401 

United States Court of Appeals for the

Fourth Circuit

6 PISELLI v. 75TH STREET MEDICAL