Edmonds v. Cytology Services of Maryland, Inc.

HOLLANDER, Judge. This appeal requires us to interpret Maryland Code (1974, 1995 RepLVol.), § 5-109(a) of the Courts and Judicial Proceedings Article (“C.J.”), which sets forth the statute of limitations governing actions against health care providers. ²³⁶ Debra Ann Edmonds succumbed to cancer in 1990, following an alleged misdiagnosis in 1983. In 1993, Wallace Newton Edmonds and Amanda Bree Edmonds (the husband and daughter of Ms. Edmonds), and the Estate of Debra Edmonds, all appellants, filed wrongful death and survival claims against Dr. William Jaffurs, Cytology Services of Maryland, Inc. (“Cytology”), Dr. Myrna Rivera, and Ivan Mattei, M.D., P.A., appellees, alleging that, in 1983, appellees had negligently failed to diagnose Ms. Edmonds’s cervical cancer. When the matter proceeded to court, appellees moved for summary judgment, contending that appellants’ claims were barred by limitations under C.J. § 5-109(a).

The Circuit Court for Prince George’s County granted the motion as to all claims. Appellants now present two questions for our consideration: I. Did the lower court err by granting summary judgment against Wallace Newton Edmonds and Amanda Bree Edmonds on the grounds that their wrongful death claims were barred by the applicable statute of limitations?

II

Did the lower court err by granting summary judgment against the Estate of Debra Edmonds on the grounds that the survival claim was barred by the applicable statute of limitations? For the reasons stated below, we conclude that the court erred in granting summary judgment. Accordingly, we shall vacate the judgment and remand the case for further proceedings. FACTUAL SUMMARY In 1980, Debra Edmonds, who was then twenty-four years old and the mother of a young child, came under the care of Dr. Joseph Murgalo, a gynecologist who is not a party to this litigation.

While under Dr. Murgalo’s care, Ms. Edmonds experienced vaginal bleeding, abnormal discharge, and cervical eversion 1 and erosion. On February 19, 1981, Dr. Murgalo ²³⁷ performed a cryoconization of Ms. Edmonds’s cervix. 2 Ms. Edmonds continued to experience problems associated with cervical eversion. In September 1981 and April 1982, she had abnormal Pap smears. 3 In October 1982, Dr. Murgalo noted that the cervix needed attention. On July 15, 1983, Dr. Murgalo performed a biopsy on a portion of white epithelium of the cervix. 4 The biopsy specimen was sent to Cytology, where Dr. Jaffurs, a Cytology employee, examined it.

Dr. Jaffurs diagnosed “severe epithelial dysplasia—epidermoid carcinoma-in-situ (cervical intraepithelial neoplasia—3).” 5 In a “comment” on his written re ²³⁸ port, Dr. Jaffurs stated: “Patient should be considered for further diagnostic surgery.” On July 28, 1983, Dr. Murgalo ordered an additional biopsy of Ms. Edmonds’s cervix. The specimen was examined by Dr. Rivera, an employee of the laboratory of Ivan R. Mattei, M.D., P.A. 6 Dr. Rivera diagnosed “foci of severe epithelial dysplasia—5.” Shortly thereafter, Dr. Murgalo performed a cervical conization. 7 The specimen was sent to the pathology department of Prince George’s Hospital and Medical Center. Dr. Abolghassem Hatef, a pathologist who is not a party to this litigation, examined the specimen and stated in a subsequent report: “Cervical cone showing two minute foci of severe dysplasia. All margins are free—5.” Following the cervical conization, Ms. Edmonds remained under Dr. Murgalo’s care.

Between the evaluation of the conization in 1983 and August 1988, Dr. Murgalo continued to follow Edmonds and took periodic Pap smears that were benign. 8 During this period, Ms. Edmonds apparently did not report any symptoms suggestive of cervical cancer, and she did not undergo any further diagnostic procedures. ²³⁹ In August 1988, Edmonds began to experience pain in her right sacroiliac and low back regions. X-rays taken at that time showed a “density” in the right mid-abdomen. That same month, Edmonds was admitted to the hospital for removal of her gallbladder. At that time, she complained of “continuous low back pain.” On May 1, 1989, Edmonds returned to Dr. Murgalo for an office visit, complaining of “severe pain” in the right buttocks, radiating down the right thigh.

She also indicated that the pain had been “off and on for four months.” 9 She saw Dr. Murgalo again on June 5, 1989 and complained of pain in the right sacroiliac area, radiating down to the groin and to the interior thigh. Dr. Murgalo referred her to an orthopedist. Despite the orthopedic care, Ms. Edmonds’s back pain persisted. On August 28, 1989, an electromyogram and nerve conduction study revealed “profound denervation of the adductors in the right leg consistent with a severe neuropathy involving the right obdurator nerve.” 10 Ms. Edmonds continued to suffer excruciating pain in her right mid-lumbar spine and low back areas.

She also began to lose a significant amount of weight. Dr. Guy Gargour examined Ms. Edmonds on October 17, 1989 and performed a CT scan. He discovered a “mass” in ²⁴⁰ the right pelvic area. On November 5, 1989, Edmonds was admitted to Georgetown University Hospital for a cancer evaluation.

She was diagnosed on November 8, 1989 as having “squamous cell cancer of unknown origin.” 11 She began to receive chemotherapy and radiation treatment. After twenty-five days in the hospital, Edmonds was discharged. She returned to the hospital for cancer treatment on an outpatient basis. On April 5, 1990, Edmonds was re-admitted to the hospital with symptoms of jaundice, anorexia, nausea, and vomiting.

She died on April 11,1990, at the age of thirty-four. On April 9, 1993, Wallace and Amanda Edmonds filed a statement of claim in the Health Claims Arbitration Office. 12 The claim included both wrongful death and survival actions. They alleged that Dr. Jaffurs, Dr. Rivera, Cytology, and Ivan R. Mattei, M.D., P.A. were negligent. After the parties waived the jurisdiction of the Health Claims Arbitration Office, appellants filed a complaint in the circuit court on June 3, 1994. 13 They alleged that appellees (1) failed to diagnose “invasive cancer” in the cervical specimens that they had analyzed in 1983; (2) failed to advise Dr. Murgalo “of the need for surgical treatment to remove the tumor”; (3) failed “to obtain an adequate history” from Edmonds and Dr. Murgalo; and (4) failed “to consider the diagnosis of invasive cancer and discuss appropriate treatments.” ²⁴¹ Dr. Thomas F. Rocereto, one of appellants’ experts, testified at deposition that Ms. Edmonds had “microscopic cervical cancer” at the time the original biopsies were taken in July 1983.

He stated that, at that time, she had “at least ... Stage I” cervical cancer, meaning that “[t]he tumor, as far as I could tell from the record, was confined to the cervix.” He added, however, that, with Stage I tumors, there is a “ten to fifteen percent chance” that the lymph nodes are also involved. Dr. Rocereto also opined that, had Ms. Edmonds been correctly diagnosed, the standard of care for her treatment would have been a radical hysterectomy and lymph node dissection. Moreover, he said that, if she had been treated properly in 1983, she would have had at least a seventy-five to eighty-five percent probability of survival.

Dr. Rocereto added that Ms. Edmonds’s chances of survival could have been more than ninety percent if her cervical cancer were truly microscopic in 1983. He also testified that, by 1989, when Ms. Edmonds complained of severe pain, she had no chance of survival. He was unable to identify, however, the point in time when Ms. Edmonds’s cancer became incurable. Appellees disputed appellants’ contentions and denied all liability.

They asserted that the biopsy specimens were correctly analyzed in 1983. They also claimed that Ms. Edmonds did not die from cervical cancer. Appellees based this contention, in part, on the autopsy report from Georgetown University Hospital, which stated in its “History” section that “Primary cervical ... carcinoma[ ] had been previously excluded.” The autopsy report also said, in its “Summary,” that “the major part of the tumor appeared to be located within the pancreas,” although the pathologist was unable to determine the origin of the cancer. Further, the Summary indicated that “[c]areful gross and microscopic examination did not reveal any other possible site [other than the pancreas] for primary carcinoma.” 14 In addition, Dr. James F. Barter testified at a deposition that “there was no evidence that [Ms. ²⁴² Edmonds] had an invasive squamous cell carcinoma of the cervix.” Notwithstanding these factual disputes, appellees filed motions for summary judgment, asserting that appellants’ claims were time-barred under C.J. § 5-109(a), which requires that an action be filed within three years of the date on which “the injury was discovered” (C.J. § 5-109(a)(2)), or within five years from the time “the injury was committed” (C.J. § 5-109(a)(1)), whichever is shorter.

In their opposition, appellants contended that there was a genuine dispute of material fact as to when the five year limitations period in C.J. § 5-109(a)(1) had commenced; they argued that an “injury” -within the meaning of that provision occurred only when Ms. Edmonds’s cervical cancer metastasized to other parts of her body, and the medical experts were unable to state when that occurred. They also claimed that there was a factual dispute that precluded summary judgment with respect to the three year limitations period in C.J. § 5-109(a)(2), because “[t]here is absolutely no way that Debra Edmonds, as a person of ordinary prudence, would then suppose that it was necessary to re-examine the original tissue biopsies to be absolutely certain that they were correctly read.” After a hearing, the court granted the motions, although the judge stated that he believed that the result was “extremely unfair.” We shall include additional facts in our discussion of the issues presented. STANDARD OF REVIEW Maryland Rule 2-501 governs summary judgment motions. It is well settled that, in resolving a summary judgment motion, the court does not decide disputed facts.

Rather, the court must determine whether there are disputes of material fact so as to make a trial on the merits necessary. Maryland Casualty Co. v. Lorkovic, 100 Md.App. 333, 353-54 , 641 A.2d 924 (1994). “In order to defeat a motion for summary judgment, the opposing party must show with some particularity that there exists a genuine dispute as to a material fact.” ²⁴³ General Accident Insurance Co. v. Scott, 107 Md.App. 603, 611-12, 669 A.2d 773 , cert. denied, 342 Md. 115 , 673 A.2d 707 (1996). A “material fact” is one whose resolution will somehow affect the outcome of the case. King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985); Seaboard Surety Co. v. Richard F. Kline, Inc., 91 Md.App. 236, 242 , 603 A.2d 1357 (1992).

In ruling upon the motion, the court must view the facts, including all reasonable inferences from those facts, in the light most favorable to the opposing party. Baltimore Gas and Electric Co. v. Lane, 338 Md. 34, 43 , 656 A.2d 307 (1995). But, “[mjere formal denials or general allegations of a dispute are not sufficient to establish” a material dispute. Bagwell v. Peninsula Regional Medical Center, 106 Md.App. 470, 488 , 665 A.2d 297 (1995), cert. denied, 341 Md. 172 , 669 A.2d 1360 (1996); Bond v. NIBCO, Inc., 96 Md.App. 127, 135 , 623 A.2d 731 (1993). “[Tjhe mere existence of a scintilla of evidence in support of the plaintiffs claim is insufficient to preclude the grant of summary judgment.” Beatty v. Trailmaster Products, Inc., 330 Md. 726, 738 , 625 A.2d 1005 (1993).

In the absence of disputed facts, the court must determine whether a party is entitled to judgment as a matter of law. Beatty, supra, 330 Md. at 737 , 625 A.2d 1005 . Therefore, the ultimate standard for appellate review is whether the court was “legally correct.” Southland Corp. v. Griffith, 332 Md. 704, 712 , 633 A.2d 84 (1993); Donovan v. Kirchner, 100 Md.App. 409, 416 , 641 A.2d 961 , cert. denied, 336 Md. 299 , 648 A.2d 202 (1994). Ordinarily, we will not affirm summary judgment on a ground upon which the trial court did not rely, if the court would have had discretion to deny summary judgment on the alternative ground.

Cheney v. Bell National Life Insurance Co., 315 Md. 761, 764 , 556 A.2d 1135 (1989); Warner v. German, 100 Md.App. 512, 517 , 642 A.2d 239 (1994). DISCUSSION A. C.J. § 5-109(a), the statute of limitations in issue, states: ²⁴⁴ An action for damages for an injury arising out of the rendering of or failure to render professional services by a health care provider, as defined in § 3-2A-01 of this article, 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. Statutes of limitation are intended, in part, to ensure fairness by preventing “stale” claims. Feldman v. Granger, 255 Md. 288, 296-97 , 257 A.2d 421 (1969).

See also McMahan v. Dorchester Fertilizer Co., 184 Md. 155, 159 , 40 A.2d 313 (1944). Limitations periods rest on the notion that a defendant should not be called upon to defend against a claim when “evidence has been lost, memories have faded, and witnesses have disappeared.” Doughty v. Prettyman, 219 Md. 83, 92-93 , 148 A.2d 438 (1959) (quotation omitted). Accord Bertonazzi v. Hillman, 241 Md. 361, 367 , 216 A.2d 723 (1966). While C.J. § 5-109 serves this policy, it was enacted to alleviate a special problem in the context of medical malpractice claims.

Prior to the enactment of C.J. § 5-109, medical malpractice claims were governed by the general statute of limitations in C.J. § 5-101. That section provides, in part, that “[a] civil action at law shall be filed within three years from the date it accrues----” Under this rule, a medical malpractice cause of action was deemed to “accrue” when the claim was discovered, i.e., at the time when the plaintiff either knew of his or her injury or, in the exercise of reasonable diligence, should have discovered it. See Waldman v. Rohrbaugh, 241 Md. 137, 139-45 , 215 A.2d 825 (1966); Hahn v. Claybrook, 130 Md. 179, 182 , 100 A. 83 (1917); Lutheran Hospital of Maryland v. Levy, 60 Md.App. 227, 232-33 , 482 A.2d 23 (1984), cert. denied, 302 Md. 288 , 487 A.2d 292 (1985); Jones v. Sugar, 18 Md.App. 99, 102-05 , 305 A.2d 219 (1973). 15 ²⁴⁵ As the plaintiffs claim did not accrue until it was discovered, there could be a considerable time lag between the date when the physician rendered services and the date on which the cause of action accrued. Such time lags led to a phenomenon known as the “long tail effect” on medical malpractice insurance carriers.

Because of the prospect that a physician’s services could result in claims years after the service, insurance companies faced uncertainties in estimating their potential liabilities. The result was an increase in medical malpractice insurance rates. In 1975, in the midst of a perceived crisis in medical malpractice insurance, the General Assembly enacted C.J. § 5-109. We have interpreted C.J. § 5-109(a)(2) to provide the plaintiff with three years from the date the wrong was discovered or reasonably should have been discovered.

See Russo v. Ascher, 76 Md.App. 465, 469-73 , 545 A.2d 714 (1988). Nevertheless, C.J. § 5-109(a)(l) serves as an outer limit on the time period in which the plaintiff may sue. It provides that an action may not be brought more than five years after “the injury was committed”. (Emphasis supplied.) Moreover, this five year period runs irrespective of whether the injury was discovered or reasonably discoverable during that time.

Hill v. Fitzgerald, 304 Md. 689, 700 , 501 A.2d 27 (1985). In Hill , the Court described the operation and purpose of C.J. § 5-109(a)(l): [W]e think that the words of § 5-109 expressly place an absolute five-year period of limitation on the filing of medical malpractice claims calculated on the basis of when the injury was committed, i.e., the date upon which the allegedly negligent act was first coupled with harm. The purpose of the statute, readily evident from its terms, was to contain the “long-tail” effect of the discovery rule in medical malpractice cases by restricting, in absolute terms, the amount of time which could lapse between the allegedly negligent treatment of a patient and the filing of a malpractice claim related to that treatment. The statute is a response to the ²⁴⁶ so-called crisis in the field of medical malpractice claims ... and contains no room for any implied exceptions.

Id., 304 Md. at 699-700 , 501 A.2d 27 (citations omitted). Thus, “Hill indicates that the primary objective of the legislature was to promote society’s interest in maintaining malpractice insurance coverage and managing the costs of malpractice litigation.” Newell v. Richards, 323 Md. 717, 727-28 , 594 A.2d 1152 (1991). Appellants assert that the trial court erred in entering summary judgment, because there was a genuine dispute of fact as to when Ms. Edmonds suffered an “injury” within the meaning of C.J. § 5-109(a)(l). They claim that the trial court erroneously concluded, as a matter of law, that Ms. Edmonds suffered an injury in 1983, when appellees allegedly misdiagnosed the biopsy specimens.

They point out that the decedent did not become ill until August 1988, when she began to experience back pain. 16 Because of this “lack of any discernible effect” on Ms. Edmonds, appellants argue that there was a factual dispute as to when appellees’ negligence harmed or “injured” the decedent. Appellants further contend that the word “injury” in C.J. § 5—109(a)(1) is ambiguous, and that interpreting it in the manner suggested by appellees would produce “absurd and unjust consequences”; Ms. Edmonds would have been required to file her lawsuit prior to July 1988, a time period in which she was in apparent good health and free from any signs or symptoms of cancer. Appellants assert that the General Assembly could not have intended such “unjust, oppressive or absurd consequences.” Finally, appellants suggest that, if C.J. § 5—109(a)(1) required Ms. Edmonds to file her claim while she was in apparent good health, then it constitutes an unconstitutional denial of access to the courts, in violation of Article 19 of the Maryland Declaration of Rights. 17 ²⁴⁷ In response, appellees vigorously contend that, if appellants’ allegations are accepted as true, then Ms. Edmonds suffered an “injury” when appellees negligently failed to diagnose her cancer in 1983 or “certainly soon thereafter.” Thus, they assert that appellants’ claim is time-barred, because it was filed more than five years after the “injury was committed.” B. At the outset, we focus on appellants’ contention that there is a factual dispute as to when Ms. Edmonds suffered an “injury.” Appellants seemingly argue that Ms. Edmonds was injured when she experienced pain and other symptoms in 1988; they assert that “[t]he record is devoid of any evidence that after Dr. Murgalo performed the conization on August 1, 1983[she] had any signs or warnings of cancer, such as bleeding, loss of weight, change in appetite, nausea, pain, or discomfort.” We have found some authority, not cited by appellants, to support the position that an “injury” occurs when a person first experiences symptoms. The statute of limitations for medical malpractice actions in California is similar to Maryland’s, see Cal.Civ.Proc.Code § 340.5 (West 1982), 18 and the California courts have consistently interpreted the word “injury” to mean the “damaging effect” of the negligent act.

See Larcher v. Wanless, 18 Cal.3d 646 , 135 Cal.Rptr. 75, 80, n.11 , 557 P.2d 507 , 512 n. 11 (1976) (“[T]he word ‘injury’ ... seems clearly to refer to the damaging effect of the alleged wrongful act and not to the act itself.”); Tresemer v. Barke, 86 Cal. App.3d 656, 665 , 150 Cal.Rptr. 384, 388-89 (1978) (“injury” is ²⁴⁸ “not synonymous with ‘wrongful act,’ but refers to the ‘damaging effect’ of the wrongful act”); Wells Fargo Bank v. Superior Court for Sacramento County, 74 Cal.App.3d 890, 896, 141 Cal.Rptr. 836, 838 (1977) (to the same effect). The California courts have also stated that a patient does not suffer an “injury” within the meaning of the statute until he or she has suffered “appreciable harm” as a result of the health care provider’s act or omission. Christ v. Lipsitz, 99 Cal.App.3d 894, 897 , 160 Cal.Rptr. 498, 500 (1979).

See also McNall v. Summers, 25 Cal.App.4th 1300, 1307-13 , 30 Cal.Rptr.2d 914, 917-20 (1994), rev. denied, (Sept. 7, 1994) (in case alleging negligent performance of electroconvulsive therapy that resulted in a stroke, “injury” occurred when patient noticed continuous memory loss). But California’s “appreciable harm” or “damaging effect” interpretation could result in a time lag between the date of the wrongful act and the date on which the limitations period would commence. In Larcher v. Wanless, 18 Cal.3d 646 , 135 Cal.Rptr. 75 , 557 P.2d 507 , the California Supreme Court held that, in a wrongful death action, the word “injury” in the statute referred to the death of the patient, and not the patient’s earlier illness. The court recognized that such an interpretation would not eliminate the “long tail effect” on medical malpractice insurers.

It stated: Defendants seem to argue from the premise that the undiluted purpose of section 340.5 was to lower malpractice insurance rates by enabling insurers to reduce the amount of reserves they need maintain to meet potential claims. They urge that because a statute of limitations in wrongful death actions which extinguishes a large number of claims before they accrue might substantially curtail malpractice exposure, the legislation should be construed in conformity with that end. But section 340.5 evinces no such single-minded purpose. Instead, as originally worded, the statute appears to have been a compromise between concern over the extended exposure of medical practitioners to malpractice liability and a desire not to bar potentially worthy plaintiffs from court before they have a fair chance to bring suit.

The ²⁴⁹ Legislature declined to adopt other proposals before it which held out the promise of substantially greater reductions in malpractice exposure and necessary insurance reserves. Thus the Legislature did not date the limitation period from the “alleged wrongful act, ” as provided in one proposal. (Assem. Bill No. 135 (1969 Reg.

Sess.).) Instead, the limitation period was tied to “injury, ” a word of art which might refer to an event occurring some time after the commission of a “wrongful act.” Id., 135 Cal.Rptr. at 80 , 557 P.2d at 512 (emphasis supplied). In Steingart v. Oliver, 198 Cal.App.3d 406 , 243 Cal.Rptr. 678 (1988), California’s intermediate appellate court applied § 340.5 to a fact pattern quite similar to the one in this case. In 1982, Theresa Steingart, the plaintiff, noticed a lump in her right breast. On February 12, 1982, she went to Dr. John White, a gynecologist, who diagnosed the lump as a group of benign cysts, and told Steingart not to be concerned.

Steingart, who was a registered nurse, questioned the doctor’s diagnosis and requested a biopsy. But White told her that she did not need one. He then sent her to another doctor, Joseph Oliver, who confirmed White’s diagnosis. Steingart did not notice any change in the lump between 1982 and 1985.

In 1985, however, she “noticed a change in the contour of the upper outer quadrant of her right breast.” 198 Cal.App.3d at 410 , 243 Cal.Rptr. at 679 . In April of 1985, she was diagnosed with Stage II breast cancer, and had to undergo a radical mastectomy. On March 24, 1986, she filed her complaint against the physicians, alleging negligent misdiagnosis; suit was filed more than four years after White’s examination but less than one year after the diagnosis of breast cancer. The lower court held that the claim against White was barred by limitations, but the appellate court reversed.

It noted the general rule that “ ‘the event which activates the three-year limitations period is the moment the plaintiff discovers the harm caused by the alleged negligence.’ ” Id., 198 Cal.App.3d at 413 , 243 Cal.Rptr. at 681 (quoting Hills v. ²⁵⁰ Aronsohn, 152 Cal.App.3d 753, 762 , 199 Cal.Rptr. 816, 822 (1984)). Quoting the Hills case, the court added: “We do not see how the rule can be otherwise. In a medical malpractice action, where an element of the cause of action is damages, a cause of action cannot accrue until the plaintiff has suffered some legally compensable injury. To adopt a rule that the statute begins to run on the date of the alleged negligence would mean that a plaintiff is denied all possibility of recovery simply because the injury did not manifest itself until sometime after three years from the date of the negligent act.

Indeed, where the injury does not manifest itself within three years of the negligent act, a plaintiff would have no opportunity whatsoever to recover since the three-year period would effectively bar the action before the cause of action even accrued.” Steingart, 198 Cal.App.3d at 413 , 243 Cal.Rptr. at 681 (quoting Hills, 152 Cal.App.3d at 762 n. 7, 199 Cal.Rptr. 816 , 822 n. 7). Applying these rules, the court concluded that Steingart’s complaint was timely filed. As for the three year period, the court stated: “[I]t must be concluded [that] Steingart suffered no damaging effect or appreciable harm from White’s asserted neglect until Newman discovered her cancer in April 1985.” Steingart, 198 Cal.App.3d at 414 , 243 Cal.Rptr. at 682 . The court rejected the contention that Steingart suffered an injury when she knew about the lump: “[A]lthough Steingart knew about the lump at the time White examined her, such a condition is not a clear indication of injury, either damaging effect or appreciable harm.” Id., 198 Cal.App.3d at 415 , 243 Cal.Rptr. at 682 .

As for the one year “discovery” period, the court held that there was “at minimum” a triable issue of fact: “Reasonable minds could easily conclude [that] Steingart did everything within her power to ascertain what, if any, illnesses she had after receiving White’s initial diagnosis.” Id., 198 Cal.App.3d at 416 , 243 Cal.Rptr. at 683 . As we see it, the view of the California courts, typified by Steingart and Hills , is essentially that an “injury” occurs when the patient “discovers” the harm caused by the physician’s negligent act. We cannot adopt that view, because it would ²⁵¹ effectively re-incorporate into C.J. § 5-109(a) the same open-ended discovery rule that the General Assembly sought to abolish. Moreover, such an interpretation would render meaningless the dichotomy between C.J. § 5-109(a)(l) and C.J. § 5-109(a)(2). 19 It would also contradict the Court’s statement in Hill v. Fitzgerald that the five year period in C.J. § 5—109(a)(1) runs “without regard to whether the injury was reasonably discoverable.” Id., 304 Md. at 700 , 501 A.2d 27 .

Therefore, appellants’ contention that Ms. Edmonds did not suffer an “injury” until she began to experience pain or other symptoms from the cancer must fail. ²⁵² c. Appellees argue that, on the facts of this case, the failure to diagnose resulted in an immediate “injury” to Ms. Edmonds for purposes of C.J. § 5-109(a). Appellees’ position rests on the premise that, in this case, the “injury” contemplated by C.J. § 5-109(a) necessarily occurred at the same time as the negligent act or omission. Our research reveals that Delaware subscribes to the view that the time of “injury” coincides with the time the negligent act was committed.

Like Maryland’s, Delaware’s statute of limitations in medical malpractice actions includes a discovery provision and focuses on the time of “injury.” Del.Code Ann. tit. 18, § 6856 (1989) provides, in pertinent part: No action for the recovery of damages upon a claim against a health care provider for personal injury, including personal injury which results in death, arising out of malpractice shall be brought after the expiration of 2 years from the date upon which such injury occurred; provided, however, that: (1) Solely in the event of personal injury the occurrence of which, during such period of 2 years, was unknown to and could not in the exercise of reasonable diligence have been discovered by the injured person, such action may be brought prior to the expiration of 3 years from the date upon which such injury occurred, and not thereafter____ (Emphasis supplied.) The Delaware courts have construed the statutory phrase “injury occurred” as referring to the date when “the wrongful act or omission occurred.” Benge v. Davis, 553 A.2d 1180, 1183 (Del.1989). The Delaware Supreme Court’s decision in Dunn v. Saint Francis Hospital, Inc., 401 A.2d 77, 80 (Del.1979), illustrates the application of this rule. The plaintiff, Fred Dunn, had a back operation in 1970. In April 1975, he began to experience leg pain.

In January 1977, he discovered that the leg pain might have been caused by the negligence of the doctors who performed the operation in 1970. When ²⁵³ Dunn filed suit in March 1977, the court held that his suit was barred by limitations. It concluded that “there is no doubt that the phrase ‘injury occurred’ refers to the date when the wrongful act or omission occurred,” i.e., the 1970 operation. Id., 401 A.2d at 80 .

The court relied heavily on the purpose of the special statute of limitations to contain the “long tail” effect of the discovery rule. Id. at 79-80 . The court also rejected Dunn’s contention that limitations did not begin to run until he began to experience pain in 1975. Dunn argued that, in the five preceding years, he had no “damages” that would be cognizable in a negligence action, and thus no “injury.” The court said: The answer, however, must be that the statute was a response to a particular issue in a particular context and that to construe it broadly without the bounds of that context, as plaintiff desires, would emasculate its very purpose.

Furthermore, if the General Assembly intended there to be a line of demarcation based on the no pain-no injury rationale, it would have said so in some precise manner. We cannot frustrate the clear legislative intent. ... Id., 401 A.2d at 80 . The Delaware Supreme Court has since applied Dunn's injury-equals-wrongful-act interpretation in cases involving alleged negligent misdiagnoses.

See Benge v. Davis, 553 A.2d 1180 (failure to diagnose breast tumor); Reyes v. Kent General Hospital, Inc.., 487 A.2d 1142 (Del.1984). Reyes is notable, because it involved alleged negligent misdiagnosis of cervical cancer, and the issue was whether a wrongful death claim was time-barred. The court stated unequivocally: “The clear language of the statute dictates that whether the action be one for personal injury or personal injury resulting in death, the Statute of Limitations begins to run on the date of the alleged wrongful act or omission.” Id., 487 A.2d at 1145-46 . But cf. Pearson v. Boines, 386 A.2d 651 (Del.1978) (doctor negligently told patient that she had multiple sclerosis, and she underwent ²⁵⁴ voluntary sterilization on his advice; held, “injury” occurred on date of sterilization).

We cannot accept the Delaware rule either. C.J. § 5-109(a)(1) does not date the five year limitations period from when the “wrongful act or omission” occurred. Instead, it specifically declares that the period begins to run on the date when the “injury was committed.” A comparison of C.J. § 5-109(a) with medical malpractice statutes of limitations in other jurisdictions illustrates the importance of this phraseology. Like Maryland, many states enacted special medical malpractice statutes of limitations during the medical malpractice insurance crisis of the 1970’s.

But most of these statutes use the date of the health care provider’s “act” or “omission” as a reference point, and not the date of the patient’s “injury.” Some of these statutes contain both a “discovery” period and a longer “outer limit” period, and provide that the action must be filed within the time period that expires earlier. (See the statutes listed in Appendix A.) Other statutes that have attempted to counteract the “long tail effect” provide that limitations begins to run on the date of the “act” or “omission,” but they do not include a discoverability clause. (See the statutes listed in Appendix B.) In 1977, the American Bar Association’s Commission on Medical Professional Liability recommended implementation of a statute of limitations requiring an action to be brought within two years from the date of the “incident which gave rise to the action,” or one year from when the injury was discovered or reasonably should have been discovered, whichever occurred later, but in no event more than “eight years after the occurrence of the incident which gave rise to the injury.” (Emphasis supplied). The Maryland Legislature could have followed the great majority of jurisdictions by enacting a statute providing for the commencement of limitations on the date of the defen ²⁵⁵ dant’s alleged “act” or “omission.” 20 Such language would have compelled the conclusion that limitations begins to run from the date of the misdiagnosis.

See Humphreys v. Roche Biomedical Lab., Inc., 990 F.2d 1078, 1080 (8th Cir.1993) (interpreting Arkansas statute providing that suit must be filed within two years of the “wrongful act,” except in cases of foreign objects; held, limitations began to run on the date of misreading of Pap smear). But see Bonz v. Sudweeks, 119 Idaho 539 , 808 P.2d 876, 878-79 (1991) (interpreting statute requiring that suit be filed within two years of “the occurrence, act or omission complained of”; despite this language, limitations does not begin to run until plaintiff sustains “some damage”). Despite the plethora of statutes in other states to this effect, our Legislature did not adopt such a provision. Instead, it provided that the period specified in C.J. § 5-109(a)(1) would begin to run on the date the “injury” was committed.

In fact, while enacting amendments to C.J. § 5-109 in 1987, see 1987 Md. Laws, ch. 592, the General Assembly considered and rejected a proposal that would have brought the statute more in line with those in other jurisdictions. Senate Bill 225, as originally proposed, would have amended C.J. § 5-109(a)(l) to provide that the five year period would begin to run from the date of “the allegedly -wrongful act or omission,” rather than from the date when “the injury was committed.” This amendment was proposed by the Governor’s Oversight Committee on Liability Insurance, along with another proposal to ²⁵⁶ change the limitations period for medical malpractice claims by minors. A briefing paper prepared by the Legislative Office of the Governor, explaining the proposed changes, stated, in part: [T]he proposed legislation clarifies that the statute begins to run from the occurrence of the allegedly -wrongful act or omission. The Court of Appeals has recently given an expansive reading to the term “injury” in § 5-109.

The Court ruled in Hill v. Fitzgerald, 304 Md. 689 , 501 A.2d 27 (1985), that an “injury” is committed on the date that the allegedly negligent act was first coupled with harm. Accordingly, it would be possible under this interpretation to bring an action for a harm that had not manifested itself for years after the negligent act. In some cases, this interpretation effectively negates the limitations period. Such unexpected expansions of risk exposure diminish predictability and pricing stability and, generally, contribute to the soaring premiums in the Maryland malpractice insurance marketplace. * * * * % * The proposed bill modifies current law ... [to] make it express that the statutory periods begin to run from the date of the “allegedly wrongful act or omission” in place of the common law term “injury.” This proposal, however, was deleted from the bill in the Senate Judicial Proceedings Committee.

The Committee’s report for the bill stated: “The intent of the deleted language was to overturn the decision of the Court of Appeals in Hill v. Fitzgerald, 304 Md. 689 , 501 A.2d 27 (1985). In that case, the court ruled that an ‘injury’ is committed on the date the allegedly negligent act was first coupled with harm.” This history provides strong evidence that the General Assembly did not intend to create an ironclad rule that a medical malpractice claim would be barred if filed more than five years after the health care provider’s wrongful act. Instead, as the California Supreme Court suggested in Larcher ²⁵⁷ v. Wanless in reference to that state’s statute, the Legislature sought to balance two competing interests. First, it wished to combat the “long tail effect” on medical malpractice insurance.

See Committee Report for Senate Bill 225, at 1 (“The intent of this bill is to promote predictability and pricing stability and reduce the huge increase in medical malpractice insurance premiums by shortening the ‘long tail’ for claims involving injury to minors.”). Simultaneously, however, it wished to lessen the potential unfairness to victims of malpractice by not overly restricting their ability to present their claims. The Legislature reconciled these competing interests by providing that the five year “cutoff” period in C.J. § 5-109(a)(l) would begin to run on the date when the “injury” resulting from the health care provider’s wrongful act or omission occurred, rather than from the date of that act or omission. In sum, the General Assembly was evidently made aware of the potential ramifications of retaining the term “injury.” Nonetheless, it elected to leave that language unchanged.

Adopting the Delaware rule, therefore, would be to adopt a rule that the General Assembly has rejected. D. Our analysis focuses on the concept of “injury,” because the five year limitations period embodied in C.J. § 5-109(a) is triggered when the “injury” occurs. According to the Court in Hill , an injury occurs when “the negligent act [is] coupled with some harm [to create] a legally cognizable wrong.” Id., 304 Md. at 696 , 501 A.2d 27 . In our view, a negligent misdiagnosis is not necessarily an “injury” for purposes of limitations; a wrongful “act” or “omission” is not the same as an “injury”.

Indeed, the two need not necessarily occur simultaneously. 21 ²⁵⁸ The distinction between an injury and a wrongful act is reflected in the elements of a negligence claim, for which a plaintiff must plead and prove the following: (1) the defendant had a duty to protect the plaintiff from injury; (2) the defendant breached that duty; (3) the plaintiff suffered actual injury or loss; and (4) that injury or loss was the proximate result of the defendant’s breach. Baltimore Gas and Electric Co. v. Lane, 338 Md. 34, 43 , 656 A.2d 307 (1995); Rosenblatt v. Exxon Co., 335 Md. 58, 76 , 642 A.2d 180 (1994). Furthermore, in order to recover, the plaintiffs injury or loss must be proven with reasonable probability or certainty, and cannot be the subject of mere speculation or conjecture. See Mount Royal Cab Co. v. Dolan, 166 Md. 581, 584 , 171 A. 854 (1934); DiLeo v. Nugent, 88 Md.App. 59, 76 , 592 A.2d 1126 , cert. granted, 325 Md. 18 , 599 A.2d 90 (1991), dismissed, September 16, 1992.

The Court of Appeals has also stated: “In a negligence claim, the fact of injury would seemingly be the last element to come into existence. The breach, duty, and causation elements naturally precede the fact of injury.” Owens-Illinois, Inc. v. Armstrong, 326 Md. 107, 121 , 604 A.2d 47 , cert. denied, 506 U.S. 871 , 113 S.Ct. 204 , 121 L.Ed.2d 145 (1992). See also Hawley v. Green, 117 Idaho 498 , 788 P.2d 1321, 1325 (1990) (“In many medical malpractice cases, the damage occurs contemporaneously with the negligent act.... In some instances, however, the damage may not occur until some time after the negligent act” [citations omitted]).

The California courts, in their interpretation of Cal.Civ. Proc.Code § 340.5, supra, have also recognized the distinction between the health care provider’s “act” and the patient’s “injury.” Although we disagree with their “appreciable harm” standard for determining when the injury occurs, we completely agree with their recognition of the distinction between the two concepts: ²⁵⁹ “Wrongful act” and “injury” are not synonymous.... The word “injury” signifies both the negligent cause and the damaging effect of the alleged wrongful act and not the act itself.... The date of injury could be much later than the date of the wrongful act where the plaintiff suffers no physical harm until months or years after the wrongful act.

Steketee v. Lintz, Williams & Rothberg, 38 Cal.3d 46 , 210 Cal.Rptr. 781 , 694 P.2d 1153, 1156 (1985). To determine whether an “injury” has been “committed” so as to trigger the limitations period in C.J. § 5—109(a)(1), the touchstone of the inquiry is whether the patient has suffered harm that is “legally cognizable.” In Hill , which involved an alleged negligent misdiagnosis, the Court held that, to activate the limitations period in C.J. § 5—109(a)(1), “all that is required is that the negligent act be coupled with some harm in order for a legally cognizable wrong—and, therefore, injury— to have occurred.” Id., 304 Md. at 696 , 501 A.2d 27 (emphasis supplied). Hill claimed that his doctor had negligently diagnosed him as having multiple sclerosis, when he actually had a spinal tumor. He contended that the incorrect diagnosis “was made as early as [Hill’s] first visit on January 27, 1975 and certainly not later than February 14, 1975.” Id., 304 Md. at 692 , 501 A.2d 27 .

The issue in the case was whether Hill suffered an “injury” after July 1, 1975, in which case C.J. § 5-109 would apply, or before that date, in which case the discovery rule would be applicable. The Court did not say that the “injury” occurred on the date of the negligent act. Instead, it stated: “Whether the original allegedly negligent misdiagnosis of Hill’s condition caused some harm and therefore ‘injury’ prior to July 1,1975 is a question of fact to be determined in light of the principles articulated in Oxtoby [v. McGowan, 294 Md. 83 , 447 A.2d 860 (1982) ].” Hill, 304 Md. at 697 , 501 A.2d 27 . 22 ²⁶⁰ In Oxtoby, the Court construed the word medical “injuries” in the effective date clause of the Health Care Malpractice Claims Act, C.J. §§ 3-2A-01 to 3-2A-09. The Act provided an effective date of July 1,1976 and said it “shall apply only to medical injuries occurring on or after that date.” 1976 Md. Laws., ch. 235, § 5.

If the patient suffered a “medical injury” on or after the effective date, the claimant would have been required to submit to arbitration. The defendant doctor in Oxtoby undertook to perform a total vaginal hysterectomy and bilateral salpingo-oophorectomy (the removal of both fallopian tubes and ovaries) in February 1974, in order to prevent the patient from developing ovarian cancer. The doctor allegedly failed to remove all of the left ovary and fallopian tube. The patient developed ovarian cancer in April 1977 and died in 1980.

The Court specifically rejected the definition of “injury” contained in § 7(1), comment a of the Restatement (Second) of Torts (1965), which stated that the “invasion of a legally protected interest” could constitute an “injury,” even in the absence of harm. Id., 294 Md. at 93 , 447 A.2d 860 . Instead, the Court said that “[t]he Act is concerned with the invasion of legally protected interests coupled with harm.” Id., 294 Md. at 93 , 447 A.2d 860 (emphasis added). In describing the concept of “injury,” the Court quoted from the Wisconsin case of State ex rel.

McManus v. Board of Trustees of Policemen’s Pension Fund, 138 Wis. 133 , 119 N.W. 806, 807 (1909): “The word ‘injury,’ in ordinary modern usage, is one of very broad designation. In the strict sense of the law, especially the common law, its meaning corresponded with