Thomas v. Shear

Linda Thomas v. David Shear No. 2669, Sept. Term, 2018 Opinion by Leahy, J. Motion for Summary Judgment > Contradictory Affidavit or Statement The trial court correctly determined that affidavits of the plaintiff’s experts were materially inconsistent with the prior deposition testimony of the experts and should be disregarded pursuant to Maryland Rule 2-501(e). The affidavits, in which the experts opined that kidney stones, and not the surgical clip, caused Ms. Thomas’s hydronephrosis in 2006 is explicitly opposite to their sworn deposition testimony that the surgical clip caused Ms. Thomas’s 2006 hydronephrosis. Motion for Summary Judgment > Genuine Dispute of Material Fact The trial court properly disregarded the plaintiff’s attempt to create a genuine dispute of material fact with the defense experts’ testimony in order to avoid summary judgment. “To defeat a defendant’s motion for summary judgment, the opposing party must present admissible evidence ‘upon which the jury could reasonably find for the plaintiff.’” Rogers v. Home Equity USA, Inc., 453 Md. 251, 263 (2017) (quoting Hamilton v. Kirson, 439 Md. 501, 522-23 (2014)). Because the plaintiff could not adopt the defense experts’ testimony to avoid the statute of limitations without concomitantly sinking her prima facie case, her submission of the defense experts’ testimony did not preclude the circuit court from granting summary judgment in favor of the defendant.

Motion for Summary Judgment > Medical Malpractice Statute of Limitations > Burdens of Proof The health care provider bears the burden of pleading and proving that an action is barred under the five-year provision of Maryland Code (2006, 2013 Repl. Vol.), Courts and Judicial Proceedings Article (“CJP”), § 5-109(a). Newell v. Richards, 323 Md. 717, 728 (1991). In addition, the burden is upon the party moving for summary judgment to demonstrate an absence of material fact and that the party is entitled to judgment as a matter of law.

See Nerenberg v. RICA of S. Md., 131 Md. App. 646, 660 (2000). Once the moving party meets the initial burden of establishing the “absence of a genuine issue of material fact,” the burden shifts to the non-moving party to show why the applicable statute of limitations does not bar her claim as a matter of law, or “identify with particularity the material facts that are disputed.” Id. at 660 (citations omitted). Motion for Summary Judgment > Medical Malpractice Statute of Limitations > “Injury” The trial court correctly granted the health care provider’s motion for summary judgment because the plaintiff failed to file her malpractice claim within “[f]ive years of the time the injury was committed.” CJP § 5-109(a)(1). Viewing the evidence in the light most favorable to the plaintiff, the record demonstrated that the health care provider negligently placed a clip on her right ureter during a procedure in 2000.

Plaintiff’s experts proved that the harm to the plaintiff was contemporaneous with the negligence and she thus suffered an “injury” in 2000, even though she may not have experienced pain at that time. Circuit Court for Baltimore County Case No. 03-C-17-005647 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2669 September Term, 2018 ______________________________________ LINDA THOMAS v. DAVID SHEAR ______________________________________ Nazarian, Leahy, Friedman, JJ. ______________________________________ Opinion by Leahy, J. ______________________________________ Filed: August 27, 2020 *Fader, Matthew J., C.J., did not participate in the Court’s decision to report this opinion pursuant to Md. Rule 8-605.1. Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-08-27 15:18-04:00 Suzanne C. Johnson, Clerk Linda Thomas appeals from the decision of the Circuit Court for Baltimore County granting summary judgment in favor of David Shear, M.D., appellee.

Ms. Thomas alleges that Dr. Shear committed medical negligence by placing a surgical clip on her right ureter1 during a surgical procedure performed on May 26, 2000 at Greater Baltimore Medical Center (“GBMC”). On May 2, 2016, she filed a Statement of Claim before the Health Care Alternative Dispute Resolution Office and, on June 12, 2017, she filed a complaint in the circuit court. More than a year later, after deposing plaintiff’s experts, Dr. Shear moved for summary judgment on the ground that Ms. Thomas’s claim was barred by the statute of limitations under Maryland Code (2006, 2013 Repl. Vol.), Courts and Judicial Proceedings Article (“CJP”), § 5-109.

Dr. Shear asserted that any alleged medical injury occurred on the date of the surgery in 2000 or, alternatively, in 2006 when Ms. Thomas visited GBMC and was diagnosed with hydronephrosis.2 Ms. Thomas countered that, although Dr. Shear’s negligent act of placing the surgical clip occurred in 2000, her injury did not occur until 2014 when she was admitted to Northwest Hospital Center with severe abdominal pains. In support of her opposition to summary judgment, Ms. Thomas submitted two affidavits in which her expert witnesses 1 The ureter is the “tube that conducts the urine from the renal pelvis to the bladder[.]” Stedman’s Medical Dictionary 2017 (28th ed. 2006). 2 Hydronephrosis is a “[d]ilation of the pelvis and calyces of one or both kidneys” that “may result from obstruction to the flow of urine,” among other causes. Stedman’s Medical Dictionary 912 (28th ed. 2006). In other words, as Dr. Shear wrote in his brief, hydronephrosis “is a condition that occurs when urine cannot drain out of the kidney to the bladder due to a blockage or obstruction of the ureter.” renounced their earlier deposition testimony that her 2006 hydronephrosis was caused by the surgical clip.

Instead, they newly opined that the hydronephrosis in 2006 was caused by kidney stones. Ms. Thomas also tendered the deposition testimony of Dr. Shear’s experts—that he did not negligently cause her harm in 2000, 2006, or 2014—in support of her experts’ revised opinions that the injury did not occur in 2006. Dr. Shear moved to strike the affidavits on the basis that they were materially inconsistent with Ms. Thomas’s experts’ prior sworn statements. At a hearing on October 23, 2018, the court agreed with Dr. Shear that the affidavits were materially inconsistent and granted his motion for summary judgment on the basis that Ms. Thomas’s claim was barred by the statute of limitations.

Ms. Thomas timely noted her appeal and presents four questions for our review, 3 which we have consolidated and rephrased: 3 Ms. Thomas’s questions presented as written in her brief are as follows: 1. “Did the trial court err when it refused to consider [Ms. Thomas’s] two experts’ affidavits submitted to oppose [Dr. Shear’s] motion for summary judgment?” 2. “Did the trial court err in granting [Dr. Shear’s] motion for summary judgment given [Ms. Thomas] supported, in part, her opposition with [Dr. Shear’s] retained experts’ deposition testimony, testimony which opined that the July 19, 2006 presentation, including the finding of hydronephrosis[], was caused by renal cholic or kidney stones, not a retained clip, thereby creating a dispute of material fact?” 3. “Did the trial court err when it concluded that hydronephrosis alone, unaccompanied with pain, lack of urine output, or other outward manifestation of injury, was an injury within the meaning of § 5-109 of the Courts and Judicial Proceeding[s] Article?” 4. “Did the trial court err in denying [Ms. Thomas’s] motion for summary judgment given [Dr. Shear’s] burden of proof on the issue and the (Continued) 2 1. Did the circuit court err in determining that Ms. Thomas could not rely on the affidavits of her experts to support her opposition to Dr. Shear’s motion for summary judgment? 2. Did the defense experts’ testimony create a material issue of fact precluding summary judgment? 3. Did the circuit court err in granting summary judgment in favor of Dr. Shear on the basis that Ms. Thomas’s claim was time barred under CJP § 5-109?

For the reasons that follow, we discern no error in the court’s decision to disregard Ms. Thomas’s experts’ affidavits, and we hold that the court properly determined that her claim was time barred under CJP § 5-109. BACKGROUND A. The Complaint On May 26, 2000, David Shear, M.D., performed an aorto-bifemoral bypass graft4 on Linda Thomas at GBMC. Sixteen years later, on May 2, 2016, Ms. Thomas filed a medical malpractice claim against Dr. Shear with the Health Care Alternative Dispute undisputed testimony from both of [Dr. Shear’s] retained experts that [Dr. Shear] did not place any clip across any portion of [Ms. Thomas’s] ureter and [Dr. Shear] did not cause any of [Ms. Thomas’s] alleged injuries?” (Footnote omitted). 4 Plaintiff’s expert, Dr. Paul Brown, described an aorto-bifemoral bypass graft as a procedure that involves “the top end of the aorta of the graft [being] sewn on to the top part of the aorta [], generally right below the level of where the kidneys come off.” Dr. Shear explained in his brief that the surgical procedure “create[s] a new path around an obstructed blood vessel running between the aorta and a femoral artery.” 3 Resolution Office.5 Dr. Shear elected to waive arbitration and the matter was transferred to the Circuit Court for Baltimore County. In her complaint against Dr. Shear, filed on June 12, 2017, Ms. Thomas alleged that “[o]n May 26, 2000, [Dr. Shear] performed an ao[rt]o-bifemoral bypass graft” and that certain surgical clips used during the procedure “were not appropriate or not properly removed.” (Emphasis added).

The complaint further alleged that: 3. On January 6, 2014, [Ms. Thomas] began to have severe abdominal pains. She was admitted to Northwest Hospital Center at which time after discussing with the urologist, a cystoscopy was recommended. 5 Under the Health Care Malpractice Claims Act (“HCMCA”), CJP §§ 3-2A-01, et seq., a person claiming medical injury committed by a health care provider and more than $30,000 in damages must first file a claim with the Director of the Health Care Alternative Dispute Resolution Office. CJP §§ 3-2A-02(a)(1), 3-2A-04(a).

Judge Adkins explained the statutorily-imposed procedure in Davis v. Frostburg Facility Operations, LLC: Once filed in the ADR Office, the claim is subject to non-binding arbitration. Id. § 3-2A-04. We characterize this arbitration as non-binding because the plaintiff, or any other party, may unilaterally waive the arbitration requirement after meeting certain conditions outlined in the statute. Id. § 3-2A-06B.

A plaintiff must also file, within 90 days of initially submitting a claim, an expert certification of the claim before unilateral waiver is permitted. Id. § 3-2A-04(b)(1)(i). The claims certification must include a report prepared by the same expert. This requirement reflects the General Assembly’s desire to root out “nonmeritorious medical malpractice claims.” D’Angelo v. St. Agnes Healthcare Inc., 157 Md. App. 631, 645 (2004).

The expert certification requirement can also assist the parties in evaluating the merits of health claims and defenses. Walzer v. Osborne, 395 Md. 563 , 583- 84 (2006). Once the expert certification is filed, either party can make a speedy exit from the ADR process. CJP § 3-2A-06B(b)(1).

Indeed, most claimants elect to proceed to circuit court after satisfying compliance with the expert certification and report requirement. 457 Md. 275, 286-87 (2018) (footnote omitted). 4 4. On February 5, 2014, at Northwest Hospital Center, cy[s]toscopy was attempted, but multiple clips were encountered. . . . 5. As a result of the ongoing presence of the clips, [Ms. Thomas’s] medical condition has remained complicated and she has experienced considerable pain and suffering, had multiple surgical procedures to address the matter and was otherwise injured and damaged. (Emphasis added).

The complaint concluded that Dr. Shear “breached the standard of care by leaving the clips behind and was otherwise negligent” and, “[a]s a direct and proximate result, [Ms. Thomas] was injured and damaged[.]” B. Motion to Dismiss On July 31, 2017, Dr. Shear filed a motion to dismiss, arguing that Ms. Thomas’s claims were time barred under CJP § 5-109(a). Although Dr. Shear denied Ms. Thomas’s allegations that he “inappropriately placed a surgical clip on the right ureter during the aorto-femoral bypass surgery,” he argued, “for purposes of th[e] motion only, there could be no dispute that IF [he] actually did place an occluding surgical clip on the right ureter during the 2000 surgery, then Ms. Thomas sustained a medical injury as of the date of that surgery.” In her opposition to Dr. Shear’s motion, Ms. Thomas agreed that, under CJP § 5-109(a), she was “obligated to file her complaint within five years [of] the time the injuries [were] committed or three years of the date the injury was discovered[.]” In Ms. Thomas’s view, the “injury was committed not when the clips were left behind,” but “when [she] began to experience severe abdominal pain from the presence of the clips” in 2014. The court held Dr. Shear’s motion for further information in an order entered on October 27, 2017. 5 C. Expert Depositions Ms. Thomas designated several expert witnesses, including Dr. Paul Brown, Dr. Mark Kaye, and Dr. Carl Blond, who were all deposed prior to the summary judgment motion.6 As experts for the defense, Dr. Shear designated, among others, Dr. James Black and Dr. Joseph Harryhill, who were not deposed by Ms. Thomas’s counsel until after the motion for summary judgment was filed. During the discovery period, Ms. Thomas produced records documenting her 2006 visit to GBMC.

She presented with right flank pain, nausea and vomiting, and hematuria, or blood in the urine. The Radiology Department performed a CT scan of Ms. Thomas’s abdomen and pelvis, and reported the following findings: CT ABDOMEN FINDINGS: The right kidney contains a 4 mm stone anteriorly. A 3 mm stone posteriorly, both in the lower pole. There is moderate right hydronephrosis present.

The right ureter is dilated and can be followed for a short distance. No definite stone is seen at the transition zone. The ureter in the upper pelvis is normal in caliber. The left kidney contains a 3 mm stone in the lower pole.

No hydronephrosis is present. Cholecystectomy clips are present. The lung bases show minor fibrosis. The liver, spleen, pancreas, and adrenal glands show no acute findings.

The [sic] are clips present adjacent to the aorta, that appear related to aortic bypass graft. There are clips present along the right psoas muscle and adjacent to the ascending colon. . . . . 6 Only portions of the transcripts of the experts’ depositions were made part of the record at the summary judgment stage. Dr. Kaye’s deposition testimony was not part of the record at summary judgment at all. Dr. Shear explained in his motion for summary judgment that a transcript of Dr. Kaye’s deposition was not available at the time of filing. 6 CT PELVIS FINDINGS: Aortobi-femoral bypass graft has been performed.

There are multiple clips present. Clips are present in the inguinal region. No stone is seen in the bladder. No definite stone is shown along the course of either ureter.

There is a clip in the pelvis. . . . . IMPRESSION: 1. Small stones in the lower pole calyces of each kidney. 2. Moderate right hydronephrosis and proximal right hydroureter, without definite stone identified. 3.

Aorto-femoral bypass graft. 4. Chronic changes as described. (Emphasis added). Walter Hettinger, a physician in the Emergency Department, completed Ms. Thomas’s departure information.

He indicated that her diagnosis was “right kidney stone” and her condition was “satisfactory.” As more fully described in our discussion below, plaintiff’s expert, Dr. Brown, testified during his deposition, upon examination of the CT scan of Ms. Thomas’s abdomen from July 2006, that the hydronephrosis “would be from the clip [placed in 2000], because we know that there was a clip across the ureter.” He further agreed that a kidney stone did not cause an obstruction of Ms. Thomas’s ureter in 2006 because the report “says, [s]mall stones in the lower pole of the kidney, but there[’]s no kidney stone causing the problem.” Similarly, Dr. Blond testified that, to a reasonable degree of medical probability, he believed the cause of the hydronephrosis in 2006 “was from [] the original clip in 2000.” In a later email to defense counsel, however, Ms. Thomas’s counsel supplemented Dr. Blond’s testimony “[r]egarding the 7/19/2006 GBMC Er visit”: Dr. Blond will testify that if the hydronephrosis caused the right flank pain, then the pain would continue from that day forward. If the pain subsided, then the hydronephrosis did not cause the right flank pain. His opinion is 7 that the treaters were much more concerned about the [kidney] stones and the stones better explain the pain complaints. Dr. Blond is of the opinion that the clip did not cause the right flank pain.

Defense expert, Dr. Black, deposed that “kidney stones” was a “reasonable diagnosis” following Ms. Thomas’s complaint of right flank pain and hematuria. In light of his opinion that there was no clip on the ureter from 2000 on, Dr. Black stated that he did “not believe anything in 2006 had anything to do with a clip that would have, hypothetically, been placed in 2000 on the ureter.” Dr. Harryhill, during his deposition, agreed that the documents from the 2006 GBMC visit indicated a “final diagnosis [of] renal colic. And it looks like it says right kidney stones.” He testified that “it’s not likely that a partially obstructed ureter would cause hematuria” and that he had “not seen any films to show obstruction from stones in the ureter.” Dr. Harryhill further indicated that “a patient who is experiencing flank pain or colic . . . may have associated nausea and vomiting. We see that with partial obstruction from kidney stones quite often.” D. Motion for Summary Judgment Following the deposition of plaintiff’s experts but before his own experts had been deposed, on September 7, 2018, Dr. Shear filed a motion for summary judgment pursuant to the applicable statute of limitations, CJP § 5-109(a).7 He again argued that there could be no dispute that IF [he] actually did place an occluding surgical clip on the right ureter during the 2000 surgery, then Ms. Thomas sustained a medical injury as of the date of that surgery given that the clip placement would have (at least partially) obstructed the ureter and caused a pressure increase in the ureter relating to the urine flow from the kidney to the bladder. 7 The motion was erroneously titled as a “Motion to Dismiss Pursuant to the Statute of Limitations,” but it was properly treated by the court as a motion for summary judgment during a subsequent hearing. 8 Dr. Shear asserted, therefore, that Ms. Thomas’s May 2, 2016 claim came “almost sixteen (16) years after the alleged negligence which is the subject of the [] action” and was time barred by CJP § 5-109(a).

In the alternative, Dr. Shear contended, because the CT scan performed at GBMC on July 19, 2006 revealed hydronephrosis, there was “absolutely no dispute that [Ms. Thomas] had a clinical manifestation (hydronephrosis) in July, 2006 that [Ms. Thomas’s] own experts concede[d] was a result of the surgical clip which is alleged to have been negligently placed.” Dr. Shear concluded that “[e]ven under this analysis, the statute of limitations would have run in July, 2011.” Ms. Thomas filed an opposition to Dr. Shear’s motion and a counter-motion for partial summary judgment on the statute of limitations. Surprisingly, and contrary to the deposition testimony of her experts, Ms. Thomas asserted that Dr. Shear’s “negligence did not cause [her] 2006 clinical presentation or Abdominal CT scan findings.” She acknowledged Dr. Brown and Dr. Blond’s deposition testimony that the 2006 admission was caused by the surgical clip on her right ureter, but claimed that her experts “did not have the benefit of the full chart review for the July 19, 2006 ED presentation when they were deposed.” She attached as exhibits affidavits from both doctors, contending that “[u]pon further review and based upon review of the July 19, 2006 chart, each physician is of the opinion that the July 19, 2006 admission [to GBMC] had nothing whatsoever to do with [Dr. Shear’s] negligence, but was the result of [Ms. Thomas] experiencing kidney stones[.]” Consequently, Ms. Thomas urged that her experts were in accord with the defense’s expert witness, Dr. Black, that “the hydronephrosis and stricture [in 2006] was 9 not caused by [Dr. Shear’s] 2000 breach of the standard of care.” Thus, Ms. Thomas contended, “[a]s a matter of law, as of 2006, [she] did not suffer an injury within the meaning of [CJP § 5-109].” As to her counter-motion for summary judgment, Ms. Thomas asserted that Dr. Shear could not create a genuine dispute of material fact about whether she sustained an injury in 2006, so “if a motion for summary judgment [were] to be granted, it should be granted in [her] favor[.]” Dr. Shear filed an opposition to Ms. Thomas’s motion for summary judgment contemporaneously with a motion to strike the affidavits of Dr. Brown and Dr. Blond. He urged the court to strike the affidavits because they were “wholly inconsistent with each expert’s deposition testimony as it relates to the finding of hydronephrosis in 2006[.]” He then noted that the defense theory, which was supported by Dr. Black’s testimony, was that “Dr. Shear never placed a surgical clip over the ureter and did not cause any partial or complete obstruction of the ureter following [the] 2000 aorto-bifemoral bypass surgery.” Thus, Dr. Shear pressed, it was confounding that Ms. Thomas would argue that the defense experts’ testimony “that the 2006 hydronephrosis was not due to an obstruction resulting from a misplaced surgical clip somehow supports [her] claims as to the application of the statute of limitations.” Despite Ms. Thomas’s contention that Dr. Brown did not review the entirety of the 2006 GBMC chart prior to his deposition, Dr. Shear asserted “[u]pon information and belief, [Ms. Thomas’s] counsel was in possession of those records prior to and at the time of Dr. Brown’s deposition.” 10 Ms. Thomas filed additional support for her opposition to Dr. Shear’s motion for summary judgment, including excerpts from the deposition of defense expert, Dr. Harryhill, which had become available. E. Motions Hearing On October 23, 2018, the parties presented argument before the court on the foregoing motions.

At that time, the discovery deadline had passed, and all experts had been deposed. Counsel for Dr. Shear argued first that “because the testimony from the plaintiff’s experts is that the surgical clip was placed over the ureter during the May 2000 surgery, that clips do not migrate[,] and it was . . . causing some blockage of the urine flow from the kidney to the bladder,” Ms. Thomas had a legally cognizable injury at that time. In counsel’s view, the statute of limitations “should start in 2000 when the clip was placed and the five year statute would have run in 2005.” If the court was not persuaded that there was an injury in 2000, counsel continued, both of Ms. Thomas’s experts, in their sworn deposition testimony, “agree[d] that in 2006 there was a clinical manifestation of this surgical clip that they believe was placed across the ureter improperly at the time of the subject surgery in 2000.” Counsel maintained that the plaintiff’s experts’ “materially inconsistent” affidavits should not be considered. In turn, counsel for Ms. Thomas argued that an injury within the meaning of CJP § 5-109 was not committed at the time of the surgery in 2000 because “[a]ll Dr. Shear did was clip the ureter” and the “injury and all its consequences had yet to surface.” Counsel clarified that while the negligent act took place in 2000, the negligent act and the injury “did not occur concurrently” and “the first injury was that pain to [Ms. Thomas’s] right 11 side when she went to the hospital” in 2014.

When asked about the affidavits from Dr. Brown and Dr. Blond, counsel asserted that the defense “cherry picked and showed to the experts” only the 2006 CAT scan. The judge delivered an oral ruling. She pointed out that, according to Ms. Thomas, “Dr. Shear . . . committed a negligent act which forms the basis of this suit on May 26th, 2000[.]” Citing Hill v. Fitzgerald, 304 Md. 689, 700 (1985), the judge noted that the “purpose of the [s]tatute of [l]imitations . . . is to contain the ‘long tail effect of the discovery rule in medical [mal]practice cases by restricting in absolute terms the amount of time between the alleged negligence and filing of the claim.’” Then, she observed, “[a]ccording to the deposition testimony of the Plaintiff’s experts, both Dr. Brown and Dr. Blond, the hydronephrosis that was diagnosed in 2006 was causally related to [Dr. Shear’s] malpractice in placing the surgical clip improperly over or on the ureter back in May of 2000.” The judge decided that the statute of limitations “ran at the latest when [Ms. Thomas] presented to GBMC in 2006, July of 2006.” (Emphasis added). She explained that at the time of the depositions of Plaintiff’s experts they were asked about the causal relationship between [Ms. Thomas’s] complaints in 2006 when she presented to the hospital and the alleged improper placement of the surgical clip during the surgery in May of 2000.

They opined to a reasonable degree of medical certainty that the 2000 surgical event was the cause. And that being the case, they also indicated that they did not consider kidney stones the cause. I know that there have been some affidavits that are materially inconsistent[,] in this Court’s opinion[,] filed after the motion for summary judgment. I don’t believe that [Ms. Thomas] should be entitled to rely upon them.

But in any event, because of what the Court [of Appeals] said in Hill versus Fitzgerald, [ 304 Md. 689 (1985),] because you 12 have to put some type of restriction in absolute terms about the amount of time that the Plaintiff is allowed to file a suit, the Court finds that these claims, this claim is time barred as a matter of law[.]” (Emphasis added). Accordingly, the court granted Dr. Shear’s motion for summary judgment and denied Ms. Thomas’s counter-motion for partial summary judgment. Ms. Thomas timely noted her appeal to this court on October 30, 2018. DISCUSSION Ms. Thomas challenges the court’s determination that her claim against Dr. Shear stemming from the 2000 procedure was time barred under CJP § 5-109.

Consistent with her arguments before the motions court, she contends that Dr. Shear “committed medical malpractice when he placed a surgical clip on [her] right ureter” during a procedure on May 26, 2000, but maintains that she did not sustain an injury, for purposes of the statute of limitations, until “January 5, 2014, when [she] suffered pain for three straight days.” Ms. Thomas contends the circuit court erred in granting summary judgment for three reasons: 1. The court failed to consider the affidavits of plaintiff’s experts, which created a material dispute of fact as to whether her injury was sustained in 2006; 2. The defense experts’ testimony that Dr. Shear’s alleged negligence did not cause Ms. Thomas’ harm in 2006 created a material issue of fact that should have gone to the jury for consideration; and 3. As a matter of law, Ms. Thomas’s claim is not time barred under CJP § 5-109 and summary judgment was improper.

As we will explain, Ms. Thomas misapplies CJP § 5-109 and misconstrues the applicable burdens of proof. 13 I. Applicable Law A. Burdens of Proof Maryland Rule 2-501(a) provides that “[a]ny party may file a written motion for summary judgment on all or part of an action on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law.” The rule is relatively straightforward, but it is important to decipher the shifting burdens of proof that precede a summary judgment ruling, especially, here, in apposition to the shifting burdens that give rise under CJP § 5-109. At the trial court level, the party moving for summary judgment has the burden of demonstrating to the court the absence of any genuine issue of material fact and demonstrating that it is entitled to judgment as a matter of law. Nerenberg v. RICA of S. Md., 131 Md. App. 646, 660 (2000). “Once the moving party provides the trial court with a prima facie basis in support of the motion for summary judgment, the non-moving party is obliged to produce sufficient facts admissible in evidence, if it can, demonstrating that a genuine dispute as to a material fact or facts exists.” Thomas v. Bozick, 217 Md. App. 332, 340 (2014) (quoting Dolan v. McQuaide, 215 Md. App. 24, 31 (2013)). In other words, “[o]nce the movant makes [t]his showing, the burden shifts to the nonmoving party to ‘identify with particularity the material facts that are disputed.’” Nerenberg, 131 Md. App. at 660 (emphasis added) (citing Md. Rule 2-501(b)).

The nonmoving party must proffer facts that would be admissible in evidence to show that there is a genuine dispute as to a material fact. Hamilton v. Kirson, 439 Md. 501, 522 (2014) (citation omitted). 14 Even where no genuine dispute of material fact is found to exist, the court must still find that the movant is entitled to judgment as a matter of law under Rule 2-501(f); consequently, the non-moving party may defeat summary judgment by proving that the undisputed facts are susceptible to inferences supporting their case, Ashton v. Brown, 339 Md. 70, 79 (1995), or by establishing that the law does not support judgment in the moving party’s favor, see Md. Rule 2-501(a). B. Standard of Review On appeal, we review a circuit court’s decision to grant summary judgment without deference. Andrews & Lawrence Prof.’s Servs., LLC v. Mills, 467 Md. 126, 146 (2020).

Thus, “we independently review the record to determine whether the parties properly generated a dispute of material fact, and, if not, whether the moving party is entitled to judgment as a matter of law.” Kennedy Krieger Inst., Inc. v. Partlow, 460 Md. 607, 632 (2018) (quoting Chateau Foghorn LP v. Hosford, 455 Md. 462, 482 (2017)). In doing so, “[w]e review the record in the light most favorable to the nonmoving party and construe any reasonable inferences that may be drawn from the facts against the moving party.” Id. at 632-33 (quoting Chateau Foghorn LP, 455 Md. at 482 ). Ordinarily, we “review a grant of summary judgment only upon the grounds relied upon by the trial court.” Hamilton, 439 Md. at 523 (citation omitted). C. CJP § 5-109 “Statutes of limitations are enacted typically to encourage prompt resolution of claims, to suppress stale claims, and to avoid the problems associated with extended delays in bringing a cause of action, including missing witnesses, faded memories, and the loss of 15 evidence.” Anderson v. United States, 427 Md. 99, 118 (2012).

The statute of limitations for suits against health care providers is set forth in CJP § 5-109: An action for damages for an injury arising out of the rendering of or failure to render professional services 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. CJP § 5-109(a) (emphasis added). Although the “triggering events for the running of the alternative periods and the length of the periods have not changed since [CJP § 5-109(a)] was first enacted by Chapter 545 of the Acts of 1975[,]” Rivera v. Edmonds, 347 Md. 208, 210 (1997) (footnote omitted), the statute has sparked confusion and generated at least six certified questions to the Court of Appeals since its enactment. See Anderson v. United States, 427 Md. 99 (2012); Piselli v. 75th St. Med., 371 Md. 188 (2002); Hill v. Fitzgerald, 304 Md. 689 (1985).8 8 Prior to 1975, the general three-year statute of limitations for civil actions (CJP § 5-101) applied to medical malpractice cases.

Indeed, it appears the common law discovery rule was first applied in medical malpractice cases. See Hahn v. Claybrook, 130 Md. 179, 187 (1917). The discovery rule tolls the accrual date of an action until such time as the potential plaintiff either discovers her injury or should have discovered it through the exercise of due diligence. Eventually, the Court of Appeals extended the rule to apply “generally in all actions,” unless a statute prescribes differently.

Poffenberger v. Risser, 290 Md. 631, 636 (1981). Later the Court expounded, “[t]o retain the requisite flexibility to apply the rule to different situations, this Court has always retained to itself the power to shape the contours of the discovery rule.” Doe v. Maskell, 342 Md. 684, 691 , (1996). In 1975, “in reaction to the medical malpractice crisis” the Maryland General Assembly enacted CJP § 5-109 “to limit health care provider liability and provide insurers with a predictable period of potential liability.” Nancy E. Leibowitz, Statute of (Continued) 16 In Newell v. Richards, the Court of Appeals addressed the question of “which party bears the burden of proof when a defendant asserts that the three-year ‘discovery’ provision of § 5-109(a)(2) should bar a claim that is filed within the five-year provision of § 5- 109(a)(1).” 323 Md. 717, 724-25 (1991). The Court held that the health care provider has the burden of proving when the injury was discovered, reasoning as follows: Since it is obvious that the primary purpose of Cts. & Jud.

Proc. Art., § 5- 109 is to create a total bar to malpractice actions brought after five years from the date of the alleged negligent treatment, and since unquestionably the health care provider bears the burden of pleading and proving that the action is barred under the five-year provision, we believe the legislature intended a single burden of proof and that the health care provider have the burden of pleading and proving that the claimant’s action is time- barred by either of the two statutory provisions. Id. at 728 (emphasis added). The Court explained further: Limitations—Medical Malpractice—Constitutional Law—Five Year Statute of Response on Medical Malpractice Claims That Commences When an Injury Occurs is Constitutional.

Hill v. Fitzgerald, 304 Md. 689 , 501 A.2d 27 (1985), 16 U. Balt. L. Rev. 571 , 578 (1987). As enacted by Chapter 545 of the Acts of 1975, CJP § 5-109 provided as follows: An action for damages for an injury arising out of the rendering of or failure to render professional services by a physician shall be filed (1) within five years of the time the injury was committed or (2) within three years of the date when the injury was discovered, whichever is the shorter. See Rivera, 347 Md. at 210 n.1.

The new statute thus modified the common law discovery rule by allowing a plaintiff to file an action up to three years after she discovers an injury, but not beyond five years from the date the “injury was committed.” Hill, 304 Md. at 699 . In 1976, CJP § 5-109 was amended to replace the word “physician” with the phrase “health care provider, as defined in § 3-2A-01 of this article[.]” See Glenn v. Morelos, 79 Md. App. 90, 93 (1989). In 1987, CJP § 5-109 was amended to insert the phrase “within the earlier of” before the five-year and three-year limitations clauses ((a)(1) and (a)(2) respectively). Though the bill file contains no evidence of the General Assembly’s purpose for the amendment, the Revised Fiscal Note indicates the phrase “whichever is the shorter,” in the bill “establishe[d] a general statute of limitations for an action to be filed for damages in a medical malpractice case to be the earlier of 5 years from the time the injury is committed, or 3 years of the date the injury is discovered.” (Continued) 17 If a health care provider pleads and proves that an action was filed after five years from the alleged negligent act, the action is time-barred.

If suit is brought within the five-year limitations period, the action will still be barred if the health care provider pleads and proves that the claim was not brought within three years of the date when “the injury was discovered.” Id. (emphasis added). Notwithstanding its statement in Newell that an action “filed after five years from the alleged negligent act” is time-barred, the Court of Appeals has instructed that when an “injury” occurs is a question of fact to be determined in light of the principles announced in Oxtoby v. McGowan, 294 Md. 83 (1982), and Hill v. Fitzgerald, 304 Md. 689 (1985).9 See Rivera v. Edmonds, 347 Md. 208, 211 (1997). Under the Oxtoby-Hill analysis, “injury may not coincide always with the date of an allegedly wrongful act or omission”: Although in Hill we called [CJP § 5-109] an “absolute bar,” we set forth in the next breath the important principle that “injury” occurs when the “allegedly negligent act was first coupled with harm.” This principle opens the door for and blesses claims arising from an allegedly negligent act that was more than five-years past, even if the injury—or cognizable legal harm—does not occur for many years.

Anderson, 427 Md. at 126-27 (emphasis added). The five-year period thus begins to run from the time the “injury” is determined to have occurred. In Hill, the Court “clarified” that “the five-year maximum period under the statute will run its full length only in those 9 In Hill v. Fitzgerald, the Court interpreted CJP § 5-109 in light of the principles articulated in its prior decision in Oxtoby v. McGowan, in which it had considered the meaning of “medical injuries occurring” as used in the effective date clause of the Health Care Malpractice Claims Act (“HCMCA”). See Oxtoby, 294 Md. at 85 .

The Hill Court expressed that, while the HCMCA effective date provision “speaks of ‘medical injury,’ whereas [the effective date clause of CJP § 5-109] refers to ‘injuries,’ the legislature, in [the Court’s] view, intended no substantive distinction in the legal application of the two terms.” 304 Md. at 696-97 . 18 instances where the three-year discovery provision does not operate to bar an action at an earlier date[,]” and “this is so without regard to whether the injury was reasonably discoverable or not.” Hill, 304 Md. at 700 . We examined the Oxtoby-Hill principle in Edmonds v. Cytology Services of Maryland, Inc., when we considered whether there was a factual dispute as to when Debra Ann Edmonds suffered an “injury” within the meaning of CJP § 5-109. 111 Md. App. 233, 247 (1996). Ms. Edmonds’s husband, daughter, and estate (the appellants), filed wrongful death and survival claims against three physicians and Cytology Services of Maryland, Inc. in 1993, alleging that the health care providers had negligently failed to diagnose Ms. Edmonds’s cervical cancer in 1983. Id. at 236.

The appellants argued that “Ms. Edmonds was injured when she experienced pain and other symptoms in 1988,” while the health care providers argued 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.’” Id. at 247. After examining authority from other jurisdictions, we declined to adopt the view that “an ‘injury’ occurs when the patient ‘discovers’ the harm caused by the physician’s negligent act.” Id. at 250-51. Such a view, we explained, “would effectively re-incorporate into [CJP] § 5-109(a) the same open-ended discovery rule that the General Assembly sought to abolish” and “would render meaningless the dichotomy between [CJP] § 5- 109(a)(1) and [CJP] § 5-109(a)(2).” Id. Consequently, we rejected “appellants’ contention that Ms. Edmonds did not suffer an ‘injury’ until she began to experience pain or other symptoms from the cancer[.]” Id. at 251. 19 We also declined to adopt the interpretation that “injury” referred to the date when “the wrongful act or omission occurred” because CJP § 5-109(a)(1) “specifically declares” that the five-year period begins to run on the date the “injury was committed.” Id. at 252, 254.

The legislative history, we explained, “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.” Id. at 256. Rather, the General Assembly “wished to combat the ‘long tail effect’ on medical malpractice insurance” and “[s]imultaneously” “lessen the potential unfairness to victims of malpractice by not overly restricting their ability to present their claims.” Id. at 257. Next, we considered the Court of Appeals’ prior instruction, in Hill v. Fitzgerald, that “an injury occurs when ‘the negligent act [is] coupled with some harm [to create] a legally cognizable wrong.’” Id. at 257 (citing Hill, 304 Md. at 696 ). We concluded that “an ‘injury’ within the meaning of [CJP] § 5-109(a) is not ‘committed’ unless, as a proximate result of the wrongful act, the patient sustains damages.” Id. at 262.

And, “[o]nce damages are sustained, the health care provider’s wrong is actionable, or ‘legally cognizable[.]’” Id. On that basis, we rejected the health care providers’ argument that “the limitations clock began to tick at the moment of the alleged misdiagnoses in 1983” because, had Ms. Edmonds filed suit at that time, “her suit may have been dismissed for lack of damages or lack of damages that could be proven with reasonable certainty.” Id. at 263. To conclude, we emphasized that the “five year period begins to run when injury (or ‘damages’) first arises, and not when all damages resulting from the physician’s 20 negligence have arisen.” Id. at 269. We explained that a patient could suffer an “injury” from a negligent misdiagnosis, when (1) he or she experiences pain or other manifestation of an injury; (2) the disease advances beyond the point where it was at the time of the misdiagnosis and to a point where (a) it can no longer effectively be treated, (b) it cannot be treated as well or as completely as it could have been at the time of the misdiagnosis, or (c) the treatment would entail expense or detrimental side effects that would not likely have occurred had treatment commenced at the earlier time; or (3) the patient dies.

Id. at 270. We noted that the list was not exhaustive, and “the overriding inquiry in all cases must be when the patient first sustained legally compensable damages” because the injury occurs “when legally compensable tort damages first occur, regardless of whether those damages are discoverable or undiscoverable.” Id. (emphasis added). Returning to Ms. Edmonds’s case, we held that, “[g]iven the posture of a summary judgment proceeding, and in light of the evidence proffered by appellants,” the trial court erred when it “determined, as a matter of law, that Debra Edmonds suffered an ‘injury’ at the moment of the alleged misdiagnoses in 1983.” Id. at 263, 270.

We explained: Appellants did not proffer any expert opinion that Ms. Edmonds’s cancer had not spread at any time prior to April 9, 1988 (i.e., the date five years prior to the filing of the claim) or April 11, 1985 (i.e., the date five years prior to Ms. Edmonds’s death). But appellees did not advance any evidence, beyond conclusory assertions, to show that Ms. Edmonds’s cancer had advanced during those time periods. Nor do appellees contend that [Ms.] Edmonds suffered any symptoms from the cancer prior to August 1988. Id. at 272.

Consequently, it was error for the court to rule, “as a matter of law, that appellant[s’] claims were time-barred under the five year limitations provision in [CJP] § 5–109(a)(1).” Id. 21 The Court of Appeals granted the health care providers’ petitions for certiorari to review our application of the rule from Hill v. Fitzgerald. Rivera v. Edmonds, 347 Md. 208, 216 (1997). In the Court’s view, the decision “turn[ed] on the nature of microscopic cervical cancer, as revealed by the record.” Id. at 222 . The health care providers argued that, “[b]ecause the standard of care calls for surgery or radiation treatment when the condition is diagnosed, . . . any delay, and certainly a protracted delay, caused by a misdiagnosis is a harm within the meaning of Hill.” Id. at 222-23 .

The Court explained that, ordinarily, it “would have no disagreement with