Anderson v. United States , 669 F.3d 161 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1597
ANGELIA M. ANDERSON,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:08-cv-00003-CCB)
Argued: October 25, 2011 Decided: December 20, 2011
Before DAVIS, KEENAN, and DIAZ, Circuit Judges.
Unpublished Order of Certification of a question of law to the
Court of Appeals of Maryland.
ARGUED: Byron Leslie Warnken, WARNKEN, LLC, Towson, Maryland,
for Appellant. Lewis S. Yelin, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Kerry D.
Staton, Jonathan Schochor, SHOCHOR, FEDERICO & STATON, P.A.,
Baltimore, Maryland, for Appellant. Tony West, Assistant
Attorney General, Rod J. Rosenstein, United States Attorney,
Thomas M. Bondy, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
ORDER
PER CURIAM:
I. Question Certified
Angelia Anderson sued the United States under the Federal
Tort Claims Act (“FTCA”) in January 2008 in the U.S. District
Court for the District of Maryland. In her complaint, Anderson
alleges that she received negligent medical care at the Veterans
Administration Medical Center in Baltimore, Maryland (“VA
Hospital”) from February through December 2002. The district
court granted the government’s motion to dismiss for lack of
subject matter jurisdiction, reasoning that Maryland Code,
Courts and Judicial Proceedings Article Section 5-109(a)(1)
constituted a five-year statute of repose that barred Anderson’s
claim. On appeal, Anderson argues that Section 5-109(a)(1)
constitutes a statute of limitations that is preempted by the
FTCA’s statute of limitations.
The U.S. Court of Appeals for the Fourth Circuit,
exercising the privilege afforded it by the Maryland Uniform
Certification of Questions of Law Act, Md. Code Ann., Cts. &
Jud. Proc. §§ 12-601 through 12-613, and Maryland Rule 8-305,
now certifies the following question of Maryland law to the
Court of Appeals of Maryland:
2
Does Section 5-109(a)(1) of the Courts and Judicial
Proceedings Article of the Maryland Code constitute a
statute of limitations or a statute of repose?
The answer to this question does not appear to be directly
controlled by any Maryland appellate decision, constitutional
provision, or state statute. The Court of Appeals of Maryland
has referred to Section 5-109 both as a statute of limitations
and a statute of repose, contrast Hill v. Fitzgerald, 501 A.2d
27, 32 (Md. 1985), with Rivera v. Edmonds, 699 A.2d 1194, 1195
(Md. 1997), but no case appears to have conclusively resolved
the issue.
The district court’s finding that Section 5-109(a)(1) is a
statute of repose stems primarily from a recent opinion of the
Court of Appeals of Maryland discussing the statute, Burnside v.
Wong, 986 A.2d 427, 440 (Md. 2010). The answer to this
certified question is outcome determinative of this appeal
because Anderson’s claim may proceed if the district court erred
in concluding that Section 5-109(a)(1) was a statute of repose.
Therefore, the question is properly subject to review by the
Court of Appeals of Maryland on certification.
We acknowledge that the Court of Appeals of Maryland may
reformulate this question.
3
II. Statement of Relevant Facts
Anderson first visited the VA Hospital in February 2002,
complaining of lower back pain. An MRI revealed scattered
marrow abnormalities in Anderson’s lumbar spine and a
radiologist recommended a bone scan, which was performed in May
2002 and showed abnormal results. Subsequently, a bone marrow
biopsy was performed, resulting in a diagnosis of B-cell
lymphoproliferative disease in Anderson’s spine. Anderson was
scheduled to begin chemotherapy in August 2002, but her doctors
determined instead that a course of observation was more
appropriate. Anderson was given a fentanyl patch to control her
pain. Anderson returned to the VA Hospital in September 2002,
reporting continuing pain on her left side; her doctors
responded by increasing her pain medication.
On December 19, 2002, Anderson complained at the VA
Hospital of increased pain and new symptoms, including pain and
numbness radiating to her foot. She was discharged and
instructed to report to the neurology clinic four days later.
Anderson returned to the VA Hospital the next day complaining of
increased pain in her back and an inability to move her legs.
An MRI revealed no evidence of compression. Anderson again
returned to the VA Hospital on December 23, reporting an
inability to walk or stand and complaining of numbness up to her
breasts. She was again discharged with instructions to return
4
for another MRI on December 26. Anderson instead sought
treatment at another hospital on December 24, where a physical
examination and diagnostic tests revealed an epidural spinal
tumor compressing her spinal cord. Anderson underwent immediate
surgery to relieve the spinal compression and remained
hospitalized until December 30.
Nearly a year later, on December 17, 2003, Anderson
initiated an administrative claim with the Veterans
Administration in Baltimore by filing a completed Standard Form
95 (Claim for Damage, Injury, or Death). She alleged that the
VA Hospital failed to recognize the symptoms of progressive
spinal cord compression due to an epidural spine tumor that
developed as a result of her known cancer. She also alleged
that the negligent care she received at the VA Hospital
necessitated emergency surgery on her spine, and that,
notwithstanding the emergency surgery, the VA Hospital’s
negligence left her with significant, permanent neurological
deficits, severe and permanent disability, and incessant pain
and emotional anguish.
For nearly four years, Anderson’s claim proceeded through
the administrative process, including significant settlement
discussions, until it was denied as not amenable to
administrative resolution by letter dated September 26, 2007.
Anderson filed suit in the district court on January 2, 2008.
5
The government moved to dismiss arguing that Anderson had failed
to file a claim and an expert certificate with the Maryland
Health Care Alternative Dispute Resolution Office (“HCADRO”), as
required by Maryland’s Health Care Malpractice Claims Act
(codified at Md. Code Ann., Cts. & Jud. Proc. § 3-2A-04). The
district court stayed the case to allow Anderson to file the
complaint and certificate with HCADRO. Anderson complied and
the district court lifted the stay.
The government then filed a second motion to dismiss,
arguing that Section 5-109(a)(1), which it characterized as
Maryland’s statute of repose for health care malpractice claims,
divested the court of subject matter jurisdiction because
Anderson did not file her federal suit within the five-year
statutory period. In its order granting the motion, the
district court noted that Maryland courts have referred to
Section 5-109 as a statute of limitations and that it contains
tolling provisions that are generally inconsistent with statutes
of repose. However, the district court concluded that,
“particularly in light of the recent reference by the Court of
Appeals in Burnside,” it was “constrained to conclude that the
state’s highest court views § 5-109(a)(1) as a statute of
repose.” J.A. 227 (citing Burnside, 986 A.2d at 440). Thus,
the district court granted the government’s motion to dismiss
for lack of subject matter jurisdiction.
6
The district court denied Anderson’s subsequent motion for
reconsideration, and Anderson timely appealed to this Court,
assigning error to the district court’s conclusion that Section
5-109(a)(1) is a statute of repose. 1
III. Legal Discussion and Relevant
Maryland Case Law and Legislation
A. The Government’s Limited
Waiver of Immunity under the FTCA
A plaintiff may recover against the United States only to
the extent that it has expressly waived sovereign immunity.
Welch v. United States, 409 F.3d 646, 650 (4th Cir. 2005)
(citing United States v. Sherwood, 312 US 584, 586 (1941)).
Where the United States has not waived its sovereign immunity, a
plaintiff’s claim against the United States should be dismissed
for lack of subject matter jurisdiction under Federal Rule of
Civil Procedure 12(b)(1). Williams v. United States, 50 F.3d
299, 304 (4th Cir. 1995).
1
Anderson also argues on appeal that the district court
erred by failing to find (1) that participation in the mandatory
administrative procedures required by the FTCA tolls the running
of the statutory period prescribed by Section 5-109 until the
administrative process is exhausted, and (2) that the filing of
a claims notice under the FTCA satisfies the requirement under
Section 5-109 that an action for damages be filed within five
years of the time the injury was committed. We do not certify
these latter two questions.
7
Congress waived the sovereign immunity of the United States
for certain torts committed by federal employees when it enacted
the FTCA in 1946. Kerns v. United States, 585 F.3d 187, 194
(4th Cir. 2009) (citing FDIC v. Meyer, 510 U.S. 471, 475
(1994)). However, the FTCA is a limited waiver of immunity,
imposing tort liability on the United States only “in the same
manner and to the same extent as a private individual under like
circumstances,” 28 U.S.C. § 2674, and only to the extent that “a
private person[] would be liable to the claimant in accordance
with the law of the place where the act or omission occurred,”
id. § 1346(b)(1). In other words, a claimant “has an FTCA cause
of action against the government only if she would also have a
cause of action under state law against a private person in like
circumstances.” Miller v. United States, 932 F.2d 301, 303 (4th
Cir. 1991). Thus, the substantive law of each state establishes
the cause of action. Kerns, 585 F.3d at 194; Unus v. Kane, 565
F.3d 103, 117 (4th Cir. 2009).
Whereas substantive state law establishes--and
circumscribes--FTCA causes of action, “federal law defines the
limitations period.” Miller, 932 F.2d at 303. This period is
codified in 28 U.S.C. § 2401, which provides, in pertinent part,
that “[a] tort claim against the United States shall be forever
barred unless it is presented in writing to the appropriate
Federal agency within two years after such claim accrues . . .
8
.” Id. § 2401(b). Here, it is undisputed that Anderson
satisfied the FTCA statute of limitations by filing Standard
Form 95 within one year of her injury.
State law may nevertheless speak to the timeliness of a
claim brought under the FTCA, because a state’s enactment of a
statute of repose “creates a substantive right in those
protected to be free from liability after a legislatively-
determined period of time.” First United Methodist Church of
Hyattsville v. U.S. Gypsum Co., 882 F.2d 862, 866 (4th Cir.
1989). By contrast, a statute of limitations is a “procedural
device that operates as a defense to limit the remedy available
from an existing cause of action.” Id. at 865. Thus, “[t]he
distinction between statutes of limitations and statutes of
repose corresponds to the distinction between procedural and
substantive laws.” Goad v. Celotex Corp., 831 F.2d 508, 511
(4th Cir. 1987). Because statutes of repose are substantive
limitations on liability, an FTCA claim does not lie against the
United States where a statute of repose would bar the action if
brought against a private person in state court. See, e.g.,
Simmons v. United States, 421 F.3d 1199, 1202 (11th Cir. 2005)
(affirming dismissal of FTCA action that was filed after period
specified in state statute of repose).
Thus, the key inquiry in this case is whether Section 5-
109(a)(1) is a substantive statute of repose or a procedural
9
statute of limitations. If the former, then Anderson’s claim
may be barred, 2 because allowing it to proceed would potentially
impose liability on the government in a different manner and to
a greater extent than on a private individual under like
circumstances. If the latter, however, the FTCA’s two-year
statute of limitations preempts the state statute and Anderson’s
claim survives because it was properly presented within that
period.
B. The Statutory Text of Section 5-109(a)
Section 5-109(a) provides in relevant part as follows:
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.
Md. Code Ann., Cts. & Jud. Proc. § 5-109(a). The periods are
subject to tolling for minority, incompetency, and fraudulent
concealment. Id. § 5-109(f) (“Nothing contained in this section
2
As noted earlier, Anderson argues that even if Section 5-
109(a)(1) is a statute of repose, the district court erred by
failing to find (1) that participation in the mandatory
administrative procedures required by the FTCA tolls the running
of the statutory period prescribed by Section 5-109 until the
administrative process is exhausted, and (2) that the filing of
a claims notice under the FTCA satisfies the requirement under
Section 5-109 that an action for damages be filed within five
years of the time the injury was committed.
10
may be construed as limiting the application of the provisions
of: (1) § 5-201 of this title that relate to a cause of action
of a mental incompetent; or (2) § 5-203 of this title [relating
to fraudulent concealment].”); Piselli v. 75th St. Med., 808
A.2d 508, 517 (Md. 2002) (holding that both the three- and five-
year statutory periods must be tolled during a plaintiff’s
minority).
The Court of Appeals of Maryland has aptly summarized the
uncertainty in the statutory language:
[I]t is not clear whether the General Assembly
intended § 5-109 to be either (A) a five-year statute
of repose with a provision that allows a defendant to
cut that period short by up to two years if the
defendant can show that the plaintiff did not comply
with the three-year discovery provision, or (B) a
three-year statute of limitations with a provision
that could allow the plaintiff to extend that period
up to five years if the plaintiff can show that he or
she filed the claim within the three-year discovery
provision.
Newell v. Richards, 594 A.2d 1152, 1157 (Md. 1991).
Anderson makes three principal arguments to support her
view that Section 5-109(a)(1) is a statute of limitations.
First, she points out that the event that triggers the running
of the statutory period for both the five-year period in (a)(1)
and the three-year period in (a)(2) is an “injury.” The Court
of Appeals of Maryland has held that an injury is committed on
“the date upon which the allegedly negligent act was first
coupled with harm.” Hill, 501 A.2d at 32. Thus, Anderson
11
argues that an injury that triggers the running of the statutory
period is not necessarily committed on the date upon which an
allegedly negligent act occurs, and that Section 5-109(a)(1)
thereby “contradicts the fundamental requirement of a statute of
repose, i.e., that it operates from a fixed point in time and
can terminate a cause of action before injury occurs.”
Appellant’s Br. 27.
Anderson contrasts this feature with the ability of a
statute of repose to extinguish a plaintiff’s claim before it
accrues, when a plaintiff’s injury fails to materialize prior to
the running of the fixed statutory period. It is this ability
to extinguish claims prior to their accrual, Anderson argues,
that is the quintessential barometer of a statute of repose.
Id. at 25-26 (citing Hinds v. CompAir Kellogg, 776 F. Supp.
1102, 1105 (E.D. Va. 1991), aff’d per curiam, 961 F.2d 211 (4th
Cir. 1992) (unpublished); Walker v. Montclaire Hous. Partners,
736 F. Supp. 1358, 1361 (M.D.N.C. 1990)). Because the running
of the statutory period commences upon “injury,” Anderson
contends that Section 5-109(a)(1) cannot operate to extinguish a
cause of action before an injury arises and the claim accrues,
and that it thus lacks the substantive quality of a statute of
repose.
Second, Anderson notes that, as a general rule, statutes of
limitations are subject to tolling whereas statutes of repose
12
are fixed. However, Section 5-109(f) expressly provides that
both the five-year period in (a)(1) and the three-year period in
(a)(2) may be tolled in instances of minority, mental
incompetency, and fraudulent concealment. Anderson concludes
from these statutory tolling provisions that “the Maryland
General Assembly provided further evidence that CJ § 5-109
should not be interpreted as providing a substantive right to be
free from liability.” Appellant’s Br. 30.
Finally, Anderson compares Section 5-109(a)(1) with Section
5-108 of the Courts and Judicial Proceedings Article of the
Maryland Code, claiming that the latter is unmistakably a
statute of repose and that a comparison of the two statutes
reveals that Section 5-109(a)(1) is a statute of limitations. 3
Section 5-108, concerning injuries after improvements to real
property, provides:
(a) Except as provided by this section, no cause of
action for damages accrues and a person may not seek
contribution or indemnity for damages incurred when
wrongful death, personal injury, or injury to real or
personal property resulting from the defective and
unsafe condition of an improvement to real property
occurs more than 20 years after the date the entire
3
This Court has found Section 5-108 to be a statute of
repose. See First United, 882 F.2d at 865 (“Maryland courts
have repeatedly recognized [that] § 5-108 is a statute of
repose. . . .”); id. at 866 (refusing to construe Section 5-108
as “provid[ing] anything other than the 20-year repose period”
because it did not permit tolling).
13
improvement first becomes available for its intended
use. . . .
(c) Upon accrual of a cause of action referred to in
subsections (a) and (b) of this section, an action
shall be filed within 3 years.
Id. § 5-108(a), (c).
Anderson claims that Section 5-108 “operates as a statute
of repose because it (1) precludes accrual of any claim,
regardless of when (or if) injury occurs, after a fixed period
of time; (2) is not subject to tolling; and (3) was expressly
intended to confer substantive immunity from suit.” Appellant’s
Br. 31. 4 Anderson argues that, conversely, Section 5-109(a)(1)
is a statute of limitations because it requires an injury to
trigger the running of the statute, cannot eliminate a cause of
action before it accrues, is subject to tolling, and does not
evidence an express grant of substantive immunity on medical
malpractice defendants.
Before addressing Anderson’s arguments, the government
describes two features of Section 5-109(a)(1) that it contends
cut in favor of the statute’s construction as a statute of
4
As to the substantive immunity granted by Section 5-108,
Anderson quotes the Revisor’s Note to Section 5-108 when it was
enacted in 1970: “The section is drafted in the form of a
statute of limitation, but, in reality, it grants immunity from
suit in certain instances.” Carven v. Hickman, 763 A.2d 1207,
1212 (2000) (quoting Revisor’s Note), aff’d sub nom. Hickman ex
rel. Hickman v. Carven, 784 A.2d 31 (2001).
14
repose. First, the government posits that statutes of repose
are “based on considerations of the economic best interests of
the public as a whole and are substantive grants of immunity
based on a legislative balance of the respective rights of
potential plaintiffs and defendants struck by determining a time
limit beyond which liability no longer exists.” Appellee’s Br.
23 (quoting First United, 882 F.2d at 866). Because Section 5-
109(a)(1) was enacted to promote those considerations, the
government argues that the district court properly characterized
it as a statute of repose.
The government contends further that the Maryland General
Assembly enacted Section 5-109(a)(1) not out of concern for
court management or to address problems associated with stale or
fraudulent claims--which the government urges are the principal
purposes underlying statutes of limitations--but “ ‘to contain
the ‘long-tail’ effect of the discovery rule in medical
malpractice cases.’ ” Id. 25 (quoting Hill, 501 A.2d at 32 (“The
statute is a response to the so-called crisis in the field of
medical malpractice claims.”)). In so doing, the government
posits that the legislature acted to “promote society’s interest
in maintaining malpractice insurance coverage and managing the
costs of malpractice litigation,” Newell, 594 A.2d at 1157,
fulfilling the principal purpose underlying a statute of repose
15
of promoting the “economic best interests of the public as a
whole,” First United, 882 F.2d at 866.
The government contends that the Court of Appeals of
Maryland confirmed this policy objective in Hill, where the
court noted that Section 5-109(a)(1) was intended to
“restrict[], in absolute terms, the amount of time that could
lapse between the allegedly negligent treatment of a patient and
the filing of a malpractice claim related to that treatment.”
501 A.2d at 32. As further evidence of this, the government
points to the legislature’s proscription of judicial tolling to
extend statutory limits, claiming that this limitation on
judicial discretion is typical of statutes of repose and
inconsistent with statutes of limitations.
The government also argues that a comparison of Section 5-
108 with Section 5-109(a)(1) supports the construction of the
latter as a statute of repose. The government emphasizes the
legislative purposes it claims animated the enactment of both
statutes, contending that both stemmed from a “public policy
problem resulting from the exposure to potentially prolonged
periods of liability by professionals providing important public
services.” Appellee’s Br. 32. The government submits that both
statutes were enacted “based on considerations of the economic
best interests of the public as a whole” and “based on a
legislative balance of the respective rights of potential
16
plaintiffs and defendants struck by determining a time limit
beyond which liability no longer exists.” First United, 882
F.2d at 866. As such, the government contends that both
statutes exhibit the same key feature of statutes of repose and
should both be so construed.
Responding to Anderson’s first argument in favor of
construing Section 5-109(a)(1) as a statute of limitations--that
the suffering of an injury triggers the running of the statute,
whereas a typical statute of repose begins to run from the date
of a tortfeasor’s act or omission--the government explains that
“[t]here are sound reasons why a time limit need not be capable
of extinguishing a claim before a plaintiff suffers injury in
order for it to be a statute of repose.” Appellee’s Br. 37.
The government contends that, as a general matter, legislatures
must balance competing interests, and, in the case of Section 5-
109(a)(1), the Maryland legislature decided that “its policy
goals would best be served by measuring the time limit from the
occurrence of an injury.” Id. 38.
As for Anderson’s contention that the presence of tolling
provisions renders Section 5-109(a)(1) a statute of limitations,
the government again responds that the legislature’s decision to
include such provisions is part of the balance struck in
addressing the underlying problem. What statutes of repose
forbid, contends the government, is judicially-created tolling
17
because that would upset the balance struck by the legislature.
The features Anderson relies on to support her view of Section
5-109(a)(1) as a statute of limitations are, according to the
government, instead consistent with a statute of repose.
C. Relevant Maryland Cases
Exactly a decade after Section 5-109 was enacted in 1975,
Hill presented the Court of Appeals of Maryland with its first
opportunity to interpret the statute, in a question certified
from the U.S. District Court for the District of Maryland
seeking “a determination as to when the three- and five-year
limitation periods begin to run in a case which involves . . . a
continuous course of treatment for a single medical condition.”
501 A.2d at 32. Hill described Section 5-109 as “Maryland’s
statute of limitations for medical malpractice claims,” id. at
28, that “places a five-year maximum limitation on the filing of
medical malpractice claims,” id. at 29. The court further
concluded “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.” Id. at 32.
According to the Hill court, the purpose of the statute was
“to contain the ‘long-tail’ effect of the discovery rule in
18
medical malpractice cases by restricting, in absolute terms, the
amount of time that could lapse between the allegedly negligent
treatment of a patient and the filing of a malpractice claim
related to that treatment.” Id. The court further described
the statute as a “response to the so-called crisis in the field
of medical malpractice claims.” Id.
Responding to the certified question, the court concluded:
The three- and five-year periods of limitations must,
therefore, be calculated in accordance with the
literal language of § 5-109 [beginning upon the date
in which the allegedly negligent act was first coupled
with harm]. Indeed, the five-year maximum period
under the statute will run its full length only in
those 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.
Id. at 32-33. 5
Three years later, in Geisz v. Greater Baltimore Medical
Center, 545 A.2d 658 (1988), the Court of Appeals of Maryland
considered a case in which the injury to the patient predated
the enactment of Section 5-109. The patient's survivors brought
a wrongful death and survival action more than ten years after
5
Despite the “limitation” nomenclature, the government
argues that the court’s reference to Section 5-109 as “an
absolute five-year period of limitation” that “restrict[s], in
absolute terms, the amount of time that could lapse between the
allegedly negligent treatment of a patient and the filing of a
malpractice claim,” Hill, 501 A.2d at 32 (emphasis added),
compels the statute’s construction as a statute of repose.
19
the patient died of cancer, and the issue presented was whether
the survival claim was barred under the discovery rule of the
general three year statute of limitations in effect prior to the
enactment of Section 5-109. Id. at 659. Although the
applicability of Section 5-109 was not at issue, the court
consistently described it as a “statute of repose for medical
malpractice claims.” Id.; see also id. at 660 n.3, 661, 666-67,
and 669 n.9. Notably, the court stated that Section 5-109
“clearly reinforces the policy of repose underlying all statutes
of limitations and caps the discovery rule.” Id. at 667.
The court seemed to retreat from the Geisz “repose”
characterization in Jones v. Speed, 577 A.2d 64 (Md. 1990). In
Jones, the court described the case as involving “the effect of
Maryland’s statute of limitations upon a medical malpractice
claim.” Id. at 65. Like Hill, the dispute also centered on the
question of when an injury was committed to trigger the
statutory periods in Section 5-109. The court concluded that
“the claim was brought within three years of discovery of [the]
injury; and, it is clear that the claim was brought within five
years of the time the injury was alleged to have been committed.
The statute of limitations is therefore not a bar.” Id. at 70.
Since Jones, opinions of the Court of Appeals of Maryland
have predominantly characterized Section 5-109 as a statute of
20
repose, albeit not consistently. 6 For example, in 1991, the
court in Newell stated, “In malpractice actions against health
care providers, in lieu of the general statute of limitations,
there is a special statute of repose, § 5-109 of the Maryland
Code . . . .” 594 A.2d at 1156. The court nevertheless
concluded that the plaintiff’s claim “was filed within the five-
year limitations period.” Id. at 1157 (emphasis added).
Addressing the parties’ contentions, the court explained,
“Although Richards [the alleged tortfeasor] argues that Newell
[the plaintiff] is attempting to avoid the three-year limitation
in the statute, Newell may just as logically argue that Richards
is attempting to avoid the five-year limitation in the statute.”
Id. (emphasis added). After restating some of the historical
and policy arguments from Hill, the court concluded that “it is
obvious that the primary purpose of [Section 5-109] is to create
a total bar to malpractice actions brought after five years from
the date of the alleged negligent treatment . . . .” Id. 7
6
The lone exception is Rios v. Montgomery County, 872 A.2d 1(Md. 2005), in which the court recounted that in an earlier case
it had “concluded that the statutes of limitations contained in
Section 5-109 as applied to minors violated Article 19 of the
Maryland Declaration of Rights as an unreasonable restriction.”
Id. at 21.
7
We note that Newell refers to date of “the alleged
negligent treatment” as the trigger for the five-year statutory
period. 594 A.2d at 1157. By its plain terms, however, a
plaintiff’s “injury” is the trigger under Section 5-109.
(Continued)
21
In Rivera, a 1996 case, the Court of Appeals of Maryland
again described Section 5-109 as “the medical malpractice
statute of repose.” 699 A.2d at 1195. The case also involved
the determination of when an injury occurs for purposes of
triggering the statutory periods. The Court of Appeals of
Maryland affirmed the judgment of the Court of Special Appeals,
which had reversed the trial court’s determination on summary
judgment that the plaintiff’s claim was time barred, holding
instead that genuine issues of material fact existed as to when
the plaintiff suffered her injury. Notably, the Court of
Special Appeals appeared to reject a characterization of Section
5-109 as a statute of repose, finding that the failure of an
amendment to Section 5-109 proposed in 1987 demonstrated “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.”
Edmonds v. Cytology Servs. of Md., Inc., 681 A.2d 546, 557 (Md.
Ct. Spec. App. 1996). The proposed amendment would have “ma[d]e
it express that the statutory periods begin to run from the date
of the ‘allegedly wrongful act or omission’ in place of the
Pursuant to Hill, an injury is committed on “the date upon which
the allegedly negligent act was first coupled with harm.” 501
A.2d at 32.
22
common law term ‘injury.’ ” Id. (quoting a position paper
prepared by the Legislative Office of the Governor).
According to the Court of Special Appeals, the rejection of
the amendment illustrated that the Maryland legislature, on the
one hand, sought “to combat the ‘long-tail effect’ on medical
malpractice insurance,” while also “wish[ing] to lessen the
potential unfairness to victims of malpractice by not overly
restricting their ability to present their claims.” Id. at 557.
The court concluded that the legislature reconciled the
competing interests by providing a five-year cut off in Section
5-109(a)(1) that would run from the date of the “injury”
resulting from the health care provider’s wrongful act or
omission, rather than the actual date of the act or omission.
Id. at 557-58.
To be clear, the proposed amendment, and the court’s
analysis of it, did not directly address the question of whether
Section 5-109 is a statute of limitations or a statute of
repose. Nevertheless, the import of an “injury,” as opposed to
a defendant’s act or omission, serving as the trigger for the
statutory periods constitutes one of the key disputes between
the parties in this case as to whether Section 5-109(a)(1) is a
statute of repose or a statute of limitations. 8
8
The court further explained,
(Continued)
23
Several other opinions of the Court of Appeals of Maryland
have described Section 5-109 as a statute of repose. In Green
v. North Arundel Hospital Association, 785 A.2d 361 (Md. 2001),
the court referred to “the statute of repose codified in
[Section 5-109], which requires a medical malpractice action to
be filed within five years after the time ‘the injury was
committed.’ ” Id. at 368. This case is notable because it
appears to be the first in which the court specifically
described the five-year period of subsection (a)(1) as a statute
of repose, rather than a generic description of Section 5-109 in
its entirety as either a statute of repose or a statute of
limitations.
The Court of Appeals of Maryland noted this distinction in
Piselli, where it discussed “the three-year statute of
limitations of section 5-109(a)(2),” 808 A.2d at 513 (quoting
the U.S. Court of Appeals Certification Order), and the “five-
year statute of repose for medical malpractice actions,” id. at
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 defendant’s alleged “act” or
“omission.” . . . Despite the plethora of statutes in
other states to this effect, our Legislature did not
adopt such a provision.
Id. at 556-57.
24
519, but nevertheless held generically that “mandating that the
three and five-year limitations periods run against a minor’s
tort claim from the time the minor is 11 years old, or under a
few circumstances 16 years old, is an unreasonable restriction
upon a child’s remedy and the child’s access to the courts,” id.
at 524 (emphasis added).
Finally, in Burnside, the Court of Appeals of Maryland
again referred to Section 5-109 as both a statute of limitations
and statute of repose. First, the Burnside court quoted the
entirety of Section 5-109(a), labeling it “the statute of
limitations.” 986 A.2d at 440. However, the court later
referred to its earlier analysis in Rivera, which it claimed
“also involved the application of the statute of repose to a
failure to diagnose medical malpractice claim.” Id. Thus,
although the district court below relied on Burnside in favoring
a construction of Section 5-109 as a statute of repose, we
cannot be as confident that Burnside meaningfully resolves the
question.
In sum, it does not appear that the Maryland cases have
resolved definitively whether Section 5-109 is a statute of
repose, a statute of limitations, or both, with subsection
(a)(1) serving as a statute of repose and subsection (a)(2) a
statute of limitations. The lack of definitive guidance
necessitates certification of this question.
25
IV. The Parties and Their Counsel
Counsel of record for Anderson are Byron Warnken, Warnken,
LLC, 300 East Joppa Road, Suite 303, Towson, Maryland, 21286,
and Kerry Staton and Jonathan Schochor, Schochor, Federico &
Staton, P.A., 1211 St. Paul Street, Baltimore, Maryland, 21202.
Counsel of record for the United States are Thomas Bondy and
Lewis Yelin, Civil Division, U.S. Department of Justice, 950
Pennsylvania Avenue, N.W., Washington, D.C. 20530.
V. Conclusion
Pursuant to the privilege made available by the Maryland
Uniform Certification of Questions of Law Act, we hereby ORDER:
(1) that the question stated above be certified to the Court of
Appeals of Maryland for answer; (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 the
Clerk of this Court fulfill any request for all or part of the
record simply upon notification from the Clerk of the Court of
Appeals of Maryland.
QUESTION CERTIFIED
26