Anderson v. United States

UNPUBLISHED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Unpublished Order of Certification of a question of law to the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)

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 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.

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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.

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 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

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