This appeal requires us to interpret Maryland Code (1974, 1995 RepLVol.), § 5-109(a) of the Courts and Judicial Proceedings Article (“C.J.”), which sets forth the statute of limitations governing actions against health care providers.
*236 Debra Ann Edmonds succumbed to cancer in 1990, following an alleged misdiagnosis in 1983. In 1993, Wallace Newton Edmonds and Amanda Bree Edmonds (the husband and daughter of Ms. Edmonds), and the Estate of Debra Edmonds, all appellants, filed wrongful death and survival claims against Dr. William Jaffurs, Cytology Services of Maryland, Inc. (“Cytology”), Dr. Myrna Rivera, and Ivan Mattei, M.D., P.A., appellees, alleging that, in 1983, appellees had negligently failed to diagnose Ms. Edmonds’s cervical cancer. When the matter proceeded to court, appellees moved for summary judgment, contending that appellants’ claims were barred by limitations under C.J. § 5-109(a). The Circuit Court for Prince George’s County granted the motion as to all claims. Appellants now present two questions for our consideration:
I. Did the lower court err by granting summary judgment against Wallace Newton Edmonds and Amanda Bree Edmonds on the grounds that their wrongful death claims were barred by the applicable statute of limitations?
II. Did the lower court err by granting summary judgment against the Estate of Debra Edmonds on the grounds that the survival claim was barred by the applicable statute of limitations?
For the reasons stated below, we conclude that the court erred in granting summary judgment. Accordingly, we shall vacate the judgment and remand the case for further proceedings.
FACTUAL SUMMARY
In 1980, Debra Edmonds, who was then twenty-four years old and the mother of a young child, came under the care of Dr. Joseph Murgalo, a gynecologist who is not a party to this litigation. While under Dr. Murgalo’s care, Ms. Edmonds experienced vaginal bleeding, abnormal discharge, and cervical eversion 1 and erosion. On February 19, 1981, Dr. Murgalo *237 performed a cryoconization of Ms. Edmonds’s cervix. 2
Ms. Edmonds continued to experience problems associated with cervical eversion. In September 1981 and April 1982, she had abnormal Pap smears. 3 In October 1982, Dr. Murgalo noted that the cervix needed attention.
On July 15, 1983, Dr. Murgalo performed a biopsy on a portion of white epithelium of the cervix. 4 The biopsy specimen was sent to Cytology, where Dr. Jaffurs, a Cytology employee, examined it. Dr. Jaffurs diagnosed “severe epithelial dysplasia—epidermoid carcinoma-in-situ (cervical intraepithelial neoplasia—3).” 5 In a “comment” on his written re *238 port, Dr. Jaffurs stated: “Patient should be considered for further diagnostic surgery.”
On July 28, 1983, Dr. Murgalo ordered an additional biopsy of Ms. Edmonds’s cervix. The specimen was examined by Dr. Rivera, an employee of the laboratory of Ivan R. Mattei, M.D., P.A. 6 Dr. Rivera diagnosed “foci of severe epithelial dysplasia—5.” Shortly thereafter, Dr. Murgalo performed a cervical conization. 7 The specimen was sent to the pathology department of Prince George’s Hospital and Medical Center. Dr. Abolghassem Hatef, a pathologist who is not a party to this litigation, examined the specimen and stated in a subsequent report: “Cervical cone showing two minute foci of severe dysplasia. All margins are free—5.”
Following the cervical conization, Ms. Edmonds remained under Dr. Murgalo’s care. Between the evaluation of the conization in 1983 and August 1988, Dr. Murgalo continued to follow Edmonds and took periodic Pap smears that were benign. 8 During this period, Ms. Edmonds apparently did not report any symptoms suggestive of cervical cancer, and she did not undergo any further diagnostic procedures.
*239 In August 1988, Edmonds began to experience pain in her right sacroiliac and low back regions. X-rays taken at that time showed a “density” in the right mid-abdomen. That same month, Edmonds was admitted to the hospital for removal of her gallbladder. At that time, she complained of “continuous low back pain.”
On May 1, 1989, Edmonds returned to Dr. Murgalo for an office visit, complaining of “severe pain” in the right buttocks, radiating down the right thigh. She also indicated that the pain had been “off and on for four months.” 9 She saw Dr. Murgalo again on June 5, 1989 and complained of pain in the right sacroiliac area, radiating down to the groin and to the interior thigh. Dr. Murgalo referred her to an orthopedist. Despite the orthopedic care, Ms. Edmonds’s back pain persisted.
On August 28, 1989, an electromyogram and nerve conduction study revealed “profound denervation of the adductors in the right leg consistent with a severe neuropathy involving the right obdurator nerve.” 10 Ms. Edmonds continued to suffer excruciating pain in her right mid-lumbar spine and low back areas. She also began to lose a significant amount of weight.
Dr. Guy Gargour examined Ms. Edmonds on October 17, 1989 and performed a CT scan. He discovered a “mass” in *240 the right pelvic area. On November 5, 1989, Edmonds was admitted to Georgetown University Hospital for a cancer evaluation. She was diagnosed on November 8, 1989 as having “squamous cell cancer of unknown origin.” 11 She began to receive chemotherapy and radiation treatment. After twenty-five days in the hospital, Edmonds was discharged. She returned to the hospital for cancer treatment on an outpatient basis.
On April 5, 1990, Edmonds was re-admitted to the hospital with symptoms of jaundice, anorexia, nausea, and vomiting. She died on April 11,1990, at the age of thirty-four.
On April 9, 1993, Wallace and Amanda Edmonds filed a statement of claim in the Health Claims Arbitration Office. 12 The claim included both wrongful death and survival actions. They alleged that Dr. Jaffurs, Dr. Rivera, Cytology, and Ivan R. Mattei, M.D., P.A. were negligent. After the parties waived the jurisdiction of the Health Claims Arbitration Office, appellants filed a complaint in the circuit court on June 3, 1994. 13 They alleged that appellees (1) failed to diagnose “invasive cancer” in the cervical specimens that they had analyzed in 1983; (2) failed to advise Dr. Murgalo “of the need for surgical treatment to remove the tumor”; (3) failed “to obtain an adequate history” from Edmonds and Dr. Murgalo; and (4) failed “to consider the diagnosis of invasive cancer and discuss appropriate treatments.”
*241 Dr. Thomas F. Rocereto, one of appellants’ experts, testified at deposition that Ms. Edmonds had “microscopic cervical cancer” at the time the original biopsies were taken in July 1983. He stated that, at that time, she had “at least ... Stage I” cervical cancer, meaning that “[t]he tumor, as far as I could tell from the record, was confined to the cervix.” He added, however, that, with Stage I tumors, there is a “ten to fifteen percent chance” that the lymph nodes are also involved.
Dr. Rocereto also opined that, had Ms. Edmonds been correctly diagnosed, the standard of care for her treatment would have been a radical hysterectomy and lymph node dissection. Moreover, he said that, if she had been treated properly in 1983, she would have had at least a seventy-five to eighty-five percent probability of survival. Dr. Rocereto added that Ms. Edmonds’s chances of survival could have been more than ninety percent if her cervical cancer were truly microscopic in 1983. He also testified that, by 1989, when Ms. Edmonds complained of severe pain, she had no chance of survival. He was unable to identify, however, the point in time when Ms. Edmonds’s cancer became incurable.
Appellees disputed appellants’ contentions and denied all liability. They asserted that the biopsy specimens were correctly analyzed in 1983. They also claimed that Ms. Edmonds did not die from cervical cancer. Appellees based this contention, in part, on the autopsy report from Georgetown University Hospital, which stated in its “History” section that “Primary cervical ... carcinoma[ ] had been previously excluded.” The autopsy report also said, in its “Summary,” that “the major part of the tumor appeared to be located within the pancreas,” although the pathologist was unable to determine the origin of the cancer. Further, the Summary indicated that “[c]areful gross and microscopic examination did not reveal any other possible site [other than the pancreas] for primary carcinoma.” 14 In addition, Dr. James F. Barter testified at a deposition that “there was no evidence that [Ms. *242 Edmonds] had an invasive squamous cell carcinoma of the cervix.”
Notwithstanding these factual disputes, appellees filed motions for summary judgment, asserting that appellants’ claims were time-barred under C.J. § 5-109(a), which requires that an action be filed within three years of the date on which “the injury was discovered” (C.J. § 5-109(a)(2)), or within five years from the time “the injury was committed” (C.J. § 5-109(a)(1)), whichever is shorter. In their opposition, appellants contended that there was a genuine dispute of material fact as to when the five year limitations period in C.J. § 5-109(a)(1) had commenced; they argued that an “injury” -within the meaning of that provision occurred only when Ms. Edmonds’s cervical cancer metastasized to other parts of her body, and the medical experts were unable to state when that occurred. They also claimed that there was a factual dispute that precluded summary judgment with respect to the three year limitations period in C.J. § 5-109(a)(2), because “[t]here is absolutely no way that Debra Edmonds, as a person of ordinary prudence, would then suppose that it was necessary to re-examine the original tissue biopsies to be absolutely certain that they were correctly read.” After a hearing, the court granted the motions, although the judge stated that he believed that the result was “extremely unfair.”
We shall include additional facts in our discussion of the issues presented.
STANDARD OF REVIEW
Maryland Rule 2-501 governs summary judgment motions. It is well settled that, in resolving a summary judgment motion, the court does not decide disputed facts. Rather, the court must determine whether there are disputes of material fact so as to make a trial on the merits necessary.
Maryland Casualty Co. v. Lorkovic,
In the absence of disputed facts, the court must determine whether a party is entitled to judgment as a matter of law.
Beatty, supra,
DISCUSSION
A.
C.J. § 5-109(a), the statute of limitations in issue, states:
*244 An action for damages for an injury arising out of the rendering of or failure to render professional services by a health care provider, as defined in § 3-2A-01 of this article, shall be filed within the earlier of:
(1) Five years of the time the injury was committed; or
(2) Three years of the date the injury was discovered.
Statutes of limitation are intended, in part, to ensure fairness by preventing “stale” claims.
Feldman v. Granger,
Prior to the enactment of C.J. § 5-109, medical malpractice claims were governed by the general statute of limitations in C.J. § 5-101. That section provides, in part, that “[a] civil action at law shall be filed within three years from the date it accrues----” Under this rule, a medical malpractice cause of action was deemed to “accrue” when the claim was discovered, i.e., at the time when the plaintiff either knew of his or her injury or, in the exercise of reasonable diligence, should have discovered it.
See Waldman v. Rohrbaugh,
*245 As the plaintiffs claim did not accrue until it was discovered, there could be a considerable time lag between the date when the physician rendered services and the date on which the cause of action accrued. Such time lags led to a phenomenon known as the “long tail effect” on medical malpractice insurance carriers. Because of the prospect that a physician’s services could result in claims years after the service, insurance companies faced uncertainties in estimating their potential liabilities. The result was an increase in medical malpractice insurance rates.
In 1975, in the midst of a perceived crisis in medical malpractice insurance, the General Assembly enacted C.J. § 5-109. We have interpreted C.J. § 5-109(a)(2) to provide the plaintiff with three years from the date the wrong was discovered or reasonably should have been discovered.
See Russo v. Ascher,
In Hill, the Court described the operation and purpose of C.J. § 5-109(a)(l):
[W]e think that the words of § 5-109 expressly place an absolute five-year period of limitation on the filing of medical malpractice claims calculated on the basis of when the injury was committed, i.e., the date upon which the allegedly negligent act was first coupled with harm. The purpose of the statute, readily evident from its terms, was to contain the “long-tail” effect of the discovery rule in medical malpractice cases by restricting, in absolute terms, the amount of time which could lapse between the allegedly negligent treatment of a patient and the filing of a malpractice claim related to that treatment. The statute is a response to the *246 so-called crisis in the field of medical malpractice claims ... and contains no room for any implied exceptions.
Id.,
Appellants assert that the trial court erred in entering summary judgment, because there was a genuine dispute of fact as to when Ms. Edmonds suffered an “injury” within the meaning of C.J. § 5-109(a)(l). They claim that the trial court erroneously concluded, as a matter of law, that Ms. Edmonds suffered an injury in 1983, when appellees allegedly misdiagnosed the biopsy specimens. They point out that the decedent did not become ill until August 1988, when she began to experience back pain. 16 Because of this “lack of any discernible effect” on Ms. Edmonds, appellants argue that there was a factual dispute as to when appellees’ negligence harmed or “injured” the decedent.
Appellants further contend that the word “injury” in C.J. § 5—109(a)(1) is ambiguous, and that interpreting it in the manner suggested by appellees would produce “absurd and unjust consequences”; Ms. Edmonds would have been required to file her lawsuit prior to July 1988, a time period in which she was in apparent good health and free from any signs or symptoms of cancer. Appellants assert that the General Assembly could not have intended such “unjust, oppressive or absurd consequences.” Finally, appellants suggest that, if C.J. § 5—109(a)(1) required Ms. Edmonds to file her claim while she was in apparent good health, then it constitutes an unconstitutional denial of access to the courts, in violation of Article 19 of the Maryland Declaration of Rights. 17
*247 In response, appellees vigorously contend that, if appellants’ allegations are accepted as true, then Ms. Edmonds suffered an “injury” when appellees negligently failed to diagnose her cancer in 1983 or “certainly soon thereafter.” Thus, they assert that appellants’ claim is time-barred, because it was filed more than five years after the “injury was committed.”
B.
At the outset, we focus on appellants’ contention that there is a factual dispute as to when Ms. Edmonds suffered an “injury.” Appellants seemingly argue that Ms. Edmonds was injured when she experienced pain and other symptoms in 1988; they assert that “[t]he record is devoid of any evidence that after Dr. Murgalo performed the conization on August 1, 1983[she] had any signs or warnings of cancer, such as bleeding, loss of weight, change in appetite, nausea, pain, or discomfort.”
We have found some authority, not cited by appellants, to support the position that an “injury” occurs when a person first experiences symptoms. The statute of limitations for medical malpractice actions in California is similar to Maryland’s,
see
Cal.Civ.Proc.Code § 340.5 (West 1982),
18
and the California courts have consistently interpreted the word “injury” to mean the “damaging effect” of the negligent act.
See Larcher v. Wanless,
But California’s “appreciable harm” or “damaging effect” interpretation could result in a time lag between the date of the wrongful act and the date on which the limitations period would commence. In
Larcher v. Wanless,
Defendants seem to argue from the premise that the undiluted purpose of section 340.5 was to lower malpractice insurance rates by enabling insurers to reduce the amount of reserves they need maintain to meet potential claims. They urge that because a statute of limitations in wrongful death actions which extinguishes a large number of claims before they accrue might substantially curtail malpractice exposure, the legislation should be construed in conformity with that end.
But section 340.5 evinces no such single-minded purpose. Instead, as originally worded, the statute appears to have been a compromise between concern over the extended exposure of medical practitioners to malpractice liability and a desire not to bar potentially worthy plaintiffs from court before they have a fair chance to bring suit. The *249 Legislature declined to adopt other proposals before it which held out the promise of substantially greater reductions in malpractice exposure and necessary insurance reserves. Thus the Legislature did not date the limitation period from the “alleged wrongful act, ” as provided in one proposal. (Assem. Bill No. 135 (1969 Reg. Sess.).) Instead, the limitation period was tied to “injury, ” a word of art which might refer to an event occurring some time after the commission of a “wrongful act.”
Id.,
In
Steingart v. Oliver,
Steingart did not notice any change in the lump between 1982 and 1985. In 1985, however, she “noticed a change in the contour of the upper outer quadrant of her right breast.”
The lower court held that the claim against White was barred by limitations, but the appellate court reversed. It noted the general rule that “ ‘the event which activates the three-year limitations period is the moment the plaintiff discovers the harm caused by the alleged negligence.’ ”
Id.,
“We do not see how the rule can be otherwise. In a medical malpractice action, where an element of the cause of action is damages, a cause of action cannot accrue until the plaintiff has suffered some legally compensable injury. To adopt a rule that the statute begins to run on the date of the alleged negligence would mean that a plaintiff is denied all possibility of recovery simply because the injury did not manifest itself until sometime after three years from the date of the negligent act. Indeed, where the injury does not manifest itself within three years of the negligent act, a plaintiff would have no opportunity whatsoever to recover since the three-year period would effectively bar the action before the cause of action even accrued.”
Steingart,
Applying these rules, the court concluded that Steingart’s complaint was timely filed. As for the three year period, the court stated: “[I]t must be concluded [that] Steingart suffered no damaging effect or appreciable harm from White’s asserted neglect until Newman discovered her cancer in April 1985.”
Steingart,
As we see it, the view of the California courts, typified by
Steingart
and
Hills,
is essentially that an “injury” occurs when the patient “discovers” the harm caused by the physician’s negligent act. We cannot adopt that view, because it would
*251
effectively re-incorporate into C.J. § 5-109(a) the same open-ended discovery rule that the General Assembly sought to abolish. Moreover, such an interpretation would render meaningless the dichotomy between C.J. § 5-109(a)(l) and C.J. § 5-109(a)(2).
19
It would also contradict the Court’s statement in
Hill v. Fitzgerald
that the five year period in C.J. § 5—109(a)(1) runs “without regard to whether the injury was reasonably discoverable.”
Id.,
*252 c.
Appellees argue that, on the facts of this case, the failure to diagnose resulted in an immediate “injury” to Ms. Edmonds for purposes of C.J. § 5-109(a). Appellees’ position rests on the premise that, in this case, the “injury” contemplated by C.J. § 5-109(a) necessarily occurred at the same time as the negligent act or omission. Our research reveals that Delaware subscribes to the view that the time of “injury” coincides with the time the negligent act was committed.
Like Maryland’s, Delaware’s statute of limitations in medical malpractice actions includes a discovery provision and focuses on the time of “injury.” Del.Code Ann. tit. 18, § 6856 (1989) provides, in pertinent part:
No action for the recovery of damages upon a claim against a health care provider for personal injury, including personal injury which results in death, arising out of malpractice shall be brought after the expiration of 2 years from the date upon which such injury occurred; provided, however, that:
(1) Solely in the event of personal injury the occurrence of which, during such period of 2 years, was unknown to and could not in the exercise of reasonable diligence have been discovered by the injured person, such action may be brought prior to the expiration of 3 years from the date upon which such injury occurred, and not thereafter____
(Emphasis supplied.)
The Delaware courts have construed the statutory phrase “injury occurred” as referring to the date when “the wrongful act or omission occurred.”
Benge v. Davis,
The court also rejected Dunn’s contention that limitations did not begin to run until he began to experience pain in 1975. Dunn argued that, in the five preceding years, he had no “damages” that would be cognizable in a negligence action, and thus no “injury.” The court said:
The answer, however, must be that the statute was a response to a particular issue in a particular context and that to construe it broadly without the bounds of that context, as plaintiff desires, would emasculate its very purpose. Furthermore, if the General Assembly intended there to be a line of demarcation based on the no pain-no injury rationale, it would have said so in some precise manner. We cannot frustrate the clear legislative intent. ...
Id.,
The Delaware Supreme Court has since applied
Dunn's
injury-equals-wrongful-act interpretation in cases involving alleged negligent misdiagnoses.
See Benge v. Davis, 553
A.2d 1180 (failure to diagnose breast tumor);
Reyes v. Kent General Hospital, Inc..,
We cannot accept the Delaware rule either. C.J. § 5-109(a)(1) does not date the five year limitations period from when the “wrongful act or omission” occurred. Instead, it specifically declares that the period begins to run on the date when the “injury was committed.”
A comparison of C.J. § 5-109(a) with medical malpractice statutes of limitations in other jurisdictions illustrates the importance of this phraseology. Like Maryland, many states enacted special medical malpractice statutes of limitations during the medical malpractice insurance crisis of the 1970’s. But most of these statutes use the date of the health care provider’s “act” or “omission” as a reference point, and not the date of the patient’s “injury.” Some of these statutes contain both a “discovery” period and a longer “outer limit” period, and provide that the action must be filed within the time period that expires earlier. (See the statutes listed in Appendix A.) Other statutes that have attempted to counteract the “long tail effect” provide that limitations begins to run on the date of the “act” or “omission,” but they do not include a discoverability clause. (See the statutes listed in Appendix B.)
In 1977, the American Bar Association’s Commission on Medical Professional Liability recommended implementation of a statute of limitations requiring an action to be brought within two years from the date of the “incident which gave rise to the action,” or one year from when the injury was discovered or reasonably should have been discovered, whichever occurred later, but in no event more than “eight years after the occurrence of the incident which gave rise to the injury.” (Emphasis supplied).
The Maryland Legislature could have followed the great majority of jurisdictions by enacting a statute providing for the commencement of limitations on the date of the defen
*255
dant’s alleged “act” or “omission.”
20
Such language would have compelled the conclusion that limitations begins to run from the date of the misdiagnosis.
See Humphreys v. Roche Biomedical Lab., Inc.,
In fact, while enacting amendments to C.J. § 5-109 in 1987, see 1987 Md. Laws, ch. 592, the General Assembly considered and rejected a proposal that would have brought the statute more in line with those in other jurisdictions. Senate Bill 225, as originally proposed, would have amended C.J. § 5-109(a)(l) to provide that the five year period would begin to run from the date of “the allegedly -wrongful act or omission,” rather than from the date when “the injury was committed.” This amendment was proposed by the Governor’s Oversight Committee on Liability Insurance, along with another proposal to *256 change the limitations period for medical malpractice claims by minors. A briefing paper prepared by the Legislative Office of the Governor, explaining the proposed changes, stated, in part:
[T]he proposed legislation clarifies that the statute begins to run from the occurrence of the allegedly -wrongful act or omission.
The Court of Appeals has recently given an expansive reading to the term “injury” in § 5-109. The Court ruled in Hill v. Fitzgerald,304 Md. 689 ,501 A.2d 27 (1985), that an “injury” is committed on the date that the allegedly negligent act was first coupled with harm. Accordingly, it would be possible under this interpretation to bring an action for a harm that had not manifested itself for years after the negligent act. In some cases, this interpretation effectively negates the limitations period. Such unexpected expansions of risk exposure diminish predictability and pricing stability and, generally, contribute to the soaring premiums in the Maryland malpractice insurance marketplace.
* * * * % *
The proposed bill modifies current law ... [to] make it express that the statutory periods begin to run from the date of the “allegedly wrongful act or omission” in place of the common law term “injury.”
This proposal, however, was deleted from the bill in the Senate Judicial Proceedings Committee. The Committee’s report for the bill stated: “The intent of the deleted language was to overturn the decision of the Court of Appeals in
Hill v. Fitzgerald,
This history provides strong evidence that the General Assembly did not intend to create an ironclad rule that a medical malpractice claim would be barred if filed more than five years after the health care provider’s wrongful act. Instead, as the California Supreme Court suggested in Larcher *257 v. Wanless in reference to that state’s statute, the Legislature sought to balance two competing interests. First, it wished to combat the “long tail effect” on medical malpractice insurance. See Committee Report for Senate Bill 225, at 1 (“The intent of this bill is to promote predictability and pricing stability and reduce the huge increase in medical malpractice insurance premiums by shortening the ‘long tail’ for claims involving injury to minors.”). Simultaneously, however, it wished to lessen the potential unfairness to victims of malpractice by not overly restricting their ability to present their claims. The Legislature reconciled these competing interests by providing that the five year “cutoff” period in C.J. § 5-109(a)(l) would begin to run on the date when the “injury” resulting from the health care provider’s wrongful act or omission occurred, rather than from the date of that act or omission.
In sum, the General Assembly was evidently made aware of the potential ramifications of retaining the term “injury.” Nonetheless, it elected to leave that language unchanged. Adopting the Delaware rule, therefore, would be to adopt a rule that the General Assembly has rejected.
D.
Our analysis focuses on the concept of “injury,” because the five year limitations period embodied in C.J. § 5-109(a) is triggered when the “injury” occurs. According to the Court in
Hill,
an injury occurs when “the negligent act [is] coupled with some harm [to create] a legally cognizable wrong.”
Id.,
In our view, a negligent misdiagnosis is not necessarily an “injury” for purposes of limitations; a wrongful “act” or “omission” is not the same as an “injury”. Indeed, the two need not necessarily occur simultaneously. 21
*258
The distinction between an injury and a wrongful act is reflected in the elements of a negligence claim, for which a plaintiff must plead and prove the following: (1) the defendant had a duty to protect the plaintiff from injury; (2) the defendant breached that duty; (3) the plaintiff suffered
actual injury or loss;
and (4) that injury or loss was the proximate result of the defendant’s breach.
Baltimore Gas and Electric Co. v. Lane,
The California courts, in their interpretation of Cal.Civ. Proc.Code § 340.5, supra, have also recognized the distinction between the health care provider’s “act” and the patient’s “injury.” Although we disagree with their “appreciable harm” standard for determining when the injury occurs, we completely agree with their recognition of the distinction between the two concepts:
*259 “Wrongful act” and “injury” are not synonymous.... The word “injury” signifies both the negligent cause and the damaging effect of the alleged wrongful act and not the act itself.... The date of injury could be much later than the date of the wrongful act where the plaintiff suffers no physical harm until months or years after the wrongful act.
Steketee v. Lintz, Williams & Rothberg,
To determine whether an “injury” has been “committed” so as to trigger the limitations period in C.J. § 5—109(a)(1), the touchstone of the inquiry is whether the patient has suffered harm that is “legally cognizable.” In
Hill,
which involved an alleged negligent misdiagnosis, the Court held that, to activate the limitations period in C.J. § 5—109(a)(1), “all that is required is that the negligent act be coupled with some harm in order for a
legally cognizable
wrong—and, therefore, injury— to have occurred.”
Id.,
Hill claimed that his doctor had negligently diagnosed him as having multiple sclerosis, when he actually had a spinal tumor. He contended that the incorrect diagnosis “was made as early as [Hill’s] first visit on January 27, 1975 and certainly not later than February 14, 1975.”
Id.,
*260 In Oxtoby, the Court construed the word medical “injuries” in the effective date clause of the Health Care Malpractice Claims Act, C.J. §§ 3-2A-01 to 3-2A-09. The Act provided an effective date of July 1,1976 and said it “shall apply only to medical injuries occurring on or after that date.” 1976 Md. Laws., ch. 235, § 5. If the patient suffered a “medical injury” on or after the effective date, the claimant would have been required to submit to arbitration.
The defendant doctor in Oxtoby undertook to perform a total vaginal hysterectomy and bilateral salpingo-oophorectomy (the removal of both fallopian tubes and ovaries) in February 1974, in order to prevent the patient from developing ovarian cancer. The doctor allegedly failed to remove all of the left ovary and fallopian tube. The patient developed ovarian cancer in April 1977 and died in 1980.
The Court specifically rejected the definition of “injury” contained in § 7(1), comment
a
of the Restatement (Second) of Torts (1965), which stated that the “invasion of a legally protected interest” could constitute an “injury,” even in the absence of harm.
Id.,
“The word ‘injury,’ in ordinary modern usage, is one of very broad designation. In the strict sense of the law, especially the common law, its meaning corresponded with its etymology. It meant a wrongful invasion of legal rights and was *261 not concerned with the hurt or damage resulting from such invasion. It is thus used in the familiar law phrase damnum absque injuña [damage without violation of a legal right, for which no legal action will lie]. In common parlance, however, it is used broadly enough to cover both the damnum and the injuña of the common law, and indeed is more commonly used to express the idea belonging to the former word, namely, the effect on the recipient in the way of hurt or damage, and we cannot doubt that at this day its common and approved usage extends to and includes any hurtful or damaging effect which may be suffered by any one [sic].”
Oxtoby,
The Court concluded that, “in general, ‘medical injuries’ as used in the effective date clause refers to legally cognizable wrongs or damage arising or resulting from the rendering or failure to render health care.” Id. (Emphasis supplied.) It added that the “concurrence of an invasion of [the decedent’s] rights and of harm to [her]” would constitute a medical injury and an actionable tort. Id.
To set forth a viable claim for negligence, a plaintiff must allege,
inter alia,
“damages.” For example, in
Owens-Illinois v. Armstrong,
To have a cause of action based on claims of product liability or negligence law submitted to the jury, the plaintiff must produce evidence of a legally compensable injury.
i¡t # sfc if: sji #
Sections 388 and 402A of The Restatement (Second) of Torts (1965) identify “harm” as one of the necessary elements of a cause of action in both negligence and strict *262 liability. The Restatement, 7(2), defines “[t]he word ‘harm’ [as] used throughout the Restatement ... to denote the existence of loss or detriment in fact of any kind to a person resulting from a cause.” Comment b to section 7 further explains that “ ‘[h]arm’ implies a loss or detriment to a person, and not a mere change or alteration in some physical person, object or thing---- In so far as physical changes have a detrimental effect on a person, that person suffers harm.” These definitions, as used in the Restatement (Second) of Torts, have been cited with approval in Maryland.
Id.,
In view of the foregoing authorities, we conclude that an “injury” within the meaning of C.J. § 5-109(a) is not “committed” unless, as a proximate result of the wrongful act, the patient sustains damages. Once damages are sustained, the health care provider’s wrong is actionable, or “legally cognizable,” within the meaning of Hill and Oxtoby. 23 As we see it, this is the most reasonable interpretation of C.J. 5-109(a), given its language and the interpretive case law. 24
*263
In appellees’ view, the limitations clock began to tick at the moment of the alleged misdiagnoses in 1983. Yet if Ms. Edmonds had filed suit against appellees immediately after their allegedly negligent acts, her suit may have been dismissed for lack of damages or lack of damages that could be proven with reasonable certainty.
See Pierce v. Johns-Manville Sales Corp.,
Appellees’ interpretation also flies in the face of the familiar principle of statutory construction that, in choosing between competing interpretations of a statute, “the eourt ‘may consider the consequences resulting from one meaning rather than another, and adopt that construction which avoids an illogical or unreasonable result, or one which is inconsistent with common sense.’ ”
Maryland Automobile Insurance Fund v. Erie Insurance Exchange,
*264
The cases that appellees cite in support of their position that Ms. Edmonds suffered an immediate “injury” at the time of the alleged misdiagnosis are not persuasive. Appellees rely on
Oxtoby
to argue that an “injury” always occurs at the time of the physician’s wrongful act. But, contrary to appellees’ assertion, the Court in
Oxtoby
did not hold that the patient suffered an “injury” at the time of the failed surgery. The trial court found that the patient suffered a medical injury prior to July 1, 1976, and the Court held that, because the record was inadequate to permit review of the finding, the finding had to stand.
Id.,
Appellees also rely on our decisions in
Russo v. Ascher, supra,
In
Russo,
the patient filed a claim in 1985 with the Health Claims Arbitration Office, alleging that the defendant psychiatrist had negligently failed to diagnose a cyst in her brain during the course of her treatment from 1971 to 1982. The only test that could detect this type of cyst was a CAT scan.
Id.,
Appellees suggest that this holding means that a plaintiff invariably suffers an “injury” immediately upon a misdiagnosis. To the contrary, we made clear that the patient, “[djuring the course of’ her treatment by the psychiatrist from 1971 to 1982, “experienced headaches, vomiting, dizziness, a gait problem and recurrent episodes of falling,” and that her “condition had been deteriorating for over eleven years to the point where she could not walk unassisted.”
Id.,
In
Dennis v. Blanchfield,
She testified that the chemotherapy caused nausea, vomiting, diarrhea, and weakness. She further testified that the treatment caused an uncomfortable dryness of the mouth, nose, and eyes, and that she still suffered from this condition at the time of trial.... Mrs. Blanehfield testified that the diagnosis and treatment had caused her to become extremely nervous and that she had lived for months in a state of severe depression; she stated that she suffered *266 from chronic memory loss, an inability to concentrate, “head swims,” and nightmares. A psychiatrist testified that she suffered from “anxiety depressive reaction,” that this condition had been caused by the improper diagnosis and treatment, and that she would require some two years of psychotherapy to alleviate her condition. It was also testified, that during the period when she believed her death to be imminent, she broke off her engagement to be married and was forced by the side effects of the chemotherapy to quit her job as a school bus dispatcher. She testified that she had been unable to regain this job and that, as a result, she had lost wages.
Id.,
The case of
Jones v. Speed,
But Jones, like Russo and Dennis, did not hold that a physician’s negligent act automatically results in immediate “injury,” even in the absence of legally cognizable damages. *267 First, the issue of the definition of “injury” was not before the Court. Second, Jones did apparently have legally cognizable damages immediately after her misdiagnosis, in the form of pain from her “severe and often debilitating headaches,” that would not have occurred if Dr. Speed’s diagnosis had been correct, as shown by the fact that surgical removal of her tumor in 1986 eliminated her symptoms. Jones is, therefore, also not inconsistent with our view.
Finally, appellees refer to our decision in
Johns Hopkins Hospital v. Lehninger,
The hospital contended that the claim should have been submitted to arbitration. Although the hospital
conceded
that Lehninger had suffered a “medical injury” prior to July 1, 1976, it argued that arbitration was required because (1) Lehninger’s claim was
filed
after July 1, 1976, and (2) the injuries continued to manifest themselves after July 1, 1976.
Id.,
We cannot ignore
Newell v. Richards, supra,
[T]he health care provider ha[s] the burden of pleading and proving that the claimant’s action is time-barred by either of the two statutory provisions. 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.,
While the foregoing statement in
Newell
could be read to say that the five year limitations period in C.J. § 5-109(a)(1) runs from the date of the health care provider’s “negligent act,” the issue of when an “injury” is committed within the meaning of the statute was not before the Court in
Newell. See id.,
To be sure, we make no judgments about the General Assembly’s ability to declare that limitations shall run from the date of the health care provider’s wrongful act, regardless of the existence of legally cognizable damages. For example, *269 in C.J. § 5-108(b), it has provided that no action may be brought against an architect, engineer, or contractor for injuries caused by the defective condition of an improvement to real property if the injury “occurs more than 10 years after the date the entire improvement first became available for its intended use.” We hold only that the Legislature did not express such an intention in this case. The Legislature is, of course, free to amend the statute.
We emphasize, however, that we are
not
re-introducing a discovery rule into C.J. § 5—109(a)(1); the Legislature specifically abolished the discovery rule when it enacted that provision. But, the five year limitations period begins to run from the time of injury; that occurs when the patient sustains legally cognizable damages, even if the damages are hidden, undiscovered, and undiscoverable.
See Hill, supra,
In addition, we reiterate the rule from the preceding case law that the five year period begins to run when injury (or “damages”)
first
arises, and not when
all
damages resulting from the physician’s negligence have arisen. The
Hill
Court stated that all that is required for an injury to exist “is that the negligent act be coupled with
some
harm.”
Id.,
CONCLUSION
A patient sustains an “injury” within the meaning of C.J. § 5-109(a)(l) when, as a result of the tort, he or she first sustains compensable damages that can be proven with reasonable certainty.
See Davidson v. Miller,
In the instant case, the trial judge determined, as a matter of law, that Debra Edmonds suffered an “injury” at the moment of the alleged misdiagnoses in 1983. Given the posture of a summary judgment proceeding, and in light of the evidence proffered by appellants, the court erred. Dr. Rocereto testified that it was not possible to determine the point between 1983 and 1988 when the cervical cancer spread to other sites in Ms. Edmonds’s body:
*271 Q: Can you tell me if you are able to stage her disease in December of 1984 what stage she was in at that point?
A: That’s impossible.
# * # * * *
Q: If we assume that 75 to 85 percent cure ratio in 1983 and zero in 1989, can you tell me what her cure rate would have been in 1984?
A: Now, are you asking me if it was diagnosed at that time or if she had proper treatment?
Q: Diagnosed?
A: In 1983.
Q: Diagnosed?
A: I have no records to help me on that so I really can’t tell you where the tumor was at that time.
Q: Untreated.
A: I still can’t tell you.
Q: You can’t tell me what stage her disease would have been in 1984.
A: There is—no, I can’t. I can assume it was the same, hadn’t progressed much. It’s impossible. There’s no records that give me any hint at all on that. The only other time I can tell you when the—about the disease is when nerve root involvement ivas involved.
Q: When was that?
A: That was about a year or two before she was diagnosed. (Emphasis supplied.)
Dr. Roeereto also indicated that this inability stems in part from the nature of cancer:
Q: There’s no rule you can look at through your experience to work our way backwards from 1989?
A: No____ [CJancer in one instance may spread rapidly and in other instances may be very slow growing, may lay dormant, so someone that does have a very early stage cancer that’s undetected in one year, five years later may be the same then suddenly a year later has a lot of discomfort *272 and advancing cancer. It’s one of those things about cancer we don’t understand completely.
(Emphasis supplied.) He later testified: “[TJhere obviously was a microscopic tumor present and that tumor may have been spreading all those years as microscopic disease very slowly, it may have been sitting dormant somewhere.” (Emphasis supplied).
In addition, Dr. Stanley Burrows testified at his deposition:
I can only say, certainly at the time she was seen at Georgetown she was incurable. I am suspicious she may have been incurable, or at least have a much lower probability of cure, as early as December ’84, but I can’t say that with any certainty. Perhaps I am going out on a limb even raising that particular date.
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 Edmonds suffered any symptoms from the cancer prior to August 1988. Therefore, we conclude that the circuit court erred in ruling, as a matter of law, that appellant’s claims were time-barred under the five year limitations provision in C.J. § 5-109(a)(l). 27
SUMMARY JUDGMENT VACATED.
CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
COSTS TO BE PAID BY APPELLEES.
*273 APPENDIX A
The following twenty-two medical malpractice statutes of limitation include a discoverability clause, but also use the health care provider’s “act” or “omission” as a reference point:
Ala.Code § 6-5-482 (1983): action must be brought within two years after “act, omission, or failure” or within six months after wrong was discovered or should have been discovered; but in no event more than “four years after such act.”
Colo.Rev.Stat. Ann. § 13-80-102.5 (West 1989): two years after cause of action accrues, but in no event more than three years after “the act or omission which gave rise to the action,” except in cases of fraud or foreign objects.
Conn. Gen.Stat. Ann. § 52-584 (West 1991): two years from date when injury is sustained, discovered, or should have been discovered, but not more than three years from the “date of the act or omission complained of.”
Fla. Stat. Ann. § 95.11(4)(b) (West 1982): two years from the “incident” or two years from date the incident is discovered or should have been discovered; but in no event more than three years from the date of the “incident or occurrence.”
Ga.Code Ann. § 9-3-71(b) (1995): five year statute of repose, capped by “date on which the negligent or wrongful act or omission occurred.”
III. Ann. Stat. ch. 735, para. 5/13-212(a) (Smith-Hurd 1992): two years after patient knew or should have known of injury, but in no event more than four years after the “act or omission or occurrence.”
Iowa Code Ann. § 614.1(9) (West Supp.1996): two years after patient knew or should have known of injury, or death occurs; but in no event more than six years after “the act or omission or occurrence,” except in cases of foreign bodies.
Kan. Stat. Ann. § 60-513(c) (1994): two years after “occurrence of the act” or the injury becomes “reasonably ascertainable,” whichever is later; but in no event more than four years after the “act.”
*274 Ky.Rev.Stat. Ann. § 413.140(2) (Baldwin 1991): one year after injury discovered or should have been discovered, but in no event more than five years from “the alleged negligent act or omission.”
La.Rev.Stat. Ann. § 9:5628 A (West Supp.1996): one year from act or discovery of act, but in no event more than three years “from the date of the alleged act, omission, or neglect.”
Mass. Ann. Laws ch. 260, § 4 (Law.Co-op.1992): three years after “the cause of action accrues,” but in no event more than seven years after “occurrence of the act or omission,” except in cases of foreign objects.
Mich. Comp. Laws Ann. § 600.5838a (West Supp.1996): two years from “the act or omission” or six months after the patient discovers or should have discovered existence of claim, whichever is later; but in no event more than six years after the “act or omission.”
Neb. Rev. Stat. § 44-2828 (1993): two years after act, or date when the cause was discovered or should have been discovered; but in no event more than ten years “after the date of rendering or failing to render such professional service which provides the basis for the cause of action.”
N.C. Gen. Stat. § l-15(e) (1994): outer limit of four years “from the last act of the defendant giving rise to the cause of action.”
N.D. Cent.Code § 28-01-18(3) (1991): two years after “claim for relief has accrued,” but no more than six years after the “act or omission of alleged malpractice,” except in cases of fraud.
Ohio Rev.Code Ann. § 2305.11(B) (Supp.1995): one year “after the cause of action accrued,” but in no event more than four years after “the occurrence of the act or omission.”
Or. Rev. Stat. § 12.110(4) (1995): two years from when injury was discovered or should have been discovered, but no more than five years after “treatment, omission, or operation,” except in cases of fraud.
*275 S.C.Code Ann. § 15-3-545 (Law.Co-op.Supp.1996): three years from date of “treatment, omission, or operation” or date injury was discovered; but in no event more than six years from “date of occurrence.”
Tenn.Code Ann. § 29-26-116 (1980): one year from discovery, but in no event more than three years after the “negligent act or omission.”
Utah Code Ann. § 78-14-4 (1992): two years after plaintiff discovers or reasonably should have discovered “the injury,” whichever comes first; but in no event more than four years after “the alleged act, omission, neglect or occurrence.”
Wash. Rev.Code Ann. § 4.16.350 (West Supp.1996): three years after “act or omission” or one year from when injury was discovered or reasonably should have been discovered, whichever is latest; but in no event more than eight years after the “act or omission.”
Wis. Stat. Ann. § 893.55 (West 1983): three years from “date of the injury” or one year from when the injury was discovered or reasonably should have been discovered; but not more than five years “from the date of the act or omission.”
We observe that the statutes in Kentucky, Ohio and Colorado are no longer valid, as the highest courts of those states have declared the statutes unconstitutional.
See McCollum v. Sisters of Charity of Nazareth Health Corp.,
APPENDIX B
The following ten medical malpractice statutes of limitation provide that the limitations periods begin to run on the date of the health care provider’s “act” or “omission,” without regard to the date of the injury or its discoverability:
Ark.Code Ann. § 16-114-203 (Michie Supp.1996): two years of “wrongful act,” except in cases of foreign objects.
Ind.Code Ann. § 27—12—7—1(b) (Burns 1994): two years “after the date of the alleged act, omission, or neglect.”
Me.Rev.Stat. Ann. tit. 24, § 2902 (West 1990): three years after “the date of the act or omission giving rise to the injury,” except in cases of foreign objects.
Mo. Ann. Stat. § 516.105 (Vernon Supp.1996): two years from “the date of occurrence of the act or neglect complained of,” except in cases of foreign objects.
N.H.RevStat. Ann. § 507-C:4 (1983): two years from “the act, omission or failure complained of,” except in cases of foreign objects.
N.M. Stat. Ann. § 41-5-13 (1991): three years “after the date that the act of malpractice occurred.”
N.Y. Civ. Prac. L. & R. 214-a (McKinney 1990): two years and six months from “the act, omission or failure complained of,” except in cases of foreign objects.
S.D. Codified Laws § 15-3-545 (Supp.1996): two years after the “alleged malpractice, error, mistake or failure to cure.”
Tex. Rev. Civil Stat. Ann. art. 4590i, § 10.01 (West Supp. 1996): two years “from the occurrence of the breach or tort.”
V.I.Code Ann. tit. 27, § 166d (1993): two years from “the alleged act, omission or neglect,” except in cases of foreign objects and concealment.
*277
At least two of these statutes have also been declared unconstitutional.
See Nelson v. Krusen,
In addition, the Idaho Legislature enacted a statute, Idaho Code § 5-219(4) (1990), that provides that the two year limitations period begins to run at “the time of the occurrence, act or omission complained of.” Notwithstanding this language, the Idaho Supreme Court has interpreted the statute as meaning that the period does not begin to run at the time of the wrongful act “unless some damage has occurred.”
Hawley v. Green,
Notes
. “Eversion" is defined as a "turning outward." Stedman's Medical Dictionary 545 (25th ed. 1990). Cervical eversion occurs when cells *237 that normally appear on the surface of the inner portion of the cervical canal begin to appear on the outer portion of the canal.
. "Cryoconization” is the “[flreezing of a cone of endocervical tissue with a cryoprobe.” Stedman’s, supra, at 375. A “cryoprobe” is an instrument used in "cryosurgery”—that is, “[a]n operation using freezing temperature (achieved by liquid nitrogen or carbon dioxide) to destroy tissue.” Id.
. A "Pap smear test” is a “microscopic examination of cells exfoliated or scraped from a mucosal surface after staining with Papanicolaou’s stain.” Stedman’s, supra, at 1572. It is “used especially for detection of cancer of the uterine cervix.” Id. The test is named after Dr. George N. Papanicolaou (1883-1962), a Greek-born physician, anatomist, and cytologist.
. "Epithelium” is a general term for “[t]he purely cellular avascular layer covering all the free surfaces, cutaneous, mucous, and serous ...." Stedman's, supra, at 527.
. "Dysplasia” means "[ajbnormal tissue development.” Stedman’s, supra, at 479. "Epithelial dysplasia” signifies “nonmalignant disorders of differentiation of epithelial cells.”
"Carcinoma in situ” of the cervix "has been classically defined as a microscopic pattern in which the full thickness of the cervical squamous epithelium is completely replaced by undifferentiated abnormal cells morphologically indistinguishable from cancer.” Howard W. Jones, III, M.D., et al., Novak’s Textbook of Gynecology 652 (11th ed. 1988). The “in situ” term means that the lesion is confined to the lining epithelium and has not spread to adjacent structures. See Stedman's at 246.
“Neoplasia” is "[t]he pathologic process that results in the formation and growth of a neoplasm,” i.e., a tumor. Stedman's at 1029, 1030. "Cervical intraepithelial neoplasia” (also known as “CIN”) consists of *238 "dysplastic changes beginning at the squamocolumnar junction in the uterine cervix which may be precursors of squamous cell carcinoma.” Id. at 1029. There are three grades of CIN, which depend on how much thickness of the cervical epithelium is involved. Grade 1 is "mild,” Grade 2 is "moderate,” and Grade 3 is “severe dysplasia or carcinoma in situ.” Id.
. Appellants alleged that Dr. Rivera was acting within the scope of her employment with Dimensions Health Care Corporation and Prince George’s County, and initially named these two entities as defendants in the statement of claim filed in the Health Claims Arbitration Office. Appellants voluntarily dismissed their claims against Dimensions and the County.
. A "cervical conization” is a diagnostic procedure in which a cone of tissue is excised from the cervix. Stedman’s, supra, at 343; Novak’s Textbook of Gynecology, supra, at 664-65.
. At a deposition, Dr. Thomas F. Rocereto, one of appellants’ experts, was asked to explain how the Pap smears could be benign if Ms. Edmonds had cervical cancer at that time. He responded:
*239 Obviously, there was nothing abnormal in that area of the cervix. Remember, when you do a PAP smear, you’re only doing the surface.
So you can have a cancer that's growing underneath the cervix, you can have an obvious cancer growing underneath the cervix and do a normal PAP smear.
. At his deposition, Dr. Rocereto stated that this pain was most likely "sciatic nerve irritation. And most likely at that time there was tumor already involved in the nerve root.”
. "Neuropathy” is a “classical term for any disorder affecting any segment of the nervous system,” though in "contemporary usage” it refers to “a disease involving the cranial or spinal nerves.” Stedman's, supra, at 1048.
. "Squamous cell” is a general term denoting "a flat, scale-like epithelial cell.” Dorland’s Illustrated Medical Dictionary 298 (27th ed. 1988). "Squamous cell carcinoma,” in turn, is "carcinoma developed from squamous epithelium, and having cuboid cells.” Id. at 272.
. Under CJ. § 5-109(d), "the filing of a claim with the Health Claims Arbitration Office in accordance with § 3-2A-04 of this article shall be deemed the filing of an action” for purposes of the limitations periods prescribed by the section.
. C.J. § 3-2A-06A(a) provides, in relevant part: "At any time before the hearing of a claim with the Health Claims Arbitration Office, the parties may agree mutually to waive arbitration.”
. At his deposition, Dr. Rocereto questioned the pathologists' methodology, but could not say whether the autopsy report was mistaken.
. In 1981, the Court of Appeals extended the discovery rule to civil actions in general.
See Poffenberger v. Risser,
. Dr. Rocereto opined at his deposition that this back pain was the result of gallbladder disease.
. Based on our resolution of this case, we need not consider this issue.
. Cal.Civ.Proc.Code § 340.5 provides, in relevant part:
In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for tire commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for [fraud, intentional concealment, or the presence of an unauthorized foreign body in the patient],
(Emphasis supplied.)
. At least two California courts have recognized that interpreting the word “injury” to mean “discovered” or “appreciable” harm in Cal.Civ. Proc Code § 340.5's three year cutoff provision could render the statute’s one year discovery provision meaningless.
See Marriage and Family Center v. Superior Court, 228
Cal.App.3d 1647, 1654,
279 Cal.
Rptr. 475, 480 (1991) (criticizing the
Hills
interpretation and holding that “damage is 'manifested' for purposes of commencing the three-year period when it has become evidenced in some significant fashion, whether or not the patient/plaintiff actually becomes aware of the injury”);
Bispo v. Burton,
One California court has attempted to remedy this problem by interpreting § 340.5 as follows: "First, the plaintiff must file within one year after she first 'discovers' the injury
and the negligent cause
of that injury. Secondly, she must file within three years after she first experiences harm from the injury.”
Dolan v. Borelli,
The problems with this interpretation are two-fold. First, it causes the word “injury” to have two different meanings in the same statute: one meaning being ''injury and the negligent cause,” and the other meaning being “harm that is experienced.”
Cf. Whack v. State,
. In addition to California and Delaware, the following states have medical malpractice statutes of limitation that use the patient's "injury" as a reference point: Nevada, see Nev.Rev.Stat. Ann. § 41A.097 (Michie 1996) (action must be commenced not more than "4 years after the date of injury or 2 years after the plaintiff discovers or through the exercise of reasonable diligence should have discovered the injury, whichever occurs first”); Montana, see Mont.Code Ann. § 27-2-205 (1995) (three years after the injury occurs or is discovered, but in no event more than five years "from the date of injury”); and West Virginia, see W. VaCode § 55-7B-5 (1994) (two years after date of injury or date when injury should have been discovered, whichever occurs latest, but in no event more than "ten years after the date of-injury”).
. To illustrate, we offer the following examples. If someone throws a snowball at another person fifty yards away and injures that person, the "injury” occurs not when the perpetrator commits the act of throwing the snowball, but rather when it strikes the other person’s body. Likewise, if someone carelessly leaves dynamite on a city sidewalk, a *258 negligent "act” may have occurred, but an “injury” may not occur until much later, when the dynamite explodes and causes damage to persons or property.
. We recognize, as we noted earlier, that the
Hill
Court, while commenting on the purpose of C.J. § 5-109, stated: "The purpose of the statute, readily evident from its terms, was to contain the 'long-tail effect ... by restricting, in absolute terms, the amount of time that
*260
could lapse between the allegedly negligent treatment of a patient and the filing of a malpractice claim related to that treatment.”
Id.,
. We recognize that there will not necessarily be a delay between the health care provider’s negligent act and the resulting injury. We can certainly conceive of cases in which the negligent performance of a medical procedure causes legally cognizable damages immediately.
. The Nevada Supreme Court adopted such a view in
Massey v. Litton, 99
Nev. 723,
. In addition, it could also be argued that the patient in Oxtoby had a legally cognizable injury, and thus a cause of action in negligence, immediately after the operation. Because a portion of one of the ovaries sought to removed was left in her body, one could argue that she immediately had a cause of action in that she could have had another operation to remove it.
. A cause of action in negligence may "arise"—in the sense that facts exist to support each element—before the cause of action is discovered or discoverable.
See Owens-Illinois v. Armstrong, supra,
. Appellees do not argue in their briefs that either of appellants' claims were time-barred under the three year "discovery” period in C.J. § 5-109(a)(2). Therefore, we shall not consider whether the claims were barred on that ground.