Dissenting Opinion by BELL, C.J.

A person who seeks advice and/or treatment from a professional is entitled to trust and rely upon that advice, care or treatment. Otherwise, that person will not have the trust and confidence so necessary for there to be the candor and openness that are likely to lead to adequate treatment or representation. This is just common sense. Thus, a rule that conditions the ability of a plaintiff in a tort action to recover for the negligence or malpractice of his or her expert witness, or treating physician, on that plaintiff's second-guessing, investigating, and, perhaps, suing, his or her witness or physician whenever the defense, buttressed by expert testimony of its own, challenges, as inadequate or just plain wrong, the plaintiff expert's opinion or treatment, not only undermines the trust and confidence critical to the plaintiff's relationship with his or her witness, but may hamper and impede the ability of the plaintiff to present his or her case. Moreover, such a rule may, in effect, insulate the plaintiff's expert witness from liability for his or her negligence. Because this is the probable effect of the majority's holding in this case, see 366 Md. 660, 675, 785 A.2d 708, 717 (2001) [slip op. at 16, supra], I dissent.

The petitioner was injured in an automobile accident, as a result of which she sought and received treatment from the respondents, Dr. Yousaf and Dr. Mathews. Drs. Yousaf and Mathews diagnosed the petitioner's injuries as an injury to the soft tissue in her back and to the facet joint. They recommended and, when the petitioner agreed, they performed, surgery for the facet joint injury.

In her suit against Thompson, the other party to the accident in which she was involved and whose negligence she claimed caused her injuries (the automobile accident case or the Thompson litigation), the petitioner claimed $38,195.28 in medical expenses and $250,000 in pain and suffering. That action included a claim for damages resulting from her back surgery, a claim that the defendant disputed and, indeed, alleged was unnecessary. The Court of Special Appeals suggests that this latter allegation, or at least it and subsequent deposition testimony of defense witnesses, should have been sufficient notice to the petitioner that Dr. Yousaf and Dr. Mathews may have been liable to her for the unnecessary surgery and, therefore, should have been joined as defendants. Mathews v. Gary, 133 Md. App. 570, 580, 578 A.2d 1019, 1024 (2000).

At trial, testifying for the petitioner, both Dr. Yousaf and Dr. Mathews stated that the petitioner's back surgery was made necessary by the accident. As expected, and consistent with the defense raised, testimony was presented in the defense case that the petitioner suffered from only soft tissue injury as a result of the accident and the facet joint surgery was, in fact, not necessary. Although the jury returned a verdict in favor of the petitioner, it awarded her only $8,337.00 for medical expenses and $750.00 for lost wages. No award was made for pain and suffering. The verdict sheet submitted to the jury did not require the jury to decide and then specify whether the petitioner's back surgery was made necessary by the accident.

While the petitioner's appeal was pending, the parties settled for the defendant's policy limit, or $20,000.00. Consequently, the petitioner dismissed her appeal and entered an order of satisfaction in the Circuit Court.

Following the settlement, the petitioner brought an action against the respondents, alleging that the surgery they performed on her was unnecessary and, as a result, seeking recovery of her medical bills, lost wages and pain and suffering. She offered in support of her claim evidence, namely the deposition testimony of the defense expert who testified on the issue in the first trial that the respondents did not meet the standard of care in determining the necessity for the operation. Although the respondents defended on the merits, arguing as they did in the first trial, that they acted properly and out of necessity, they also maintained that the action was barred by, inter alia, satisfaction, that the petitioner had already received the one satisfaction to which she was entitled when she settled the Thompson litigation. The jury found for the petitioner and awarded her $437,073.69.

The Court of Special Appeals reversed, holding that both judicial estoppel, 133 Md. App. at 578-80, 758 A.2d at 1023-24, and the one satisfaction rule, id. at 580-83, 758 A.2d at 1024-25, barred the petitioner's recovery. With regard to the latter, it was important to the intermediate appellate court that the petitioner chose to pursue damages for the back surgery despite being on notice that the defense claimed the surgery was not necessary. Id. at 581, 758 A.2d at 1025. Proceeding from this premise, relying on Morgan v. Cohen, 309 Md. 304, 523 A.2d 1003, (1987), it asserted, "[i]n this case, no reasonable trier of fact could find that appellee did not seek compensation for her surgery from the Charles County jury," id. at 581, 758 A.2d at 1025, and then concluded, "the settlement of that case included `satisfaction' for her bone fusion surgery." Id. After discussing a Pennsylvania intermediate appellate court case, Brandt v. Eagle, 412 Pa.Super. 171, 602 A.2d 1364 (1992), the court held:

"We are persuaded that the order of satisfaction filed in her Charles County case precluded appell[ee] from thereafter

obtaining an award of damages against appellants. While the amount of the auto negligence settlement may not have been `satisfactory' to appellee, when the damage claim that she had been asserting was `satisfied' as a matter of law, she was thereafter prohibited from recovering more funds for the same injuries. Having filed an order of satisfaction in the (auto negligence) Charles County case, appellee could not thereafter assert an `unnecessary surgery' claim in the Circuit Court for Prince George's County."

Id. at 583, 758 A.2d at 1025-26.

The majority in this Court affirms the Court of Special Appeals on the one satisfaction rule. 366 Md. 660, 662, 785 A.2d 708, 709 (2001) [slip op. at 1.] Noting the equitable nature of the rule and that its purpose is to prevent double recovery, id. at 667, 785 A.2d at 712, the majority points out that it follows from "the well-settled principle of tort law that `a negligent actor is liable not only for the harm that he directly causes but also for any additional harm resulting from the normal efforts of third persons in rendering aid, irrespective of whether such acts are done in a proper or a negligent manner."' Id. at 668, 785 A.2d at 712 (quoting Morgan v. Cohen, supra, 309 Md. at 310, 523 A.2d at 1005). Thus, it concludes, a physician's negligent treatment of injuries caused by a prior tortfeasor is a subsequent tort for which both the doctor and that tortfeasor are liable. Id. at 670, 785 A.2d at 714.

The majority candidly admits that there is confusion in the law, attributing much of it to "the failure of courts to distinguish between jointly liable concurrent or successive tortfeasors on the one hand and true joint tortfeasors as they existed at common law, as well as the procedural rules that accompanied them." 366 Md. at 699, 785 A.2d at 713 (footnote omitted). After explaining the distinction, see 366 Md. at 667 n. 6, 785 A.2d at 712 n. 6 [slip op. at 8 n. 6], the majority acknowledges another source of the confusion: the failure of courts "to distinguish between the conceptually related yet distinct concepts of a release of a claim and satisfaction of a claim." Id. at 669, 785 A.2d at 713. Quoting Treischman v. Eaton, 224 Md. 111, 116-17 n. 4, 166 A.2d 892, 895 n. 4 (1961), in turn quoting Prosser, Torts § 46 at 243-44 (2d ed. 1955), the majority notes that "a satisfaction is an acceptance of full compensation for the injury; a release is a surrender of the cause of action, which may be gratuitous, or given for inadequate consideration," id. at 669 n. 7, 785 A.2d at 713 n. 7, and concedes that the effect of the release or the satisfaction on a subsequent action against a concurrent or successive tortfeasor is a question of fact. Id. at 669, 785 A.2d at 713. It asserts, however, that "where . . . the satisfaction of judgment follows a full trial of the merits, the issue is properly decided by the trial court on a motion for summary judgment." Id. at 672, 785 A.2d at 715 (citing Williams v. Woodman, 424 So.2d 611, 615 (Ala. 1982); Cimino v. Alway, 18 Ariz. App. 271, 501 P.2d 447, 453 (1972); Knutsen v. Brown, 96 N.J. Super. 229, 232 A.2d 833, 837 (1967); Vaca v. Whitaker, 86 N.M. 79, 519 P.2d 315, 320 (1974)).

With regard to this case, the majority holds that the judgment entered in the automobile accident case was satisfied and that this satisfaction encompassed all of the damages that the petitioner sought in that case. Because the damages sought by the petitioner in this case, and which she recovered in the earlier case, are the same damages and giving effect to the one satisfaction rule's policy against double recovery, the majority concludes, as a matter of law, presumably determining that no reasonable trier of fact could conclude otherwise, see Maryland Rule 2-501 (e), that the petitioner's action against the respondents was precluded. Its conclusion as to the identity of the damages in the two cases is based on its review of the trial record from the automobile accident case and its analysis of the evidence offered by the petitioner in that case and the one under review.

I have no quarrel with the principle that a plaintiff is entitled to but one compensation for loss and that satisfaction of a claim to recover that loss precludes further action, even against another for the same loss. Our cases are quite clear on this point. See Welsh v. Gerber Products, Inc., 315 Md. 510, 523-24, 555 A.2d 486, 493 (1989); Morgan v. Cohen, supra, 309 Md. at 312, 523 A.2d. at 1006; Lanasa v. Beggs, 159 Md. 311, 319, 151 A. 21, 25 (1930). Nor do I have a problem with the use of equitable principles to prevent double recovery, and thus, unjust enrichment. And I agree generally with the majority's statement of the law: ordinarily a question of fact, when the judgment that is satisfied results from full adjudication, i.e., trial on the merits, its effect may be decided as a matter of law in the context of summary judgment. My dispute with the majority is quite basic and specific; I simply do not agree that, under the facts of this case, the scope of the judgment in the automobile accident case should have been, or could have been, determined as a matter of law.

To be sure, the judgment in favor of the petitioner was entered after a trial on the merits, at which the petitioner sought, presenting evidence in support, damages for the surgery she maintained was necessitated by the negligence of the defendant in the automobile accident case she claimed caused her injuries. It also is true that an order of satisfaction as to the judgment was entered in that case. But I also find it significant that the entry of the order of satisfaction postdated the settlement agreement that the parties to the first case entered into while the appeal of the Circuit Court judgment was pending. It is logical to assume that the dismissal of the appeal and the entry of satisfaction were terms of the settlement. It is, in addition, worthy of note that the evidence that the petitioner offered in support of her claim for compensation for her back surgery, was countered, and strenuously so, by evidence maintaining that the surgery was unnecessary. From the size of the verdict, given these conflicting arguments, it may fairly be argued that the jury may not have intended to, and, therefore, did not, compensate the petitioner for the surgery, accepting perhaps the defendant's argument that the surgery was unnecessary.

Thus, this issue is not appropriately decided as a matter of law, on summary judgment. It is not at all clear, in short, that the parties intended the petitioner's recovery to include compensation for the surgery performed by the respondents. There is, to the contrary, I submit, good reasons to suppose that they did not. Certainly, there was no incentive on the part of the defendant in that case to carry the respondents' water, particularly since quite explicit, not just necessarily implicit, in the defense was the defendant's insistence that the respondents were negligent and that she should not be made to be responsible for that negligence, by paying for it. Nor would it have been in the petitioner's interest to agree to accept an amount she clearly viewed as insufficient recompense, in full satisfaction of all of her injuries, including those that she was advised by the respondents were the responsibility of the defendant in that case, but that, it appears, she had come to realize, as the defendant in the automobile accident case argued, really were the result of the respondents' negligence and when she apparently intended to pursue an action to recover for the damages that negligence caused.

This case is quite different from those on which the majority bases its decision. In each of those cases, the plaintiff accepted the jury's verdict; there were no appeal and subsequent settlement and, so far as the facts of those cases reveal, there was no dispute in the trial court as to the damages at issue on the appeal. In Williams v. Woodman, supra, the plaintiff having prevailed on the merits in an action involving the uninsured motorist provision in an insurance policy, withdrew from the court registry the moneys deposited by the insurance carrier. Similarly, in Knutsen v. Brown, supra, following a trial on the merits, judgment was entered for the plaintiffs, with which they were dissatisfied. Rather than appeal, however, they accepted the judgment after their motion to set the judgment aside as inadequate had been denied, and subsequently sued the treating physicians for malpractice. The plaintiffs in Vaca v. Whitaker, supra, obtained a judgment, after a trial on the merits in Federal court, in which the jury was instructed "to return a verdict in damages for the plaintiffs in this case, to the full extent of any injury you find was sustained as a result of the accident. Also, any injury you find was a proximate result of any negligence you might find on the part of Dr. Whitaker [sic] in treating Alicia Vaca." Dr. Whitaker was the defendant in the subsequent litigation sounding in malpractice.

As the facts of this case reveal, this case really is not one decided on the merits for purposes of the application of the one satisfaction rule; rather, because it was settled before the appellate process concluded, it is more akin to a case in which a release is given or a judgment by consent is entered. In either event, as the majority recognizes, see 366 Md. at 669, 785 A.2d at 713 and n. 7; see also Morgan v. Cohen, supra, 309 Md. at 316, 523 A.2d. at 1008-09; Welsh v. Gerber Products, supra, 315 Md. at 512, 555 A.2d at 486 (specifically as to consent judgments), the decision as to the preclusive effect of releases and consent judgments is not one to be resolved as a matter of law.

In Welch v. Gerber Products, we addressed "the scope and reach of nonmutual, defensive, collateral estoppel following the entry of a consent judgment" in a joint tort-feasor situation." 315 Md. at 512, 555 A.2d at 486. We concluded that, to find the answer to that question, a court had to "examine the consent judgment to determine whether it represented a determination of the complete equivalent of the plaintiff's damages." Id. at 523, 555 A.2d at 492. We reasoned:

"When an action for damages proceeds to trial and a judgment is entered on the verdict, that judgment represents a final determination of the plaintiff's claim for those damages. It is entirely appropriate to bind the plaintiff to that assessment of damages, directly and collaterally, even though the determination may be less than the plaintiff believes is fair, or may be thought to have been a result of jury compromise. If there is error in the award, relief must be sought by the appropriate post-trial motion. Once final, the judgment is properly given preclusive effect as to the issues actually litigated. But these principles do not necessarily apply to a consent judgment. The issue of full damages generally has not been litigated when a consent judgment is entered and, as we have previously pointed out, the parties may or may not agree that the amount being entered by consent represents the plaintiff's full claim for damages."

Id. Thus, consideration of the actual intent of the parties is necessary.

The cases on which the majority relies stand for the essentially unremarkable proposition that the effect of a satisfaction of judgment entered following a full trial of the merits, because it "involves a study and comparison of the records in the two cases," Knutsen v. Brown, supra, 232 A.2d at 837, although still a question of fact, may be determined on summary judgment, rather than at a trial. Id. at 837; see Williams v. Woodman, 424 So.2d at 612-13, 615; Vaca v. Whitaker, supra, 519 P.2d at 319; Cimino v. Alway, supra, 501 P.2d at 449-50. A State's summary judgment principles consequently may need to be applied. Such principles may differ from State to State. See Vaca v. Whitaker, 519 P.2d at 319-20 (noting the difference between the summary judgment rules applicable in New Mexico and those applied in Arizona in Cimino v. Alway).

Thus, Maryland summary judgment practice is implicated. Recently, in Frederick Road Ltd. Partnership v. Brown Sturm, 360 Md. 76, 93-94, 756 A.2d 963, 972-73 (2000), we stated, on the subject:

"Summary judgment practice in this state is governed by Maryland Rule 2-501. It states, in relevant part, `[t]he court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to summary judgment as a matter of law.' Rule 2-501(e). Summary judgment is not a substitute for trial. Goodwich v. Sinai Hosp. of Baltimore, Inc., 343 Md. 185, 205, 680 A.2d 1067, 1077 (1996). The function of the trial court at the summary judgment stage is to determine whether there is a dispute as to a material fact sufficient to require an issue to be tried. Gross v. Sussex, Inc., 332 Md. 247, 255, 630 A.2d 1156, 1160 (1993); Foy v. Prudential Insurance Company of America et al., 316 Md. 418, 422, 559 A.2d 371, 373 (1989); Coffey v. Derby Steel Company, 291 Md. 241, 247, 434 A.2d 564, 568 (1981). Thus, an appellate court's review of the grant of summary judgment involves the determination whether a dispute of material fact exists, Gross, 332 Md. at 255, 630 A.2d at 1160; Beatty v. Trailmaster Products, 330 Md. 726, 737, 625 A.2d 1005, 1011 (1993), and `whether the trial court was legally correct. Heat Power Corporation v. Air Products Chemicals, Inc., 320 Md. 584, 591, 578 A.2d 1202, 1206 (1990) (citations omitted). Evidentiary matters, credibility issues, and material facts which are in dispute cannot properly be disposed of by summary judgment. See Pittman v. Atlantic Realty Co., 359 Md. 513, 536, 754 A.2d 1030, 1042 (2000) (recognizing that `Maryland law . . . has not viewed the function of summary judgment to be determining whether an issue is genuine based on credibility.'); Hartford Ins. Co. v. Manor Inn of Bethesda, Inc., 335 Md. 135, 144, 642 A.2d 219, 224 (1994); Merchants

Mtg. Co. v. Lubow, 275 Md. 208, 217, 339 A.2d 664, 670 (1975).

Instead, a trial court reviewing a motion for summary judgment must ask whether there exists a genuine dispute as to a material fact and, if not, what the ruling of law should be upon those undisputed facts. Brewer v. Mele, 267 Md. 437, 442, 298 A.2d 156, 160 (1972). If the facts are susceptible of more than one inference, the materiality of that arguable factual dispute must be judged by looking to the inferences that may be drawn in a light most favorable to the party against whom the motion is made and in the light least favorable to the movant. Id.; Dietz v. Moore, 277 Md. 1, 4-5, 351 A.2d 428, 431 (1976); Impala Platinum, Ltd. v. Impala Sales (U.S.A.), Inc., 283 Md. 296, 326, 389 A.2d 887, 904-905 (1978)."

We made these points most recently in Jones v. Mid-Atlantic Funding Co., 362 Md. 661, 675-76, 766 A.2d 617, 624-25 (2001).

In concluding that the satisfied judgment in the Thompson litigation included all of the damages claimed in the present case, the majority relies on the fact that the petitioner sought to recover in the former case some of the same damages she sought to recover in this case, i.e., the respondents' medical bills and the same pain and suffering. It also was persuaded by the identity of the evidence in both cases as to the petitioner's life expectancy and of her future pain and physical limitations accompanying the back injury. In addition, the majority asserts that she argued to both juries that she suffered a 30 percent permanent disability and that the jury awarded that level of disability in the automobile accident case.

Significantly, although acknowledging it in setting out the facts, the majority gives no weight to, and, indeed, does not mention in its discussion of the identity of issues, that the defendant in the automobile accident case disputed the necessity of the operation the respondents performed even as the respondents were insisting that the operation was necessary, and that the petitioner only litigated the issue in response to the defense, all the while maintaining that the necessity of the operation was not relevant. Also not considered by the majority, or so it seems, is the significance of the award that the jury actually made. The jury awarded less than half of the medical expenses claimed — $8,337.00 of the $38,195.28 claimed, a sizable portion of which represented the respondents' bill for medical services. The jury also awarded no pain and suffering damages. Knutsen points out that one of the critical inquiries to be made when determining the effect of a satisfied judgment is "whether the amount paid actually constituted full compensation for the total loss suffered by plaintiff as the result of the negligence of the original tortfeasors and the negligence of the doctors." 232 A.2d at 836, citing Daily v. Somberg, 28 N.J. 372, 146 A.2d 676, 69 A.L.R.2d 1024 (1958). The majority also did not consider, although aware of the fact, having reported it in the facts, that the parties actually settled this case while the trial court judgment was pending appeal. These are matters that should have been considered and, had they been considered, would have demonstrated, as I have previously shown, see 366 Md. at 667, 785 A.2d at 712, supra], the existence of a genuine factual dispute, defeating summary judgment. The test is, as I have pointed out and the majority, by citing Morgan v. Cohen, supra, recognizes, whether the damages sought in the second action were compensated in the first:

"Like the question of intent with respect to the ambiguous releases, we are presented with a question of fact: Did the satisfied judgment include damages for both torts, or just the original tort?"

309 Md. at 321, 523 A.2d at 1011. Nevertheless, the majority seems to have adopted the intermediate appellate court's formulation of the issue: whether a "reasonable trier of fact could find that appellee did not seek compensation for her surgery from the Charles County jury." Mathews v. Gary, 133 Md. App. at 581, 758 A.2d at 1025.

I am also concerned about the majority's suggestion, and the more explicit one by the Court of Special Appeals, with regard to the importance of a defense argument, of which the plaintiff is put on notice, in determining the scope of the issues decided or the effect of a satisfied judgment on subsequent litigation. Equity is a two-way street. My concern is that the application of the one satisfaction rule in the case sub judice leads not to full satisfaction of the petitioner's claim, but to non-satisfaction of that claim against a subsequent and distinct tortfeasor, upon whom the petitioner relied, as she had the right to do, and with whom the petitioner maintained a confidential and trusting relationship. The problem posed by the suggestion made by the intermediate appellate court and not repudiated by the majority, that a plaintiff must investigate, and perhaps pursue a claim against his or her experts or doctors whenever the charge is made that their advice and treatment is faulty, is that the plaintiff is forced to question ". . . a relationship built on trust and confidence [which] generally gives the confiding party the right to relax his or her guard and rely on the good faith of the other party so long as the relationship continues to exist," Frederick Rd. Ltd. P'ship v. Brown Sturm, 360 Md. at 97-98, 756 A.2d. at 974-7, when, ordinarily, "[t]he confiding party . . . is under no duty to make inquiries about the quality or bona fides of the services received, unless and until something occurs to make him or her suspicious." Id. Surely, a difference in opinion between expert witnesses articulated in the answer to a complaint or deposition testimony given prior to trial, or even trial testimony, does not necessarily rise to the level of "something suspicious," which would cause a plaintiff to question the competency of those witnesses. Every difference of opinion does not lead to a finding of malpractice. Indeed, if a mere difference of opinion constitutes "notice" of not potential malpractice, but malpractice, plaintiffs will be hard pressed to get anyone, who may be charged in a malpractice action, to testify on their behalf.