Nicolaou, N., h/w, Aplts. v. J. Martin M.D.
195 A.3d 880
Pa.2018Background
- In 2001 Nancy Nicolaou was bitten by a tick and over subsequent years developed neurologic and systemic symptoms; between 2001–2008 multiple St. Luke’s providers repeatedly diagnosed or treated her for multiple sclerosis and ordered four Lyme tests that were negative.
- In 2006 an MRI reported findings consistent with either MS or an infectious/inflammatory demyelinating process (including Lyme); in 2007 Dr. Gould told her she did not have Lyme and treated her for MS with steroids, after which her condition worsened.
- In July 2009 Nicolaou began seeing nurse practitioner Rita Rhoads, who opined she probably had Lyme disease, prescribed antibiotics (with some symptomatic improvement), and recommended a specialized IGeneX Lyme test costing about $250 that Nicolaou initially declined (citing cost and to await response to antibiotics).
- Nicolaou ultimately took the IGeneX test on February 1, 2010; results (received Feb. 13, 2010) were positive for Lyme disease. Plaintiffs filed suit on February 10, 2012 claiming malpractice for failure to diagnose/treat Lyme disease.
- Defendants moved for summary judgment asserting the two-year statute of limitations began to run no later than mid‑2009 (when Rhoads diagnosed/treated for probable Lyme) and the discovery rule therefore did not toll limitations; the trial court and (en banc) Superior Court granted summary judgment. The Pennsylvania Supreme Court granted allocatur.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nicolaou satisfied the discovery rule so as to toll the two‑year statute of limitations | Nicolaou contends tolling applied until Feb. 13, 2010 because she neither knew nor reasonably should have known earlier that defendants’ misdiagnosis caused her injury; her inability to afford the IGeneX test and physicians’ prior diagnoses of MS are relevant to diligence | Defendants argue discovery rule did not toll: a reasonable person would have been on inquiry notice by mid‑2009 (probable Lyme dx, antibiotic response, MRI), and Nicolaou unreasonably delayed confirmatory testing | The Court held summary judgment improper: whether a reasonable person in Nicolaou’s circumstances (including financial inability, prior negative tests, prior MS diagnoses) exercised due diligence is a factual question for the jury; remanded |
| Whether a plaintiff’s economic inability to obtain confirmatory testing can be considered in the reasonable‑diligence inquiry | Nicolaou asks the Court to rule that inability to pay cannot be held against plaintiffs | Defendants contend the diligence standard is objective and financial hardship is not dispositive — a reasonable person should seek confirmatory testing | The Court held that a plaintiff’s financial circumstances are a permissible factor: the test asks whether a reasonable person in the plaintiff’s circumstances (including financial) would have deemed further testing practicable; factual resolution for the jury |
Key Cases Cited
- Gleason v. Borough of Moosic, 15 A.3d 479 (Pa. 2011) (describes Pennsylvania’s narrower “inquiry notice” formulation of the discovery rule and places burden on plaintiff to prove diligence)
- Wilson v. El‑Daief, 964 A.2d 354 (Pa. 2009) (explains that discovery rule accrual is a factual question for the jury and that a lay plaintiff is charged only with knowledge communicated by treating medical professionals)
- Fine v. Checcio, 870 A.2d 850 (Pa. 2005) (clarifies objective reasonable‑diligence standard and that it must be applied with reference to individual characteristics)
- DeMartino v. Albert Einstein Med. Ctr., 460 A.2d 295 (Pa. Super. 1983) (rejects requirement of definitive diagnosis to start the limitations period; statute begins when tort is ascertainable)
- Pocono Int’l Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d 468 (Pa. 1983) (limits tolling: the running of the statute is not tolled by mistake, misunderstanding, or lack of knowledge)