Mary Elizabeth WILSON, Appellant v. Samir EL-DAIEF, M.D., Montgomery Hospital and Montgomery Hospital Medical Center, Appellees.
Supreme Court of Pennsylvania.
Feb. 19, 2009.
964 A.2d 354
Argued Oct. 21, 2008.
PER CURIAM.
AND NOW, this 19th day of February, 2009, the Order of the Commonwealth Court is hereby AFFIRMED.
Mary Elizabeth WILSON, Appellant
v.
Samir EL-DAIEF, M.D., Montgomery Hospital and Montgomery Hospital Medical Center, Appellees.
Supreme Court of Pennsylvania.
Argued Oct. 21, 2008.
Decided Feb. 19, 2009.
Frank P. Murphy, Esq., Murphy Woodward & Haskins, Norristown, for amicus curiae Pennsylvania Association for Justice.
Jacqueline M. Reynolds, Esq., Kimberly A. Boyer-Cohen, Esq., Marshall, Dennehey, Warner, Coleman & Goggin, P.C., Bethlehem, for Samir El-Daief.
BEFORE: CASTILLE, C.J., and SAYLOR, EAKIN, BAER, McCAFFERY and GREENSPAN, JJ.
Justice SAYLOR.
We allowed appeal on a limited basis to consider the application of the statute of limitations in this medical malpractice case in light of Fine v. Checcio, 582 Pa. 253, 870 A.2d 850 (2005), and Caro v. Glah, 867 A.2d 531 (Pa.Super.2004).
In October 2003, Appellant, Mary Elizabeth Wilson, filed a writ of summons against Appellees, Samir El-Daief, M.D., and Montgomery Hospital Medical Center. The ensuing complaint was based on alleged negligence associated with surgical procedures performed by Dr. El-Daief on Appellant‘s wrist and hand in May and August 2000. The central allegation was that Dr. El-Daief negligently lacerated the radial nerve in Appellant‘s wrist during one of the surgeries. Appellees sought summary judgment, invoking the governing two-year statute of limitations, see
The common pleas court awarded summary judgment. See Wilson v. El-Daief, No. 03-19723, slip op. (C.P. Montgomery Jan. 26, 2007). It explained that, after the second surgery, Appellant experienced constant, persistent, excruciating pain; within several weeks, her hand contracted into a fist, her right elbow bent inward, and her right shoulder drew upward. In these circumstances, the court determined that the cause of action arose in August 2000 (on the date of the second surgery) and that Appellant failed to meet the applicable two-year limitations period. In its analysis, the court referenced the following passage from Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468 (1983):
[T]he statute of limitations begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations, even though a person may not discover his injury until it is too late to take advantage of the appropriate remedy, this is incident to a law arbitrarily making legal remedies contingent on mere lapse of time.
Wilson, No. 03-19723, slip op. at 4-5 (quoting Pocono Int‘l, 503 Pa. at 84-85, 468 A.2d at 471).
The common pleas court also concluded that the discovery rule did not apply to toll the running of the limitations period. Initially, the court noted that the application of this principle “arises from the inability of the injured, despite the exercise of due diligence, to know of the injury or its cause.” Id. at 5 (quoting Pocono Int‘l, 503 Pa. at 85, 468 A.2d at 471 (emphasis in original)). Further, the court indicated that “the fact that a plaintiff is not aware that the defendant‘s conduct is wrongful, injurious or legally actionable is irrelevant to the discovery rule analysis.” Id. (quoting Haggart v. Cho, 703 A.2d 522, 528 (Pa.Super.1997) (citation omitted)). Rather, the common pleas court explained that, once a plaintiff becomes aware of the injury, and who occasioned it, she is under a duty to investigate the matter and commence a cause of action. See id. (citing Haggart, 703 A.2d at 528-29). The court also highlighted this Court‘s statement that “[t]he very essence of the discovery rule in Pennsylvania is that it applies only to those situations where the nature of the injury itself is such that no amount of vigilance will enable the plaintiff to detect an injury.” Dalrymple v. Brown, 549 Pa. 217, 228-29, 701 A.2d 164, 170 (1997) (citing Pocono Int‘l, 503 Pa. at 85, 468 A.2d at 471).
The common pleas court reasoned:
Plaintiff admits that she began experiencing excruciating pain at the incision point site immediately after the surgery on August 4, 2000, in contrast to the relief she experienced from her symptoms after the May 2000 procedure. Any soreness associated with the May 2000 surgery resolved after the stitches were removed. The pain Plaintiff experi-
enced following the August 2000 procedure increased, despite removal of the stitches. Significantly, Plaintiff believed “something wasn‘t right,” and that Defendant had not taken proper care of her, no later than September 24, 2001. Accordingly, the record before this court compels a finding that even if the discovery rule applied it would not extend the running of the statute of limitations past September 24, 2003. Thus, Plaintiff[‘s] suit is time-barred because it was not commenced until October 10, 2003.
Wilson, No. 03-19723, slip op. at 6 (footnote omitted); see also id. (“[W]here, as here, the undisputed facts lead unerringly to the conclusion that the length of time it took a plaintiff to discover[] the injury or its cause was unreasonable as a matter of law, summary judgment is proper.” (quoting Carns v. Yingling, 406 Pa.Super. 279, 285, 594 A.2d 337, 340 (1991) (internal quotations deleted))).
On appeal, the Superior Court affirmed in a divided memorandum. See Wilson v. El-Daief, 944 A.2d 812 (Pa.Super., 2007). Like the common pleas court, the majority relied upon the severe pain, clubbing, and contraction experienced by Appellant as placing her on notice of a surgical injury, as well as her conclusion, as of September 24, 2001, that Dr. El-Daief had not taken proper care of her. See id. at 6. While the majority recognized that Appellant had taken steps to ascertain the nature of “what was patently amiss with her hand,” it found her suit was nevertheless out of time. Id. In this regard, the court relied on this Court‘s explanation that “lack of knowledge” does not toll the running of the statute of limitations. Id. (citing Pocono Int‘l, 503 Pa. at 84, 468 A.2d at 471, and Molineux v. Reed, 516 Pa. 398, 403, 532 A.2d 792, 794 (1987)). The majority distinguished this Court‘s decision in Fine as pertaining to the doctrine of fraudulent concealment and in light of its conclusion that, given her symptoms, “there could be no doubt in Appellant‘s mind that she suffered an injury, and that the injury had occurred at the time of the second surgery[.]” Id. at 8. Finally, the majority rejected the argument that a definitive diagnosis is essential to the commencement of the limitations period, distinguishing the Supe-
Judge, now Justice, Todd filed a dissenting memorandum, advancing the position that the discovery rule issue presented a jury question. See generally Fine, 582 Pa. at 268, 870 A.2d at 858 (“Since [application of the discovery rule] involves a factual determination as to whether a party was able, in the exercise of reasonable diligence, to know of his injury and its cause, ordinarily, a jury is to decide it.“). The dissent developed that, following her second surgery, Appellant continued treating with Dr. El-Daief for the next thirteen months, during which time she was also examined by an orthopedic surgeon, James Nutt, M.D., who repeatedly referred her back to Dr. El-Daief. See Deposition of Mary Elizabeth Wilson, N.T., Apr. 28, 2005, at 105 (describing herself as a “bouncing ball” between Drs. Nutt and El-Daief). The dissent also highlighted Dr. El-Daief‘s deposition testimony, to the effect that Dr. Nutt reported to him a differential diagnosis encompassing four possibilities, only one of which was a laceration of the radial nerve, as well as Dr. El-Daief‘s contention that such a laceration could be due to nonsurgical reasons. Deposition of Samir El-Daief, M.D., N.T., May 5, 2005, at 100-01 (“[T]hat lacerated nerve could have been due to a whole multitude of
Judge Todd recognized that, regarding her last visit to Dr. Nutt‘s office, Appellant testified:
The last time I went to see Dr. Nutt, he asked me why I was there. And I said, Dr. El-Daief told me to come back to see you. He said, Oh no. He said, You go back over there to Dr. El-Daief. You are his patient. He says, It is just like you never came here. He said, You go back to him. And that is when I said, okay, something is wrong here. Something is really wrong.
Wilson, No. 03-19723, slip op. at 2 (Todd, J., dissenting) (quoting Wilson Dep. at 105). Judge Todd observed, however, that on her following visit to Dr. El-Daief, Appellant testified that she was told nothing was wrong with her. See id. at 2-3 (quoting Wilson Dep. at 106-07).
The dissent acknowledged that, by this point in September 2001 Appellant had clearly lost confidence in Dr. El-Daief, but she stressed that an injured party‘s loss of confidence in her doctor, without more, is insufficient to trigger the running of the statute of limitations. See id. at 3 (citing Caro v. Glah, 867 A.2d 531, 538 (Pa.Super.2004)). Further, Judge Todd did not agree with the majority that Appellant‘s statement that she knew “something was wrong” was a sufficient awareness of the fact that she was injured, and who injured her, so as to trigger the statute of limitations. Again, the dissent relied on Dr. El-Daief‘s denial of any injury and Dr. Nutt‘s advancement to him of four possible causes for Appellant‘s condition. While the dissent noted that the circumstances certainly implicated a duty to further investigate the source of her problems, Appellant‘s suspicions did not, in her view, trigger the statute of limitations.
Moreover, Judge Todd could not conclude that, as a matter of law, Appellant‘s actions in attempting to discern her injury were unreasonable. She reasoned:
Appellant was seen by two physicians over the course of some 13 months to no avail, with her treating physician
ultimately telling her there was nothing wrong with her. Less than three weeks after concluding, in September 2001, that “something was wrong,” Appellant sought and visited a third physician, Dr. Scott Fried, who she [first] saw on October 10, 200[1]. Dr. Fried‘s treatment of Appellant ultimately led to the definitive conclusion that Appellant‘s complications were the result of Dr. El-Daief having lacerated Appellant‘s radial nerve during her surgery in August 2000. Under these circumstances, and recognizing that the concept of reasonable diligence “is sufficiently flexible ... to take into account the difference[s] between persons and their capacity to meet certain situations and the circumstances confronting them at the time in question,” Fine, 870 A.2d at 858 (internal quotation marks omitted and alterations original), a jury could reasonably conclude that, by the time she sought to consult with Dr. Fried in October 2001, Appellant had been diligent in ascertaining the existence and cause of her injury. Cf. Ward v. Rice, 828 A.2d 1118, 1125 (Pa.Super.2003) (finding that appellant was not unquestionably unreasonable as a matter of law in ascertaining cause and source of her injury where, inter alia, her treating doctor repeated[ly] assured her she would fully recuperate).
See Wilson, No. 03-19723, slip op. at 4-5 (Todd, J., dissenting). Given this reasoning, the dissent declined further comment concerning the relationship between the discovery rule and the requirement of a certificate of merit in professional liability actions. See id. at 5 n. 1.
Again, appeal was allowed to assess the consistency of the Superior Court‘s decision with the Fine and Caro decisions.
Summary judgment is appropriate, inter alia, where there is no genuine issue of any material fact as to a necessary element of the cause of action or defense that could be established by additional discovery. See
The parties agree at least in the abstract that, under the discovery rule, the applicable limitations period commences when the plaintiff learns that she has an injury and its cause. See Fine, 582 Pa. at 267, 870 A.2d at 858 (“As the discovery rule has developed, the salient point giving rise to its application is the inability of the injured, despite the exercise of reasonable diligence, to know that he is injured and by what cause.” (citation omitted)). They dispute, however, whether Appellant‘s severe pain and physical manifestations in close proximity to the surgery demonstrate knowledge (actual or constructive) of such factors. Appellant, for her part, stresses her persistent efforts (reflected in twenty medical appointments over an approximately fourteen-month period) to secure a medical explanation and her physicians’ inability to pinpoint injury and cause. In Appellant‘s words,
The majority of the Superior Court ... determined that there could be no doubt in the mind of a high school educated lay person as to the fact that she had an injury and that it was caused at the time of the second surgery. Yet strangely the court neglected to address the fact that although he did see the exact same physical condition and hear her complaints of pain the defendant surgeon had no idea what was causing the pain as late as the last time that he saw her on September 24, 2001, which fact is undisputed. Furthermore, the court failed to explain how a person with no medical education would be expected to know that the source of her pain and contractures was a surgical injury to a sensory nerve when a competent orthopedic surgeon consulting with the defendant (Dr. Nutt) had only a four part differential diagnosis, the first three parts of which were natural conditions (Epicondylitis, arthritis or deQuervian‘s disease). Only his last diagnosis on the differential was a lacerated radial nerve, and even then Dr. El-Daief
testified at his deposition that this could have occurred other than at surgery. He testified that in December of 2000 he did not consider an injury to the radial nerve to be on his differential diagnosis because he did not consider that her symptoms were suggestive of a radial nerve injury (Record 220a, El-Daief N.T. 95). He further stated that he had ruled out an injury to the radial nerve by September 2001 (Record 224a, El-Daief N.T. 111).
Brief for Appellant at 26-27.1
Appellant places her case within a category of cases in which an injured person may suffer pain but be unable to detect an actual injury and/or its cause, analogizing her circumstances to the surgical-sponge cases. See, e.g., Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959) (holding that a plaintiff‘s medical malpractice action filed nine years after a surgery was not time-barred, although he suffered long-standing pain as a result of a sponge inadvertently left in his body after surgery, where the plaintiff could not have known the source of his pain). She suggests the necessity of understanding the “nature of the injury” as the trigger to the limitations period, which, at least in her own case, she equates to a specific medical diagnosis. Appellant regards the Caro decision, also authored by Judge Todd, as a close cousin to her own case and criticizes the Superior Court majority for departing from Caro by equating a plaintiff‘s mere perception that something is not normal and loss of confidence in her physician with the requisite knowledge of injury and cause. See Caro, 867 A.2d at 538 (“In light of the new requirements of Rule 1042.3, we now hold that evidence that an injured party appeared to have lost confidence in his or her physician,
Appellees, on the other hand, emphasize that, after Appellant‘s second surgery, she suffered prolific symptoms in the area of her surgery, as well as in contiguous parts of her body, which did not exist prior to the surgery. Appellees contrast this result with the results of her first surgery, after which the pain quickly resolved. In light of Appellant‘s continuous pain, the clubbing of her hand, the displacement of her elbow, and the drawing of her shoulder, Appellees contend she was on sufficient notice of her alleged injury and its asserted cause to “awaken inquiry.” Fine, 582 Pa. at 267, 870 A.2d at 858 (citation omitted). Appellees characterize the injury as “physically objective” and further highlight Appellant‘s conclusion, by September 24, 2001 (more than two years prior to her commencement of the legal proceedings), that something was wrong and she had not received appropriate care from Dr. El-Daief. Appellees note that Appellant could have learned of Dr. Nutt‘s differential diagnosis including the possibility of nerve damage had she requested a copy of her medical records.2 Appellees reference a line of cases indicating that a plaintiff need not know the precise medical cause of her harm, that she has been harmed by a negligent act, or that she has a cause of action, before the limitations period will begin to run. See, e.g., Murray v. Hamot Med. Center, 429 Pa.Super. 625, 634, 633 A.2d 196, 201 (1993). According to Appellees, Caro is distinguishable because undisputed facts of record demonstrate more than just Appellant‘s apparent loss of confidence in her physician, and the present circumstances are more akin to Bigansky v. Thomas Jefferson University Hospital, 442 Pa.Super. 69, 84-87, 658 A.2d 423, 427, 430-31 (1995) (affirming an award of summary judgment in a dental malpractice case and emphasizing that a plaintiff need not know the precise medical cause of injury before the limitations period commences).
As reflected in the parties’ arguments, the baseline legal standards are set forth in Fine, 582 Pa. at 266-68, 870 A.2d at 857-59. Initially, Fine reflects the general rule that a cause of action accrues, and thus the applicable limitations period begins to run, when an injury is inflicted. See id. at 266, 870 A.2d at 857 (citation omitted). In certain cases involving latent injury, and/or instances in which the causal connection between an injury and another‘s conduct is not apparent, the discovery rule may operate to toll the statute of limitations until the plaintiff discovers, or reasonably should discover, that she has been injured and that her injury has been caused by another party‘s conduct. See id. at 268, 870 A.2d at 859.3
While these principles are readily stated, numerous ambiguities arise out of their application.4 In Pennsylvania, for example, the discovery rule is described sometimes as statutory construction and other times as judicial innovation.5 On the one hand, the standard for diligence is generally under-
Some of these inconsistencies are readily resolved. Most cases apply a reasonable-diligence requirement, as opposed to an all-vigilance one, see, e.g., Fine, 582 Pa. at 267, 870 A.2d at 858, and reasonable diligence as described in Fine is the appropriate formulation.6 Although the discovery rule evolved out of the common law,7 it is now appropriately
The more difficult questions arising in this field pertain to the degree of knowledge (actual or constructive) necessary to commence the running of the limitations period. Surveying cases from other jurisdictions, many have equated “injury” with “legal injury,” keying the commencement of the limitations period to such time as the plaintiff has actual or constructive knowledge of her cause of action. See Rathje v. Mercy Hosp., 745 N.W.2d 443, 452-53 (Iowa 2008) (collecting cases and explaining that most state courts “triggered the discovery rule upon knowledge of the cause of action, including at least some knowledge that the conduct of the physician was negligent or wrongful“).8 On the other hand, a substan-
As it generally has been stated, Pennsylvania‘s formulation of the discovery rule reflects the narrower of the two overarching approaches to determining accrual for limitations purposes. Moreover, this is the formulation applied in Fine, 582 Pa. at 267, 870 A.2d at 858, and reflected in suggested jury instructions, see PENNSYLVANIA SUGGESTED STANDARD CIVIL JURY INSTRUCTIONS § 18.01 (PBI Press 2005) (reflecting that the discovery rule applies to toll the limitations period if the jury finds “the plaintiff‘s suit was filed within two years of the date from which the plaintiff could have first reasonably discovered [his or her] injuries and that it [sic] was caused by the conduct of another person“), and it is beyond the scope of the limited grant of appeal in this case to consider a foundational change.10
Further ambiguities arise out of the terms “injury” and “cause.” In the present case, for example, there are a number of possible ways to apply them. Appellees’ perspective is that injury is reflected in symptoms—Appellant‘s severe pain and physical clubbing and contraction—and cause in the close temporal relationship between the symptoms and the surgery. Appellant‘s view, on the other hand, is that “injury” should mean the lacerated nerve, or if the pain and physical symptoms are enough to provide notice of the injury in the abstract, knowledge of the “cause” should encompass at least an appreciation that the nerve was lacerated, if not an understanding of the alleged negligent act. In either event, Appel-
In Fine, the holding that the discovery rule could apply hinged on potential confusion between symptoms as manifestation of injury versus typical and temporary conditions surgery may produce. See Fine, 582 Pa. at 272-73, 870 A.2d at 861 (“It is important to keep in mind that in this case, the record revealed that facial numbness was indicative of two distinct phenomena.“). Thus, atypical and lasting post-surgical symptoms, such as those experienced by Appellant, may trigger the limitations period. In this case, however, there is evidence of potential sources of confusion, in the asserted unwillingness or inability on the part of Dr. El-Daief to recognize injury or cause,11 cf. Debiec v. Cabot Corp., 352 F.3d 117, 132 (3d Cir.2003) (reasoning that a negative diagnosis may lead a plaintiff to reasonably believe she does not have an injury caused by the defendant), and in the failure of Dr. Nutt to offer Appellant his assessment upon consultation. While we reiterate that knowledge of “injury” and “cause” does not require a precise medical diagnosis, we decline to hold, as a matter of law, that a lay person must be charged with knowledge greater than that which was communicated to her by multiple medical professionals involved in her treatment and diagnosis. Cf. Bohus v. Beloff, 950 F.2d 919, 929-30 (3d Cir.1991) (reversing an award of summary judgment on statute of limitations ground, relying, in significant part, on the notion that lay persons should not be charged with greater knowledge of their physical condition than that possessed by
Finally, with full appreciation of the additional requirement imposed upon plaintiffs to obtain a certificate of merit under
In his concurring and dissenting opinion, Mr. Justice Baer indicates that the Court‘s longstanding approach to the discovery rule “places plaintiffs, like Appellant, in the precarious position of being constrained to file a lawsuit before they know whether their resulting symptoms are linked to a physician‘s malpractice or common side effects of the procedure performed.” Concurring and Dissenting Opinion, op. at 187, 964 A.2d at 370. This position is unfounded. As developed above, Fine took pains to account for legitimate and reasonable confusion—under Fine, such a mindset, reasonably held, clearly tolls the limitations period via the discovery rule. See Fine, 582 Pa. at 272-73, 870 A.2d at 861.14 It is also important to
Based on the above premise, the certificate-of-merit requirement, and several other considerations, Justice Baer advances a discovery rule unique to medical malpractice actions which would require that the plaintiff have access to specific medical evidence enabling her to link her injury to the acts of the defendant before the statute of limitations commences. See Concurring and Dissenting Opinion, at 187, 193, 964 A.2d at 370, 373.
In the course of this opinion, we have explained that the discovery rule is best justified as an exercise in legislative interpretation rather than judicial innovation.15 In this regard, it is noteworthy that a certificate-of-merit requirement
The concurring and dissenting opinion, on the other hand, does not appear to approach the matter as one of statutory interpretation, but rather, seems to offer a more general perspective on individual justice. Notably, that perspective, as set forth in the opinion, centers on the interests of plaintiffs, with little accounting for the core interest addressed by statutory limitations periods, namely, that of defendants in being free from stale claims. See Gustine Uniontown Assocs., Ltd. v. Anthony Crane Rental, Inc., L.P., 577 Pa. 14, 33, 842 A.2d 334, 346 (2004) (“The purpose of these limitation periods
We also add the following perspective to several other assertions made in the concurring and dissenting opinion. The opinion indicates many plaintiffs are deprived of their day in court because they are unable to obtain a certificate of merit within two years after discovery of injury and cause, despite due diligence. See Concurring and Dissenting Opinion, at 189-90, 964 A.2d at 371. There is no empirical support offered for this proposition,18 and, from a defense-oriented perspective, it would as likely be contended that many physicians face unfairness in the form of difficult evidentiary hurdles arising from the requirement to defend aged claims. The concurring and dissenting opinion invokes the image of “plaintiffs who are unsuspecting of a possible malpractice claim due to the latent nature of their injury” as justification for a broader discovery rule. Id. at 189-90, 964 A.2d at 371. The opinion, however, does not appear to recognize that the current discovery rule provides protection for just that class of persons by tolling the limitations period until their injuries are (or reasonably should have been) known, after which point two years is allowed to commence an action. See Fine, 582 Pa. at 269, 870 A.2d at 859.19 The opinion bolsters its position by reference to the prospect of physicians’ false assurances, see Concurring and Dissenting Opinion, at 189-90, 964 A.2d at
Finally, the concurring and dissenting opinion indicates that the general rule of submission to a jury established in Fine is inapplicable, because it is undisputed that Appellant “was unaware of the nature of her injury or its cause until she obtained the medical diagnosis from Dr. Fried on April 23, 2003.” Concurring and Dissenting Opinion, at 193 n. 4, 964 A.2d at 373 n. 4. This assumes, however, that a fact-finder could not reasonably determine that Appellant was or should have been aware of an injury (manifested in severe pain and physical contraction and limitations) and its cause (the surgery by Dr. El-Daief), when she experienced prolific symptoms in close proximity to the surgery, apparently well outside the range of identified risks of the procedure. We respectfully
We do not dispute the reasonablness of Justice Baer‘s overarching position (which would require specific medical evidence supporting a cause of action) as one way to address the important interests in tension in these cases, depending upon where the balance is struck. We find only that it is a policy position not reflected in Pennsylvania‘s statutory scheme governing limitations of actions. Absent a constitutional claim, we decline to question the legislative judgment.
The order of the Superior Court is reversed, and the matter is remanded for further proceedings consistent with this opinion.
Justice TODD did not participate in the consideration or decision of this case.
Chief Justice CASTILLE, Justice EAKIN and Justice GREENSPAN join the opinion.
Justice BAER files a concurring and dissenting opinion in which Justice McCAFFERY joins.
Justice BAER, concurring and dissenting.
I agree with the majority that the Superior Court erroneously granted summary judgment in favor of Appellees/Defendants on the basis that Appellant‘s medical malpractice action was time-barred. I am compelled to write, however, as I believe the convergence of this Court‘s adoption of the certificate of merit (COM) requirements and our application of the discovery rule in medical malpractice cases has the potential for unbridled mischief. Application of current Pennsylvania jurisprudence places plaintiffs, like Appellant, in the precarious position of being constrained to file a lawsuit before they know whether their resulting symptoms are linked to a physician‘s malpractice or are common side effects of the procedure performed. Such an absurd consequence resulting from the application of these two countervailing principles of law should not be countenanced. To avert this fundamental unfairness, we should construe the discovery rule so as to toll the statute of limitations until the plaintiff obtains, or with the exercise of
My analysis begins with an examination of the landscape of medical malpractice jurisprudence in this Commonwealth, which was substantially transformed in 2003, when this Court adopted the COM requirements in the Pennsylvania Rules of Civil Procedure. See
Specifically, to effectuate such purpose,
an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm....
Thus, plaintiffs must supply a timely statement from a licensed professional, indicating that the defendant‘s conduct was a cause in bringing about their harm, or risk the entry of a snap judgment against them. Paradoxically, however, under the current state of the law in Pennsylvania, the statute of limitations commences in many cases before the plaintiff, despite the exercise of all due diligence, is able to obtain such a professional opinion. As the majority explains, Pennsylvania has adopted an approach to the discovery rule accepted by a minority of the states, which is grounded on inquiry notice and ties “commencement of the limitations period to actual or constructive knowledge of at least some form of significant harm and of a factual cause linked to another‘s conduct, without the necessity of notice of the full extent of the injury, the fact of actual negligence, or precise cause.” Majority Opinion at 178, 964 A.2d at 364.
Under this approach, a plaintiff who has constructive knowledge of some harm, but does not know that such harm is the result of her physician‘s actions, will be forced to commence a cause of action in order to comply with the ticking statute of limitations via the discovery rule, but will nevertheless find her case dismissed with prejudice under the COM rules as she will not be able to supply the requisite statement from a licensed professional to substantiate her claim.
Based upon our adoption of the COM requirements and to protect blameless plaintiffs who are unsuspecting of a possible malpractice claim due to the latent nature of their injury, as
The majority candidly recognizes that “were we to apply the view prevailing in most other jurisdictions requiring knowledge of a cause of action, it does not appear that the statute of limitations question would even be an issue for the jury in the present circumstances, since there appears to be no evidence that Appellant possessed evidence of wrongdoing, or enough information to understand she had a cause of action, before October 2001 [which was two years prior to the filing of the action on October 10, 2003].” Majority Opinion at 181, n. 12, 964 A.2d at 366, n. 12, citing Brin v. S.E.W. Investors, 902 A.2d 784, 793 (D.C.2006) (“Since patients must rely on their doctors, a person cannot reasonably be expected or required to act until that person has some medical advice to support a linkage between a known injury and wrongdoing of which the person has some evidence.“).
This realization is compelling and must be remedied, particularly in a vehicle, such as this one, where the undisputed facts demonstrate a diligent investigation into the cause of
At this point in time, in September of 2001, after nearly twenty medical appointments, Appellant had finally lost confidence in Dr. El-Daief, even though she remained unaware of the cause of her injury. On October 10, 2001, less than three weeks after concluding that “something was wrong,” Appellant sought and visited a third physician, Dr. Scott Fried, who ultimately performed surgery on April 23, 2003, which revealed that Appellant‘s maladies were likely the result of Dr. El-Daief having lacerated her radial nerve during her surgery in August 2000. It was not until this point in the proceedings that Appellant was aware of the cause of her injury. Further, and importantly, it was not until this point in the proceedings that Appellant possessed the knowledge necessary for her to obtain a certificate of merit from a medical professional, attesting to the fact that there exists a reasonable probability that Dr. El-Daief‘s care fell outside acceptable professional standards and that such conduct was a cause in bringing about her injury. Appellant filed the instant action on October 10, 2003, less than seven months later. This record clearly estab-
This conclusion is on all fours with the Superior Court‘s analysis in Caro, which recognized the tension between our application of the discovery rule and a plaintiff‘s duty to file a certificate of merit. In Caro, the plaintiff underwent surgery on her left knee in May of 1998. Following the surgery, she continued to experience pain, but the defendant/physician assured her that the pain would subside as the tissues healed. On July 14, 1999, the plaintiff obtained a second opinion from another physician, who merely encouraged her to continue treatment. Finally, on September 14, 1999, the plaintiff was examined by a third doctor, who informed her that she had suffered a fractured patella during the surgery performed by the defendant in 1998. The plaintiff did not commence her action within two years of when she incurred the injury, but filed it on September 13, 2001, within two years of receiving the medical diagnosis of the injury and its cause.
As in the instant case, the trial court granted the defendant‘s motion for summary judgment on the grounds that the action was untimely. The Superior Court reversed, concluding, as a matter of law, that the plaintiff‘s action was filed within the requisite two-year period. The court found that the plaintiff diligently investigated, but did not become aware of her injury or who caused it until she consulted with the third physician on September 14, 1999, and therefore the discovery rule applied to toll the statute of limitations on her claims. Id. at 537.
The Superior Court set forth the identical analysis as set forth herein to the extent it concluded that the statute of limitations could not have commenced in July of 1999, when the plaintiff lost confidence in her physician, because the plaintiff would have been unable to comply with the certificate of merit requirements of
I would adopt the approach taken in Caro and conclude that, where a plaintiff has diligently sought to discover the cause of his or her injury, the statute of limitations begins to commence when the plaintiff obtains medical evidence sufficient to enable the plaintiff to link his or her injury to the acts of the defendant, and thereby possesses the requisite knowledge to obtain a COM in support of the claim asserted.3
Applying such law to the facts presented, I would conclude that Appellant engaged in a diligent investigation into the nature and cause of her injury, and that there is no genuine issue of material fact that she was unaware of the nature of her injury and its cause until she obtained the medical diagnosis from Dr. Fried on April 23, 2003.4 Thus, I would conclude that Appellant‘s action filed on October 10, 2003 was timely filed as a matter of law.
Justice McCAFFERY joins this concurring and dissenting opinion.
Notes
[S]tatutes of limitations are based on the proposition that persons who sleep on their right to commence a cause of action may lose that right after a specified period of time. Thus, a statute of limitations can effectively deprive a person of the opportunity to pursue what may be an otherwise valid claim. In the area of medical malpractice, an individual, more often than not, lacks the requisite expertise to know whether the ill effects of a particular medical treatment resulted from someone‘s wrongdoing, rather than merely an inevitable or unforeseeable risk of treatment. Because the discovery rule is designed to prevent the accrual of a cause of action before an individual can reasonably be expected to discover that he has a basis for legal redress, the statute should not commence until a claimant knows, or through the exercise of due diligence, should know, that his injury resulted from someone‘s wrongdoing.Bussineau v. President and Dirs. of Georgetown Coll., 518 A.2d 423, 430 (D.C.1986); accord Sutherland v. Estate of Ritter, 959 So.2d 1004, 1008-09 (Miss.2007) (“[I]n the medical malpractice context, the discov- ery rule may apply in cases where the injury is not latent at all, but where the negligence which caused the known injury is unknown. For instance, a patient who undergoes a medical procedure may develop serious complications which are clearly known. However, if the patient has no reason to know that the doctor‘s negligence in performing the procedure caused the complications, the discovery rule will apply, even though the injury itself is not latent at all.“).
We ... cannot hold that Congress intended that “accrual” of a claim must await awareness by the plaintiff that his injury was negligently inflicted. A plaintiff ... armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government. If there exists in the community a generally applicable standard of care with respect to the treatment of his ailment, we see no reason to suppose that competent advice would not be available to the plaintiff as to whether his treatment conformed to that standard. If advised that he has been wronged, he may promptly bring suit. If competently advised to the contrary, he may be dissuaded, as he should be, from pressing a baseless claim. Of course, he may be incompetently advised or the medical community may be divided on the crucial issue of negligence.... But however or even whether he is advised, the putative malpractice plaintiff must determine within the period of limitations whether to sue or not, which is precisely the judgment that other tort claimants must make. If he fails to bring suit because he is incompetently or mistakenly told that he does not have a case, we discern no reason for visiting the consequences of such error on the defendant by delaying the accrual of the claim until the plaintiff is otherwise informed or himself determines to bring suit, even though more than two years have passed from the plaintiff‘s discovery of the relevant facts about injury.United States v. Kubrick, 444 U.S. 111, 123-24, 100 S.Ct. 352, 360, 62 L.Ed.2d 259 (1979) (footnote omitted).
Q: ... When did you come to the conclusion that Dr. El-Daief had not taken proper care of you?
A: When I kept asking him what was wrong with me and he kept telling me that he didn‘t see anything wrong.
* * *
Q: And at that point, did you no longer believe Dr. El-Daief?
A: No, I did not believe him.
Wilson Deposition, N.T., Apr. 28, 2005, at 208-09.