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GREENBERG v. MCCABE

June 16, 1978

GALE GREENBERG
v.
DONALD LEE McCABE, D.O.



The opinion of the court was delivered by: LORD, III

 Plaintiff in this psychiatric malpractice case alleges that defendant negligently treated her, principally by engaging in a sexual relationship with her in the course of therapy and by improperly administering drugs, from June 1968 through February 1974 and that she sustained permanent psychiatric damages as a result of this negligence. The jury returned a verdict for the plaintiff in the amount of $665,000: $275,000 for compensatory damages exclusive of costs for future psychiatric care, $90,000 for future psychiatric care and $300,000 for punitive damages. We will address at some length two of the points raised by defendant in his motion for judgment notwithstanding the verdict or for a new trial: that plaintiff's claim is barred as a matter of law by the Pennsylvania statute of limitations and that the record does not support the award for future psychiatric treatment.

 I. STATUTE OF LIMITATIONS:

 Plaintiff filed this suit on January 5, 1976, and there is no dispute that Pennsylvania's two-year statute of limitations for personal injuries applies. Defendant contends that as a matter of law the statute began to run before January 5, 1974, that the statute was not tolled and that plaintiff's claim is therefore barred. Defendant's position admixes two separate arguments, that our instructions to the jury were based on an erroneous interpretation of Pennsylvania law and that the jury, if properly instructed, could not reasonably have found that the statute of limitations did not bar the claim. We will consider these contentions separately.

 A. What Plaintiff "Should Have Known".

 The Pennsylvania statute provides that personal injury suits must be brought "within two years from the time when the injury was done and not afterwards." 12 Pa. Stat. Ann. § 34. While the general rule in Pennsylvania is that the statute begins to run when the final event creating the cause of action occurs, Pennsylvania law recognizes exceptions to that doctrine in several factual situations; in malpractice cases the running of the statute depends on the plaintiff's discovery of his or her injury and its cause. The defendant contended at trial and argues in this motion that knowledge of the injury alone is sufficient to commence the statutory period. We determined that under Pennsylvania law malpractice suits must be filed within two years after the plaintiff knew or in the exercise of reasonable diligence should have known that the defendant's conduct was causing her harm, and we instructed the jury accordingly. The issue of what a plaintiff must discover actually or constructively has not been resolved by the Pennsylvania Supreme Court. That court's leading case on the statute of limitations, Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959), is ambiguous as to whether knowledge of the cause of harm is required. The Third Circuit has answered this question for us, however, in Bayless v. Philadelphia National League Club, 579 F.2d 37 (3d Cir. 1978), where it held on the basis of the "common sense and reason" rationale in the Ayers analysis that "the rule in Pennsylvania is that the limitations period begins to run from the time that the plaintiff knows or reasonably should know the cause of his injury." supra at 39.

 B. Jury's Consideration of Plaintiff's Drugged Condition in Ascertaining Time of Reasonable Discovery.

 We charged the jury that if it found the plaintiff "was wrongfully under the influence of drugs" it should consider "what a person in her condition would be expected to do and to know" in ascertaining when the statute of limitations began to run and whether the plaintiff was contributorily negligent. N.T. 7-31. Furthermore, the interrogatory to the jury on the issue of the statute of limitations read, "Do you find that a person in Mrs. Greenberg's mental and physical condition (as you find it to have been) knew or should have known before January 5, 1974, that she was suffering harm as a result of defendant's conduct?" Defendant contends that the instruction and the interrogatory were in error in that they allowed the jury to consider the drug-induced impairments to the plaintiff's reasoning processes in determining when she should have known of her injury and defendant's causal relationship to it. Defendant's argument that the instruction was in error mistakenly relies upon two related lines of authority and misses the narrow point of law upon which the instruction and interrogatory were based.

 First, defendant contends quite correctly that the statute of limitations cannot be tolled by the plaintiff's diminished mental capacities. Walker v. Mummert, 394 Pa. 146, 146 A.2d 289 (1958). Certainly, to the extent that a drug-induced impairment or incapacity constitutes a mental condition, it does not as a general matter toll the statute. Bayless v. Philadelphia National League Club, C.A. No. 76-3221 (E.D. Pa. June 21, 1977), rev'd on other grounds, 579 F.2d 37 (3d Cir. 1978). Defendant's argument misses the point, however, in that it confuses the extraordinary equitable provision of tolling with the scope of circumstances which may be considered in the usual inquiry into when the plaintiff discovered or should have discovered her injury and its cause. Tolling stops the statute from running, even if it has started, on the basis of a single factual finding, and under Pennsylvania law mental incapacity is not a factual basis sufficient for tolling the statute. Our charge to the jury, on the other hand, was based on the reasoning that the plaintiff's mental condition, regardless of whether it amounted to incapacity, is among the many factors which can be weighed by the fact-finder in determining the time of discovery, insofar as that condition was caused by the defendant.

 The defendant contends further that permitting the jury to consider the plaintiff's drugged state is improper in that she was bound as a matter of law to employ "objective reasonable diligence" in discovery of her injury and cause. Defendant's Brief at 26. We conclude to the contrary that under Pennsylvania law she should not be held to the standard of one whose mental capacities were not reduced by the defendant's conduct. The language employed by the Pennsylvania courts in describing the duty of a plaintiff to discover "by the exercise of reasonable diligence," Ayers v. Morgan, 397 Pa. at 292, suggests that the relevant standard is that of the reasonable man as it recurs throughout tort law. The general rule is that in determining the reasonableness of a person's conduct, his or her illness or physical disability can be considered in defining the standard which he or she must meet, but that a mental deficiency cannot be taken into account. Restatement (Second) of Torts §§ 283B, 283C (1965). Accord, W. Prosser, The Law of Torts § 32, at 151-54 (1971). It would have been error, consequently, to instruct the jury that they could consider Mrs. Greenberg's level of intelligence or other mental characteristics generally in determining when she should have arrived at discovery in the exercise of reasonable diligence.

 That was, however, neither the legal theory nor the practical effect of the challenged instruction and interrogatory. Rather, they were aimed at permitting the jury to take into account mental disabilities caused by the drugs which were prescribed and/or administered to the plaintiff by the defendant as part of the therapy which plaintiff proved was negligent. There was no evidence presented that plaintiff's judgment and capabilities were impaired by drug-taking in which the defendant was not involved. Even the interrogatory to the jury, bringing into play the plaintiff's "mental . . . condition", could have referred in this record only to mental disabilities incurred by the plaintiff as a result of the defendant's treatment. We observed in formulating the charge, "There is nothing in the record to show that her judgment was impaired by anything other than this," and the defendant acquiesced in that assessment. N.T. 6-63.

 While we know of no Pennsylvania authority directly on point, *fn1" logic compels the conclusion that it was proper for the jury to consider the plaintiff's mental disabilities insofar as they were caused by the defendant. Our determination is based in part on our understanding of the rationale for the discovery rule in Ayers v. Morgan. The Supreme Court reasoned that Ayers' claim could not be barred because the defendant's conduct set in motion objective "laws of nature" which prevented Mr. Ayers from ascertaining the cause of his abdominal pain: since defendant had sewn him up as part of the treatment, "he could not open his abdomen like a door and look in" to discover the cause of his pain. 397 Pa. at 289. Similarly, in this case the testimony of the psychiatrist called by plaintiff as an expert established that as a matter of scientific fact the defendant's therapy impaired the judgment and mental processes of Mrs. Greenberg in a way that was analogous to, if subtler than, the surgeon's sewing up of Mr. Ayers' abdomen. Thus, the plaintiff presented competent and unrebutted testimony that as a result of the operation of the "laws of nature" in connection with Dr. McCabe's treatment, which laws we understand to comprise the psychiatric as well as the physiological, she was precluded from discovery. At issue is the objective effect of the defendant's treatment on discoverability by a reasonable person, not the impact on discoverability of the plaintiff's mental deficiencies apart from that treatment. *fn2" On this basis, we conclude that the instruction and interrogatory accurately reflected Pennsylvania law.

 We wish to emphasize the narrowness of the doctrine by which a plaintiff's mental condition may be considered by the fact-finder in determining when he or she reasonably should have known of an injury and cause thereof. It does not mean that a plaintiff may offer slow-wittedness, idiosyncratic weaknesses of reasoning or lack of legal sophistication to excuse a failure to discover. Thus we do not mean to suggest that a defendant can be deprived of the important protections provided by the statutes of limitations, see Schmucker v. Naugle, 426 Pa. 203, 205-06, 231 A.2d 121, 123 (1967), quoting United States v. Oregon Lumber Co., 260 U.S. 290, 299-300, 67 L. Ed. 261, 43 S. Ct. 100 (1922), because he or she has the misfortune to harm a plaintiff who is not mentally capable of bringing the action within the statutory period. Rather, we mean to say that the statutory period does not begin to run if the fact-finder concludes that the plaintiff's failure of discovery, objectively determined, is brought about by the very nature of the defendant's conduct.

 Our holding might be conceptualized in other ways. Defendant might be deemed to be estopped from being advantaged by considering the running of the statute on the basis of a state of objective reasonableness when his actions have precluded the plaintiff from attaining that state. Alternatively, the mental conditions of which plaintiff was not possessed at the time of the allegedly negligent conduct and which resulted from that conduct might be considered part of the external "circumstances" under which the reasonableness of a plaintiff's diligence in ascertaining discovery, like the reasonableness of an actor's conduct which is alleged to be negligent, must be assessed. See Mogren v. Gadonas, 358 Pa. 507, 510, 58 A.2d 150, 152 (1948); Restatement (Second) of Torts § 283 (1965). The conceptual ...


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