No. 358 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Westmoreland County, Civil Division, at No. 2857 of 1976.
John J. Dean, Pittsburgh, for appellants.
John W. Jordan, IV, Pittsburgh, for Tukanowicz, appellee.
George E. McGrann, Pittsburgh, for El-Attrache, appellee.
John E. Kunz, Pittsburgh, for Henry Clay, appellee.
Spaeth, Wickersham and Lipez, JJ.
[ 290 Pa. Super. Page 583]
This is an appeal from the entry of summary judgment in favor of appellees under Pa.R.C.P. No. 1035. The lower court's grant of summary judgment in this malpractice action was premised upon the expiration of the two year personal injury statute of limitations prescribed by 12 P.S. § 34.*fn1 We reverse.
In April 1972, appellant Taylor underwent back surgery (a laminectomy) performed by appellee doctors Tukanowicz and El-Attrache at Frick Hospital. This operation is the act from which the malpractice action arises. Taylor's deposition
[ 290 Pa. Super. Page 584]
testimony establishes that the following events occurred subsequent to the operation and more than two years prior to his filing of the present action: 1) Taylor noticed increased pain in his back; 2) Taylor noticed pain radiating through his right leg, an area which had not been subject to pain prior to the operation; 3) immediately after the operation a doctor informed Taylor that he should be able to return to work within a few months, but despite this advisement Taylor was unable to return to work and, in late 1972, he was declared totally disabled by the Social Security Administration; 4) Taylor ceased receiving treatment from Tukanowicz and El-Attrache approximately five months after the operation, and beginning in November 1972 he sought treatment from numerous other physicians; 5) in late 1973 or early 1974 other surgeons performed a second laminectomy on Taylor's back. In his deposition, Taylor testified that despite these occurrences he did not become aware, nor was he advised by any of these physicians, that he had received improper medical care until January 1976, when he was so advised by his lawyer. Taylor filed this trespass action on September 14, 1976, a period of some 4 1/2 years after the operation.
In their new matter in response to Taylor's complaint, appellees asserted that the two year personal injury statute of limitations barred the action. Taylor's answer to new matter alleged, in general, that although he acted with due diligence he was unable to discover the true nature and extent of his injury until less than two years before he filed the lawsuit.
After the pleadings were closed appellees filed motions for summary judgment based upon the bar of the statute of limitations. These motions were granted by the lower court which held that, in light of the post operation occurrences, "Taylor knew or should have known of his injury by October ...