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CIPRUT v. MOORE

September 18, 1981

Benson Albert CIPRUT and Michael Ciprut
v.
Dr. John Royal MOORE and Temple University and Shriners Hospital



The opinion of the court was delivered by: VANARTSDALEN

I. INTRODUCTION

 The defendants in this malpractice action, a surgeon and two Philadelphia hospitals, move for summary judgment in their favor under Rule 56 of the Federal Rules of Civil Procedure, contending that the plaintiffs' claim is time-barred under the statute of limitations. Plaintiffs counter that the statute was tolled until within two years of the filing of the action. They assert, moreover, that the existence of genuine issues of material fact precludes the granting of summary judgment. They further contend that the defendants should be estopped from invoking the statute of limitations.

 For the reasons stated below, the defendants' motion for summary judgment will be granted.

 II. FACTS

 There is general agreement as to the factual background relevant to the disposition of this matter. In early September, 1961, the plaintiff Benson Albert Ciprut (Albert), then age nine, was hospitalized for corrective surgery on his severely bowed legs. He was admitted to Temple University Hospital and placed under the care of Dr. John Royal Moore. Dr. Moore performed a left tibial spring osteotomy on September 5, 1961, and a right tibial spring osteotomy on September 11, 1961.

 Following the second procedure, Albert developed circulatory difficulties in the right leg which necessitated further surgery on September 14, 1961. On October 31, 1961, a portion of Albert's right foot was amputated because it had become gangrenous. He was discharged from Temple University Hospital on November 11, 1961, for follow-up care at Shriners Hospital in Philadelphia, where he was hospitalized between November 11, 1961 and November 25, 1961; November 30, 1961 and April 10, 1962; and April 11, 1962 and February 15, 1964. During these times, Dr. Moore continued to participate in Albert's care, a portion of which consisted of further surgical procedures. On February 15, 1964, Albert was transferred to Shriners Hospital in Los Angeles and received no further care from Dr. Moore. Eventually, while Albert was in California, his right leg was amputated below the knee and additional surgery was performed on his left foot to alleviate drop foot, a condition in which the foot becomes permanently bent in a downward position.

 In 1972 or 1974, Dr. Aksitoe, the former family physician of the Cipruts, visited them in their Los Angeles home. He saw Albert and expressed sympathy over his difficulties in walking. Mr. Michael Ciprut (Albert's Father) did not ask for, nor did Dr. Aksitoe volunteer, an opinion as to the reasons for Albert's amputation.

 Albert's father did not see Dr. Aksitoe again until September 1976, when they met in Istanbul. At that time, Dr. Aksitoe revealed to Mr. Ciprut his conviction that Dr. Moore had "made some mistakes" and been negligent in his care of Albert. Dr. Aksitoe voiced the opinion that the gangrene and resultant loss of Albert's right foot could have been avoided had the necessary measures been taken by Dr. Moore after the first appearance of symptoms. Dr. Aksitoe further expressed his belief that the hospital staff, the resident doctors, the nurses and all personnel were "guilty."

 On September 1, 1978, Benson Albert Ciprut and his father, Michael Ciprut, filed suit against Dr. Moore, Temple University Hospital and Shriners Hospital of Philadelphia, asserting in their complaint, inter alia, that the "plaintiff, Benson Albert Ciprut, was not made aware of the negligence of the defendants until on or after September 6, 1976." Plaintiffs' Complaint at 6.

 III. DISCUSSION

 A. The Discovery Rule

 Pennsylvania law is controlling on this issue. It provides clear guidance on the running of the statute of limitations in malpractice cases. The Pennsylvania Supreme Court in Ayers made clear that, under the discovery rule, a suit for malpractice must be brought within two years from the date "when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable." Ayers, supra at 290, 154 A.2d at 792. Such a rule is necessary to prevent the harsh result of the statute running out during a period of time in which a plaintiff has no way of ...


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