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filed: April 29, 1983.


No 2343 Philadelphia 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, September Term, 1979, No. 1198.


Charles P. Menszak, Jr., Philadelphia, for appellant.

Kevin H. Wright, Philadelphia, for appellees.

Price,*fn* Montemuro and Van der Voort, JJ.

Author: Price

[ 313 Pa. Super. Page 495]

The present appeal presents the issue of whether a prospective medical malpractice plaintiff need have knowledge, or should, through the exercise of reasonable diligence, have knowledge that a personal injury which he has suffered was the result of professional negligence, before the two-year statute of limitations commences against his cause of action.

Appellant herein contends that the lower court erred in granting appellee Albert Einstein Medical Center ("AEMC") summary judgment on the grounds that the statute of limitations barred his complaint in trespass. We disagree and affirm the order of the lower court.

Summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is not a genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Pa.R.C.P. 1035. The evidence must be viewed in the light most favorable to the non-moving party and all doubts must

[ 313 Pa. Super. Page 496]

    be resolved against the moving party. Wallace v. Horvath, 283 Pa. Superior Ct. 179, 180-181, 423 A.2d 1047, 1048 (1980), Acker v. Palena, 260 Pa. Superior Ct. 214, 393 A.2d 1230 (1978). We shall, therefore, recite the undisputed facts of record as contained in the pleadings, interrogatories and admissions in compliance with this standard.

In October 1973, appellant Robert DeMartino engaged the services of Albert Einstein Medical Center on an outpatient basis for treatment of decayed teeth. At that time he was informed that his prospective endodonic treatment would extend over one and one half years. From this time until August 1977 when appellant discontinued his relationship with AEMC, he had several crowns fitted and placed. The endodonic treatment appellant underwent for a little more than three years was more prolonged and extensive than had at first been indicated to appellant by AEMC's physicians. Appellant alleges that throughout the course of the dental procedures he was repeatedly told by his attending dentists that his case was quite complex.

In May 1977, three and one half years after he originally began his treatment at AEMC his attending dentist referred him to Dr. Brothman, an endodonic specialist also employed at AEMC, in order to treat two of appellant's molars which were causing considerable pain and discomfort. In his answer to appellee's interrogatory # 44 appellant describes what transpired at the May 1977 appointment he had with Dr. Brothman:

Dr. Brothman told me one [molar] had gone too far to save and that the other tooth had received a 'severe gross perforation' thereby causing infection and bone erosion. When I asked Dr. Brothman how this could have happened, he told me that whoever had done the root canal 'could not have been watching what he was doing.' When I informed Dr. Brothman that the work was that of his colleague, Dr. Houseman, he refused to discuss the matter any further.

This same conversation with Dr. Brothman was described verbatim by appellant in a March 18, 1979 letter addressed

[ 313 Pa. Super. Page 497]

    to the Patient Relations Committee of the Philadelphia County Dental Society informing said committee of his intention to file a grievance. (R. 31a).*fn1 Appellant also wrote in this letter: "The above incidents made it clear to me that remaining a patient at Albert Einstein was bringing no progress to my case and as the above example shows, conditions were in some cases worse than when I began as a patient." (R. 31a).

Appellant alleges that it was not until a 1979 visit to another dentist not associated with AEMC that he was advised that "his condition was not the natural progression of a disease but the result of improper treatment on the part of AEMC." Appellant's Br. at 9.

On September 10, 1979, twenty-eight months after appellant's conversation with Dr. Brothman, he commenced this suit by filing a Writ of Summons in Trespass. In his complaint, filed February 7, 1980, DeMartino alleged two separate causes of action. The first alleged that he suffered personal injuries caused by improper treatment administered by the agents and employees of appellee AEMC. The second count alleged a cause of action against Dr. Stephen Sobel individually for alleged improper treatment beginning August 1977.*fn2 On March 4, 1980 appellee AEMC filed an answer properly raising in new matter the allegation that DeMartino was put on notice of the alleged mistreatment in May 1977 and that the action was, therefore, barred by the statute of limitations.

Following a period of discovery during which were filed into the record the above described letter and interrogatory, appellee AEMC filed a motion for summary judgment alleging the bar of the statute of limitations. Oral argument followed in the Court of Common Pleas of Philadelphia

[ 313 Pa. Super. Page 498]

County (the Honorable Stanley Greenberg, presiding) and appellee's motion for summary judgment was granted; final judgment was entered in AEMC's favor on September 29, 1980.*fn3 Appellant thereafter undertook this appeal.

Appellant's primary contention before us is that the statute of limitations in a medical malpractice action should not begin to run until a plaintiff has reason at least to suspect that a legal duty owing him has been breached. The particular choice of semantics and implications contained in appellant's framing of the issue is not an accurate reflection of the discovery rule as formulated in our courts' case law. We, therefore, reject appellant's theory.

The Pennsylvania statute of limitations*fn4 provides that personal injury actions must be brought within two years of the accrual of the cause of action, i.e., from the date the injury is sustained. An exception to this limitation has been articulated by our courts in medical malpractice cases where very often the patient (and prospective plaintiff) has no reason to believe that he has suffered an injury caused by the administration of a physician's treatment. This exception, coined the "discovery rule," has been most recently explained in Petri v. Smith, 307 Pa. Superior Ct. 261, 453 A.2d 342 (1982):

The 'discovery rule' exception is premised on the concept that where the existence of an injury cannot be reasonably ascertained, the statute of limitations does not begin to run until such time as the injury's existence is known

[ 313 Pa. Super. Page 499]

    or discovered, or becomes knowable or discoverable by the exercise ...

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