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NAVIN v. BYRNE

July 1, 1986

ELIZABETH NAVIN f/k/a ELIZABETH FRANCOVICH, Plaintiff
v.
WILLIAM E. BYRNE, III, M.D., Defendant


Caldwell, U.S.D.J.


The opinion of the court was delivered by: CALDWELL

CALDWELL, U.S.D.J.

MEMORANDUM

 I. Introduction and Background.

 In this diversity action controlled by Pennsylvania law, defendant, William E. Byrne, III, M.D., has filed a motion for summary judgment pursuant to Fed. R. Civ. P. 56, contending that plaintiff, Elizabeth Navin's, medical malpractice action against him is barred by the statute of limitations. We review the motion under the well established standard set forth in Hersh v. Allen Products Co., Inc., 789 F.2d 230 (3d Cir. 1986).

 The cause of action arises from defendant's alleged failure to treat plaintiff properly for pelvic inflammatory disease. Plaintiff first consulted with Dr. Byrne in November of 1980, complaining of pain in the right leg and an inability to menstruate. Defendant treated her with birth control pills at first and eventually in February of 1982 performed an exploratory laparotomy. At that time defendant noted the presence of infection but did not remove any tissue. He allegedly explained to plaintiff that he could scrape the infection away periodically in the future if plaintiff desired to have children. Plaintiff last saw defendant on February 12, 1982. Plaintiff then moved to Maryland and came under the care of Dr. David Zisow who saw her for the first time on January 18, 1983. Dr. Zisow performed a laparotomy on April 17, 1983 during which he removed plaintiff's fallopian tubes and left ovary. This lawsuit against defendant was instituted on August 6, 1985.

 II. Discussion.

 Because this case is controlled by Pennsylvania law, we look to the applicable Pennsylvania statute of limitations. See McGowan v. University of Scranton, 759 F.2d 287 (3d Cir. 1985). 42 Pa.C.S. ยง 5524(2) provides that an "action to recover damages for injury to the person . . . caused by the wrongful act or neglect . . . or negligence of another" must be commenced within two years. Pennsylvania courts apply the discovery rule to this limitations section. As stated by the Pennsylvania Superior Court:

 
The now settled delineation of this rule is as follows: "The statute commences when the medical malpractice plaintiff has knowledge or (and this is crucial to the determination) through the exercise of reasonable diligence should have had knowledge of: (1) his injury; (2) the operative cause of his injury; and, (3) the causative relationship between his injury and the operative conduct." DeMartino v. Albert Einstein Medical Center, Northern District, 313 Pa.Super. at 500, 460 A.2d at 299. Knowledge of the negligence is not a part of the discovery rule. Id.

 Held v. Neft, 352 Pa. Super. 192, , 507 A.2d 839, 841 (1986). (emphasis in original). *fn1"

 In accordance with the foregoing rule, plaintiff acknowledges that she knew of her injury in April of 1983 but asserts that she was unable to relate the injury and the operative cause, defendant's treatment of her, until August of 1983. Plaintiff also apparently asserts that she had to have knowledge of defendant's negligence before the limitations period began to run. Specifically, plaintiff argues that she "did have knowledge of the circumstances surrounding the basis for this action but was unable to coherently and intelligently understand the causative of [sic] relationship between her injury and the Defendant's previous treatment and her resulting legal rights until late August of 1983." (Plaintiff's brief in opposition to defendant's motion for summary judgment at pps. 6-7). Plaintiff relies upon her deposition testimony to support this argument:

 
[Defense Counsel]: Well, I can't be, because I don't know what you told her. What in particular that comes to your mind as to what you may have told your mother about this lawsuit?
 
[Plaintiff]: I told her that I was suing in this case, because I felt that I had, I thought that I had a case for the situation that I was left in.
 
Q. Did you describe the situation to your mother?
 
A. Yes.
 
Q. When do you first recall telling your mother that you were contemplating filing suit
 
A. I believe it was 1983, late August, around that time.
 
Q. Do you recall what you told your mother, at that time?
 
A. Not in specific words what I said to her, but I told her that my husband and I legally felt, legally felt that we, that there was something wrong and that we were going to ...

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