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OROZCO v. CHILDREN'S HOSP. OF PHILADELPHIA

July 7, 1986

CHARISSA OROZCO, by her natural parents and guardians ad litem Joanne Orozco and John Orozco; and JOANNE OROZCO and JOHN OROZCO, individually,
v.
CHILDREN'S HOSPITAL OF PHILADELPHIA, a corporation of the Commonwealth of Pennsylvania, FRANCIS KING, M.D., SIDNEY FRIEDMAN, M.D., WILLIAM J. RASHKIND, M.D., J. HUDSON ALLENDER, M.D., DAVID SWEDLOW, M.D., JOHN DOE and JANE DOE, fictitiously named employees of Children's Hospital of Philadelphia



The opinion of the court was delivered by: LUONGO

 In this medical malpractice action, plaintiffs Charissa, Joanne and John Orozco seek to recover for injuries Charissa Orozco allegedly sustained due to a misdiagnosis of her condition. The named defendants -- the Children's Hospital of Philadelphia; Francis King, M.D.; Sidney Friedman, M.D.; William J. Rashkind, M.D.; J. Hudson Allender, M.D.; and David Swedlow, M.D. -- have moved for summary judgment, alleging that plaintiffs' action is barred by the applicable statute of limitations. For the reasons stated below, I will grant the motion for summary judgment.

 Charissa Orozco was born on October 13, 1980. On January 2, 1981 she was admitted to Children's Hospital for treatment of respiratory problems. She was hospitalized and under the care of the defendant doctors from January 2 until June 12, 1981. According to the complaint, Charissa's doctors believed a lung condition was the primary source of her problems. It was not until March 5, 1981 that she was properly diagnosed as having patent ductus arteriosus, a heart-related condition. This condition was corrected by surgery on March 6, 1981. Plaintiffs filed this lawsuit on May 1, 1985, charging that defendants' delay in diagnosing Charissa's condition had caused Charissa to undergo extensive and unnecessary tests, operations and diagnostic procedures, from which she sustained medical problems including scars and permanent damage to her voice, circulatory system and respiratory system.

 Defendants' summary judgment motion is based upon Pennsylvania's two-year statute of limitations for personal injury actions, 42 Pa. C.S.A. § 5524(2). Plaintiffs contend, in opposition, that although the alleged acts of medical malpractice occurred in 1981, their action is timely due to the combined operation of Pennsylvania's "discovery rule" and 42 Pa. C.S.A. § 5533, which was amended on May 30, 1984 to include a minority tolling provision.

 Pennsylvania's discovery rule applies to cases in which an injured person is unable, "despite the exercise of diligence, to determine the injury or its cause." Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468, 471 (1983). The rule provides that "'the statute of limitations begins to run when the plaintiff knows or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party's conduct.'" Cowgill v. Raymark Industries, 780 F.2d 324, 330 (3d Cir. 1985) (quoting Pastierik v. Duquesne Light Co., 341 Pa. Super. 329, 330, 491 A.2d 841, 842 (1985), appeal granted, 505 A.2d 254 (Pa. 1986)); Burnside v. Abbott Laboratories, 351 Pa. Super. 264, 505 A.2d 973, 987 (Pa. Super. 1985).

 Plaintiffs claim they first learned in December of 1983, from Dr. Norman Sissman, that Charissa's heart condition should have been diagnosed earlier. Plaintiffs' own testimony, however, demonstrates that they possessed the necessary information not later than June of 1981, when Charissa was discharged from the hospital. Joanne Orozco testified at a deposition that Charissa, during her hospital stay, suffered from vein problems, paralysis of the right hand, ventilator dependency, exposure to radioactive substances and viruses. When Charissa was discharged, she had an abnormal breathing pattern and obvious scars from a stomach operation. Deposition of Joanne Orozco at 38-39, 61-62 (Nov. 18, 1985). Plaintiffs' memorandum of law states that some of Charissa's injuries were not immediately manifest. Joanne Orozco, however, acknowledged that the effects of Charissa's medical treatment were all apparent to the plaintiffs when she was discharged. Id. at 63. In any event, once the statute of limitations begins to run on an injury claim it also runs with respect to related injuries arising from the same negligent conduct, even if the related injuries are not immediately ascertainable. Cathcart v. Keene Industrial Insulation, 324 Pa. Super. 123, 471 A.2d 493, 507 (1984); Shadle v. Pearce, 287 Pa. Super. 436, 430 A.2d 683, 685-86 (1981).

 Plaintiffs also knew or reasonably should have known of the cause of Charissa's ailments. Joanne Orozco testified that the doctors kept plaintiffs informed on a day to day basis of Charissa's condition and the complications which arose from her treatment. Deposition of Joanne Orozco at 32, 38-39. Until March 5, 1981 defendants had assured plaintiffs that Charissa's heart looked fine. On March 5, her heart problem was diagnosed and, after corrective surgery on March 6, her condition began to improve. Joanne Orozco acknowledged that Charissa's respiratory problems had been caused by patent ductus arteriosus rather than by a lung condition, and that plaintiffs had been so informed immediately after the diagnosis. Id. at 26-31. Plaintiffs recognized that Charissa's prior treatment, in particular the stomach operation, had not helped her. Id. at 32-36. Finally, Joanne Orozco acknowledged that the doctors themselves raised questions concerning the delay in diagnosis:

 
ALLAN STARR: When you were told that patent ductus arteriosus was diagnosed and that surgery would be performed, did you have any concern or question to the physicians as to why that diagnosis hadn't been made sooner?
 
JOANNE OROZCO: They had the questions to themselves. I didn't have to even pose the question.
 
ALLAN STARR: Well, how did that come up? Tell me what was said and who said it.
 
ALLAN STARR: And who was it, if you can remember, saying we should have picked it up sooner? Can you give me the names of any physicians?
 
JOANNE OROZCO: All of the doctors that we were in ...

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