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DEBORAH CITSAY v. HARRY REICH (10/03/88)

submitted: October 3, 1988.

DEBORAH CITSAY, APPELLEE,
v.
HARRY REICH, M.D., APPELLANT



Appeal from the Order Entered February 16, 1988 in the Court of Common Pleas of Luzerne County, Civil Division, at No. 228-C of 1986

COUNSEL

David W. Saba, Wilkes-Barre, for appellant.

Joseph F. Sklarosky, Wilkes-Barre, for appellee.

Tamilia, Watkins and Montgomery, JJ.

Author: Montgomery

[ 380 Pa. Super. Page 368]

The Defendant-Appellant, Harry Reich, M.D., has filed this appeal from a trial court Order denying his Motion for Summary Judgment. The Appellant's Motion was based upon the claim that the Plaintiff-Appellee, Deborah Citsay, instituted the instant medical malpractice action beyond the applicable two year statute of limitations. See the Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended by the Act of December 20, 1982, P.L. 1409, No. 326, art. II, § 201, 42 Pa.C.S.A. § 5524(2). The trial court certified its Order

[ 380 Pa. Super. Page 369]

    denying summary judgment as one involving a controlling question of law as to which there is a substantial ground for difference of opinion, and that an immediate appeal from the Order would materially advance the ultimate termination of the case. See the Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended by the Act of April 28, 1978, P.L. 202, No. 53, § 10(2), 42 Pa.C.S.A. § 702. Thereafter, our Court granted the Petition of the Appellant for permission to file an interlocutory appeal.

At the outset, it is appropriate to recognize the legal standards which govern our analysis in this matter. Under Pa.R.C.P. 1035, summary judgment may properly be granted only ". . . if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In the consideration of a motion for summary judgment, a court must examine the entire record in the light most favorable to the non-moving party, and the court is not to decide issues of fact but merely to determine whether any such issues exist, and to resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Mattia v. Employers Mutual Companies, 294 Pa. Super. 577, 440 A.2d 616 (1982); Ritmanich v. Jonnel Enterprises, Inc., 219 Pa. Super. 198, 280 A.2d 570 (1981). A party moving for summary judgment has the burden of proof. Barber v. Harleysville Mutual Insurance Co., 304 Pa. Super. 355, 450 A.2d 718 (1982).

This appeal brings before our Court an interpretation of the "discovery rule". That rule, a creation of case law, has been applied in determining the appropriate limitations period in malpractice actions, since it was enunciated in Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959). It essentially dictates that when the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the period prescribed in the limitations statute, the limitation period will

[ 380 Pa. Super. Page 370]

    not begin to run until the discovery of the injury is reasonably possible. Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963). Stated another way, until one discovers, or through reasonable diligence should have discovered the alleged misdiagnosis or improper procedure employed by the physician, he or she does not have reason to know of the injury, and the running of the statute of limitations with respect to the personal injury cause of action will be delayed until the time of discovery, or the time when discovery became reasonably possible. Petri v. Smith, 307 Pa. Super. 261, 453 A.2d 342 (1982); Acker v. Palena, 260 Pa. Super. 214, 393 A.2d 1230 (1978). Obviously, the discovery rule is grounded upon considerations of fairness and is designed to assist an injured plaintiff. Taylor v. Tukanowicz, 290 Pa. Super. 581, 435 A.2d 181 (1981).

Our courts have also analyzed and explained the kind of knowledge a plaintiff must have to trigger the "discovery" which starts the limitations period clock. In Anthony v. Koppers Company, Inc., 284 Pa. Super. 81, 425 A.2d 428 (1980), rev'd on other grounds, 496 Pa. 119, 436 A.2d 181 (1981), our Court adopted guidelines that provide that the statute of limitations commences in a medical malpractice case when the plaintiff has knowledge, or through the exercise of reasonable diligence should have had knowledge, of: (1) his or her injury; (2) the operative cause of his or her injury; and (3) the causative relationship between his or her injury and the operative conduct. This formula has often been applied in situations such as ...


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