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filed: June 28, 1989.


Appeal from the Judgment entered June 23, 1987 in the Court of Common Pleas of Lancaster County, Civil Division, No. 1187-1984


Terry S. Hyman, Harrisburg, for appellant.

Richard P. Mislitski, Harrisburg, for appellees.

Brosky, Beck and Cercone, JJ. Beck, J., files a dissenting opinion.

Author: Cercone

[ 385 Pa. Super. Page 308]

This action was brought by appellant Joanne Stauffer who seeks damages for personal injuries which resulted from excessive exposure to radiation following a radical mastectomy. By order of June 23, 1987, the lower court granted summary judgment in favor of appellee Dr. Ebersole*fn1 finding that, as a matter of law, appellant's suit was not timely filed as she knew or had reason to know of her injury more than two years before suit was commenced. The sole issue presented by this appeal is whether the lower court erred in finding that appellant's claim was barred by the applicable statute of limitations.

Appellant initiated the instant suit in April, 1984, by writ of summons. A complaint was thereafter filed in which appellant alleged that in 1977, appellee had administered to her an overdose of radiation which years later resulted in severe injury to the nerves of her left arm and hand. Appellant further alleged that despite reasonable diligence, she did not discover the actual cause of her injury until May, 1982. Appellee filed a timely answer and new matter in which he raised the statute of limitations as a defense. After depositions were taken by each party, appellee filed a motion for summary judgment which was granted by the court on June 23, 1987. This appeal followed.

The facts of record are as follows. In January, 1975, appellant had a radical mastectomy performed on her left breast and two years later the cancer recurred. Following further surgery, appellant was sent to appellee for radiation therapy which was administered from late 1977 through early 1978. In late 1978 appellant began to experience numbness in the tips of some of the fingers on her left hand. At that time she spoke with her parent's treating physician about the symptoms and he related that they possibly were caused by scar tissue. However, the physician, Dr. Smith, did not correlate the scar tissue to appellant's radiation treatment. Appellant's cancer also occurred in her right breast in 1979 and when she was admitted for

[ 385 Pa. Super. Page 309]

    surgery, she complained of the numbness in her fingers to her doctor. However, no tests were conducted and no diagnosis was made.

By 1980 appellant's numbness became acute, spreading from the tips of some of the fingers to her left hand and arm, accompanied by severe pain. Appellant sought the treatment of Dr. Medinger who conducted a battery of tests and in 1982 determined that the symptoms were caused by calcium deposits (fibrosis) forming in appellant's neck which pressed on the nerve endings leading to her left arm and hand. Dr. Medinger determined that the calcium deposits were the result of excessive exposure to the radiation administered to appellant in 1977. Appellant has now lost the use of her left and dominant hand and arm.

An action to recover damages for personal injuries is governed by a two-year statute of limitations. 42 Pa.C.S.A. ยง 5524(2). Thus, a plaintiff must commence an action within two years from the time he or she suffers an injury. However, when an injury is not readily discernible, the discovery rule, as discussed below, applies. Where this judicial doctrine is applied, the statute of limitations is tolled and does not begin to run until the plaintiff has discovered, or in the exercise of reasonable diligence should have discovered, the injury. See Groover v. Riddle Memorial Hospital, 357 Pa. Super. 420, 516 A.2d 53 (1986), allocatur den. 515 Pa. 600, 528 A.2d 957 (1987).

The discovery rule exception arises from the inability of the plaintiff, despite the exercise of diligence, to determine the existence of the injury or its cause. See Larthey by Larthey v. Bland, 367 Pa. Super. 67, 532 A.2d 456 (1987), allocatur den. sub nom. Larthey v. Bland, 518 Pa. 656, 544 A.2d 1343 (1988). The statute of limitations begins to run when a plaintiff knows, or reasonably should know that an injury has occurred and that the injury was caused by another party's conduct. Citsay v. Reich, 380 Pa. Super. 366, 370, 551 A.2d 1096, 1098 (1988); ...

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