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Osei-Afriyie by Osei-Afriyie v. Medical College of Pennsylvania

filed: July 1, 1991.

JENNIFER AND MONICA OSEI-AFRIYIE, MINORS, INDIVIDUALLY, BY THEIR PARENT, FRANCIS OSEI-AFRIYIE, AND IN HIS OWN RIGHT, APPELLANTS
v.
THE MEDICAL COLLEGE OF PENNSYLVANIA AND STULL, TERRENCE LEE, M.D., APPELLEES



On Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Civil Action No. 90-01566.

Sloviter, William D. Hutchinson and Alito, Circuit Judges.

Author: Hutchinson

Opinion OF THE COURT

HUTCHINSON, Circuit Judge

Francis Osei-Afriyie (Osei-Afriyie), in his own right and as the father of minors Jennifer and Monica Osei-Afriyie (the children), appeals from a jury verdict entered against him and his daughters in the United States District Court for the Eastern District of Pennsylvania. The jury found that Osei-Afriyie did not bring this suit on behalf of himself and his children soon enough to meet the applicable statutes of limitations.

Osei-Afriyie, who is not a lawyer, represented himself and his children at trial without the assistance of legal counsel. Osei-Afriyie continues to represent himself and his children pro se on appeal. The complaint at issue here raised a plethora of claims against the Medical College of Pennsylvania (the hospital) and one of the hospital's doctors following successful treatment of the children for malaria they contracted during a visit to Africa.

For the reasons set forth below, we will affirm the jury's verdict to the extent that it found Osei-Afriyie's own claims to be time-barred. However, we will vacate that portion of the jury's verdict that dismissed the children's claims because we hold that, in accord with the two other courts of appeals that have considered this issue, a parent who is not an attorney must be represented by legal counsel in bringing an action on behalf of his or her minor children.

I.

Osei-Afriyie and his children visited Ghana, Africa, from February through early July of 1985. Upon their return to the United States, the children displayed signs of ill health: both suffered from distended abdomens and a fever, and Monica evidenced dehydration and malnutrition. Soon after their return, the children were admitted into St. Christopher's Hospital, where they were diagnosed as suffering from inflammation of the middle ear. The children were treated and discharged from St. Christopher's.

In the early morning hours of July 25, 1985, Jennifer's mother observed that Jennifer suffered from a fever, diarrhea and convulsions. Monica also had a fever and diarrhea. At 6:30 a.m. on July 25, 1985, the children arrived in the emergency room of the Medical College of Pennsylvania. In the emergency room, Jennifer, who was then two and one-half years old, was found to have a fever of 105.8 degrees. Monica, who was then ten months old, was found by emergency room staff to have a fever of 103.6 degrees. Following blood tests, both children were diagnosed as suffering from the most serious form of malaria. While a parasite level of six percent is considered unusually high, the hospital reports that the children displayed parasite levels of nearly twenty-five percent. In his complaint, Osei-Afriyie claims that the children's parasite levels never exceeded thirteen percent.

Malaria has been nearly eradicated within the United States. As a result, drug manufacturers no longer regularly produce Quinine, the federally-approved drug for combating the illness, nor do hospitals keep a supply of Quinine on hand. Instead, the Centers for Disease Control (CDC) in Atlanta, Georgia, is the sole source of the drug. When doctors at the hospital contacted the CDC and requested Quinine, CDC officials informed the doctors that it would take eight to twelve hours before the drug arrived in Philadelphia.

Given the children's precarious condition, doctors at the hospital did not believe it would be wise to postpone treatment until the Quinine arrived. Instead, the doctors began to treat the children with Quinidine, a drug that was known to combat malaria but that the Food and Drug Administration (FDA) has approved only for the treatment of irregular heartbeats.

Osei-Afriyie claims that the doctors did not ask his permission to treat the children with Quinidine until hours after the treatment began. The hospital, on the other hand, states that Osei-Afriyie initially gave permission to use Quinidine on the children. In addition to the drug treatment, the hospital also performed blood transfusions upon Monica, since doctors suspected that she had a cerebral infection from the malaria.

According to Osei-Afriyie, when he learned that the hospital had begun to administer Quinidine to his children, he asked the hospital to stop use of the drug, since it was not an FDA-approved treatment for malaria. Despite the fact that Quinidine was an experimental drug in the treatment of malaria, it worked quite successfully in combating the children's malaria. On the day after they had been admitted into the hospital, both children exhibited greatly reduced blood parasite levels of under two percent. That day, Quinine arrived at the hospital, but the hospital did not administer it since the children had already displayed such marked improvement and since no one knew the effects of administering Quinine and Quinidine together to the same patient.

Following their treatment with Quinidine, both children made complete recoveries. Before leaving the hospital, Osei-Afriyie states in the complaint that he expressly refused to give permission to have information about the successful treatment of his daughters reported in any medical publications.

In the May, 1987 edition of the Journal of Infectious Diseases, Dr. Terrence L. Stull (Stull) of the Medical College of Pennsylvania published an article entitled "Continuous-Infusion Quinidine Gluconate for Treating Children with Severe Plasmodium falciparum Malaria." In the article, Dr. Stull told the story of his successful treatment of the children's malaria. Neither child was identified by name; Monica was referred to as "sibling A" and Jennifer was referred to as "sibling B." However, the article was not totally bereft of identifying details: for example, it mentioned that the children contracted malaria during a five-month visit to the west African nation of Ghana.

In the July 13, 1989 issue of the New England Journal of Medicine, doctors from the malaria branch at the Centers for Disease Control published an article entitled "Treatment of Severe Malaria in the United States with a Continuous Infusion of Quinidine Gluconate and Exchange Transfusion." This article also included an account of the treatment the children received, but once again they were not directly identified. Dr. Stull did not write or participate in the publication of this second article, but its authors relied upon Dr. Stull's article as a source.

On March 7, 1990, Osei-Afriyie filed a pro se complaint in the United States District Court for the Eastern District of Pennsylvania against the hospital and Dr. Stull. The plaintiffs named in the complaint were Osei-Afriyie in his own right and Osei-Afriyie on behalf of his two minor children. In the twelve page, single-spaced complaint, Osei-Afriyie alleged claims on behalf of the children for assault and battery, negligence, lack of informed consent, "wrongful discharge" of confidential information and invasion of privacy. In his own right, Osei-Afriyie alleged, at a minimum, a claim for intentional infliction of emotional distress. He also sought to recover punitive damages on behalf of himself and the children.

In the complaint, Osei-Afriyie attempted to invoke the district court's jurisdiction in two ways, by alleging diversity of citizenship and by claiming that his complaint contained claims that arose under federal law. Aside from citing several sections from the Code of Federal Regulations, Osei-Afriyie mentioned 42 U.S.C.A. § 1983 (West 1981), which permits a suit against state actors for deprivations of rights secured under federal law, and 21 U.S.C.A. § 355(i) (West 1972), which concerns use of experimental drugs in research.

On June 28, 1990, the hospital and Dr. Stull moved for partial summary judgment. The hospital and Dr. Stull argued, in part, that the claim Osei-Afriyie brought in his own right was barred under the applicable statute of limitations. See Appendix (App.) at 75. On July 9, 1990, the hospital and Dr. Stull filed another motion for summary judgment, this time focusing on the children's invasion of privacy claim. The district court denied both motions for summary judgment.

On July 16, 1990, the suit came to trial before a jury. The district court ruled that the trial would be "trifurcated." First, the jury would hear evidence pertinent to whether the suit was commenced within the statutes of limitations applicable to the various claims set forth in the complaint. Then, if any claims survived the statutes of limitations phase of the trial, the liability and damages phases would begin.

The sole witness at the statutes of limitations phase was Grace Atea Ampofoh (Ampofoh), who is Osei-Afriyie's wife and the mother of the children. She testified that Osei-Afriyie learned on the morning of July 25, 1985 that the children received Quinidine. Osei-Afriyie did not introduce any testimony whatsoever as to when he learned of the articles mentioned in his complaint.

Following Ampofoh's testimony, the district court allowed the parties to make some closing remarks and then charged the jury on the statutes of limitations that applied to each of Osei-Afriyie and his children's claims. The parties agree that Pennsylvania law is applicable to the state law claims raised in the complaint. The district court told the jury that under Pennsylvania law there is a two year statute of limitations applicable to the children's claims for assault and battery, negligence, lack of informed consent and wrongful discharge of confidential information. See 42 Pa. Cons. Stat. Ann. § 5524(1), (2), (7) (Purdon Supp. 1991). The district court explained to the jury that under Pennsylvania law there is a one-year statute of limitations applicable to the children's claim of invasion of privacy. See 42 Pa. Cons. Stat. Ann. § 5523(1) (Purdon Supp. 1991). The district court dismissed that part of their invasion of privacy claim resulting from the article published in the New England Journal of Medicine, since Dr. Stull did not write or actively contribute to that article. See App. at 38. As to Osei-Afriyie's own claim that he suffered intentional infliction of emotional distress, the district court instructed the jury that under Pennsylvania law a two-year statute of limitations applied. See 42 Pa. Cons. Stat. Ann. § 5524(7) (Purdon Supp. 1991).

After delivering these instructions, the district court asked Osei-Afriyie and the attorney who represented both the hospital and Dr. Stull to engage in a discussion at side-bar out of the jury's hearing. Following the side-bar conference, the district court gave the following instruction:

Ladies and gentlemen of the jury, if you find that there was anything hidden from the plaintiff, that in other words, he could not discover this then the statute did not begin to run. His position is that it was hidden--he claims that Dr. Stull conducted studies of the use of Quinoidine [sic] and--if you find that was ...


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