The opinion of the court was delivered by: Mencer, District Judge.
This action alleges medical malpractice in the diagnosis and
treatment of plaintiff Chris Brunea during a stay at Hamot
Medical Center in Erie, Pennsylvania. The case was originally
filed in the Western District of New York. By order of that
court dated June 6, 1991, the action was transferred to the
Western District of Pennsylvania due to lack of personal
jurisdiction over the defendants in the State of New York.
The plaintiff alleges that he suffered a traumatic brain
injury in a fall in September, 1986. Plaintiff states that he
went to over ten hospitals for diagnosis and treatment from
September, 1986, into March, 1987. (Plaintiff's complaint at
Count 7). In March, 1987, plaintiff began treatment with Dr.
Gustin and entered Hamot Medical Center for diagnosis and
treatment. (Complaint at count 8). Plaintiff alleges that
during his stay at Hamot, Dr. Gustin "misdiagnosed plaintiff's
condition as functionally mentally ill-manic depressive, or
Bipolar Disorder, and failed to recognize and treat plaintiff's
head injury symptomatology which causes similar symptomatology
and also causes cognitive problems." (Plaintiff's complaint at
On July 7, 1991, defendant Gustin filed with this court a
motion to dismiss and/or motion for judgment on the pleadings.
Gustin alleges that plaintiff's cause of action is time-barred
by the Pennsylvania two year statute of limitations. Defendant
Gustin also avers that because Pennsylvania law does not
recognize a claim for lack of informed consent regarding
plaintiff's lithium treatment, therefore Count III of
plaintiff's second amended complaint fails to state a claim
upon which relief can be granted. Defendant Gustin also states
that Counts IV and V of plaintiff's second amended complaint
fail to state a claim upon which relief can be granted, as they
allege a cause of action based upon the plaintiff's removal
from disability coverage.
The court will first examine the applicable statute of
limitations. A federal court exercising diversity jurisdiction
is obliged to apply the substantive law of the state in which
it sits, Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct.
817, 82 L.Ed. 1188 (1938), and substantive law includes
statutes of limitations. Guaranty Trust Co. v. York,
326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); McGowan v. University
of Scranton, 759 F.2d 287, 290 (3d Cir. 1985).
The relevant provisions of Pennsylvania law provide:
§ 5502. Methods of computing periods of limitation
(a) General Rule — The time within which a matter
must be commenced under this chapter shall be
computed, except as provided by subsection (b) or
by any other provision of this chapter, from the
time the cause of action accrued, the criminal
offense was committed or the right of appeal arose.
42 Pa.Cons.Stat.Ann. § 5502 (Purdon 1981).
§ 5524. Two year limitation.
The following actions and proceedings must be
commenced within two years:
(2) An action to recover damages for injuries to
the person or for the death of an individual
caused by the wrongful act or neglect or unlawful
violence or negligence of another. 42
Pa.Cons.Stat.Ann. § 5524 (Purdon 1981).
The purpose of a statute of limitations is to encourage the
filing of claims promptly by giving no more than a reasonable
time within which to make a claim. By limiting the period in
which a claim may be made, the statute protects defendants from
having to defend actions where the truth-finding process is
impaired by the passage of time. United States v. Kubrick,
444 U.S. 111, 117-118, 100 S.Ct. 352, 356-357, 62 L.Ed.2d 259
(1979); Zeleznik v. United States, 770 F.2d 20, 22 (3d Cir.
As a general rule, a statute of limitations begins to run "as
soon as the right to institute and maintain a suit arises; lack
of knowledge, mistake or misunderstanding do not toll the
running of the statute of limitations." Pocono International
Raceway v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468,
471 (1983). Persons asserting a claim are under a duty to use
"all reasonable diligence to be properly informed of the facts
and circumstances upon which a potential right of recovery is
based and to institute suit within the prescribed statutory
period . . . even though a person may not discover his injury
until it is too late to take advantage of the appropriate
remedy, this is incident to a law arbitrarily making legal
remedies contingent on the mere lapse of time." Id. at 84-85,
468 A.2d at 471, Baily v. Lewis, 763 F. Supp. 802, 804 (E.D.Pa.
For tort actions, the general rule is that the cause of
action accrues at the time of the last event necessary to
complete the tort. Usually, this is the time the putative
plaintiff is injured. Kubrick, 444 U.S. at 120, 100 S.Ct. at
358. An injured party, however, cannot make a claim until he
has or should have had notice that he had an action to bring.
Thus, the Supreme Court has held that an injured party's cause
of action does not accrue until he learns of his injury. Urie
v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949).
In most cases, when a person learns of his injury, he is on
notice that there has been an invasion of his legal rights, and
that he should determine whether another may be liable to him.
Zeleznik, supra, 770 F.2d at 22.
However, in some circumstances, a person may know that he has
been injured but not be sufficiently apprised by the mere fact
of injury to understand its cause. McGowan v. University of
Scranton, 759 F.2d 287 (3d Cir. 1985). Where an injured person
is unable, "despite the exercise of diligence, to determine the
injury or its cause," the discovery rule tolls the running of
the statute of limitations. The discovery rule is a judicially
created device that provides that the limitations period begins
to run when the plaintiff knows or should know: (1) that he has
been injured, and (2) the injury has been caused by another
party's conduct. Cathcart v. Keene Industrial Insulation,
324 Pa. Super. 123, 135-137, 471 A.2d 493, 500 (1984). The
proverbial clock begins to run when the injured party
"possesses sufficient critical facts to put him on ...