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October 10, 1991


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 count 14).

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. 1985).

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. 1991).

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 ...

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