United States District Court, Western District of Pennsylvania
October 10, 1991
CHRIS T. BRUNEA, PLAINTIFF,
DR. THOMAS GUSTIN AND DR. RICHARD GUDOWSKI, DEFENDANTS.
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 notice that
a wrong has been committed and that he need investigate to
determine whether he is entitled to redress." Zeleznik, supra,
770 F.2d at 23; Mazur v. Merck & Co., Inc., 742 F. Supp. 239,
249 (E.D.Pa. 1990).
The party seeking to invoke the discovery rule is under "a
heavy burden of inquiry." Lowe v. Johns-Manville Corp.,
604 F. Supp. 1123, 1127 (E.D.Pa. 1985). Under Pennsylvania law, "the
standard of reasonable diligence is an objective or external
one that is the same for all individuals. It is not a
subjective standard." Rendenz by Rendenz v. Rosenberg,
360 Pa. Super. 430, 435, 520 A.2d 883 (1987). The fact that this
individual plaintiff may have lacked knowledge of his or her
injury is "irrelevant," "the statute is tolled only if a
reasonable person in the plaintiff's position would have been
unaware of the salient facts."
Rendenz, 360 Pa.Super. at 435, 520 A.2d at 886. In defining
reasonable diligence, the courts have stated "there are very
few facts which diligence cannot discover, but there must be
some reason to awaken inquiry and direct diligence in the
channel in which it would be successful. This is what is meant
by reasonable diligence." Urland v. Merrell-Dow
Pharmaceuticals, Inc., 822 F.2d 1268, 1273 (3d Cir. 1987)
(quoting Deemer v. Weaver, 324 Pa. 85, 90, 187 A. 215, 217
(1936)). Moreover, with respect to knowledge of a claim,
"plaintiffs need not know that they have a cause of action, or
that the injury was caused by another party's wrongful conduct,
for once a plaintiff possesses the salient facts concerning the
occurrence of his injury and who or what caused it, he has the
ability to investigate and pursue his claim." Vernau v. Vic's
Market, Inc., 896 F.2d 43, 46 (3d Cir. 1990) (emphasis in
original); accord Citsay v. Reich, 380 Pa. Super. 366, 370-371,
551 A.2d 1096, 1098 (1988); Baily v. Lewis, 763 F. Supp. 802,
807 (E.D.Pa. 1991).
Because the standard of knowledge is an objective one, it is
typically the nature of the injury that will determine whether
the discovery rule applies. The rule applies where an injury
"is not readily discernible." Stauffer v. Ebersole,
385 Pa. Super. 306, 309, 560 A.2d 816, 817, alloc. denied, 524 Pa. 622,
571 A.2d 384 (1989). The discovery rule has thus been
applied in cases involving medical malpractice where the injury
was not readily apparent, see Ayers v. Morgan, 397 Pa. 282,
154 A.2d 788 (1959) (surgical sponge left in abdomen during
operation performed nine years earlier), DeMartino v. Albert
Einstein Medical Center, 313 Pa. Super. 492, 460 A.2d 295 (1983)
(negligent root canal), and in cases of "creeping diseases"
where the plaintiff has been exposed to hazardous substances
but the symptoms of the injury do not develop for some time.
See Trieschock v. Owens Corning Fiberglas Co., 354 Pa. Super. 263,
511 A.2d 863 (1986) (asbestosis from exposure to
asbestos). . . . These examples are not, of course, exhaustive,
but they are illustrative of the type of injury which will
justify application of the discovery rule in that they involve
circumstances in which "no amount of vigilance" would have
enabled the plaintiff to discover the injury or its cause
within the limitations period. Pocono International Raceway,
503 Pa. at 85, 468 A.2d at 471; Baily v. Lewis, 763 F. Supp. at
The Pennsylvania courts have been unwilling to allow the
incapacity of a plaintiff to toll the statute of limitations.
The Pennsylvania judicial code specifically provides that
"except as otherwise provided by statute, insanity or
imprisonment does not extend the time limited by this
subchapter for the commencement of a matter." 42
Pa.Cons.Stat.Ann. § 5533(a). Moreover, courts applying
Pennsylvania law have consistently stated that the statute of
limitations runs against persons under a disability, including
one who is mentally incompetent. Greenberg v. McCabe,
453 F. Supp. 765, 767 (E.D.Pa. 1978), aff'd without opinion,
594 F.2d 854 (3d Cir.), Walker v. Mummert, 394 Pa. 146, 148,
146 A.2d 289, 290 (1958), Hippensteel v. W.C.A.B., 72 Pa. Commw. 261,
263, 457 A.2d 137, 138 (1983).
This refusal to toll the statute based on the disability of
a plaintiff is consistent with Pennsylvania's emphasis on an
objective standard of reasonable diligence. The court in
Barren by Barren v. United States, 839 F.2d 987 (3d Cir.) cert.
denied, 488 U.S. 827, 109 S.Ct. 79, 102 L.Ed.2d 55 (1988)
stated that "even though malpractice was a substantial factor
in the plaintiff's inability to recognize that very
malpractice," the running of the limitations period would not
be extended . . . Allowing the plaintiff to file later than an
objectively reasonable person would be tantamount to ruling
that a plaintiff's mental infirmity can extend the statute of
limitations. Such extensions have uniformly been rejected by
this and other courts of appeals . . . We recognize that our
holding in this case visits a harsh result on the plaintiff.
However, limitations periods must be strictly construed. Baily
It is important to recognize the importance of statutes of
limitations in Pennsylvania jurisprudence. The Pennsylvania
courts have stressed the strong policy rationales that underlie
the statute of limitations.
The Pennsylvania Supreme Court has stated:
The defense of the statute of limitations is not a
technical defense but substantial and meritorious
. . . Such statutes are not only statutes of
repose, but they supply the place of evidence lost
or impaired by lapse of time, by raising a
presumption which renders proof unnecessary . . .
Statutes of limitation are vital to the welfare of
society and are favored in the law.
Schmucker v. Naugle, 426 Pa. 203, 205-206,
231 A.2d 121, 123 (1967).
It is against this background that the timeliness of the
complaint filed by Mr. Brunea must be considered. Using the
Zeleznik standard, supra, the clock began to run when the
injured party possessed sufficient critical facts to put him on
notice that a wrong had been committed. It is not necessary
that Mr. Brunea knew that he had a cause of action, or that the
injury was caused by another party's conduct, but only that he
possessed the salient facts concerning the occurrence of his
injury and who or what caused it. Vernau, 896 F.2d at 46.
The court must first determine whether the injury suffered
was "not readily discernible" in order for the plaintiff to be
accorded the benefit of the discovery rule. The court believes
that the salient facts of Mr. Brunea's injury were known to him
during the period from March 13, 1987 until April 2, 1987 when
he was staying at Hamot Medical Center. The gravaman of the
plaintiff's complaint with regard to Dr. Gustin is that "during
plaintiff's stay at the Hamot, defendant Gustin misdiagnosed
plaintiff's condition . . ." (Count 14 of plaintiff's
complaint). The court believes that a reasonable person in the
plaintiff's position would have been aware of the salient facts
of the misdiagnosis and filed the cause of action within two
years of his release from the Hamot Medical Center on April 2,
1987. As the plaintiff did not commence this action until
November 7, 1989, the court determines that this action is
time-barred, and should be dismissed.
The court believes that the plaintiff's injury was readily
discernible before November 7, 1989, the date of the
commencement of this action. An objectively reasonable person
would have had "reason to awaken inquiry and direct diligence
in the channel in which it would be successful,"
Urland, 822 F.2d at 1273, sometime sooner than the two years
and six months beyond his release from Hamot Medical Center
when this action was initiated.
The court believes that the plaintiff "possessed the salient
facts concerning the occurrence of his injury and who or what
caused it" Vernau, 896 F.2d at 46, in sufficient time to
commence his suit within the two year limitations period. This
case can be differentiated from the cases where the injury was
not readily apparent, such as the surgical sponge left in the
abdomen during an operation, or those cases of "creeping
diseases" where the symptoms of the injury do not develop for
some time. Rather each allegation in Count 14 of the
plaintiff's complaint refers to a specific violation of
"acceptable medical standards" that occurred during the
plaintiff's stay at the Hamot Medical Center from March 13,
1987 to April 2, 1987.
This court must also follow the direction of the Pennsylvania
courts who have been unwilling to allow the incapacity of the
plaintiff to toll the statute of limitations. Thus, even under
a scenario whereby Dr. Gustin's alleged misdiagnosis was a
factor in the plaintiff's delay in assessing the malpractice,
it is still the case that "even though malpractice was a
substantial factor in the plaintiff's inability to recognize
that very malpractice, the running of the limitations period
would not be extended." Barren by Barren, supra, 839 F.2d at
This Barren case appears damaging to any possible contention
on the plaintiff's part that that he was not aware of the
malpractice until he "consulted other physicians and a
neuropsychologist, who reversed the misdiagnosis . . ." (Second
amended complaint of plaintiff at count 15). The law of the
State of Pennsylvania simply does not permit a later diagnosis,
whether labeled a misdiagnosis or otherwise,
to extend the statute of limitations beyond the two year period
when the injury accrued. Nor does it permit the plaintiff to
fall within the narrow exception of the discovery rule whereby
an injury is not readily discernible. Rather the objective
reasonable standard must be applied whereby the latest date for
the two year period to begin to run was the plaintiff's
discharge from Hamot Medical Center on April 2, 1987.
Like the Baily court, this court recognizes that its holding
in this case visits a harsh result on the plaintiff. However,
the court is convinced that similar to Baily, "It is clear that
under Pennsylvania law, where the plaintiff is aware of `the
facts concerning the occurrence of his injury' and the
`causative relationship' between the injury and the defendant's
conduct, the fact that the plaintiff does not know that he has
a cause of action will not toll the statute of limitations.
Vernau v. Vic's Market, 896 F.2d at 46.
The court believes that the delay of approximately 136 weeks
beyond the plaintiff's release from Hamot Medical Center prior
to filing of this suit does not meet the objective standard of
reasonable diligence required of a plaintiff. Under the
Pocono International standard, supra, 503 Pa. at 84, 468 A.2d
at 471, the statute of limitations began 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." The court finds that the right
to institute and maintain this suit began no later than April
2, 1987, and as a result the filing of this suit on November 7,
1989 was untimely. This court also finds that the plaintiff has
not met the narrow requirements of the Pennsylvania discovery
rule exception. As a result, the motion to dismiss the claim
filed by defendant Thomas Gustin will be granted. Because all
claims against Dr. Gustin will be dismissed, defendant Gustin's
motion to dismiss specific claims within the complaint will be
disregarded as moot.
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