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Wilson v. El-Daief

February 19, 2009


Appeal from the Order of the Superior Court entered on 11/16/07 at 3539 EDA 2006 that affirmed the order dated 3/13/06 of Montgomery County Court of Common Pleas, Civil Division at No. 03-19723

The opinion of the court was delivered by: Mr. Justice Saylor


ARGUED: October 21, 2008


We allowed appeal on a limited basis to consider the application of the statute of limitations in this medical malpractice case in light of Fine v. Checcio, 582 Pa. 253, 870 A.2d 850 (2005), and Caro v. Glah, 867 A.2d 531 (Pa. Super. 2004).

In October 2003, Appellant, Mary Elizabeth Wilson, filed a writ of summons against Appellees, Samir El-Daief, M.D., and Montgomery Hospital Medical Center. The ensuing complaint was based on alleged negligence associated with surgical procedures performed by Dr. El-Daief on Appellant's wrist and hand in May and August 2000. The central allegation was that Dr. El-Daief negligently lacerated the radial nerve in Appellant's wrist during one of the surgeries. Appellees sought summary judgment, invoking the governing two-year statute of limitations, see 42 Pa.C.S. §5524(2). In response, Appellant relied on the discovery rule, which operates to toll the running of the statute of limitations for latent injuries, or injuries of unknown etiology, until the plaintiff knew or should have known she was injured by the conduct of another. See Fine, 582 Pa. at 267-68, 272-74, 870 A.2d at 858-59, 862 (holding that defendant dentists were not entitled to summary judgment in malpractice actions commenced more than two years after the relevant dental procedures, where factual questions remained as to the plaintiffs' diligence).

The common pleas court awarded summary judgment. See Wilson v. El-Daief, No. 03-19723, slip op. (C.P. Montgomery Jan. 26, 2007). It explained that, after the second surgery, Appellant experienced constant, persistent, excruciating pain; within several weeks, her hand contracted into a fist, her right elbow bent inward, and her right shoulder drew upward. In these circumstances, the court determined that the cause of action arose in August 2000 (on the date of the second surgery) and that Appellant failed to meet the applicable two-year limitations period. In its analysis, the court referenced the following passage from Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468 (1983):

[T]he 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, 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 mere lapse of time.

Wilson, No. 03-19723, slip op. at 4-5 (quoting Pocono Int'l, 503 Pa. at 84-85, 468 A.2d at 471).

The common pleas court also concluded that the discovery rule did not apply to toll the running of the limitations period. Initially, the court noted that the application of this principle "arises from the inability of the injured, despite the exercise of due diligence, to know of the injury or its cause." Id. at 5 (quoting Pocono Int'l, 503 Pa. at 85, 468 A.2d at 471 (emphasis in original)). Further, the court indicated that "the fact that a plaintiff is not aware that the defendant's conduct is wrongful, injurious or legally actionable is irrelevant to the discovery rule analysis." Id. (quoting Haggart v. Cho, 703 A.2d 522, 528 (Pa. Super. 1997) (citation omitted)). Rather, the common pleas court explained that, once a plaintiff becomes aware of the injury, and who occasioned it, she is under a duty to investigate the matter and commence a cause of action. See id. (citing Haggart, 703 A.2d at 528-29). The court also highlighted this Court's statement that "[t]he very essence of the discovery rule in Pennsylvania is that it applies only to those situations where the nature of the injury itself is such that no amount of vigilance will enable the plaintiff to detect an injury." Dalrymple v. Brown, 549 Pa. 217, 228-29, 701 A.2d 164, 170 (1997) (citing Pocono Int'l, 503 Pa. at 85, 468 A.2d at 471).

The common pleas court reasoned:

Plaintiff admits that she began experiencing excruciating pain at the incision point site immediately after the surgery on August 4, 2000, in contrast to the relief she experienced from her symptoms after the May 2000 procedure. Any soreness associated with the May 2000 surgery resolved after the stitches were removed. The pain Plaintiff experienced following the August 2000 procedure increased, despite removal of the stitches. Significantly, Plaintiff believed "something wasn't right," and that Defendant had not taken proper care of her, no later than September 24, 2001. Accordingly, the record before this court compels a finding that even if the discovery rule applied it would not extend the running of the statute of limitations past September 24, 2003. Thus, Plaintiff['s] suit is time-barred because it was not commenced until October 10, 2003.

Wilson, No. 03-19723, slip op. at 6 (footnote omitted); see also id. ("[W]here, as here, the undisputed facts lead unerringly to the conclusion that the length of time it took a plaintiff to discover[] the injury or its cause was unreasonable as a matter of law, summary judgment is proper." (quoting Carns v. Yingling, 406 Pa. Super. 279, 285, 594 A.2d 337, 340 (1991) (internal quotations deleted))).

On appeal, the Superior Court affirmed in a divided memorandum. See Wilson v. El-Daief, No. 3539 EDA 2006, slip op. (Pa. Super. Nov. 16, 2007). Like the common pleas court, the majority relied upon the severe pain, clubbing, and contraction experienced by Appellant as placing her on notice of a surgical injury, as well as her conclusion, as of September 24, 2001, that Dr. El-Daief had not taken proper care of her. See id. at 6. While the majority recognized that Appellant had taken steps to ascertain the nature of "what was patently amiss with her hand," it found her suit was nevertheless out of time. Id. In this regard, the court relied on this Court's explanation that "lack of knowledge" does not toll the running of the statute of limitations. Id. (citing Pocono Int'l, 503 Pa. at 84, 468 A.2d at 471, and Molineux v. Reed, 516 Pa. 398, 403, 532 A.2d 792, 794 (1987)). The majority distinguished this Court's decision in Fine as pertaining to the doctrine of fraudulent concealment and in light of its conclusion that, given her symptoms, "there could be no doubt in Appellant's mind that she suffered an injury, and that the injury had occurred at the time of the second surgery[.]" Id. at 8. Finally, the majority rejected the argument that a definitive diagnosis is essential to the commencement of the limitations period, distinguishing the Superior Court's prior decision in Caro, 867 A.2d at 538 (reversing an award of summary judgment in a medical malpractice action arising out of a surgical injury alleged to have been inflicted more than two years prior to commencement of the action, although the plaintiff had experienced continuous pain and discomfort after the surgery). According to the majority, there was evidence in Caro to suggest that the plaintiff may reasonably have believed her symptoms to have been a normal side effect of the treatment procedure; whereas, in the present case, the evidence indicated that Appellant knew by at least September 24, 2001, that her afflictions were not normal. The majority also rejected an argument by Appellant that Caro suggests a definitive diagnosis is necessary to trigger the running of the limitations period, since, under Rule of Civil Procedure 1042.3(a), a plaintiff in a professional liability action is required to file a certificate of merit simultaneously with her complaint, or within sixty days thereafter.

Judge, now Justice, Todd filed a dissenting memorandum, advancing the position that the discovery rule issue presented a jury question. See generally Fine, 582 Pa. at 268, 870 A.2d at 858 ("Since [application of the discovery rule] involves a factual determination as to whether a party was able, in the exercise of reasonable diligence, to know of his injury and its cause, ordinarily, a jury is to decide it."). The dissent developed that, following her second surgery, Appellant continued treating with Dr. El-Daief for the next thirteen months, during which time she was also examined by an orthopedic surgeon, James Nutt, M.D., who repeatedly referred her back to Dr. El-Daief. See Deposition of Mary Elizabeth Wilson, N.T., Apr. 28, 2005, at 105 (describing herself as a "bouncing ball" between Drs. Nutt and El-Daief). The dissent also highlighted Dr. El-Daief's deposition testimony, to the effect that Dr. Nutt reported to him a differential diagnosis encompassing four possibilities, only one of which was a laceration of the radial nerve, as well as Dr. El-Daief's contention that such a laceration could be due to non-surgical reasons. Deposition of Samir El-Daief, M.D., N.T., May 5, 2005, at 100-01 ("[T]hat lacerated nerve could have been due to a whole multitude of possibilities, meaning there's more than one reason that the nerve could be possibly lacerated.").

Judge Todd recognized that, regarding her last visit to Dr. Nutt's office, Appellant testified:

The last time I went to see Dr. Nutt, he asked me why I was there. And I said, Dr. El-Daief told me to come back to see you. He said, Oh no. He said, You go back over there to Dr. El-Daief. You are his patient. He says, It is just like you never came here. He said, You go back to him. And that is when I said, okay, something is wrong here. Something is really wrong.

Wilson, No. 03-19723, slip op. at 2 (Todd, J., dissenting) (quoting Wilson Dep. at 105). Judge Todd observed, however, that on her following visit to Dr. El-Daief, Appellant testified that she was told nothing was wrong with her. See id. at 2-3 (quoting Wilson Dep. at 106-07).

The dissent acknowledged that, by this point in September 2001 Appellant had clearly lost confidence in Dr. El-Daief, but she stressed that an injured party's loss of confidence in her doctor, without more, is insufficient to trigger the running of the statute of limitations. See id. at 3 (citing Caro v. Glah, 867 A.2d 531, 538 (Pa. Super. 2004)). Further, Judge Todd did not agree with the majority that Appellant's statement that she knew "something was wrong" was a sufficient awareness of the fact that she was injured, and who injured her, so as to trigger the statute of limitations. Again, the dissent relied on Dr. El-Daief's denial of any injury and Dr. Nutt's advancement to him of four possible causes for Appellant's condition. While the dissent noted that the circumstances certainly implicated a duty to further investigate the source of her problems, Appellant's suspicions did not, in her view, trigger the statute of limitations.

Moreover, Judge Todd could not conclude that, as a matter of law, Appellant's actions in attempting to discern her injury ...

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