from the Order Entered February 24, 2014 In the Court of
Common Pleas of Lehigh County Civil Division at No(s):
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E.,
BOWES, PANELLA, SHOGAN, LAZARUS, OLSON, and OTT, JJ.
Nancy and Nicholas Nicolaou ("the Nicolaous"),
appeal from the February 24, 2014 order granting summary
judgment in this medical malpractice action in favor of
Appellees, James J. Martin, M.D.; Jeffrey D. Gould, M.D.; St.
Luke's Hospital; St. Luke's Hospital and Health
Network; St. Luke's Hospital Union Station Medical
Surgical Clinic, d/b/a St. Luke's Southside Medical
Center; St. Luke's Orthopaedic Surgical Group; and
Nazareth Family Practice. For the following reasons, we
trial court summarized the factual and initial procedural
history of this case as follows:
The facts of the case provide that sometime in 2001, Nancy
Nicolaou was bitten by a tick on her left ankle. Beginning in
August, 2001, Mrs. Nicolaou began seeking medical treatment
because she was experiencing a number of maladies that she
associated with the tick bite. At first, Mrs. Nicolaou
developed a rash near the sight [sic] of the bite and
experienced numbness and tingling in her left toe, fatigue,
and lower back pain. Over time, these symptoms expanded to
include: incontinence, total loss of bladder control;
tingling and numbness throughout her body, including both
legs and feet; difficulty walking; and confinement in a
Each of the [Appellees] acted as Mrs. Nicolaou's treating
physician at different times between 2001 and 2008. Mrs.
Nicolaou was a patient of dismissed co-defendant Dr. Stephen
P. Falatyn, an alleged agent of [Appellees] St. Luke's
Hospital and St. Luke's Health Network, in August of
2001. Mrs. Nicolaou was a patient of [Appellee] Dr. James J.
Martin, an alleged employee of [Appellee] Nazareth Family
Practice, from approximately June 14, 2002 through June 14,
2005. Mrs. Nicolaou was a patient of co-defendant Louise A.
Dillonsnyder, CRNP,  an alleged agent of [Appellees] St.
Luke's Hospital, St. Luke's Health & Health
Network, and St. Luke's Hospital Union Station Medical
Surgical Clinic, from May 27, 2005 through December 20, 2006.
Mrs. Nicolaou was a patient of [Appellee] Dr. Jeffrey D.
Gould, an alleged agent of [Appellees] St. Luke's
Hospital and St. Luke's Hospital & Health Network, in
2007 and 2008.
During Mrs. Nicolaou's treatment, Dr. Falatyn and
[Appellees] Martin, Dillonsnyder, and Gould all ordered a
battery of tests, including four Lyme Disease tests; none of
the tests produced a positive result for Lyme Disease.
Consequently the [doctors] did not diagnose Mrs. Nicolaou
with or treat her for Lyme Disease.
On July 3, 2006, [Appellee] Nurse Dillonsnyder ordered an MRI
of the brain. The results of the MRI suggested that Mrs.
Nicolaou could be suffering from either multiple sclerosis
(MS) or Lyme Disease. [The doctors] diagnosed Mrs. Nicolaou
with and treated her for MS. Dr. Gould told Mrs. Nicolaou
that she did not have Lyme Disease and he continued to
believe that she did not have Lyme Disease. Mrs. Nicolaou
stopped treating with the [Appellees] sometime in 2008.
Sometime in 2007, Mrs. Nicolaou suspected that [Appellees]
incorrectly diagnosed her with MS and that she was actually
suffering from Lyme Disease due to the symptoms she
experienced near the 2001 tick bite. As a result, Mrs.
Nicolaou sought the help of Nurse Practitioner Rita Rhoads
after Mrs. Nicolaou learned through research on the internet
that Nurse Rhoads had a history of treating patients for Lyme
Disease whom other medical professionals had previously
incorrectly diagnosed as suffering from MS. Mrs. Nicolaou met
with and was examined by Nurse Rhoads on five occasions
between July 20, 2009 and February 1, 2010, specifically:
July 20, 2009; September 21, 2009; November 9, 2009; December
7, 2009; and February 1, 2010. During each of the
appointments, Nurse Rhoads recorded an assessment of
"probably Lyme [Disease]" stemming from the 2001
tick bite on Mrs. Nicolaou's left ankle and prescribed
antibiotics to fight the Lyme Disease. Also, during each of
the appointments, Nurse Rhoads told Mrs. Nicolaou that she
believed Mrs. Nicolaou was suffering from Lyme Disease, and
that, as a result of that diagnosis, Nurse Rhoads was
prescribing antibiotics to fight the Lyme Disease.
During some of the appointments, Nurse Rhoads recommended
that, in order to confirm Nurse Rhoads' diagnosis of Lyme
Disease, Mrs. Nicolaou should undergo a test offered by a
company called IGeneX, Inc. (IGeneX). Mrs. Nicolaou testified
that she did not get the test before February 1, 2010,
because she wanted to see how her symptoms were going to
react to the antibiotics. Nurse Rhoads testified that Mrs.
Nicolaou did not have the IGeneX test done when it was first
recommended because Mrs. Nicolaou said she could not afford
it. Mrs. Nicolaou testified that she voluntarily stopped
purchasing medical insurance at some point in 2005 because
her insurer was not covering the cost of many of the tests
ordered by her physicians; she understood that she would be
personally responsible for all costs associated with tests
that might be ordered by her medical care providers going
Nurse Rhoads administered the IGeneX Lyme Disease test to
Mrs. Nicolaou on February 1, 2010. Nurse Rhoads sent Mrs.
Nicolaou's test specimen to the IGeneX laboratory in Palo
Alto, California. On February 12, 2010, IGeneX completed its
analysis of the test. On February 13, 2010, Nurse Rhoads
informed Mrs. Nicolaou via e-mail that the test results were
positive for Lyme Disease.
that Mrs. Nicolaou received the positive test results, she
posted a message on her Facebook page that confirmed her
subjective opinion that she believed she had Lyme Disease
well before receiving the IGeneX report:
Today i got my blood test back from igenix [sic]
labs to test for lyme disease and it came back
positive!!!!!!!!!!!!! i had been telling everyone for years i
thought it was lyme and the doctors ignore me, thank you god
you have answerd [sic] my prayers!!!!!!!!! Now its
[sic] all in your hands!!!!!!!!!!!!
[The Nicolaous] initiated this lawsuit against [Appellees] by
way of [a] complaint filed on February 10, 2012. Amended
complaints were filed on April 19, 2012 and May 31, 2012. In
the second amended complaint, Mrs. Nicolaou asserts medical
malpractice claims against each of the [Appellees]. Based on
the injuries allegedly suffered by his wife as a result of
[Appellees'] purported negligence, Mr. Nicolaou also
asserts claims against each of the [Appellees] for loss of
In their Answer with New Matter of [Appellees] to the Second
Amended Complaint (Answer), [Appellees] averred a violation
of the statute of limitations as an affirmative defense to
all of the [Nicolaous'] claims.
[The Nicolaous] averred in their Second Amended Complaint
that although they did not initiate this action until more
than three years after Mrs. Nicolaou's last contact with
[Appellees], the statute of limitations is not a bar to their
claims due to the operation of the discovery rule. [The
Nicolaous] assert that [Appellees] are estopped from
asserting a statute of limitations defense because reasonable
people in the position of [the Nicolaous] could not have
discovered any negligence until February 13, 2010, at the
earliest; the Complaint was filed within two years of that
Court Opinion, 2/24/14, at 2-6 (citations to the record
discovery was completed, Appellees filed a motion for summary
judgment on December 6, 2013, and the Nicolaous filed a
response on December 31, 2013. The trial court granted
Appellees' motion on February 25, 2014, holding that the
Nicolaous had commenced their action after the prescribed
statutory period for bringing the claim had expired, and that
the statute of limitations was not tolled by application of
the discovery rule. Trial Court Opinion, 2/24/14, at
On April 21, 2014, the Nicolaous filed a notice of
appeal. While the trial court did not direct the
Nicolaous to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b), and they did not do
so, the trial court filed an opinion in support of its order
on May 9, 2014.
Nicolaous originally proceeded pro se in this
appeal. In a split decision, a three-judge panel of this
Court filed a Memorandum reversing summary judgment, with one
judge dissenting. Nicolaou v. Martin, 1286 EDA 2014
(Pa. Super. 2016) (unpublished memorandum). Thereafter,
Appellees filed a motion for reargument en banc. On
June 3, 2015, this Court granted en banc reargument
and withdrew the March 24, 2015 decision.
Nicolaous filed new pro se briefs, and Appellees
timely filed their briefs. In August of 2015, counsel entered
his appearance on behalf of the Nicolaous. Pursuant to the
Nicolaous' September 14, 2015 Motion To Permit a
Supplemental Filing, we entered an order on September 21,
2015, continuing oral argument and directing the Nicolaous to
file a counseled, supplemental brief, which they did on
October 13, 2015. Appellees filed a response to the
supplemental brief on November 3, 2015. This Court entered an
order striking both briefs on December 17, 2015, and directed
counsel for the Nicolaous to file an appropriate appellate
brief pursuant to the Pennsylvania Rules of Appellate
Procedure. Although both parties filed their briefs in
January of 2016, the Nicolaous' brief once again failed
to address the issues on appeal. This Court was compelled to
strike the Nicolaous' brief on March 17, 2016, and we
directed counsel to file a proper appellate brief addressing
the relevant issues on appeal. On April 14, 2016, the
Nicolaous filed a brief, and on May 13, 2016, Appellees filed
a responsive brief. We entertained oral argument on August 2,
2016. This matter is now ripe for disposition.
Nicolaous raise the following questions in this appeal:
A. Did the Trial Court error in granting [Appellees']
Motion for Summary Judgment and holding that [the
Nicolaous'] medical malpractice action was time barred
under 42 Pa.C.S. §5524(2) and did not meet the Discovery
Rule Exception when [Mrs. Nicolaou] did not, and was
financially unable to, confirm [Appellees'] negligent
misdiagnosis until final medical testing confirmed she had
Lyme Disease on February 13, 2010?
B. Did the Trial Court abuse its discretion in granting
[Appellees'] Motion for Summary Judgment when there was a
genuine issue of material fact, which should be presented to
a jury, as to whether [the Nicolaous'] medical
malpractice action is tolled from the running of the Statute
of Limitations under 42 Pa.C.S. §5524(2) by the
Nicolaous' Brief at 2. We address the issues in tandem.
judgment is appropriate where there is no genuine issue of
material fact, and the moving party is entitled to relief as
a matter of law. Matharu v. Muir, 86 A.3d 250, 255
(Pa. Super. 2014) (en banc) (citing Pa.R.C.P.
1035.2). We exercise plenary review in an appeal from an
order granting summary judgment. Id. As such, when
reviewing whether there are genuine issues of material fact,
our standard of review is de novo; therefore,
"we need not defer to determinations made by lower
courts." Gleason v. Borough of Moosic, 15 A.3d
479, 484 (Pa. 2011) (citing Fine v. Checcio, 870
A.2d 850, 857 n.3 (Pa. 2005)). Moreover, an appellate court
may reverse a grant of summary judgment only if there has
been an error of law or an abuse of discretion. Kennedy
v. Robert Morris Univ., 133 A.3d 38 (Pa. Super. 2016),
appeal denied, 145 A.3d 166 (Pa. 2016). "[W]e
will view the record in the light most favorable to the
non-moving party, and all doubts as to the existence of a
genuine issue of material fact must be resolved against the
moving party." Matharu, 86 A.3d at 255.
essence, the trial court agreed with Appellees and granted
summary judgment, determining that the Nicolaous' cause
of action was barred by the two-year statute of limitations
applicable to negligence actions. 42 Pa.C.S. § 5524. The
Nicolaous' position is that the entry of summary judgment
was improper because they had been unable, through reasonable
diligence, to discover the cause of Mrs. Nicolaou's
injury until February 13, 2010, the date Mrs. Nicolaou
received the results of the IGeneX test, and therefore, the
applicable statute of limitations had been tolled until that
time. Thus, the Nicolaous contend that the trial court erred
in concluding that their medical malpractice action was
time-barred by 42 Pa.C.S. § 5524(2).
analyze this case with consideration of the following
Generally, a cause of action first accrues when a party is
injured, and an action for personal injury must be filed
within two years to satisfy the statute of limitations. 42
Pa.C.S. § 5524(2). . . . The discovery rule is a
judicially created exception that tolls the running of the
applicable statute of limitations when an injury or its cause
was not known or reasonably knowable. Fine v. Checcio,
D.D.S., 582 Pa. 253, 870 A.2d 850 (2005). The discovery
rule can toll the statute of limitations until a plaintiff
could reasonably discover the cause of his injury in cases
where the connection between the injury and the conduct of
another is not apparent. Wilson v. El-Daief, 600 Pa.
161, 964 A.2d 354 (2009).
If the injured party could not ascertain he was injured and
by what cause within the limitations period, "despite
the exercise of reasonable diligence, " then the
discovery rule is appropriate. Pocono International
Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 468
A.2d 468, 471 (1983). The test is objective but takes into
account individual capacities and society's expectations
of "attention, knowledge, intelligence and
judgment" for citizens to protect their own interests.
Fine, supra at 858. The party who invokes
the discovery rule has the burden of proving its
applicability by establishing he acted with reasonable
diligence in determining the fact and cause of his injury but
he was unable to ascertain it. Weik v. Estate of
Brown, 794 A.2d 907, 909 (Pa. Super. 2002). Thus, the
key point that gives rise to application of the discovery
rule "is the inability of the injured party, despite the
exercise of reasonable diligence, to know that he has been
injured and by what cause." Drelles v. Manufacturers
Life Ins. Co., 881 A.2d 822, 831 (Pa. Super. 2005)
(citing Fine, supra at 858).
This determination is a factual one as to whether the party,
despite the exercise of reasonable diligence, was unaware of
his injury and unable to determine its cause. Id.
Where the rule's application involves a factual
determination regarding whether the plaintiff exercised due
diligence in discovering his injury, the jury must decide
whether the rule applies. Crouse v. Cyclops
Industries, 560 Pa. 394, 745 A.2d 606 (2000).
Simon v. Wyeth Pharm., Inc., 989 A.2d 356, 365-366
(Pa. Super. 2009).
discovery rule "originated in cases in which the injury
or its cause was neither known nor reasonably knowable."
Lewey v. H.C. Frick Coke Co., 31 A. 261 (Pa. 1895).
The purpose of the discovery rule is to exclude from the
running of the statute of limitations that period during
which a party who has not suffered an immediately
ascertainable injury is reasonably unaware he has been
injured, so that he has essentially the same rights as those
who have suffered such an injury. Hayward v. Medical
Center of Beaver County, 608 A.2d 1040, 1043 (Pa. 1992).
v. Checcio, 870 A.2d 850 (Pa. 2005), is the seminal case
on the discovery rule. The Fine Court held that
"it is not relevant to the discovery rule's
application whether or not the prescribed period has expired;
the discovery rule applies to toll the statute of limitations
in any case where a party neither knows nor reasonably should
have known of his injury and its cause at the time his right
to institute suit arises." Id. at 859. Once a
defendant raises the statute of limitations as an affirmative
defense in new matter, however, it is then the
plaintiff's obligation to present facts indicating that
the discovery rule is applicable. Stein v.
Richardson, 448 A.2d 558 (Pa. Super. 1982).
Supreme Court has written extensively on this issue, and we
turn to the High ...