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Nicolaou v. Martin

Superior Court of Pennsylvania

December 22, 2016


         Appeal from the Order Entered February 24, 2014 In the Court of Common Pleas of Lehigh County Civil Division at No(s): 2012-C-0518



          SHOGAN, J.

         Appellants, 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 affirm.

         The 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 wheelchair.
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, [1] 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 forward.
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.

         The day that Mrs. Nicolaou received the positive test results, she posted a message on her Facebook[2] 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 consortium.
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 date.

         Trial Court Opinion, 2/24/14, at 2-6 (citations to the record omitted).

         After 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 14.[3] On April 21, 2014, the Nicolaous filed a notice of appeal.[4] 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.[5]

         The 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.

         The 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.

         The 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 Discovery Rule?

         The Nicolaous' Brief at 2. We address the issues in tandem.

         Summary 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.

         In 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).

         We analyze this case with consideration of the following principles:

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).

         The 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).

         Fine 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).

         Our Supreme Court has written extensively on this issue, and we turn to the High ...

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