October 29th, 2018 by Rieders Travis in Medical Malpractice

Nicolaou v. Martin, No. 44 MAP 2017 (Pa. S. Ct. October 17, 2018) Baer, J.  This appeal presents the issue of whether Appellants Nancy and Nicholas Nicolaou (collectively referred to as “Plaintiffs”) satisfied the discovery rule so as to toll the running of the statute of limitations on their medical malpractice action filed against Appellee health care providers (collectively referred to as “Defendants”) for failing to diagnose and treat Mrs. Nicolaou’s Lyme disease. The trial court granted summary judgment in favor of Defendants, deeming Plaintiffs’ action time-barred. The Superior [J-13-2018] – 2 Court affirmed, holding that the discovery rule did not toll the statute of limitations because, as a matter of law, Plaintiffs failed to establish that they pursued their action with reasonable diligence. For the reasons set forth herein, we hold that summary judgment was granted improperly because the determination of whether Plaintiffs acted with due diligence under the circumstances presented is one of fact for a jury to decide. Accordingly, we vacate the judgment of the Superior Court, reverse the order granting summary judgment, and remand to the trial court for further proceedings consistent with this opinion.

Central to Plaintiffs’ position is their contention that the determination of whether a person is able to ascertain an injury is a subjective one, dependent upon what an individual in the plaintiff’s particular circumstances would do, i.e., a reasonable person uneducated in complex medical issues who had four Lyme disease tests with negative results; who had been repeatedly and definitively diagnosed with MS and had been convinced by the treating physician that any suspicions of Lyme disease were unfounded; and who had been unable to pay the costs related to a suggested fifth Lyme disease test.

Viewing the summary judgment record in the light most favorable to Plaintiffs as the non-moving party, we respectfully find that the Superior Court erred by concluding, as a matter of law, that Plaintiffs knew or should have known sometime between July and September of 2009 (the dates of the first few visits with Nurse Rhoads) that Mrs. Nicolaou suffered from Lyme disease and that her debilitating health problems could have been caused by Defendants’ failure to diagnose and treat such condition. The Superior Court relied upon the fact that by such time an MRI had indicated that Mrs. Nicolaou had suffered from either Lyme disease or MS, Nurse Rhoads had informed Mrs. Nicolaou of a probable diagnosis of Lyme disease based upon her clinical symptoms, and some of Mrs. Nicolaou’s symptoms had improved upon administration of antibiotics. When viewed in a vacuum, these facts may have alerted a reasonable person that she suffered an injury at the hands of medical professionals who failed to diagnose and treat her Lyme disease. Indeed, these circumstances may or may not persuade a jury to so conclude.

It is simply uncertain whether Plaintiffs knew or should have known that Defendants’ misdiagnosis caused Mrs. Nicolaou’s injuries at the precise moment that Nurse Rhoads suggested the same. At that point in time, Mrs. Nicolaou had been repeatedly and definitively told by several health care professionals, most recently Dr. Gould, that her suspicions of Lyme disease were unfounded and that her inability to walk and function as she previously had done resulted from the devastating effects of MS. Further, Mrs. Nicolaou had undergone, not one, but four separate Lyme disease tests, which had all produced negative results. Finally, there was evidence suggesting that Mrs. Nicolaou’s lack of health insurance precluded her from paying the cost required to take the IGeneX Lyme disease test when Nurse Rhoads initially recommended.

In summary, we conclude that it is within the province of a jury to determine whether an untrained lay person who had been repeatedly and definitively diagnosed with MS by several previous physicians, had four prior negative Lyme disease tests, and lacked health insurance to cover the costs of further diagnostic testing “reasonably should have known” that she suffered from Lyme disease after Nurse Rhoads informed her of a “probable” diagnosis of that disease based on her clinical symptoms, and when some of her symptoms improved after taking antibiotics prescribed for that condition. See Wilson, 964 A.2d at 365-66 (internal citations omitted) (“Pursuant to the application of the discovery rule, the point at which the complaining party should reasonably be aware that he has suffered an injury is a factual issue ‘best determined by the collective judgment, wisdom and experience of jurors’”). Moreover, it is for the jury, and not a court, to determine whether a person in Mrs. Nicolaou’s circumstances acted reasonably in delaying the administration of a fifth Lyme disease test to confirm Nurse Rhoad’s probable diagnosis. We reach this conclusion keeping in mind that the appropriate formulation of discovery rule jurisprudence applies “a reasonable-diligence requirement, as opposed to an all-vigilance one.” Wilson, 964 A.2d at 363. 

Whether Plaintiffs knew or should have reasonably known that Mrs. Nicolaou’s injuries were caused by Defendants’ misdiagnosis is disputed and should be resolved at trial. Thus, Defendants’ motion for summary judgment should have been denied.

Attorney Cliff Rieders

Attorney Cliff RiedersCliff Rieders is a Nationally Board Certified Trial Lawyer practicing personal injury law. A large part of his practice involves multi-district litigation, including cases related to pharmaceuticals, vitamin supplements and medical devices. He is admitted in several state and federal courts, as well as the Supreme Court of the United States. Rieders is the past regional president of the Federal Bar Association and is a life member of the distinguished American Law Institute, which promulgates proposed rules adopted by many state courts. He is a past president of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. As a founder of the Pennsylvania Patient Safety Authority, he served on the Board for 15 years.

Not only has Rieders held many highly esteemed, leadership positions, he authored legislation related to the Patient Safety Authority and the Mcare Act, which governs medical and hospital liability actions in Pennsylvania. He authored texts upon which both practitioners and judges rely, including Pennsylvania Malpractice Laws and Forms, and Financial Responsibility Law Issues in Pennsylvania, the latter governing auto and truck collisions in Pennsylvania. In addition, he wrote several books on the practice of law in Pennsylvania regarding wrongful death and survivor actions, insurance bad faith, legal malpractice claims and worker rights, among others. Rieders also serves as a resource to practitioners as a regular speaker for Celesq, an arm of the world’s largest legal publisher, Thomson Reuters West Publishing.

As recognition of his wide range of contribution to his profession and of his dedication to protecting the rights of his clients, he received numerous awards, among them the George F. Douglas Amicus Curiae Award, the Milton D. Rosenberg Award, the B’nai B’rith Justice Award, and awards of recognition from the Pennsylvania Trial Lawyers. [ Attorney Bio ]



Article Categories