STATUTE OF LIMITATIONS-DISCOVERY RULE-MEDICAL MALPRACTICE-CANCER DIAGNOSIS

August 24th, 2022 by Rieders Travis in Statute of Limitations

Didomizio v. Jefferson Pulmonary Assocs. & Asthma Allergy & Pulmonary Assocs., P.C., 2022 Pa. Super. LEXIS 323 (August 2, 2022) (Pellegrini, J.)  Gilda DiDomizio (DiDomizio) appeals from the order entered in the Court of Common Pleas of Philadelphia County (trial court) granting reconsideration and entering summary judgment in favor of Jefferson Pulmonary Associates and Asthma Allergy and Pulmonary Associates, P.C., Thomas Jefferson University Hospital, Jefferson University Physicians and Sandra B. Weibel, M.D. (Hospital Defendants). She argues that the trial court erred in relying on Rice v. Diocese of Altoona-Johnstown, 255 A.3d 237 (Pa. 2021), to find she had “inquiry notice” of her injury in 2015 making her action fall outside of the statute of limitations. We reverse. On August 15, 2017, DiDomizio commenced a medical malpractice action by writ of summons against the Hospital Defendants, filed her complaint on November 20, 2017, and the amended complaint on January 28, 2018. The amended complaint claimed that the Hospital Defendants misdiagnosed her with sarcoidosis, and this misdiagnosis delayed the cancer diagnosis and limited her treatment options. She maintains that it was not until she sought a second opinion at HUP in 2016 regarding her lung cancer treatment that she had reason to question her sarcoidosis diagnosis. DiDomizio responded that the relevant date for the purpose of the statute of limitations was when she knew or should have known she had been misdiagnosed, and that her symptoms were related to lung cancer, not sarcoidosis. She maintains that because her medical records from both TJUH and HUP support her affidavit statements that she did not suspect she had been misdiagnosed with sarcoidosis until July 2016 when she sought a second opinion from Dr. Porteous, she commenced the action within the statute of limitations. The facts in this case are more akin to Nicolaou than Rice. Here, DiDomizio was an individual in her fifties with a thirty-year smoking history. There are approximately five years of progress notes and test results reflecting different diagnoses of masses on her lungs and recommendations by doctors across disciplines. DiDomizio had previously suffered “significant issues” with diagnostic procedures. It appears to this Court that, even after her visits with Dr. Porteous and Dr. Johnson, it is not clear exactly what was communicated to DiDomizio and when, and if her understanding of the diagnoses and test results was reasonable. Specifically, it is not clear if Dr. Weibel communicated her concerns about the March 2013 PET scan, despite her statement that the test revealed suspicious increased activity. She told DiDomizio that she would need to undergo diagnostic tests to confirm any diagnoses related to a mass revealed on an earlier 2013 CAT scan with a significant size increase, but that due to her “previous significant issues,” she declined to do so. However, under the circumstances, whether this decision not to undergo this diagnostic testing in 2013 or to investigate whether her lung masses had been misdiagnosed as sarcoidosis in 2015 after her cancer diagnosis is a question better left to a jury. While it is undisputed that DiDomizio knew as of 2015 that she had cancer, it is not clear from her progress notes if Dr. Porteous believed the sarcoidosis diagnosis was wrong and delayed the cancer diagnosis or whether it was an additional diagnosis that might or might not have been correct. Where so much uncertainty remains about what was reasonable in this case, we find that, similar to Nicolaou v. Martin, 195 A.3d 880 (2019), “[g]iven the lengthy history of attempted contradictory diagnosis and treatment, the date of accrual [for inquiry notice purposes] could not be determined as matter of law by the court and a jury would decide when she knew of an injury redressable by a lawsuit.” Nicolaou at 894. Accordingly, we conclude that the trial court erred in granting the Hospital Defendants’ motion for summary judgment. See id. at 895 (“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.”) (citation and internal quotation marks omitted). Order reversed. Case remanded. Jurisdiction relinquished.

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 ]

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