Bradley v. Ragheb
| Decision Date | 03 November 1993 |
| Citation | 429 Pa.Super. 616,633 A.2d 192 |
| Parties | Darlene K. BRADLEY, Appellant, v. Joseph S. RAGHEB, M.D., Appellee. |
| Court | Pennsylvania Superior Court |
Darrell L. Kadunce, Butler, for appellant.
Elaine S. Nace, Pittsburgh, for appellee.
Before ROWLEY, President Judge, and WIEAND and CIRILLO, JJ.
In this medical malpractice action based upon an alleged failure to make prompt diagnosis of cancer, the trial court entered summary judgment in favor of the defendant physician because the action was barred by the two year statute of limitations set forth at 42 Pa.C.S. § 5524(2). On appeal, the patient contends that the trial court failed to make proper application of the discovery rule. After careful review, we affirm the judgment entered by the trial court.
When Darlene Bradley consulted Dr. Joseph Ragheb in early July, 1988, she informed him that she had a lump in her breast. Bradley made an examination and allegedly advised his patient that it had been caused by drinking too much caffeine. When she next questioned the physician in December, 1988, however, he recommended a biopsy. The biopsy was performed on January 20, 1989, and Bradley was informed that the lump was malignant. A modified radical mastectomy was performed on February 8, 1989. Because the cancer had started to spread, several infected lymph nodes were also removed. It is not disputed that Bradley knew of her cancerous condition at this time. In March, 1989, Bradley began chemotherapy treatment under the direction of Dr. Licther, an oncologist, who advised her that the risk of recurrence had been increased significantly because the disease had started to spread before it was diagnosed. 1
On February 27, 1991, Bradley commenced an action against Ragheb in which she charged him with negligence in failing to make an earlier diagnosis of her breast cancer. Ragheb filed an answer to the complaint in which he alleged, inter alia, that the alleged cause of action was barred by the applicable two year statute of limitations. The trial court, on October 27, 1992, held that Bradley's cause of action was barred by the statute of limitations and entered summary judgment in favor of the defendant-physician. Bradley appealed.
In A. McD. v. Rosen, M.D., 423 Pa.Super. 304, 621 A.2d 128 (1993), the Superior Court said:
Summary judgment is proper only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In passing upon a motion for summary judgment, a court must examine the record in a light most favorable to the nonmoving party and must resolve all doubt against the moving party. A summary judgment can properly be entered in favor of a defendant where plaintiff's cause of action is barred by the statute of limitations.
Id. at 307, 621 A.2d at 130 (citations omitted). See also: E.J.M. v. Archdiocese of Philadelphia, 424 Pa.Super. 449, 452, 622 A.2d 1388, 1390 (1993).
The statute of limitations applicable to a medical malpractice action is found at 42 Pa.C.S. § 5524(2). Section 5524(2) provides that "[a]n action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another" must be commenced within two (2) years. In general, "a party asserting a cause of action is under a duty to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period." Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). The statutory period begins to run "as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do[es] not toll the running of the statute...." Id. See also: A. McD. v. Rosen, supra 423 Pa.Super. at 307, 621 A.2d at 130. In most cases, the statute of limitations begins to run on the date the injury is sustained. Once the prescribed statutory period has expired, a plaintiff is thereafter barred from commencing suit.
The discovery rule, however, is an exception to this rule. "In those circumstances where the plaintiff cannot reasonably be expected to be aware of the injury or of its cause, the discovery rule may apply to toll the running of the [statutory period]." A. McD. v. Rosen, M.D., supra at 308, 621 A.2d at 130. See also: Hayward v. Medical Center of Beaver County, 530 Pa. 320, 325, 608 A.2d 1040, 1043 (1992); E.J.M. v. Archdiocese of Philadelphia, supra 424 Pa.Super. at 454, 622 A.2d at 1391. The discovery rule provides that where the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed period, the period of limitation does not begin to run until discovery of the injury is reasonably possible. Hayward v. Medical Center of Beaver County, supra 530 Pa. at 325, 608 A.2d at 1043. Under the discovery rule, the limitations period will be tolled until the "plaintiff knows, or in the exercise of reasonable diligence should have known, (1) that he has been injured, and (2) that his injury has been caused by another's conduct." MacCain v. Montgomery Hospital, 396 Pa.Super. 415, 419-420, 578 A.2d 970, 972-973 (1990), allocatur denied, 527 Pa. 624, 592 A.2d 45 (1991). When presented with an assertion of applicability of the discovery rule, a court must, before it applies the exception, "address the ability of the damaged party, exercising reasonable diligence, to ascertain the fact of a cause of action." Pocono International Raceway, Inc. v. Pocono Produce, Inc., supra 503 Pa. at 85, 468 A.2d at 471. The plaintiff's conduct is to be evaluated in terms of what she should have known at a particular time by following a course of reasonable diligence. "If a party has the means of discovery within his [or her] power but neglects to use them, his [or her] claim will still be barred." Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 292, 505 A.2d 973, 988 (1985). See also: DeMartino v. Albert Einstein Medical Center, N.D., 313 Pa.Super. 492, 508, 460 A.2d 295, 303 (1983). As this court said in DeMartino, supra [O]nce the patient is aware or should reasonably have become aware that medical treatment is causing [her] personal injury the statute begins and the prospective plaintiff is required to begin doing those things for which the statute of limitations specifically provides time: "an opportunity to select and consult with a lawyer, investigation, initiation of suit, discovery, joinder of additional parties, etc."
Id. at 502, 460 A.2d at 300, quoting Keating v. Zemel, 281 Pa.Super. 129, 134 n. 4, 421 A.2d 1181, 1184 n. 4 (1980).
In MacCain v. Montgomery Hospital, supra, the Superior Court addressed the applicability of the statute of limitations under circumstances similar to those in the case before us. There, Mrs. MacCain had entered the hospital on October 10, 1983, in order to undergo orthopedic surgery on her elbow. During a presurgery exam, a mass was detected in one of her breasts. Dr. Belasco next examined her and although he did not detect a mass, he ordered a mammogram. The radiologist who took the mammogram indicated in his report that the possibility of a malignancy could not be excluded. Dr. Belasco, nevertheless, informed Mrs. MacCain that everything was fine. During the months following her surgery, Mrs. MacCain noticed that the lump was increasing in size. In February, 1984, her gynecologist examined the lump and expressed concern. He advised her to return in six months. Upon her return in September, 1984, the gynecologist ordered another mammogram and, based thereon, recommended a biopsy. Mrs. MacCain sought a second opinion in October, 1984, during which her gynecologist's recommendation was confirmed. Following a biopsy, Mrs. MacCain underwent a modified radical mastectomy on October 5, 1984. Thereafter, on November 21, 1986, Mrs. MacCain commenced a medical malpractice action against various health care providers. The...
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