Citsay v. Reich

• Decision Date: 27 December 1988
• Citation: 380 Pa.Super. 366,551 A.2d 1096
• Parties: Deborah CITSAY, Appellee, v. Harry REICH, M.D., Appellant.
• Court: Pennsylvania Superior Court

Page 1096

551 A.2d 1096

380 Pa.Super. 366

Deborah CITSAY, Appellee, v. Harry REICH, M.D., Appellant.

Superior Court of Pennsylvania.

Submitted Oct. 3, 1988.

Filed Dec. 27, 1988.

David W. Saba, Wilkes-Barre, for appellant.

Joseph F. Sklarosky, Wilkes-Barre, for appellee.

Before TAMILIA, WATKINS and MONTGOMERY, JJ.

MONTGOMERY, Judge:

The Defendant-Appellant, Harry Reich, M.D., has filed this appeal from a trial court Order denying his Motion for Summary Judgment. The Appellant's Motion was based upon the claim that the Plaintiff-Appellee, Deborah Citsay, instituted the instant medical malpractice action beyond the applicable two year statute of limitations. See the Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended by the Act of December 20, 1982, P.L. 1409, No. 326, art. II, § 201, 42 Pa.C.S.A. § 5524(2). The trial court certified its Order denying summary judgment as one involving a controlling question of law as to which there is a substantial ground for difference of opinion, and that an immediate appeal from the Order would materially advance the ultimate termination of the case. See the Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended by the Act of April 28, 1978, P.L. 202, No. 53, § 10(2), 42 Pa.C.S.A. § 702. Thereafter, our Court granted the Petition of the Appellant for permission to file an interlocutory appeal.

At the outset, it is appropriate to recognize the legal standards which govern our analysis in this matter. Under Pa.R.C.P. 1035, summary judgment may properly be granted only "... if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In the consideration of a motion for summary judgment, a court must examine the entire record in the light most favorable to the non-moving party, and the court is not to decide issues of fact but merely to determine whether any such issues exist, and to resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Mattia v. Employers Mutual Companies, 294 Pa.Super. 577, 440 A.2d 616 (1982); Ritmanich v. Jonnel Enterprises, Inc., 219 Pa.Super. 198, 280 A.2d 570 (1981). A party moving for summary judgment has the burden of proof. Barber v. Harleysville Mutual Insurance Co., 304 Pa.Super. 355, 450 A.2d 718 (1982).

This appeal brings before our Court an interpretation of the "discovery rule". That rule, a creation of case law, has been applied in determining the appropriate limitations period in malpractice actions, since it was enunciated in Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959). It essentially dictates that when the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the period prescribed in the limitations statute, the limitation period will not begin to run until the discovery of the injury is reasonably possible. Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963). Stated another way, until one discovers, or through reasonable diligence should have discovered the alleged misdiagnosis or improper procedure employed by the physician, he or she does not have reason to know of the injury, and the running of the statute of limitations with respect to the personal injury cause of action will be delayed until the time of discovery, or the time when discovery became reasonably possible. Petri v. Smith, 307 Pa.Super. 261, 453 A.2d 342 (1982); Acker v. Palena, 260 Pa.Super. 214, 393 A.2d 1230 (1978). Obviously, the discovery rule is grounded upon considerations of fairness and is designed to assist an injured plaintiff. Taylor v. Tukanowicz, 290 Pa.Super. 581, 435 A.2d 181 (1981).

Our courts have also analyzed and explained the kind of knowledge a plaintiff must have to trigger the "discovery" which starts the limitations period clock. In Anthony v. Koppers Company, Inc., 284 Pa.Super. 81, 425 A.2d 428 (1980), rev'd on other grounds, 496 Pa. 119, 436 A.2d 181 (1981), our Court adopted guidelines that provide that the statute of limitations commences in a medical malpractice case when the plaintiff has knowledge, or through the exercise of reasonable diligence should have had knowledge, of: (1) his or her injury; (2) the operative cause of his or her injury; and (3) the causative relationship between his or her injury and the operative conduct. This formula has often been applied in situations such as that presented by the instant appeal. See, for instance, DeMartino v. Albert Einstein Medical Center, Northern Division, 313 Pa.Super. 492, 460 A.2d 295 (1983) and Petri v. Smith, supra.

Other aspects of the rule deserve special note because of the particular issues presented in this case. First, it is clear that a plaintiff's knowledge of the causative relationship between his or her injury and the operative conduct, the third phase of the knowledge inquiry, does not mean that the plaintiff has to be aware that negligence in treatment has occurred and legal rights or a cause of action have vested. This point was mentioned in dicta in Anthony v. Koppers Company, Inc., supra, and was specifically addressed as an issue and resolved in DeMartino v. Albert Einstein Medical Center, Northern Division, supra. Second, we note that while mere mistake, misunderstanding or lack of knowledge do not toll the running of the limitations period, fraud, deception or concealment of relevant facts regarding a medical problem by a defendant physician, whether intentional or unintentional, which misleads an injured party, will toll the statute or estop the defendant from invoking the limitations defense. DeMartino v. Albert Einstein Medical Center, Northern Division, supra; Acker v. Palena, supra. However, the burden of proving the existence of such fraud or concealment is on the party asserting it, and such proof must be by clear, precise and convincing evidence. Nesbitt v. Erie Coach Co., 416 Pa. 89, 204 A.2d 473 (1964). A malpractice plaintiff must be expected to exercise reasonable diligence and common sense, and a medical provider's mere reluctance to discuss a problem has been held not to constitute either fraud or concealment, such as would toll the running of the limitations period. See DeMartino v. Albert Einstein Medical Center, Northern Division, supra; Cf. Armacost v. Winters, 258 Pa.Super. 424, 392 A.2d 866 (1978).

Finally, we recognize that in most situations the question of the application of a statute of limitations defense, especially where a question of due diligence in discovery is raised, is a factual determination for the jury. Taylor v. Tukanowicz, supra. However, in an appropriate case the litigation of a limitation issue, independent of the merits of the plaintiff's claim, can be accomplished by invoking the summary judgment procedure. Mangino v. Steel Contracting Company, 427 Pa. 533, 235 A.2d 151 (1967).

With all of these concepts in mind, we shall review the pertinent facts presented in this case relating to the limitations issue. The record shows that toward the end of September, 1981, the Plaintiff visited the Defendant, complaining of irregular vaginal bleeding and abdominal pressure. On September 30, 1981, the Plaintiff underwent a procedure known as a diagnostic laparscopy, which involved the insertion of a scope, through a relatively small incision, which permitted a visualization of the pelvic organs. This procedure resulted in a determination that the Plaintiff had a fibroid tumor in her uterus.

On March 8, 1982, the Plaintiff was admitted to the NPW Medical Center, in Wilkes-Barre, Pennsylvania, under the care of the Defendant, for exploratory abdominal surgery, known as a myomectomy. A large fibroid mass was removed from the Plaintiff's uterus during the course of the surgery. Thereafter, on March 13, 1982, the Plaintiff was discharged from the NPW Medical Center.

The Plaintiff related that she felt weak while she was at the hospital. When she was discharged, she also experienced severe pains in the bladder area, together with feelings of pressure and a burning sensation. Therefore, during the early morning hours of March 14, 1982, she returned to the emergency room of NPW Hospital. While there, she noted she was passing blood with her urine. During this second visit to the hospital, the Plaintiff apparently had a catheter inserted.

Dr. Reich was out of town and unavailable when the Plaintiff returned to the hospital. She was visited by one of his colleagues in his medical practice, Dr. Bhatt. However, she also consulted with a urologist, Dr. Stuccio. Dr. Stuccio prescribed some medications, and performed certain tests, including one that involved the use of a scope which allowed the visualization into the Plaintiff's urinary tract. After the tests, Dr. Stuccio told the Plaintiff that there was a hole in her bladder. Further, the Plaintiff admitted in her deposition that Dr. Stuccio told her, at that time, that the perforation in her bladder may have resulted from the surgery Dr. Reich had performed a few days...