Groover v. Riddle Memorial Hosp.

• Decision Date: 09 October 1986
• Citation: 357 Pa.Super. 420,516 A.2d 53
• Parties: Mary Ann GROOVER and August T. Groover, Appellants, v. RIDDLE MEMORIAL HOSPITAL and Dr. Robert C. Lecher, Appellees.
• Court: Pennsylvania Superior Court

Page 53

516 A.2d 53

357 Pa.Super. 420

Mary Ann GROOVER and August T. Groover, Appellants, v. RIDDLE MEMORIAL HOSPITAL and Dr. Robert C. Lecher, Appellees.

Superior Court of Pennsylvania.

Argued May 15, 1986.

Filed Oct. 9, 1986.

Joseph McFadden, Media, for appellants.

Malcolm L. Lazin, Philadelphia, for appellees.

Before CAVANAUGH, WICKERSHAM and ROBERTS, JJ.

CAVANAUGH, Judge:

Mary Ann Groover and her husband, August T. Groover, appeal from an order of the Court of Common Pleas of Delaware County entered on September 20, 1985 which granted the defendants' motion for summary judgment. We affirm.

Sometime between March 25 and April 3, 1979 while appellant Mary Ann Groover was a patient at the Riddle Memorial Hospital, she received a very painful injection. From the time of the injection, appellant began to suffer pain and loss of control in her right leg. ¹ Appellant saw various doctors over the next several years in an attempt to ascertain the problem with her leg. In June of 1983, Dr. Pierre LeRoy determined that the pain in her right leg was a sciatic nerve injury and linked it to the injection she received while in the hospital. Appellants filed suit against appellee on September 3, 1983. Appellees contend that the lower court did not abuse its discretion in granting the motion for summary judgment because suit was filed beyond the two year statute of limitations period. Appellants argue that because of the "discovery rule", the statute did not begin to run until June of 1983 when Dr. LeRoy informed appellant of the type of injury she suffered and its cause, and therefore the suit was timely filed. We agree with the appellee and affirm the lower court's order granting the motion for summary judgment.

Summary judgment may be granted "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 a judgment as a matter of law." Pa.R.C.P. 1035(b).

In addition, we are mindful that in considering a motion for summary judgment the court must examine the record in the light most favorable to the non-moving party; that the court's function is not to decide issues of fact but merely to determine whether any such issues exist; and that all doubts as to the existence of a genuine issue of material fact must be resolved in favor of the nonmoving party.... We also note that 'ordinarily most questions relating to the applicability of the defense of the statute of limitations are questions of fact to be determined by the jury'.... Specifically, the question of whether a plaintiff has exercised due diligence in discovering the incidence of his injury is usually a jury question.... 'Whether the statute has run on a claim is usually a question of law for the judge....' This is not to say that there are not instances where summary judgment may be ordered in malpractice actions based upon a statute of limitations defense. Entry of summary judgment is proper where the plaintiff fails to plead facts sufficient to toll the statute, ... or admits facts sufficient to admit the limitations defense.... or fails in his response, by affidavits, or as otherwise provided, to set forth facts showing that there is a genuine issue for trial, Pa.R.C.P. No. 1035(d), or where the evidence relied upon by the plaintiff is inherently incredible....

Taylor v. Tukanowicz, 290 Pa.Super. 581, 435 A.2d 181 (1981) (citation omitted).

Cathcart v. Keene Indus. Insulation, 324 Pa.Super. 123, 135-37, 471 A.2d 493, 500 (1984) discussed the "discovery rule", which serves to ameliorate the harsh effects of the statute of limitations.

Pennsylvania's statute of limitations for personal injury cases is two years. Evidently in an effort to ameliorate the sometimes-harsh effects of the statute, Pennsylvania courts have adopted what has come to be known as the "discovery rule." Where this rule is applied, the statute of limitations will not begin to run until the plaintiff has discovered his injury, or, in the exercise of reasonable diligence, should have discovered his injury.... The discovery rule was recently applied by a panel of our Court in Staiano v. Johns-Manville Corp., 304 Pa.Super. 280, 450 A.2d 681 (1982). In Staiano, the panel approved a variation of the discovery rule which was articulated in Volpe v. Johns-Manville Corp., 4 Phila. County Reporter 290. Under this "Volpe test," three independent phases of knowledge must be known or knowable to a plaintiff before the statute of limitations begins to run: (1) knowledge of the injury, (2) knowledge of the operative cause of the injury, and (3) knowledge of the causative relationship between the injury and the operative conduct. Although the Volpe test has a nice "ring" to it, it unnecessarily complicates the question of when the statute begins to run. For instance, what does "operative" in "operative cause" mean, and can it be possible for a plaintiff to know the "operative cause" of his injury yet not know the relationship between the "operative conduct" and the injury? The discovery rule has been stated in an understandable manner by our Supreme Court, and we see no reason to complicate the law by adopting a modified version of the rule for cases involving diseases contracted from exposure to hazardous substances. We find that the statute of limitations begins to run in "creeping disease" cases when the plaintiff knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party's conduct. Stating the test in this manner will result in conformity with various other jurisdictions which have addressed this same problem.

(Footnotes omitted.)

We agree with Cathcart's analysis and believe that its rational simplification of the Volpe test commends its adoption in all "discovery rule" cases, not just "creeping disease" cases. Under the facts of this case, the end result achieved by both tests would be the same, but the use of the Cathcart test would allow for more understandable analysis. However, because the Cathcart test has not as yet been applied to medical malpractice cases, we will not go so far as to hold that the two are interchangeable in all cases.

In the instant case, we find as a matter of law that in the spring of 1979 appellant knew or reasonably should have known 1) that she was injured, and 2) the operative cause of her injury, and 3) the causative relationship between the injury and the operative conduct.

That appellant knew that she was injured in the spring of 1979 is evidenced by her answers to two interrogatories:

2. If you claim a permanent injury resulting from the treatment, surgery or examination upon which this action is based, describe such injury fully and in detail.

ANSWER: The Plaintiff suffers permanent sciatic neuritis, right, neuropathy right L5-S1 and reflex sympathetic distrophy.

The Plaintiff suffers permanent and constant pain shooting downwards from her right hip through the back of her right leg to the outside of her right calf and into her foot. Depending upon her physical exertion, said pain can turn into a severe, hot burning sensation and a severe charley horse type cramping. This severity of pain occurs to the Plaintiff anywhere from a daily basis to a couple of times a week. Also, depending upon her activity, the Plaintiff's right leg gives away from underneath her approximately once a week which at times will cause her to injure another part of her body upon falling.

Plaintiff also suffers emotional distress and anxiety due to the inconsistent and unannounced pain or loss of control of her right leg. She experiences this permanent feeling of instability which has severely limited her activities and family responsibilities.

In interrogatory 18, appellant was asked to state the specific facts upon which she based each claim of negligence or malpractice alleged in this action. She answered:

The Plaintiff repeatedly received improper and careless mechanical injections ... following her surgery of 3/25/79. The plaintiff experienced severe pain and demanded that said injections be discontinued. All injuries described in interrogatory # 2 began at the time of said injections. The Plaintiff never experienced these symptoms prior to the injections.

(Emphasis added.)

In answers at her deposition, appellant further indicated that she knew she was injured by the spring of 1979.

Q. As I understand your testimony, you had an injection that was of some excruciating pain to you, causing a sensation down your leg. The very same day, you complained about that injection to your attending physician. You instructed the next nurse that you saw that you would have no more injections in the hospital.

A. Uh-huh.

Q. Did you at any time between that date on which that injection occurred and your visit to Dr. DiStefano ever say to yourself, "I wonder whether the problem that I'm experiencing in my right leg resulted from the injection that I received in the hospital that was so excruciatingly painful"?

A. I probably did, because I could feel the spot back here and I kept asking--I can remember asking Gus to look to see if there was anything there.

....

Q. When you're referring in your answer to that spot, can I assume that you meant by that spot, the spot where you were injected?

A. I never said to myself--

Q. Please just answer my question.

A. All right. That spot.

Q. You're referring to the spot where you were injected?

A. Right, but I wasn't able to say to me, okay, look, this is what it is and this is why it is. I never said that to me, because I didn't know. I really didn't know.

Q. When you went to see these various Doctors over the course of the two years leading up to your ultimate examination by Dr. DiStefano, did you tell these Doctors about the injection?

A. I told them that it started to hurt here, and I'm pointing to that spot...