Holmes v. Lado

• Decision Date: 01 July 1992
• Citation: 412 Pa.Super. 218,602 A.2d 1389
• Parties: David J. HOLMES, as Administrator of the Estate of Joanne C. Holmes, Deceased, and David J. Holmes, Individually, Appellant, v. Michael LADO, M.D.
• Court: Pennsylvania Superior Court

Page 1389

602 A.2d 1389

412 Pa.Super. 218

David J. HOLMES, as Administrator of the Estate of Joanne C Holmes, Deceased, and David J. Holmes Individually, Appellant, v. Michael LADO, M.D.

Superior Court of Pennsylvania.

Argued Dec. 17, 1991.

Decided Feb. 13, 1992.

Petition for Allowance of Appeal Denied July 1, 1992.

Edward M. Brennan, Pottsville, for appellant.

Donald H. Lipson, Allentown, for appellee.

Before CAVANAUGH, FORD ELLIOTT and HOFFMAN, JJ.

HOFFMAN, Judge:

This is an appeal from the order of the Court of Common Pleas of Schuylkill County, granting partial summary judgment in a medical malpractice action. Appellant, David J. Holmes, contends that the trial court erred in granting partial summary judgment because there exists an issue of material fact pertaining to when the victim discovered the injury allegedly caused by appellee. For the following reasons, we affirm.

The record reveals the following facts. On March 17, 1982, Joanne C. Holmes, appellant's wife, consulted appellee, Dr. Michael Lado, concerning lumps that she felt in her right breast. After examining Mrs. Holmes, appellee ordered a mammogram. The mammogram was performed on March 19, 1982 at the Good Samaritan Hospital, and the radiologist report therefrom indicated bilateral cystic changes in both breasts caused by fibrocystic disease. The report also noted that no masses were found and that "no mammographic criteria of malignancy" existed. On April 19, 1985, appellee again examined the lumps in Mrs. Holmes' right breast and ordered a mammogram. On April 22, 1985, another was performed, and again, the radiologist report noted bilateral cystic changes and no masses. Appellee then scheduled Mrs. Holmes for a six-month checkup. Before the six-month period expired, in August, 1985, Mrs. Holmes returned to appellee. Appellee at that time found a mass in Mrs. Holmes' right breast and, as a result, referred her to Dr. Abdul Wahab. From August 26, 1985 to September 1, 1985, Mrs. Holmes was hospitalized so that a biopsy could be performed. After the biopsy, Mrs. Holmes was diagnosed as having Stage III breast carcinoma. Thereafter, Mrs. Holmes underwent a mastectomy and received chemotherapy. In November 1986, Mrs. Holmes began to experience headaches. A CAT scan revealed metastasis to the right frontal and temporal lobes of the brain ¹. As a result, she received radiation and chemotherapy treatment. In December 1986, Mrs. Holmes developed pulmonary involvement. On March 28 1987, she died from metastatic breast carcinoma.

On November 15, 1988, appellant filed a medical malpractice action against appellee. Count I of appellant's complaint alleged a cause of action for wrongful death. Count II of the complaint alleged a cause of action for survival. In each count, appellant alleged that appellee had been negligent in failing to properly examine the decedent regarding the lumps found in her right breast, failing to order a biopsy or other diagnostic studies regarding these lumps and failing to take the necessary steps to diagnose the lumps as a malignant tumor. On March 11, appellee made a motion for partial summary judgment with regard to Count II of appellant's complaint, the survival action. Appellee contended that this action was barred by the applicable two-year statute of limitations. On May 1, 1991, the Court of Common Pleas of Schuylkill County granted appellee's motion. This timely appeal followed.

Appellant's sole contention is that the trial court erred in granting summary judgment on the survival action because a material issue of fact exists concerning when the decedent discovered the injury allegedly caused by the appellee. We disagree.

initially, we note that an order dismissing some but not all counts in a multi-count complaint is generally interlocutory and not immediately appealable. See Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). See also Hardy v. Pennock Ins. Agency, Inc., 365 Pa.Super. 206, 529 A.2d 471 (1987); Cloverleaf Development, Inc. v. Horizon Financial F.A., 347 Pa.Super. 75, 500 A.2d 163 (1985). However, "[i]f the dismissed count states a cause of action that is separate and distinct from the remaining counts, the order dismissing that count is final and appealable; if the dismissed count merely states an alternative theory of recovery, the order dismissing it is interlocutory and not appealable." Motheral v. Burkhart, 400 Pa.Super. 408, 416, 583 A.2d 1180, 1185 (1990); see also Praisner v. Stocker, supra, 313 Pa.Super. at 341, 459 A.2d at 1260. In the instant case, we find that the dismissed count alleging the survival cause of action is separate and distinct from appellant's remaining count alleging a cause of action in wrongful death. ² Accordingly, we can proceed to the merits of appellant's contention.

The legal standards which govern our review of a grant of a motion for summary judgment are well-settled. Under Pa.R.Civ.P. 1035(b), summary judgment is properly 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." Id. In considering 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 determine if such issues exist, and to resolve all doubts in favor of the non-moving party. Citsay v. Reich, 380 Pa.Super. 366, 551 A.2d 1096 (1988); 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). The party moving for summary judgment has the burden of proof. Barber v. Harleysville Mutual Ins. Co., 304 Pa.Super., 450 A.2d 718 (1982). Moreover, ordinarily, the question of whether the defense of statute of limitations applies, especially where there is at issue the diligence of the plaintiff in discovering injury, is a question of fact for the jury. Taylor v. Tukanowicz, 290 Pa.Super. 581, 586, 435 A.2d 181, 183 (1981). However, summary judgment based on the statute of limitations will be proper where a plaintiff fails to plead facts sufficient to toll the statute, or admits facts sufficient to concede the statute of limitations defense, or where the plaintiff fails in his response to show that a genuine issue of material fact exists or finally, where plaintiff's evidence is inherently unreliable. Id., 290 Pa. Superior Ct. at 586, 435 A.2d at 184.

The applicable statute of limitations for a survival action is two years. 42 Pa.C.S.A. § 5524(2). In determining when this period commences, the discovery rule is applied. Pastierik v. Duquesne Light Co., 514 Pa. 517, 526 A.2d 323 (1987) (citing Pocono Internat. Raceway v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468 (1983)). Under this rule, the statute of limitations does not begin to run until the complaining party knows or reasonably should have known of the existence of an injury to her. Citsay v. Reich, 380 Pa.Super. 366, 551 A.2d 1096 (citing Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963)). In other words, "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." Citsay v. Reich, 380 Pa.Super. at 370, 551 A.2d at 1098 (citing Petri v. Smith, 307 Pa.Super. 261 453 A.2d 342 (1982); Acker v. Palena, 260 Pa.Super. 214, 393 A.2d 1230 (1978)).

The "knowledge" required of the victim/plaintiff in order to commence the statute of limitations has been defined by our courts as 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. Citsay, supra (citing DeMartino v. Albert Einstein Medical Center, Northern Division, 313 Pa.Super. 492, 460 A.2d 295 (1983); Petri v. Smith, supra ). However, while the victim/plaintiff must know of the causative relationship between her injury and the operative cause of action, she does not have to ascertain that the treating physician was negligent or that a legal cause of action exists. Anthony v. Koppers, Inc., 284 Pa.Super. 81, 425 A.2d 428 (1980) rev'd on other grounds, 496 Pa. 119, 436 A.2d 181 (1981). Furthermore, mere mistake or misunderstanding is insufficient to...