A. McD. v. Rosen

• Decision Date: 16 February 1993
• Citation: 423 Pa.Super. 304,621 A.2d 128
• Parties: A. McD., Appellant, v. John Nathaniel ROSEN, M.D. and Nancy Cochran, Appellees.
• Court: Pennsylvania Superior Court

Page 128

621 A.2d 128

423 Pa.Super. 304

A. McD., Appellant, v. John Nathaniel ROSEN, M.D. and Nancy Cochran, Appellees.

Superior Court of Pennsylvania.

Argued Sept. 10, 1992.

Filed Feb. 16, 1993.

Alan B. Epstein, Philadelphia, for appellant.

V.P. dePillis, Philadelphia, for Rosen, appellee.

Before ROWLEY, President Judge, and WIEAND and HUDOCK, JJ.

WIEAND, Judge:

In this appeal we are called upon to review a summary judgment entered in favor of a psychiatrist and a therapist because their former patient's action for malpractice was barred by the two year statute of limitations. The patient contends that the trial court failed to make proper application of the discovery rule. We disagree and affirm.

The appellant, Alexis McDonald, ¹ began treatment with Dr. John Nathaniel Rosen, a psychiatrist, in August, 1979. At that time she was complaining of various maladies, including colitis, depression and an unhappy marriage. She came under the care of Nancy Cochran, a therapist associated with Dr. Rosen, in October, 1979. She terminated her relationship with Dr. Rosen in July, 1982, and thereafter ceased all further communication with him because she had become suspicious of his manner of treatment and because she felt that he was unable to cure her complaints.

On February 13, 1985, McDonald filed a civil action against Rosen and Cochran. She alleged that the defendants had engaged in sexual misconduct during the course of their treatment of her. Amended complaints were subsequently filed, and, in response, the defendants filed an answer containing an averment, inter alia, that plaintiff's causes of action were barred by a two year statute of limitations. The defendants thereafter moved for the entry of summary judgment. This was initially denied by the trial court; but, on reconsideration, the court vacated its earlier order and entered summary judgment in favor of the defendants. The plaintiff appealed.

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. Carns v. Yingling, 406 Pa.Super. 279, 282, 594 A.2d 337, 339 (1991). 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. Wible v. Apanowicz, 306 Pa.Super. 262, 452 A.2d 545 (1982); Washington v. Papa, 24 Chest. 334 (1976); Penn-Delco Union School District Authority v. M. & L. Construction Co., 60 D. & C.2d 226 (Del.Co.1972).

The present action is controlled by the two year statute of limitations set forth in 42 Pa.C.S. § 5524. This two year period begins to run "as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations." Pocono Int'l Raceway v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). A person asserting a claim has the 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." Id. 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 statute of limitations. Id. The discovery rule is a judicially created device which provides that the limitations period begins to run 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." Redenz by Redenz v. Rosenberg, 360 Pa.Super. 430, 434, 520 A.2d 883, 885, allocatur denied, 516 Pa. 635, 533 A.2d 93 (1987). The statute begins to run when the injured party "possesses sufficient critical facts to put him on notice that a wrong has been committed and that he need investigate to determine whether he is entitled to redress." Brunea v. Gustin, 775 F.Supp. 844, 846 (W.D.Pa.1991), quoting Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir.1985).

In applying the discovery rule, whether a plaintiff should have made a timely discovery of his or her injury is generally an issue for the jury unless the undisputed facts lead unerringly to the conclusion that the time it took to discover an injury was unreasonable as a matter of law. In such cases, summary judgment may be entered by the court. Carns v. Yingling, supra 406 Pa.Super. at 285, 594 A.2d at 340. See: McCain v. Montgomery Hospital, 396 Pa.Super. 415, 423, 578 A.2d 970, 974 (1990), allocatur denied, 527 Pa. 624, 592 A.2d 45 (1991).

In Baily v. Lewis, 763 F.Supp. 802 (E.D.Pa.1991), affirmed, 950 F.2d 721 (3d Cir.1991), the court reviewed the standard of reasonable diligence under Pennsylvania law and said The standard of reasonable diligence is an objective or external one that is the same for all individuals. It is not a subjective standard. The fact that this individual plaintiff may have lacked knowledge of his or her injury is "irrelevant," "the statute is tolled only if a reasonable person in the plaintiff's position would have been unaware of the salient facts." In defining reasonable diligence, the courts have stated "[t]here are very few facts which diligence cannot discover, but there must be some reason to awaken inquiry and direct diligence in the channel in which it would be successful. This is what is meant by reasonable diligence." Moreover, with respect to knowledge of a claim, "plaintiffs need not know that they have a cause of action, or that the injury was caused by another party's wrongful conduct, for once a plaintiff possesses the salient facts concerning the occurrence of his injury and who or what caused it, he has the ability to investigate and pursue his claim."

Id. at 806-807 (citations omitted) (emphasis in original). Since the standard of knowledge is objective, the nature of the injury will typically determine whether the discovery rule has application. Only where the injury is not readily discernible can the rule apply. Id. at 807.

The Baily Court observed that, in Pennsylvania, "except as otherwise provided by statute, insanity or imprisonment [does] not extend the time" allowed by the statute for commencement of an action. Id. at 808. See: 42 Pa.C.S.A. § 5533(a). See also: Walker v. Mummert, 394 Pa. 146, 146 A.2d 289 (1958); Courts v. Campbell, 245 Pa.Super. 326, 369 A.2d 425 (1976). Therefore, the Court held, the statute of limitations pertaining to an action for sexual abuse was not tolled by a minor's psychological repression of the abuse for fifteen years. Under Pennsylvania law, the Court said, "where the plaintiff is aware of 'the facts concerning the occurrence of his injury' and the 'causative relationship' between the injury and the defendant's conduct, the fact that the plaintiff does not know that he has a cause of action will not prevent the statute from running." Baily v. Lewis, supra at 810, quoting Vernau v. Vic's Market, Inc., 896 F.2d 43, 46 (3d Cir.1990).

Similarly, in Brunea v. Gustin, supra, the Court held that an action was barred by the statute of limitations despite the fact that a misdiagnosis was alleged to have been a substantial factor contributing to the plaintiff's inability to recognize and be aware that...