Nicolaou v. Martin

• Decision Date: 17 October 2018
• Docket Number: No. 44 MAP 2017,44 MAP 2017
• Citation: 195 A.3d 880
• Parties: Nancy NICOLAOU and Nicholas Nicolaou, Appellants v. James J. MARTIN, M.D., Louise A. Dillonsynder, CRNP, Jeffrey D. Gould, M.D., St. Luke's Hospital, St. Luke's Hospital and Health Network, St. Luke's Hospital Union Station Medical Surgical Clinic d/b/a St. Luke's Southside Medical Center, St. Luke's Orthopaedic Surgical Group, and Nazareth Family Practice, Appellees
• Court: Pennsylvania Supreme Court

195 A.3d 880

Nancy NICOLAOU and Nicholas Nicolaou, Appellants

v.James J. MARTIN, M.D., Louise A. Dillonsynder, CRNP, Jeffrey D. Gould, M.D., St. Luke's Hospital, St. Luke's Hospital and Health Network, St. Luke's Hospital Union Station Medical Surgical Clinic d/b/a St. Luke's Southside Medical Center, St. Luke's Orthopaedic Surgical Group, and Nazareth Family Practice, Appellees

No. 44 MAP 2017

Supreme Court of Pennsylvania.

Argued: May 17, 2018

Decided: October 17, 2018

Tricia Snyder Lontz, Esq., Eckert Seamans Cherin & Mellott, LLC, for Pennsylvania Medical Society and American Medical Association, Amicus Curiae.

Nathan M. Murawsky, Esq., Hamburg Rubin Mullin Maxwell & Lupin, PC, for Nicolaou, Nicholas and Nancy, Appellants.

Charles Alphonsus Fitzpatrick IV, Esq., Arthur W. Hankin, Esq., Lewis Wayne Schlossberg, Esq., Blank Rome LLP, Mark R. Zolfaghari, Esq., St. Luke's University Hospital Network, for Martin, James, J., et al, Appellee.

Louise A. Dillonsynder, pro se.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE BAER

This appeal presents the issue of whether Appellants Nancy and Nicholas Nicolaou (collectively referred to as "Plaintiffs") satisfied the discovery rule so as to toll the running of the statute of limitations on their medical malpractice action filed against Appellee health care providers (collectively referred to as "Defendants") for failing to diagnose and treat Mrs. Nicolaou's Lyme disease

. The trial court granted summary judgment in favor of Defendants, deeming Plaintiffs' action time-barred. The Superior Court affirmed, holding that the discovery rule did not toll the statute of limitations because, as a matter of law, Plaintiffs failed to establish that they pursued their action with reasonable diligence. For the reasons set forth herein, we hold that summary judgment was granted improperly because the determination of whether Plaintiffs acted with due diligence under the circumstances presented is one of fact for a jury to decide. Accordingly, we vacate the judgment of the Superior Court, reverse the order granting summary judgment, and remand to the trial court for further proceedings consistent with this opinion.

I. Background

The record establishes that sometime in 2001, Nancy Nicolaou was bitten by a tick on her left ankle, after which she developed a rash and experienced numbness and tingling in her left toe, fatigue, and lower back pain. Second Amended Civil Action Complaint (Medical Malpractice) (hereinafter "Second Amended Complaint"), at ¶ 13. As explained in detail infra , from 2001 through 2008, each of the following Defendants provided Mrs. Nicolaou with medical care: James J. Martin, M.D.; Jeffrey D. Gould, M.D.; St. Luke's Hospital and Health Network; St. Luke's Hospital Union Station Medical Surgical Clinic, d/b/a/ St. Luke's Southside Medical Center; St. Luke's Orthopaedic Surgical Group; and Nazareth Family Practice.

Initially, in August of 2001, Mrs. Nicolaou reported her recent tick bite and resulting symptoms, including a rash that was still visible, to Dr. Stephen P. Falatyn, an alleged agent of Appellee St. Luke's Hospital and St. Luke's Hospital Health Network.¹ Id. at 13. Dr. Falatyn did not begin antibiotic therapy treatment based on Mrs. Nicolaou's clinical symptoms, the standard treatment for Lyme disease

, but ordered a Lyme disease test, the results of which were negative. Id.

When her symptoms continued, Mrs. Nicolaou sought medical care from Appellee Dr. James J. Martin, an alleged employee of Appellee Nazareth Family Practice. Id. at ¶¶ 4, 14. Dr. Martin treated Mrs. Nicolaou from June of 2002, until May of 2005. Id. at ¶ 14. Mrs. Nicolaou informed Dr. Martin of her ailments that arose after she was bitten by a tick, which had expanded to include tingling and numbness in her left leg, decreasing sensation in the left foot, fatigue, lower back pain, incontinence, and difficulty walking. Id. at 14. Dr. Martin did not treat Mrs. Nicolaou with antibiotics or refer her to a Lyme disease

specialist. Rather, on May 10, 2005, Dr. Martin ordered a second Lyme disease test, an IGM Western Blot test, which indicated an equivocal negative result. Id. The test cautioned that "[t]he screening for B. Burgdorferi [the bacterium that causes Lyme disease ] has a low predictive value for a negative result when used to detect early infection." Id.

Certified Nurse Practitioner Louise A. Dillonsynder took charge of Mrs. Nicolaou's medical care from late May of 2005, through December of 2006.² Id. at ¶ 15. Once again, Mrs. Nicolaou reported her continuing symptoms of chronic leg pain and weakness, urinary incontinence

, and joint stiffness and numbness of her left leg and fingers. Id. at ¶ 15. On July 3, 2006, Nurse Dillonsynder ordered an MRI of Mrs. Nicolaou's brain. The MRI indicated findings "seen in infectious or inflammatory demyelinating process, such as multiple sclerosis ["MS"] or Lyme Disease...." Id. at ¶¶ 15, 27.5. Nurse Dillonsynder subsequently ordered a Lyme disease test, Mrs. Nicolaou's third, the results of which were again negative, although the lab report acknowledged the limitations of the test conducted.³

Id. Insisting that Mrs. Nicolaou was suffering from MS, Nurse Dillonsynder did not prescribe antibiotics for Lyme disease. Id.

Mrs. Nicolaou's maladies endured, and in early 2007, she sought treatment from Appellee Dr. Jeffrey D. Gould, who provided her medical care through 2008. Id. at ¶ 16. As with her previous health care providers, Mrs. Nicolaou informed Dr. Gould of her 2001 tick bite and the resulting symptoms, which had expanded into increased inability to walk, fatigue, incontinence, and new lesions about the brain and spine, as well as her belief that her symptoms may have been caused by Lyme disease

. Id. Dr. Gould ordered a fourth Lyme disease test on April 11, 2007, and the results were again negative. Id. Similar to the previous negative test results, however, the laboratory report cautioned that the test did not exclude B. Burgdorferi infection, the bacterium that causes Lyme disease. Id. Although Dr. Gould was privy to the 2006 MRI indicating that Mrs. Nicolaou suffered from either MS or Lyme disease, he definitively told Mrs. Nicolaou that she did not have Lyme disease and that she was suffering from MS. Id.; see also Deposition of Dr. Gould, Nov. 6, 2013 (hereinafter "Gould Deposition"), at 68 (acknowledging that Dr. Gould believed that he convinced Mrs. Nicolaou that she did not have Lyme disease ).⁴ Accordingly, Dr. Gould declined to administer antibiotics for Lyme disease and, instead, began an aggressive regimen of steroids for MS, after which Mrs. Nicolaou's symptoms worsened dramatically, ultimately rendering her confined to a wheelchair. Second Amended Complaint, at ¶ 16.

At some point in 2007, Mrs. Nicolaou suspected that she may have Lyme disease

and not MS due to the onset of her symptoms after the tick bite, her 2006 MRI indicating that she had either Lyme disease or MS, and the unsuccessful nature of the MS treatment. Id. at ¶¶ 16-17. Accordingly, she stopped seeking medical treatment from Defendants, and sought another professional medical opinion. Id. at ¶ 17. After learning that Nurse Practitioner Rita Rhoads had helped individuals with Lyme disease who had been misdiagnosed with MS, Mrs. Nicolaou began treatment with Nurse Rhoads on July 20, 2009, and continued such treatment on four subsequent occasions: September 21, 2009, November 9, 2009, December 7, 2009, and February 1, 2010. Deposition of Nancy Nicolaou, Nov. 6, 2013 (hereinafter "Nicolaou Deposition"), at 65-71;⁵ Deposition of Rita Rhoads, Nov. 1, 2013 (hereinafter "Rhoads Deposition") at 10, 32, 41, 53.

During the first visit on July 20, 2009, after having reviewed Mrs. Nicolaou's medical history, personal account of the events, and the 2006 MRI of her brain, Nurse Rhoads informed Mrs. Nicolaou that she believed Mrs. Nicolaou had probable Lyme disease

stemming from her 2001 tick bite. Rhoads Deposition, at 25; Nicolaou Deposition, at 61. In Nurse Rhoads' opinion, Mrs. Nicolaou's previous Lyme disease tests

may have indicated false negatives because such tests were developed to account for a Lyme disease vaccine, which had been taken off of the market prior to the events at issue. Rhoads Deposition, at 27-28. Even absent a positive Lyme disease test, Nurse Rhoads prescribed a course of antibiotics as a way of determining whether Mrs. Nicolaou's symptoms would respond to such treatment. Id. at 23.

In the course of the next couple of visits, Nurse Rhoads suggested to Mrs. Nicolaou that to confirm a diagnosis of Lyme disease

, she should undergo a test offered by a company called IGeneX, Inc., which cost approximately $250.⁶ Nicolaou Deposition, at 62. Mrs. Nicolaou asserted that she declined the IGeneX test because she wanted to wait and see how her symptoms were going to react to the antibiotics. Id. , at 75. Nurse Rhoads indicated that Mrs. Nicolaou declined the IGeneX test because she could not afford it. Rhoads Deposition, at 29, 53. At this point in time, Mrs. Nicolaou had no health insurance as she had voluntarily stopped paying her premiums in 2005, after her health insurance coverage failed to pay for her requisite medical expenses. Id. at 23; Nicolaou Deposition, at 35; see also Rhoads Deposition, at 35 (asserting that Mrs. Nicolaou informed Nurse Rhoads that she had no health insurance, that she was not eligible for federal benefits, and that her husband was laid off).

After two months of taking the prescribed antibiotics, some of Mrs. Nicolaou's symptoms improved, including the resumption of bladder and bowel control, although she remained wheelchair bound. Rhoads Deposition, at 35; Second Amended Complaint at ¶ 18. Mrs. Nicolaou ultimately agreed to take the IGeneX Lyme disease test

during the February 1, 2010 visit with Nurse Rhoads. Nicolaou Deposition, at 74. Nurse Rhoads administered the test that day and sent Mrs. Nicolaou's specimen to...