Stephenson v. Greenberg

• Decision Date: 20 November 1992
• Citation: 617 A.2d 364,421 Pa.Super. 1
• Parties: , 21 UCC Rep.Serv.2d 19 James and Aletha STEPHENSON, H/W, Appellants, v. Steven J. GREENBERG, M.D. and Albert Einstein Medical Center Mt. Sinai--Daroff Division, Appellees. (Two Cases)
• Court: Pennsylvania Superior Court

Page 364

617 A.2d 364

421 Pa.Super. 1, 21 UCC Rep.Serv.2d 19

James and Aletha STEPHENSON, H/W, Appellants, v. Steven J. GREENBERG, M.D. and Albert Einstein Medical Center

Mt. Sinai--Daroff Division, Appellees. (Two Cases)

Superior Court of Pennsylvania.

Submitted June 2, 1992.

Filed Nov. 20, 1992.

John M. Sheridan, Media, for appellants.

James M. Penny, Jr., Philadelphia, for Steven J. Greenberg, M.D., appellee.

Jill E. Baratz, Philadelphia, for Einstein Medical Center, appellee.

Before CAVANAUGH, DEL SOLE and BECK, JJ.

CAVANAUGH, Judge:

Aletha Stephenson and her husband James Stephenson appeal from the orders of the Court of Common Pleas of Philadelphia County entered on January 24, 1991 and February 22, 1991 granting summary judgment to the defendants in this medical malpractice action. For the reasons stated hereinafter, we affirm those orders.

The facts of this case are as follows. Appellant-plaintiff-wife experienced abdominal pains in connection with a ruptured ovarian cyst. While in the hospital, she was treated with the prescription drug Keflex, an antibiotic for fighting infection. Appellant-wife is allergic to Keflex, and asserts that she informed the hospital of this fact before the drug was administered. On September 22, 1985 appellant-wife had an anaphylactic reaction to the drug, exhibiting blotchy skin, nausea, and a feeling that her throat was about to close.

Appellant-wife is a nurse, and appellant-husband is a physician, and both realized on September 23, 1985 that this reaction was an allergic reaction to the administration of the medication. She alleges that she had a repeat occurrence on October 25, 1985, and has been having "panic attacks" since then. Appellants claim that these are a post-traumatic stress disorder relating back to the initial administration of Keflex, discovered in 1986 when she came under the care of one Dr. Ganime, her psychiatrist.

The plaintiffs filed a writ of summons on October 8, 1987, beginning the litigation in this malpractice action. Appellees filed preliminary objections; appellant filed an amended complaint on May 20, 1988. Appellees, in their answers to the complaint and new matter, alleged that the two-year statute of limitations on tort actions acted to bar this action.

Appellants then filed a petition to amend their complaint to add a claim for breach of warranty of fitness for a particular purpose under the Sales Article of the Uniform Commercial Code (U.C.C.). ¹ Appellants alleged that the appellee-hospital and appellee-doctor sold goods which were unsuitable for their intended purposes. This claim has a four-year statute of limitations, ² which had not yet run. The petition for leave to amend was denied, as was a petition to reconsider. The trial court then granted the appellee-defendants' motions for summary judgment based on the statute of limitations. This appeal followed.

We address appellants' claims in reverse order. Appellants lastly claim that the trial court erred in granting summary judgment because the medical malpractice action was barred by the two year statute of limitations. ³ They argue that because appellant-wife's was not aware that her emotional difficulties were caused or related to the administration of Keflex at an earlier time, the statute of limitations did not begin to run.

As an initial matter, we note that summary judgment is governed by the Pennsylvania Rules of Civil Procedure. Rule 1035(b) provides, in pertinent part, that summary judgment:

shall be rendered 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 the moving party is entitled to judgment as a matter of law.

Further, the deciding court must view all of the evidence in a light most favorable to the non-moving party Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 48, 489 A.2d 828, 833 (1985), and draw all reasonable inferences in favor of the non-moving party. Helinek v. Helinek, 337 Pa.Super. 497, 502, 487 A.2d 369, 372 (1985). Finally, summary judgment may be rendered only in cases that are free from doubt. Huffman v. Aetna Life and Casualty Co., 337 Pa.Super. 274, 277, 486 A.2d 1330, 1331 (1984).

With this background in place, we turn to our analysis of appellants' claim. The malpractice action was filed over two years from the date of the alleged malpractice. Therefore, the "discovery rule" first enunciated in Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959) is applicable. In Ayers, a surgeon left a surgical sponge in the patient, who did not discover the sponge until nine years later as a result of complications. There, our supreme court held that the statute is triggered when the injury is discovered, not when the causative act took place.

This court modified the Ayers rule in Shadle v. Pearce, 287 Pa.Super. 436, 430 A.2d 683 (1981). In that case, a dentist treated an abscessed tooth negligently, in 1972, causing bacterial endocarditis which required an aortic valve transplant in 1973. At that point the patient made a conscious decision not to sue the dentist, as his costs were covered and a full recovery was expected. Three years later, the patient developed an aortic aneurysm, which totally incapacitated him and severely decreased his life expectancy. In holding that the action was barred by the statute of limitations, we stated that:

If we were to hold otherwise under the facts presented here, we would create a concept in the law which would permit an injured plaintiff to have a new limitations period commence for the initiation of an action for personal injuries as of the date when each complication or change in condition arose, despite the fact that no "new" negligence has occurred which is attributable to the defendant. Such a concept would be contrary to the legislative intent inherent in our creation of periods of limitations in our law. Shadle v. Pearce, supra, 287 Pa.Super. at 441, 430 A.2d at 685-686.

In his analysis of these cases in Manzi v. H.K. Porter Co., 402 Pa.Super. 595, 599, 587 A.2d 778, 780 (1991), our esteemed colleague Judge Johnson noted that:

Taken together, Ayers and Shadle [sic] established a common-sense rule based upon the fact that certain injuries do not conveniently manifest themselves within the statutory period. At the same time, a plaintiff, once aware that damage has been sustained, may not renew an attack upon the defendant at each stage of a progressing illness.

This court had occasion to address a more similar issue in Groover v. Riddle Memorial Hospital, 357 Pa.Super. 420, 516 A.2d 53 (1986). In that case a woman received an extraordinarily painful injection in her leg while in the hospital in March or April of 1979. She was in pain constantly from that point on, and gradually losing muscular control in her leg. She went to see various specialists who could not pinpoint the medical cause of her injury until June of 1983, when a specialist determined the injury to be a sciatic nerve injury, and linked it to the injection. Suit was filed in September of 1983. We stated there, given the facts of that case, that the plaintiff "knew or reasonably should have known 1) that she was injured [in 1979], and 2) the operative cause of her injury, and 3) the causative relationship between the injury and the operative conduct" and affirmed the granting of summary judgment based on the statute of limitations.

As each case has different circumstances, each must be evaluated in light of its own particular facts. In the case currently under review the trial court noted in its brief opinion that:

We found that the cause of action accrued here no later than September 23, 1985. By that time Plaintiff [Appellant] Mrs. Stephenson had not only sustained her injury, she was also aware of her injury and, as a nurse, knew its source. Her knowledge had the effect of causing the statute to run, even considering the effect of the "discovery rule" recognized by our case law. Bickford v. Joson, 368 Pa.Super. 211, 533 A.2d 1029 (1987). Although a second attack induced by the drug is alleged to have occurred one month later, Plaintiffs need not know the nature and extent of their injuries in order for the statute to begin to run. Since Plaintiffs failed to file suit until over two years had elapsed since the cause of action arose, we granted Summary Judgment ... (Opinion, at 1-2).

Post-traumatic stress disorders have been recognized by the American Psychiatric Association as distinct psychiatric disorders. ^{4 4} However, the symptoms suffered by the appellant-wife in this particular case are identical to the symptoms suffered by the appellant-wife after the initial injection. In their complaint, at count 8, the plaintiffs contended that:

8. Soley [sic] as a result of the aforesaid negligence of Defendants herein, PATIENT PLAINTIFF was caused to suffer severe anxiety attacks characterized by anaphylactic shock-type symptoms which first manifested themselves October 24, 1985.... (Emphasis added).

The lower court found that the initial symptom signifying injury was experienced on September 23, 1985. ⁵ As the continuing alleged emotional injuries are manifested as the same injury initially allegedly inflicted by the hospital, it follows that, as a matter of law, that appellant knew or reasonably should have known that she was injured on September 23, 1985.

The law allowed the appellant two full years from September, 1985 to bring an action; the law requires that those who assert claims of negligence be vigilant in bringing legal actions based thereon. During that two year period the full extent of the appellants' alleged injuries may have became more fully known as appellant-wife's attacks persisted; however, nothing prevented appellants from pursuing a cause of action before the limitations period had elapsed. The medical malpractice action consequently is barred by the...