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Weekly UpdatesORDINARILY STATUTES OF LIMITATION TIME BAR FILING SUITS. If a plaintiff files suit after a statute of limitations has run, he is forever barred from pursing the claim, no matter how meritorious it might be. However, there are some rare exceptions to the bare bones statute of limitations. One of those most invoked is the Discovery Rule. Simply put, if a victim of malpractice has no reason to know that he or she has been a victim of malpractice, the applicable statute of limitations does not begin to run until the victim of the malpractice knows or should have known that he or she has been the victim of malpractice. Often, notwithstanding that the victim may be in pain, the victim does not know that he or she has been the victim until another physician, with the benefit of diagnostic tests and a review of the medical record, makes the victim aware that he or she has been the victim of malpractice.
IN OCTOBER 2003, MARY WILSON FILED SUIT AGAINST DR. SAMIR EL-DAIEF AND MONTGOMERY HOSPITAL MEDICAL CENTER. She alleged that one of several surgical procedures performed on her wrist by Dr. El-Daief at the hospital resulted in the negligent laceration of the radial nerve in her wrist during. Dr. El-Daief and the hospital moved for summary judgment on the grounds that the two-year statute of limitations applicable under Pennsylvania law barred Wilson from pursing her claim against the defendants. In response, Wilson invoked the Discovery Rule, pursuant to which the statute of limitations did not begin to run until such time as she either knew of the alleged negligence involved in lacerating the radial nerve in her wrist, or should have known of the alleged negligence of the defendants. However, the Common Pleas Court granted the defendants' motion for summary judgment on the grounds that the two-year statute of limitations barred Wilson from pursuing her claim against the defendants. The court cited the case of Wilson v. El-Daief No. 03-19723, slip op. (C.P. Montgomery Jan 26, 2007). The court found that after Wilson's second surgery, she experienced constant, persistent, excruciating pain; within several weeks her hand contracted into a fist, her right elbow bent inward, and her right shoulder drew upward. In view of these circumstances, the court determined that Wilson's cause of action arose in August 2000 (on the date of the second surgery) and that Wilson failed to file suit within the two-year period after the second surgery. The Superior Court affirmed the Common Pleas Court's order granting the defendants' motion. Wilson appealed.
THE SUPREME COURT OF PENNSYLVANIA REVERSED THE TRIAL COURT'S ORDER GRANTING SUMMARY JUDGMENT FOR THE DEFENDANTS. The court remanded the case back to the trial court for a trial on Wilson's claim against Dr. El-Daief and the hospital. The court held, inter alia, that both the Court of Common Pleas and the Superior Court had erred in granting and affirming, respectively, the order for summary judgment for the defendants. Further, the court held that the evidence was undisputed that the patient "was unaware of the nature of her injury or its cause until she obtained the medical diagnosis of Dr. Fried on April 23, 2003." Thus, the court concluded that the statute of limitations did not begin to run until April 23, 2003, and that Wilson filed her claim well within the statutory period consistent with the Discovery Rule.
AN UNUSUAL OPINION ENTITLED "CONCURRING AND DISSENTING OPINION" WAS FILED. The judge who wrote the opinion expressed his concern that courts do not readily apply the Discovery Rule, which may prompt attorneys for clients seeking redress for injuries sustained as a result of medical malpractice, to file suits within the two-year period, which may result in many suits being filed before there is clear and convincing evidence that medical malpractice has been committed. Thus, the question of whether the Discovery Rule may or may not apply may have the unintended consequence of a rush to judgment to file suit before the two-year period runs. This is so, notwithstanding the fact that an attorney in a professional malpractice case must file with the complaint, or within sixty days thereafter, a certificate of merit signed by the attorney or party attesting to the fact that they are pursing the claim in good faith and have a reasonable expectation that the conduct complained of fell outside the scope of acceptable professional standards and such conduct was a cause in bringing about harm to the plaintiff. Editor's Note: There is no mention in the case facts, as reported, as to whether the surgeon or hospital made any disclosure to the patient as to the fact that the nerve in her wrist had been lacerated during the course of the second surgery. If they failed to so inform the patient, the Doctrine of Fraudulent Concealment might have been applicable. This also tolls the statute of limitations. Yet, curiously, there is no mention of whether there was any disclosure of the laceration of the nerve in the patient's wrist, and no discussion of Fraudulent Concealment tolling the statute. Wilson v. El-Daief, 2009-PA-0129.758 (2/1912009) A.2d--PA
Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law Practicing law for over 40 years. he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's. Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers. Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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