Pennsylvania high court rules time-limit unexpired in malpractice claim

March 2, 2009

The Pennsylvania Supreme Court reversed February 19 the grant of summary judgment in favor of a physician who alleged the medical malpractice action against him was time-barred under the two-year statute of limitations.

This material originally appeared in the February 27, 2009, issue of Health Lawyers Weekly, a publication of the American Health Lawyers Association (www.healthlawyers.org).

The Pennsylvania Supreme Court reversed February 19 the grant of summary judgment in favor of a physician who alleged the medical malpractice action against him was time-barred under the two-year statute of limitations. 

The high court found the question of when the plaintiff had actual or constructive knowledge of her injury or its cause to toll the statute of limitations pursuant to the discovery rule was one that should be left to the jury. 

At the same time, the high court declined to adopt a more expansive reading of the discovery rule to find the action timely as a matter of law, the conclusion urged by the dissent. Specifically, the high court rejected any requirement of a definitive diagnosis to trigger the start of the limitations period.  

Plaintiff Mary Elizabeth Wilson filed the medical malpractice action in October 2003 against defendants Samir El-Daief, M.D. and Montgomery Hospital Medical Center, alleging El-Daief lacerated the radial nerve in her wrist during a surgical procedure performed in August 2000.  

Defendants sought summary judgment based on the two-year statute of limitations.

Plaintiff argued the discovery rule tolled the statute of limitations until October 2001 when she learned from another physician about her injury. According to plaintiff, prior to that time, she had sought treatment with El-Daief and another orthopedic surgeon for some 13 months, but neither of them could pinpoint the cause of her pain and other symptoms.  

The trial court granted defendants summary judgment, noting plaintiff had experienced constant, excruciating pain shortly after the August 2000 surgery, her hand had contracted into a fist, her right elbow bent inward, and her right shoulder drew upward. 

According to the court, these symptoms, which plaintiff had not experienced following a similar May 2000 surgery, coupled with her acknowledgment in September 2001 that she believed “something was wrong” and had lost confidence in El-Daief, started the clock running on her medical malpractice action.   

A divided Pennsylvania appeals court affirmed, rejecting the suggestion that a definitive diagnosis was necessary to trigger the running of the limitations period since under Pa. R. Civ. P. 1042.3(a) a plaintiff in a professional liability action must file a certificate of merit (COM) simultaneously with her complaint or 60 days thereafter. 

The high court reversed the grant of summary judgment in defendants’ favor, saying a question of fact existed on the discovery rule issue given “evidence of potential sources of confusion, in the asserted unwillingness or inability on the part of Dr. El-Daief to recognize injury or cause.”  

At the same time, the high court went on to emphasize that Pennsylvania’s formulation of the discovery rule was a narrower approach than some other jurisdictions.  

“While we reiterate that knowledge of ‘injury’ and ‘cause’ does not require a precise medical diagnosis, we decline to hold as a matter of law, that a lay person must be charged with knowledge greater than that which was communicated to her by multiple medical professionals involved in her treatment and diagnosis,” the high court said.  

Finally, the high court refused to “retool” the discovery rule in light of the procedural COM requirement in Rule 1042.3. The majority argued that the current discovery rule was adequate to ensure injured plaintiffs had their day in court, while at the same time protecting defendants from stale claims.  

A dissenting/concurring opinion said the majority should have found plaintiff’s action timely as a matter of law.  

According to the dissent, the COM requirement coupled with the narrow interpretation of the discovery rule placed plaintiffs “in the precarious position of being constrained to file a lawsuit before they know whether their resulting symptoms are linked to a physician’s malpractice.”  

Plaintiffs must supply a timely COM from a licensed professional indicating a defendant’s conduct caused their harm to support a medical malpractice action. But, under the current state of Pennsylvania jurisprudence, the statute of limitations commences in many cases before the plaintiff, despite the exercise of due diligence, is able to obtain such a professional opinion. 

“To avert this fundamental unfairness, we should construe the discovery rule so as to toll the statute of limitations until the plaintiff obtains, or with the exercise of due diligence should have obtained, medical evidence sufficient to enable the plaintiff to link her injury to the acts of the defendant,” the dissent argued.  

Wilson v. El-Daief, No. 39 MAP 2008 (Pa. Feb. 19, 2009).