Nicolaou, N. v. Martin, J. ( 2015 )

J-A33033-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
NANCY NICOLAOU AND NICHOLAS : IN THE SUPERIOR COURT OF
NICOLAOU, : PENNSYLVANIA
:
Appellants :
:
v. :
:
JAMES J. MARTIN, M.D., LOUISE A. :
DILLONSNYDER, 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 ORTHOPEDIC SURGICAL :
GROUP, AND NAZARETH FAMILY :
PRACTICE, :
:
Appellees : No. 1286 EDA 2014
Appeal from the Order Entered February 24, 2014,
in the Court of Common Pleas of Lehigh County,
Civil Division at No(s): 2012-C-0518
BEFORE: LAZARUS, WECHT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 24, 2015
Nancy and Nicholas Nicolaou (the Nicolaous) appeal pro se from the
trial court’s February 24, 2014 order granting summary judgment in favor of
James J. Martin, M.D.; Jeff D. Gould, M.D.; St. Luke’s Hospital; St. Luke’s
Hospital & Health Network; St. Luke’s Hospital Union Station Medical
Surgical Clinic (d/b/a St. Luke’s Southside Medical Center); St. Luke’s
Orthopedic Surgical Group; and Nazareth Family Practice (Appellees) in this
medical malpractice action. We reverse the order of the trial court.
* Retired Senior Judge assigned to the Superior Court.
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The trial court has summarized the factual and procedural history of
this case as follows:
The facts of the case provide that sometime in 2001,
Nancy Nicolaou was bitten by a tick on her left ankle. Beginning
in August, 2001, Mrs. Nicolaou began seeking medical treatment
because she was experiencing a number of maladies that she
associated with the tick bite. At first, Mrs. Nicolaou developed a
rash near the sight of the bite and experienced numbness and
tingling in her left toe, fatigue, and lower back pain. Over time,
these symptoms expanded to include: incontinence, total loss of
bladder control; tingling and numbness throughout her body,
including both legs and feet; difficulty walking; and confinement
in a wheelchair.
Each of the [Appellees] acted as Mrs. Nicolaou’s treating
physician at different times between 2001 and 2008. Mrs.
Nicolaou was a patient of dismissed co-defendant Dr. Stephen P.
Falatyn, an alleged agent of [] St. Luke’s Hospital and St. Luke’s
Health Network, in August of 2001. Mrs. Nicolaou was a patient
of [] Dr. James J. Martin, an alleged employee of [] Nazareth
Family Practice, from approximately June 14, 2002 through June
14, 2005. Mrs. Nicolaou was a patient of co-defendant Louise A.
Dillonsnyder, CRNP,[1] an alleged agent of [] St. Luke’s Hospital,
St. Luke’s Health & Health Network, and St. Luke’s Hospital
Union Station Medical Surgical Clinic, from May 27, 2005 through
December 20, 2006. Mrs. Nicolaou was a patient of [] Dr.
Jeffrey D. Gould, an alleged agent of [] St. Luke’s Hospital and
St. Luke’s Hospital & Health Network, in 2007 and 2008.
During Mrs. Nicolaou’s treatment, Dr. Falatyn and []
Martin, Dillonsnyder, and Gould all ordered a battery of tests,
including four Lyme Disease tests; none of the tests produced a
positive result for Lyme Disease. Consequently the [doctors] did
not diagnose Mrs. Nicolaou with or treat her for Lyme Disease.
On July 3, 2006, [] Nurse Dillonsnyder ordered an MRI of
the brain. The results of the MRI suggested that Mrs. Nicolaou
could be suffering from either multiple sclerosis (MS) or Lyme
Disease. [The doctors] diagnosed Mrs. Nicolaou with and treated
1
Louise Dillonsnyder was not included in the motion for summary judgment
that is the subject of this appeal, and she subsequently was dismissed as a
defendant. As such, she is not a party to this appeal.
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her for MS. Dr. Gould told Mrs. Nicolaou that she did not have
Lyme Disease and he continued to believe that she did not have
Lyme Disease. Mrs. Nicolaou stopped [treatment] with the
[Appellees] sometime in 2008.
Sometime in 2007, Mrs. Nicolaou suspected that the
[doctors] incorrectly diagnosed her with MS and that she was
actually suffering from Lyme Disease due to the symptoms she
experienced near the 2001 tick bite. As a result, Mrs. Nicolaou
sought the help of Nurse Practitioner Rita Rhoads after Mrs.
Nicolaou learned through research on the internet that Nurse
Rhoads had a history of treating patients for Lyme Disease
whom other medical professionals had previously incorrectly
diagnosed as suffering from MS. Mrs. Nicolaou met with and
was examined by Nurse Rhoads on five occasions between July
20, 2009 and February 1, 2010, specifically: July 20, 2009;
September 21, 2009; November 9, 2009; December 7, 2009;
and February 1, 2010. During each of the appointments, Nurse
Rhoads recorded an assessment of “probably Lyme [Disease]”
stemming from the 2001 tick bite on Mrs. Nicolaou’s left ankle
and prescribed antibiotics to fight the Lyme Disease. Also,
during each of the appointments, Nurse Rhoads told Mrs.
Nicolaou that she believed Mrs. Nicolaou was suffering from
Lyme Disease, and that, as a result of that diagnosis, Nurse
Rhoads was prescribing antibiotics to fight the Lyme Disease.
During some of the appointments, Nurse Rhoads
recommended that, in order to confirm Nurse Rhoads’ diagnosis
of Lyme Disease, Mrs. Nicolaou should undergo a test offered by
a company called IGeneX, Inc. (IGeneX). Mrs. Nicolaou testified
that she did not get the test before February 1, 2010, because
she wanted to see how her symptoms were going to react to the
antibiotics. Nurse Rhoads testified that Mrs. Nicolaou did not
have the IGeneX test done when it was first recommended
because Mrs. Nicolaou said she could not afford it. Mrs. Nicolaou
testified that she voluntarily stopped purchasing medical
insurance at some point in 2005 because her insurer was not
covering the cost of many of the tests ordered by her physicians;
she understood that she would be personally responsible for all
costs associated with tests that might be ordered by her medical
care providers going forward.
Nurse Rhoads administered the IGeneX Lyme Disease test
to Mrs. Nicolaou on February 1, 2010. Nurse Rhoads sent Mrs.
Nicolaou’s test specimen to the IGeneX laboratory in Palo Alto,
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California. On February 12, 2010, IGeneX completed its analysis
of the test. On February 13, 2010, Nurse Rhoads informed Mrs.
Nicolaou via e-mail that the test results were positive for Lyme
Disease.
The day that Mrs. Nicolaou received the positive test results,
she posted a message on her Facebook page that confirmed her
subjective opinion that she believed she had Lyme Disease well
before receiving the IGeneX report:
Today i got my blood test back from igenix [sic] labs to
test for lyme disease and it came back positive!!!!!!!!!!!!! i
had been telling everyone for years i thought it was lyme
and the doctors ignore me, thank you god you have
answerd [sic] my prayers!!!!!!!!! Now its [sic] all in your
hands!!!!!!!!!!!!
[The Nicolaous] initiated this lawsuit [] by way of [a]
complaint filed on February 10, 2012. Amended complaints
were filed on April 19, 2012 and May 31, 2012. In the second
amended complaint, Mrs. Nicolaou assert[ed] medical
malpractice claims against each of the [Appellees]. Based on
the injuries allegedly suffered by his wife as a result of the []
purported negligence, Mr. Nicolaou also assert[ed] claims [] for
loss of consortium.
In their [answer], [Appellees] averred a violation of the
statute of limitations as an affirmative defense to all of the
[Nicolaous’] claims.
[The Nicolaous] averred in their second amended complaint
that although they did not initiate this action until more than
three years after Mrs. Nicolaou’s last contact with the [doctors
and hospitals], the statute of limitations is not a bar to their
claims due to the operation of the discovery rule. [The
Nicolaous] assert that the [Appellees] are estopped from
asserting a statute of limitations defense because reasonable
people in the position of [Appellants] could not have discovered
any negligence until February 13, 2010, at the earliest; the
Complaint was filed within two years of that date.
Trial Court Opinion, 2/24/2014, at 2-6 (citations to the record omitted; some
capitalization and punctuation modified).
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On December 6, 2013, after discovery was completed, Appellees filed
a motion for summary judgment. On December 31, 2013, the Nicolaous,
through counsel, filed a response. On February 25, 2014, the trial court
granted Appellees’ motion, holding that the Nicolaous had commenced their
action after the prescribed statutory period for bringing the claim had
expired, and that the statute of limitations was not tolled by application of
the discovery rule. Id. at 14.2 On April 21, 2014, the Nicolaous filed a
notice of appeal.3 The trial court did not direct Appellants to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Nonetheless, in accordance with Pa.R.A.P. 1925(a), the trial court issued an
opinion in support of its order on May 9, 2014.4
The Nicolaous raise the following issue for our review: “[w]hether the
trial judge erred in granting Appellee[s’] motion for summary judgment and
2
An action to recover damages for injuries to the person caused by the
negligence of another must be commenced within two years. 42 Pa.C.S.
§ 5524(2).
3
Although the Nicolaous filed the notice of appeal more than thirty days
after the trial court’s order granting summary judgment, the notice of appeal
is not untimely. Louise Dillonsnyder was not included in the summary
judgment motion, and therefore the order granting summary judgment was
not a final order from which Appellant would need to appeal within thirty
days pursuant to Pa.R.A.P. 903(a). A final order is any order that, inter alia,
disposes of all claims and of all parties. Pa.R.A.P. 341(b)(1). All of the
claims and parties to this action were not disposed of until Louise
Dillonsnyder was dismissed from the action by praecipe dated March 28,
2014.
4
The trial court’s Rule 1925(a) opinion directs the reader to the opinion
attached to its February 24, 2014 order granting summary judgment.
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holding that [their] action was time barred under [42 Pa.C.S. § 5524(2)] and
did not meet the discovery rule exception rather than having a jury
determine the issue?” The Nicolaous’ Brief at 2.
We set forth our standard of review from an order granting summary
judgment.
The standards which govern summary judgment are well
settled. When a party seeks summary judgment, a court shall
enter judgment whenever there is no genuine issue of any
material fact as to a necessary element of the cause of action or
defense that could be established by additional discovery. A
motion for summary judgment is based on an evidentiary record
that entitles the moving party to a judgment as a matter of law.
In considering the merits of a motion for summary judgment, a
court views the record in the light most favorable to the non-
moving party, and all doubts as to the existence of a genuine
issue of material fact must be resolved against the moving party.
Finally, the court may grant summary judgment only when the
right to such a judgment is clear and free from doubt. An
appellate court may reverse the granting of a motion for
summary judgment if there has been an error of law or an abuse
of discretion.…
Swords v. Harleysville Ins. Companies, 883 A.2d 562, 566-67 (Pa.
2005) (citations omitted).
We also set forth the principles of law governing claims with respect to
the expiration of the statute of limitations and the discovery rule.
The discovery rule originated in cases in which the injury
or its cause was neither known nor reasonably knowable. The
purpose of the discovery rule has been to exclude from the
running of the statute of limitations that period of time during
which a party who has not suffered an immediately ascertainable
injury is reasonably unaware he has been injured, so that he has
essentially the same rights as those who have suffered such an
injury.
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As the discovery rule has developed, the salient point
giving rise to its application is the inability of the injured, despite
the exercise of reasonable diligence, to know that he is injured
and by what cause….
Therefore, when a court is presented with the assertion of
the discovery rules application, it must address the ability of the
damaged party, exercising reasonable diligence, to ascertain
that he has been injured and by what cause. Since this question
involves a factual determination as to whether a party was able,
in the exercise of reasonable diligence, to know of his injury and
its cause, ordinarily, a jury is to decide it. Where, however,
reasonable minds would not differ in finding that a party knew or
should have known on the exercise of reasonable diligence of his
injury and its cause, the court determines that the discovery rule
does not apply as a matter of law.
When the discovery rule applies, the statute of limitations
does not commence to run at the instant that the right to
institute suit arises, i.e., when the injury occurs. Rather, the
statute is tolled, and does not begin to run until the injured party
discovers or reasonably should discover that he has been injured
and that his injury has been caused by another party’s conduct.
Whether the statute of limitations has run on a claim is a
question of law for the trial court to determine; but the question
as to when a party’s injury and its cause were discovered or
discoverable is for the jury.
Fine v. Checcio, 870 A.2d 850, 858-59 (Pa. 2005) (citations and quotation
marks omitted).
Furthermore, we have also observed that
[p]ursuant to application of the discovery rule, the point at which
the complaining party should reasonably be aware that he has
suffered an injury is a factual issue best determined by the
collective judgment, wisdom and experience of jurors. Thus,
once the running of the statute of limitations is properly tolled,
only where the facts are so clear that reasonable minds cannot
differ may the commencement of the limitations period be
determined as a matter of law.
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Crouse v. Cyclops Indus., 745 A.2d 606, 611 (Pa. 2000) (citations and
quotations omitted; emphasis in original).
On appeal, the Nicolaous argue that the issue of when Mrs. Nicolaou
“should have been reasonably aware that she suffered a misdiagnosis is
generally an issue of fact to be determined by the jury.” The Nicolaous’ Brief
at 4.5 The trial court disagreed, holding that in this case “the evidence
supports the conclusion that the commencement of the statute of limitations
period began prior to February 10, 2010, and that such evidence is so clear
that reasonable minds could not differ regarding that fact.” Trial Court
Opinion, 2/24/2014, at 9.6 Viewing the facts in the light most favorable to
the Nicolaous, we disagree.
5
Appellees and the Dissent argue that we should dismiss this appeal
because of the Nicolaous’ failure to comply with Pa.R.A.P. 2119. See
Appellees’ Brief at 12-14. We recognize that the argument quoted supra is
actually set forth in the Summary of Argument section of the Nicolaous’
brief, as opposed to the Argument section. See The Nicolaous’ Brief at 4-5.
However, the argument is clearly stated and is the same argument briefed
and argued before the trial court.
Moreover, we recognize the Nicolaous do not cite relevant legal
authority in either section. However, neither the parties nor the trial court
disputes the relevant case law. The issue before us is whether the trial court
erred in its application.
A determination about whether this Court should dismiss an appeal for
failure to comply with appellate rules is discretionary. PHH Mortgage Corp.
v. Powell, 100 A.3d 611 (Pa. Super. 2014). Because the argument is
easily discernable by this Court, we decline to dismiss the appeal as
suggested by Appellees and the Dissent.
6
The Nicolaous filed a complaint on February 10, 2012.
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While there is no question that Mrs. Nicolaou suspected she had Lyme
Disease in July of 2009 when she began treating with Nurse Rhoads, and
Nurse Rhoads offered Mrs. Nicolaou what would have been her fifth Lyme
Disease test at that time, Nurse Rhoads acknowledged that Mrs. Nicolaou
turned down this Lyme Disease test because she had “no money.” N.T.,
11/1/2013, at 23. Moreover, even though Mrs. Nicolaou’s symptoms began
to improve within a month of being treated as if she had Lyme Disease, she
had no medical confirmation of having Lyme Disease. On February 1, 2010,
Mrs. Nicolaou agreed to have the new Lyme Disease blood test performed.
On February 13, 2010, Mrs. Nicolaou’s Lyme Disease test came back
positive. Mrs. Nicolaou filed her complaint less than two years later, on
February 12, 2012.
A plaintiff’s actions must be evaluated … to determine whether
he exhibited those qualities of attention, knowledge, intelligence
and judgment which society requires of its members for the
protection of their own interests and the interests of others. In
other words, a party is not under an absolute duty to discover
the cause of his injury. Instead, he must exercise only the level
of diligence that a reasonable man would employ under the facts
and circumstances presented in a particular case.
Crouse, 745 A.2d at 611-12.
Because reasonable minds could differ as to whether Mrs. Nicolaou
acted with reasonable diligence in choosing to delay her fifth Lyme Disease
test, “the question as to when [Mrs. Nicolaou’s] injury and its cause were
discovered or discoverable is for the jury.” Fine, 870 A.2d at 859.
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Accordingly, we hold that the trial court erred in granting summary
judgment, and we reverse the order of the trial court.
Order reversed. Jurisdiction relinquished.
Judge Lazarus joins the memorandum.
Judge Wecht files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/24/2015
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