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2016 PA Super 300
NANCY NICOLAOU AND NICHOLAS IN THE SUPERIOR COURT OF
NICOLAOU PENNSYLVANIA
Appellant
v.
JAMES J. MARTIN, M.D., AND 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
Appellee 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: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E.,
BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J.,
and OTT, J.
DISSENTING OPINION BY LAZARUS, J.: FILED DECEMBER 22, 2016
I respectfully dissent. In my view, the majority has improperly
assumed the role of the fact-finder in determining whether the Nicolaous
were reasonably diligent in determining that Appellees had caused Mrs.
Nicolaou injury by failing to diagnose and treat her with Lyme disease
between 2001 and 2008.
As the majority correctly states,
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[t]he discovery rule applies to toll the statute of limitations in
any case in which a party is reasonably unaware of his or her
injury at the time his or her cause of action accrued. . . . Only
where the facts are so clear that reasonable minds could not
differ may a court determine as a matter of law at the summary
judgment stage, the point at which a party should have been
reasonably aware of his or her injury and its cause and thereby
fix the commencement date of the limitations period.
Fine v. Checcio 870 A.2d 850, 859. The foregoing requires a determination
of whether “the plaintiff was able, through the exercise of reasonable
diligence, to know that he or she had been injured and by what cause. . . .
[This] is not an absolute standard.” Gleason v. Borough of Moosic, 15
A.3d 479, 485 (Pa. 2011).
Here, the trial court found that the negligence Mrs. Nicolaou
complained of occurred between 2001 and 2008; the discovery rule applied
for a period of time thereafter. The court did not make a precise ruling as to
the length of time the discovery rule applied, but found that “a reasonable
person would have had reason to suspect injuries might have been caused
by medical treatment rendered by [Appellees] . . . on or about July 20,
2009[.]” Trial Court Opinion, 2/24/14, at 12. Regardless of the specific
date the discovery rule ceased to apply, the court determined that the filing
of the complaint on February 10, 2012, was untimely because “the evidence
supports the conclusion that the commencement of the statute of limitations
period began prior to February 10, 2010[.]” Id. at 9.
In coming to its conclusion that the statute of limitations period began
to run prior to February 10, 2010, the trial court found that reasonable
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minds could not differ that with reasonable diligence, the Nicolaous would
have determined prior to that date that Mrs. Nicolaou had been injured by
not being diagnosed and properly treated for Lyme disease. Accordingly, the
crux of this appeal is whether the Nicolaous were not “reasonably diligent”
as a matter of law. Gleason, supra at 486 (citing Cochran v. GAF Corp.,
666 A.2d 245, 248 (Pa. 1995)). In reviewing the court’s decision, we must
consider the facts in the light most favorable to the Nicolaous as the non-
moving party. Fine, supra at 857.
Instantly, it is not disputed that Mrs. Nicolaou suspected she had Lyme
disease in July 2009, when she began treatment with Nurse Practitioner Rita
Rhoads. Nurse Rhoads acknowledged that Mrs. Nicolaou turned down a fifth
Lyme disease test at the beginning of treatment, at least in part because she
was not in a position to pay for the test. See Deposition of Rita Rhoads,
11/1/13, at 29 (Mrs. Nicolaou “did not have the money for [the test] at that
point” and she “just didn’t have the money for anything.”) In my opinion,
hardship regarding paying for a fifth test when first suggested, along with
four previous negative tests and Mrs. Nicolaou’s stated intention to
determine whether the antibiotics Nurse Rhoads had prescribed would work,
combine to create a jury question as to whether the Nicolaous were
reasonably diligent in determining the suspected injury actually had been
suffered.
I emphasize that although “reasonable diligence is an objective test,
[i]t is sufficiently flexible . . . to take into account the difference[s] between
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persons and their capacity to meet certain situations and the circumstances
confronting them at the time in question.” Id. at 870 (citation and
quotation marks omitted). Accordingly, viewing the foregoing facts in the
light most favorable to the Nicolaous, I would reverse and remand the
matter to the trial court to permit the fact-finder to determine whether the
statute of limitations should have remained tolled until February 13, 2010,
the date Mrs. Nicolaou received positive Lyme disease results, thereby
making the Nicolaous’ complaint timely.
President Judge Gantman and Judge Bowes join in this Dissenting
Opinion.
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