Wallace v. Horvath

BROSKY, Judge,

concurring:

I concur in the result reached in the majority’s opinion. However, I believe that the court should address the appellant’s contention that the statute of limitations should not begin to run until she was told that another doctor believed that she had been a victim of malpractice.

While this information may have led her to believe that she could successfully bring an action against the appellees, it was not her knowledge that she had a cause of action, but rather her awareness that she had suffered an injury, that caused the statute of limitations to begin to run.

In a recent decision, this court explained that the proper view is that a potential plaintiff need not have knowledge that he has a cause of action in order for the statute to begin to run. Anthony V. Koppers Company , Inc. v. Bethlehem Steel Corporation, 284 Pa.Super. 81, 425 A.2d 428 (1980). In the absence of fraud or concealment, the statute begins to run when a tort is ascertainable. Keating v. Zemel, 281 Pa.Super. 129, 421 A.2d 1181 (1980). See United States v. Kubrick, 441 U.S.111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979).

We find no evidence of fraud or concealment in the instant case.

Appellant had all the information she needed to discover her injury prior to March 24, 1974. Her injury was physically ascertainable during her first hospital stay in January, 1974. On January 22, 1974, she was told that her arm *185appeared to be gangrenous. Prior to January 22, appellant had been treated only by appellees. Therefore, not only the injury itself, but its cause was reasonably discoverable well before March 24, 1974. For this reason, I must concur in the result reached by the majority and affirm the decision of the lower court.