Update – Medical Malpractice – How Long Do I Have to File a Lawsuit?

December 18, 2017
Posted in Litigation
Update – Medical Malpractice – How Long Do I Have to File a Lawsuit?

Last year, our “Legal Spotlight” blog discussed the period of time in which you have to file a medical malpractice lawsuit.  As with many legal issues, the answer is constantly evolving.  Since that article was published,  the Supreme Court has decided to hear a case that yet again could impact the timeline a victim of malpractice has to file an action in court.

The Supreme Court of Pennsylvania has the right of discretionary review, which means that our highest court can pick and choose those cases it wishes to hear.  As a result, only a small percentage of those cases that petition for appeal are granted that right.  To be accepted by the Supreme Court means that the issue is one of importance and consequence to the citizens of Pennsylvania.

Recently accepted by the Supreme Court of Pennsylvania is the case of Nicolaou v. Martin, et. al.  Although the case itself arises from a medical malpractice action, the issue being addressed is narrow: namely, whether a lower court properly dismissed the case for being filed beyond the applicable statute of limitations.  While the deadlines for filing lawsuits is often times a relatively simple calculation, when the clock begins to run in malpractice cases can vary depending on the facts of each case.

In Pennsylvania, those facts often implicate a legal doctrine known as the “Discovery Rule.”  Under the Discovery Rule, the statute of limitations in medical malpractice cases does not begin to run until the point in time at which a person—using reasonable diligence—knew or should have known that malpractice took place.  Take the example in which a patient has surgery and the doctor leaves a surgical tool inside the patient’s body.  Only years later after an infection does the patient learn for the first time of the mistake when an x-ray shows the tool.  In that situation, the law says the statute of limitations begins to run when the patient learns of the mistake, not on the date the malpractice occurred (i.e., the date of the surgery).

In the Nicolaou case, the facts aren’t that clear.  The plaintiff was diagnosed with and treated for multiple sclerosis, but over years, her condition did not improve, but got worse.  Naturally, Mrs. Nicolaou began to question whether the doctor was correct, all the while her doctor adamantly rejected any notion of an improper diagnosis.  Her doctor was someone she trusted who had years of medical training.  Even so, she began to research other potential causes of her problems that now had her in a wheelchair, and began to suspect it might be Lyme disease.  Unfortunately, testing for Lyme disease is often inconclusive and expensive.  The latter was especially problematic for Mrs. Nicolaou, as her doctor’s refusal to go along with the testing precluded coverage by her insurance company.  Eventually, Mrs. Nicolaou was able to afford the test, which  confirmed that her doctor was wrong.

Notwithstanding these facts, a trial court judge found that Mrs. Nicolaou should have known sooner of the malpractice, finding that belief her doctor might have made an improper diagnosis was sufficient to start the clock for filing suit and the failure to obtain the testing to confirm that belief was one of choice – not economics.  On appeal, the Superior Court initially disagreed with the trial court but granted a second argument at which time the case was again dismissed relying on the trial court’s findings.  It is critical to note that the courts here were not saying they believed one set of facts over another, but found even believing everything Mrs. Nicolaou said was true that not a single reasonable person could believe Mrs. Nicolaou acted with proper diligence in finding out what was wrong.

Imagine enduring  years of physical suffering and costly litigation, only to have a judge tell you your case is dismissed because you should have known sooner… that your financial inability to pay for expensive testing is irrelevant and that your lack of any medical training doesn’t mean much… and that no reasonable person could believe any delay was justified.  Even though she was not a doctor, even though she could not afford medical testing, even though she had only her own suspicions to go on, the court said she needed to file her lawsuit once she had suspicions, but not conclusive evidence.

Adding to the irony of the court’s decision is that under Pennsylvania law, a person cannot bring a lawsuit for medical malpractice against a doctor without first having the case reviewed by a medical expert.  That expert must then sign a document stating that there is a reasonable basis for the claim – something Mrs. Nicolaou could neither afford nor accomplish, as she was financial unable to get the testing necessary to even have that initial review.

As any lawyer will tell you, facts are for the jury to decide – not the judge.  Here, the courts dismissed relevant facts and found it impossible to believe that Mrs. Nicolaou did not have the means and ability to learn of the malpractice sooner.  However, the Supreme Court of Pennsylvania will take on this case in 2018 to determine whether or not that conclusion by the trial court judge was correct.  The Supreme Court will address whether one’s financial capability to pay for testing is a relevant factor, whether the fact that a doctor is attempting to convince his patient he is correct is important, and ultimately whether a judge can throw away a person’s right to be heard.

At a prior appellate argument,  a Superior Court judge asked counsel “why should doctors be subject to a potentially longer Statute of Limitations due to a person’s inability to pay for testing?”  The more appropriate question, though, is why should Pennsylvania law discriminate against individuals who cannot afford to meet the stringent legal requirements that were demanded and lobbied for legislatively by doctor advocacy groups?

Mrs. Nicolaou’s original attorney dropped her case once dismissed by the court.  But the attorneys at HRMM&L saw the importance of the issues involved and have fought this case through the appellate process. The case is being handled by Nathan Murawsky, Esq. and Kevin McGrath, Esq..  Together, they have the chance to remedy judicial actions that discriminate against those without sufficient financial means.

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