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When a plaintiff has been injured by the wrongful conduct of a defendant
who is covered by insurance or has "deep pockets", there still remains
the spectre of a statutory ogre that may deny what should have been a
substantial just recovery. This bane to the existence of plaintiff's
attorneys is the statute of limitations. In Pennsylvania a tort action
must be commenced within two years from the time that the cause of
action accrued. 42 PA C. S. §5502 (a) and §5524 (2) In
Pennsylvania a cause of action accrues when the plaintiff could have
first maintained the action to a successful conclusion. Thus the
statute of limitations begins to run as soon as the right to institute
and maintain a suit arises. Generally speaking, in a suit to recover
damages for personal injuries, this right arises when the injury is
inflicted. The injury is inflicted on the date of the accident or
incident.
For example, in the case
of a motor vehicle accident, it is the date of the accident. In the
case of surgical negligence, it is the date of the surgery. So should
the discriminating plaintiff's attorney show the potential plaintiff the
door when the plaintiff comes to the attorney more than two years after
the date of surgery? Not necessarily as our courts have carved out two
exceptions that toll the statute, meaning that delay the beginning of
the two-year period until sometime after the accident/incident date.
These exceptions are "the discovery rule" and "the doctrine of
fraudulent concealment."
On March 30, 2005,
in the context of the consolidated appeals of two dental malpractice
cases, Fine v. Checchio and Ward v. Rice,
the Pennsylvania Supreme Court clarified “the discovery rule” and “the
doctrine of fraudulent concealment”. The facts of the cases are
remarkably similar. Both Mr. Fine and Ms. Ward had their impacted wisdom
teeth removed. Both suffered from numbness of the lip and chin after the
dental procedure that eventually was determined to be a permanent
condition. Both brought suit more than two years after the date of the
removal of their teeth. Both had immediate numbness. Both claimed that
the defendant dentists caused the injury by injuring the inferior
alveolar nerve in their mouth. In both cases the defendant dentist
testified that the patient was advised of being at higher risk for
post-operative numbness and in both cases the plaintiff denied that such
a conversation ever took place.
In the consolidated
decision of Fine v. Checchio and Ward v. Rice,
the Court explores the origin and development of the discovery rule. The
rule has its origin in cases in which the injury or its cause was
neither known nor reasonably knowable. The purpose of the rule was 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 that he has been injured. An
objective test of “reasonable diligence” on the part of the plaintiff
was developed. An archetypical example is the surgical sponge that is
carelessly left inside a plaintiff’s body during surgery. More than two
years can pass before the plaintiff has pain from the sponge becoming
infected. Without the discovery rule the plaintiff would be barred from
suit when there was no reasonable basis for him to know he suffered
injury within the statutory period for filing suit.
Fine v. Checchio
and Ward v. Rice extend the discovery rule to include a
situation where the symptoms of the injury are known immediately. What
needs to be discovered is that the symptoms are permanent and not a
transitory condition to be expected from the surgery. The crux of the
Court’s decision in Fine and Ward is that
the question of whether an injured party was able, by exercising
reasonable diligence, to know that he had been injured and by what cause
involves a factual determination for a jury. The statute of limitations
is tolled until the injured party discovers or reasonably should
discover that he has suffered an injury due to another party’s conduct.
The Court also cleared up a possible misinterpretation of wording in
earlier cases where the injury was discovered or discoverable within the
original two year period. It is now clear that a plaintiff always has a
full two years to institute suit from the time he discovers or
reasonably should discover the injury.
The Court also discussed
the doctrine of fraudulent concealment which includes an unintentional
deception. If for example the doctor or dentist conceals the injury or
the permanency of the injury from the patient, then the theory of
estoppel prevents the doctor from invoking the statute of limitations.
Here again the Court explained that it is for a jury to decide whether
the remarks were made. The Court ruled for the first time that
reasonable diligence and not actual knowledge was the test for when the
statute will commence after a fraudulent concealment.
Applying the discovery
rule and fraudulent concealment to the facts in the two dental
malpractice cases, the Pennsylvania Supreme Court reasoned that since
the dentists claimed to have advised the plaintiffs of the injury, but
the plaintiffs denied being told the numbness was anything but
transitory, the cases could not be decided by Summary Judgment by the
lower court. It is for the jury to decide who is telling the truth. The
interesting twist here is that the patients knew they were numb right
away but it was still for the jury to determine whether they knew they
were injured. The outcome is anything but trivial as the Fine
case involved a challenge to a half million dollar verdict. The lesson
for both lawyers and clients is to examine carefully when and how the
potential plaintiff learned of his injury and what the doctor was
telling the patient. If the client was reasonably diligent and still
could not have known of his injury for less than two years from the date
he enters the lawyer’s office the client may be the one for whom the
statute tolls!
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