Nicolaou, N. v. Martin, J. , 153 A.3d 383 ( 2016 )

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2016 PA Super 300NANCY NICOLAOU AND NICHOLAS IN THE SUPERIOR COURT OF
NICOLAOU, PENNSYLVANIA
Appellants
v.
JAMES J. MARTIN, M.D., 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,
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: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES,
PANELLA, SHOGAN, LAZARUS, OLSON, and OTT, JJ.
OPINION BY SHOGAN, J.: FILED DECEMBER 22, 2016
Appellants, Nancy and Nicholas Nicolaou (“the Nicolaous”), appeal
from the February 24, 2014 order granting summary judgment in this
medical malpractice action in favor of Appellees, James J. Martin, M.D.;
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.
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Luke’s Southside Medical Center; St. Luke’s Orthopaedic Surgical Group; and
Nazareth Family Practice. For the following reasons, we affirm.
The trial court summarized the factual and initial 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 [sic] 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 [Appellees] St. Luke’s
Hospital and St. Luke’s Health Network, in August of 2001.
Mrs. Nicolaou was a patient of [Appellee] Dr. James J. Martin, an
alleged employee of [Appellee] 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 [Appellees] 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 [Appellee] Dr. Jeffrey D. Gould, an alleged agent of
[Appellees] St. Luke’s Hospital and St. Luke’s Hospital & Health
Network, in 2007 and 2008.
____________________________________________
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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During Mrs. Nicolaou’s treatment, Dr. Falatyn and
[Appellees] 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, [Appellee] 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 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 treating
with the [Appellees] sometime in 2008.
Sometime in 2007, Mrs. Nicolaou suspected that
[Appellees] 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
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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, 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[2] 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 against [Appellees] 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 asserts medical
malpractice claims against each of the [Appellees]. Based on
the injuries allegedly suffered by his wife as a result of
____________________________________________
2
Facebook is a social networking site where “[u]sers of that Web site may
post items on their Facebook page that are accessible to other users,
including Facebook “friends” who are notified when new content is posted.”
Elonis v. United States, ___ U.S. ___, ___, 135 S.Ct. 2001, 2004 (2015).
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[Appellees’] purported negligence, Mr. Nicolaou also asserts
claims against each of the [Appellees] for loss of consortium.
In their Answer with New Matter of [Appellees] to the
Second Amended Complaint (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
[Appellees], the statute of limitations is not a bar to their claims
due to the operation of the discovery rule. [The Nicolaous]
assert that [Appellees] are estopped from asserting a statute of
limitations defense because reasonable people in the position of
[the Nicolaous] 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, 2/24/14, at 2–6 (citations to the record omitted).
After discovery was completed, Appellees filed a motion for summary
judgment on December 6, 2013, and the Nicolaous filed a response on
December 31, 2013. The trial court granted Appellees’ motion on February
25, 2014, 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.
Trial Court Opinion, 2/24/14, at 14.3 On April 21, 2014, the Nicolaous filed a
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3
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).
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notice of appeal.4 While the trial court did not direct the Nicolaous to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b), and they did not do so, the trial court filed an opinion in support of
its order on May 9, 2014.5
The Nicolaous originally proceeded pro se in this appeal. In a split
decision, a three-judge panel of this Court filed a Memorandum reversing
summary judgment, with one judge dissenting. Nicolaou v. Martin, 1286
EDA 2014 (Pa. Super. 2016) (unpublished memorandum). Thereafter,
Appellees filed a motion for reargument en banc. On June 3, 2015, this
Court granted en banc reargument and withdrew the March 24, 2015
decision.
The Nicolaous filed new pro se briefs, and Appellees timely filed their
briefs. In August of 2015, counsel entered his appearance on behalf of the
Nicolaous. Pursuant to the Nicolaous’ September 14, 2015 Motion To Permit
____________________________________________
4
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 the Nicolaous were required to appeal within
thirty days pursuant to Pa.R.A.P. 903(a). A final order is any order, inter
alia, that 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.
5
The trial court’s Rule 1925(a) opinion directs us to the opinion attached to
its February 24, 2014 order granting summary judgment.
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a Supplemental Filing, we entered an order on September 21, 2015,
continuing oral argument and directing the Nicolaous to file a counseled,
supplemental brief, which they did on October 13, 2015. Appellees filed a
response to the supplemental brief on November 3, 2015. This Court
entered an order striking both briefs on December 17, 2015, and directed
counsel for the Nicolaous to file an appropriate appellate brief pursuant to
the Pennsylvania Rules of Appellate Procedure. Although both parties filed
their briefs in January of 2016, the Nicolaous’ brief once again failed to
address the issues on appeal. This Court was compelled to strike the
Nicolaous’ brief on March 17, 2016, and we directed counsel to file a proper
appellate brief addressing the relevant issues on appeal. On April 14, 2016,
the Nicolaous filed a brief, and on May 13, 2016, Appellees filed a responsive
brief. We entertained oral argument on August 2, 2016. This matter is now
ripe for disposition.
The Nicolaous raise the following questions in this appeal:
A. Did the Trial Court error in granting [Appellees’] Motion for
Summary Judgment and holding that [the Nicolaous’]
medical malpractice action was time barred under 42
Pa.C.S. §5524(2) and did not meet the Discovery Rule
Exception when [Mrs. Nicolaou] did not, and was
financially unable to, confirm [Appellees’] negligent
misdiagnosis until final medical testing confirmed she had
Lyme Disease on February 13, 2010?
B. Did the Trial Court abuse its discretion in granting
[Appellees’] Motion for Summary Judgment when there
was a genuine issue of material fact, which should be
presented to a jury, as to whether [the Nicolaous’] medical
malpractice action is tolled from the running of the Statute
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of Limitations under 42 Pa.C.S. §5524(2) by the Discovery
Rule?
The Nicolaous’ Brief at 2. We address the issues in tandem.
Summary judgment is appropriate where there is no genuine issue of
material fact, and the moving party is entitled to relief as a matter of law.
Matharu v. Muir, 86 A.3d 250, 255 (Pa. Super. 2014) (en banc) (citing
Pa.R.C.P. 1035.2). We exercise plenary review in an appeal from an order
granting summary judgment. Id. As such, when reviewing whether there
are genuine issues of material fact, our standard of review is de novo;
therefore, “we need not defer to determinations made by lower courts.”
Gleason v. Borough of Moosic, 15 A.3d 479, 484 (Pa. 2011) (citing Fine
v. Checcio, 870 A.2d 850, 857 n.3 (Pa. 2005)). Moreover, an appellate
court may reverse a grant of summary judgment only if there has been an
error of law or an abuse of discretion. Kennedy v. Robert Morris Univ.,
133 A.3d 38 (Pa. Super. 2016), appeal denied, 145 A.3d 166 (Pa. 2016).
“[W]e will view 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.” Matharu, 86 A.3d at 255.
In essence, the trial court agreed with Appellees and granted summary
judgment, determining that the Nicolaous’ cause of action was barred by the
two-year statute of limitations applicable to negligence actions. 42 Pa.C.S.
§ 5524. The Nicolaous’ position is that the entry of summary judgment was
improper because they had been unable, through reasonable diligence, to
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discover the cause of Mrs. Nicolaou’s injury until February 13, 2010, the
date Mrs. Nicolaou received the results of the IGeneX test, and therefore,
the applicable statute of limitations had been tolled until that time. Thus,
the Nicolaous contend that the trial court erred in concluding that their
medical malpractice action was time-barred by 42 Pa.C.S. § 5524(2).
We analyze this case with consideration of the following principles:
Generally, a cause of action first accrues when a party is injured,
and an action for personal injury must be filed within two years
to satisfy the statute of limitations. 42 Pa.C.S. § 5524(2). . . .
The discovery rule is a judicially created exception that tolls the
running of the applicable statute of limitations when an injury or
its cause was not known or reasonably knowable. Fine v.
Checcio, D.D.S., 582 Pa. 253, 870 A.2d 850 (2005). The
discovery rule can toll the statute of limitations until a plaintiff
could reasonably discover the cause of his injury in cases where
the connection between the injury and the conduct of another is
not apparent. Wilson v. El-Daief, 600 Pa. 161, 964 A.2d 354(2009).
If the injured party could not ascertain he was injured and
by what cause within the limitations period, “despite the exercise
of reasonable diligence,” then the discovery rule is appropriate.
Pocono International Raceway, Inc. v. Pocono Produce,
Inc., 503 Pa. 80, 468 A.2d 468, 471 (1983). The test is
objective but takes into account individual capacities and
society’s expectations of “attention, knowledge, intelligence and
judgment” for citizens to protect their own interests. Fine,
supra at 858. The party who invokes the discovery rule has the
burden of proving its applicability by establishing he acted with
reasonable diligence in determining the fact and cause of his
injury but he was unable to ascertain it. Weik v. Estate of
Brown, 794 A.2d 907, 909 (Pa. Super. 2002). Thus, the key
point that gives rise to application of the discovery rule “is the
inability of the injured party, despite the exercise of reasonable
diligence, to know that he has been injured and by what cause.”
Drelles v. Manufacturers Life Ins. Co., 881 A.2d 822, 831
(Pa. Super. 2005) (citing Fine, supra at 858).
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This determination is a factual one as to whether the
party, despite the exercise of reasonable diligence, was unaware
of his injury and unable to determine its cause. Id. Where the
rule’s application involves a factual determination regarding
whether the plaintiff exercised due diligence in discovering his
injury, the jury must decide whether the rule applies. Crouse v.
Cyclops Industries, 560 Pa. 394, 745 A.2d 606 (2000).
Simon v. Wyeth Pharm., Inc., 989 A.2d 356, 365–366 (Pa. Super. 2009).
The discovery rule “originated in cases in which the injury or its cause
was neither known nor reasonably knowable.” Lewey v. H.C. Frick Coke
Co., 31 A. 261 (Pa. 1895). The purpose of the discovery rule is to exclude
from the running of the statute of limitations that period 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. Hayward v. Medical Center of
Beaver County, 608 A.2d 1040, 1043 (Pa. 1992).
Fine v. Checcio, 870 A.2d 850 (Pa. 2005), is the seminal case on the
discovery rule. The Fine Court held that “it is not relevant to the discovery
rule’s application whether or not the prescribed period has expired; the
discovery rule applies to toll the statute of limitations in any case where a
party neither knows nor reasonably should have known of his injury and its
cause at the time his right to institute suit arises.” Id. at 859. Once a
defendant raises the statute of limitations as an affirmative defense in new
matter, however, it is then the plaintiff’s obligation to present facts
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indicating that the discovery rule is applicable. Stein v. Richardson, 448
A.2d 558 (Pa. Super. 1982).
Our Supreme Court has written extensively on this issue, and we turn
to the High Court for guidance in our disposition.
Pennsylvania’s formulation of the discovery rule reflects a
narrow approach “to determining accrual for limitations
purposes” and places a greater burden upon Pennsylvania
plaintiffs vis-á-vis the discovery rule than most other
jurisdictions. Wilson v. El–Daief, supra at 364. . . . The
discovery rule operates to balance the rights of diligent, injured
plaintiffs against the interests of defendants in being free from
stale claims, in furtherance of salient legislative objectives. Id.at 366 n.12. . . .
[I]t is not relevant to the application of the discovery rule
whether the prescribed statutory period has expired. Fine,
supra at 859. The 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.
Id. . . . 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. Id.The sine qua non of the factual inquiry into the
applicability of the discovery rule in any given case is the
determination whether, during the limitations period, the plaintiff
was able, through the exercise of reasonable diligence, to know
that he or she had been injured and by what cause. In this
context, we have clarified that reasonable diligence is not an
absolute standard. As we have stated:
“There are very few facts which diligence
cannot discover, but there must be some
reason to awaken inquiry and direct diligence
in the channel in which it would be successful.
This is what is meant by reasonable diligence.”
Put another way, “the question in any given case is
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not, what did the plaintiff know of the injury done
him? But, what might he have known, by the use of
the means of information within his reach, with the
vigilance the law requires of him?” While reasonable
diligence is an objective test, “it is sufficiently
flexible . . . to take into account the differences
between persons and their capacity to meet certain
situations and the circumstances confronting them at
the time in question.” Under this test, a party’s
actions are 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 interest
and the interest of others.”
Therefore, when a court is presented with the
assertion of the discovery rule’s application, it must
address the ability of the damaged party, exercising
reasonable diligence, to ascertain that he has been
injured and by what cause. . . . Where . . .
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.
Fine, supra, at 858–859 (citations and quotations omitted)
(emphasis added).
Nevertheless, the party asserting application of the
discovery rule bears the burden of proof, Wilson, supra at 362,
and Pennsylvania courts have not hesitated, where appropriate,
to find as a matter of law that a party has not used reasonable
diligence in ascertaining his or her injury and its cause, thus
barring the party from asserting his or her claim under the
discovery rule. Cochran v. GAF Corp., 542 Pa. 210, 666 A.2d
245, 248 (1995).
Gleason, 15 A.3d at 484–486 (initial emphasis in original; second emphasis
added).
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In considering the relevant statute of limitations and the potential
applicability of the discovery rule, the trial court stated as follows:
The allegations of negligence by [Appellees] resulting in
injury to Mrs. Nicolaou would have occurred during [Appellees’]
care of Mrs. Nicolaou between 2001 and 2008. [The Nicolaous]
initiated this lawsuit by way of complaint that was filed on
February 10, 2012. Therefore, the prescribed statutory period
expired and [the Nicolaous] are barred from bringing suit unless
the discovery rule barred the running of the statute of limitations
until sometime on or after February 10, 2010.
* * *
In this case, we find 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, 2/24/14, at 9.
The basis for the Nicolaous’ argument is that until Mrs. Nicolaous had
confirmation of lyme disease from the IGeneX test, there was no “basis for a
lawsuit.” The Nicolaous’ Brief at 17. Mrs. Nicolaou therefore maintains that
because she was unable to afford the cost of the test until February 1, 2010,
and thus did not receive confirmation of lyme disease until February 13,
2010, the trial court “erred in holding that reasonable minds could not differ
as to whether Mrs. Nicolaou exercised reasonable diligence . . . .” Id. at 18.
The Nicolaous posit:
The facts presented, taken in a light most favorable to [the
Nicolaous] establish that Mrs. Nicolaou could not afford testing
needed to confirm the diagnosis and that while she may have
suspected she had Lyme Disease, it had not been confirmed and
she didn’t believe it. Therefore, a genuine issue of material
fact exists as to whether reasonable minds differ as to the
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knowledge and beliefs of [the Nicolaous] such that summary
judgment was improper.
The Nicolaous’ Brief at 20 (emphasis added). Our review of the record
compels our disagreement.
Mrs. Nicolaou’s Facebook post, indeed her own words, bear on the
fallacy of her claim on appeal that “she didn’t believe it.” As underscored by
the trial court, on February 14, 2010, Mrs. Nicolaou posted, “I had been
telling everyone for years i thought it was lyme . . . .,” to which one of her
Facebook friends responded, “[Y]ou DID say you had Lyme so many times!”
Trial Court Opinion, 2/24/14, at 5; Memorandum of Law of Appellees in
Support of Summary Judgment, 12/6/13, at Exhibit F.
It is necessary, then, to examine the propriety of the trial court’s
determination that “the evidence supports the conclusion that the
commencement of the statute of limitations period began prior to
February 10, 2010,” which is two years before the Nicolaous filed their
complaint against Appellees on February 10, 2012. We have noted
previously that the party who invokes the discovery rule, Mrs. Nicolaous
herein, has the burden of proving its applicability and must do so by
establishing that she acted “with reasonable diligence in determining the fact
and cause of [her] injury but [s]he was unable to ascertain it.” Weik, 794
A.2d at 909.
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Allegations of the complaint and Mrs. Nicolaou’s deposition testimony 6
proffer that she admittedly sought medical care in 2001 when she began
experiencing symptoms that she attributed to a tick bite, including a rash at
the site of the bite, numbness and tingling in her extremities, and back pain.
Second Amended Complaint, 5/31/12, at 6. She treated with various
Appellees for multiple sclerosis (“MS”), despite suspecting that she suffered
from lyme disease. Id. at 7–9. Rita Rhoads, the nurse practitioner who
ultimately diagnosed Mrs. Nicolaou with lyme disease, testified that when
Mrs. Nicolaou first came to her on July 20, 2009, Mrs. Nicolaou told her she
had a “[d]iagnosis of [MS] but was told [she] may have lyme.” Deposition
of Rita Rhoads, 11/1/13, at 13. Further, a brain MRI7 conducted on July 3,
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6
We note that the certified record contains only portions of Mrs. Nicolaou’s
November 6, 2013 deposition. Through our efforts to obtain the complete
deposition, the trial court communicated that “[n]either party made Ms.
Nicolaou’s entire deposition a matter of record. . . .Therefore, the trial court
was bound by the undisputed facts in the Motion for Summary Judgment.”
But see Commonwealth v. Barnett, 121 A.3d 534, 546 (Pa. Super.
2015), appeal denied, 128 A.3d 1204 (Pa. 2015), cert. denied sub nom.,
Barnett v. Pennsylvania, ___ U.S. ___, 136 S.Ct. 2391 (2016) (where the
accuracy of a document is undisputed and contained in the reproduced
record, we may consider it) (citing Commonwealth v. Brown, 52 A.3d
1139, 1145 n.4 (Pa. 2012)). In Barnett, as here, the reproduced record
contained the relevant missing transcripts, and there was no dispute as to
their contents. Due to the procedural posture of the instant case, however,
we have utilized only those portions of the deposition that are in the certified
record.
7
“MRI, or magnetic resonance imaging, is a type of diagnostic radiography
used to make images of tissues and organs of the human body. Taber’s
Cyclopedic Medical Dictionary 1230 (19th ed. 2001).” Northeastern
(Footnote Continued Next Page)
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2006, indicated findings “seen in infectious or inflammatory demyelinating
process, such as [MS] or Lyme Disease . . . .” Second Amended Complaint,
5/31/12, at 7; Deposition of Rita Rhoads, 11/1/13, at 40.
It is striking and convincing of the correctness of the result below that
Mrs. Nicolaou’s symptoms dramatically improved upon treatment for lyme
disease, which was months before the positive blood test on February 1,
2010. Mrs. Nicolaou admittedly has suffered significant maladies. She lost
control of bowels and bladder, she eventually became confined to a
wheelchair, and she experienced systemic pain, numbness, and tingling.
Second Amended Complaint, 5/31/12, at 9. Mrs. Nicolaou eventually began
treating with nurse practitioner, Rita Rhoads. Id. at 10.
Ms. Rhoads is a certified nurse practitioner with a master’s degree in
public health from Johns Hopkins University. Deposition of Rita Rhoads,
11/1/13, at 8. She also is a member of ILADS, the International Lyme and
Associated Disease Society. Id. at 9. Ms. Rhoads first saw Mrs. Nicolaou on
July 20, 2009, which was nearly seven months before Mrs. Nicolaou
received the lyme-positive test. Ms. Rhoads stated that at that point, she
believed Mrs. Nicolaou had “[p]robable lyme . . . resulting in [MS].”
Appellees’ counsel asked Ms. Rhoads, “Did you discuss this with Ms. Nicolaou
and tell her that at this point, based upon the history that you had taken,
_______________________
(Footnote Continued)
Pennsylvania Imaging Ctr. v. Commonwealth of Pennsylvania, 35
A.3d 752, 753 n.1 (Pa. 2011).
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your examination, and everything she told you, that you thought she may
have lyme disease?” Id. at 25. Ms. Rhoads responded, “Correct.” Id.
Based on that belief, on July 20, 2009, Ms. Rhoads prescribed, inter alia,
Minocycline to treat the lyme disease. Id. at 25–26. Ms. Rhoads reiterated
that she told Mrs. Nicolaou on July 20, 2009, that Ms. Rhoads was
prescribing the antibiotic for lyme disease. Id. at 26. In fact,
Mrs. Nicolaou’s testimony confirmed that Ms. Rhoads told her she thought
Mrs. Nicolaou had lyme disease and was prescribing Minocycline to treat it.
Deposition of Nancy Nicolaou, 11/6/13, at 61. Ms. Rhoads described
Mrs. Nicolaou’s improvement upon treatment with the antibiotic as
“absolutely amazing,” as of September 21, 2009, lending significant
reliability to Ms. Rhoads’ lyme-disease diagnosis. Deposition of Rita Rhoads,
11/1/13, at 31, 32. Indeed, Mrs. Nicolaou testified that her “bladder and
bowel had went [sic] back to normal the first month of treatment” for lyme
disease. Deposition of Nancy Nicolaou, 11/6/13, at 67.
Most significantly, the record reveals that on July 20, 2009,
Ms. Rhoads prescribed a different test for lyme disease, IGeneX, than the
prior tests administered by Appellees. Mrs. Nicolaou, however, declined to
take the test at that time. Deposition of Rita Rhoads, 11/1/13, at 29.
Ms. Rhoads explained the significance of the test, as follows:
Many years ago, and I don’t know the exact date, I would say
15, 20 years ago, the government decided that the lyme
epidemic was rising and they needed a vaccine for lyme.
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So they analyzed the lyme bacteria and said if we are
going to build a vaccine, what vaccine is going to be the most
effective against lyme? When they did the analysis, they
discovered the tail of the lyme organism—it’s a spirochete, so it
has a tail.
The tail of the lyme spirochete had two DNA bands on it,
31 and 34, that were very different from most organisms. So
they said we will build our vaccine around 31 and 34. Therefore,
we’re going to take 31 and 34 out of all of the lyme testing
because everybody’s going to get the vaccine and everybody’s
going to be positive for 31 and 34. Therefore, if they’re positive
for 31 and 34, it only means they had the vaccine, not that they
have lyme.
Okay. Well, they developed the vaccine LYMErix which
was a huge disaster. A lot of people got significant lyme
symptoms for the LYMErix, and it was taken off the market. . . .
So when the CDC took the vaccine off the market, they
didn’t say, oh, we failed; we’re going to have the labs put 31 and
34 back in the [test]. So therefore Quest, Health Network,
LabCorp, none of them have bands 31 and 34 in their testing.
So we look for labs that do have 31 and 34 in the testing
so that we can get complete bands. So for the majority of
people, we use IGeneX in California. . . .
* * *
Q. And did you discuss with Ms. Nicolaou what you just laid out
with me here today?
A. Yes. Yes.
Q. You had that discussion with her in July?
A. Yes.
Deposition of Rita Rhoads, 11/1/13, at 27–29.
Ms. Rhoads stated that Mrs. Nicolaou “just didn’t have the money for
anything.” Deposition of Rita Rhoads, 11/1/13, at 29. Counsel inquired:
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Q. So other than the financial reason, there was no reason she
couldn’t have had the test at that point, correct?
A. Correct.
Q. She wasn’t on a drug that would have prevented this test—
A. No.
Q. —from being performed?
A. No.
Id. at 29–30.
Mrs. Nicolaou corrected counsel’s suggestion that she “lost” her health
insurance in 2005. Deposition of Nancy Nicolaou, 11/6/13, at 34.
Mrs. Nicolaou stated, “I didn’t lose it.” Id. Counsel continued as follows:
Q. What happened?
A. I stopped paying for it.
Q. Why did you stop paying for your health insurance?
A. Because they refused paying for any of the tests that the
doctors had ordered.
* * *
Q. [S]o you decided to just voluntarily stop paying for health
insurance?
A. Correct.
Q. And then you became what is referred to as a self-pay?
A. Correct.
Q. So you knew that from that point forward any tests you
wanted run you would have to pay for out of your own pocket,
correct?
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A. That’s correct.
Id. at 34–35.
It is without question, then, that as early as July 20, 2009, Ms. Rhoads
informed Mrs. Nicolaou that Ms. Rhoads believed Mrs. Nicolaou had lyme
disease, Ms. Rhoads, in fact, treated Mrs. Nicolaou for lyme disease, the
treatment caused “amazing” improvement in Mrs. Nicolaou’s symptoms, and
Mrs. Nicolaou knew of the availability of an objective test that could confirm
Ms. Rhoads’ clinical diagnosis. Moreover, for the ensuing seven months,
Mrs. Nicolaou refused to obtain the objective proof of the clinical diagnosis
Ms. Rhoads had rendered.8
As our Supreme Court has expressed, the greater burden placed upon
Pennsylvania plaintiffs vis-á-vis the discovery rule, “is tied to ‘actual or
constructive knowledge of at least some form of significant harm and of a
factual cause linked to another’s conduct, without the necessity of notice of
____________________________________________
8
Contrary to the suggestion of the Dissent, Dissenting Opinion at 3, there is
nothing in the record confirming that Mrs. Nicolaous was unable to pay for
the IGeneX test when Ms. Rhoads ordered it on July 20, 2009, only that
Mrs. Nicolaous chose not to do so. Mrs. Nicolaous had clarified that she
voluntarily stopped paying for her health insurance because she was
annoyed that it did not cover tests being ordered for her in 2005.
Deposition of Nancy Nicolaou, 11/6/13, at 34. Mrs. Nicolaou further
acknowledged that her decision cast her into a category of self-pay
individuals. Id. at 35. Most telling, Mrs. Nicolaous testified that Ms. Rhoads
had recommended IGeneX but “she wanted to see how the antibiotics were
going to react to my symptoms,” id. at 75, thereby indicating a conscious
decision not to obtain the test, not an inability to afford it. Thus, review of
the record does not suggest that Mrs. Nicolaou could not afford the test, but
that she chose not to partake at that time.
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the full extent of the injury, the fact of actual negligence, or precise cause.’”
Gleason, 15 A.3d at 484–485. The Gleason Court reminds us that the sine
qua non of the factual inquiry into the applicability of the discovery rule in
any given case “is the determination whether, during the limitations period,
the plaintiff was able, through the exercise of reasonable diligence,” to know
that he had been injured and by what cause. Id. at 485. Reasonable minds
would not differ that Mrs. Nicolaou should have known as early as July 2009,
and could have proven at that time, that she suffered from lyme disease.
Moreover, the standard of reasonable diligence was not met herein.
The question before us is not what the Nicolaous knew of the injury, but
rather, what might the Nicolaous have known, “by the use of the means of
information within [their] reach, with the vigilance the law requires of
[them]?” Gleason, 15 A.3d at 485.
Our review of the record, in the light most favorable to the Nicolaous,
the non-moving party, compels our conclusion that Mrs. Nicolaou knew, or
reasonably should have known, between July and September, 2009, that her
long-standing health problems may have been caused by Appellees’ failure
to diagnose and treat her lyme disease and therefore, such failure could
have resulted from Appellees’ negligence. Because we find that reasonable
minds could not differ in this conclusion, and thus, there are no genuine
issues of material fact, the trial court’s entry of summary judgment was
proper.
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Order of February 24, 2014, affirmed.
P.J.E. Ford Elliott, P.J.E. Bender, and Judges Panella, Olson, and Ott
join this Opinion.
Judge Lazarus files a Dissenting Opinion in which P.J. Gantman and
Judge Bowes join.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2016
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