author: MOTTO, J.,

text:
    Kennedy v. Rigotti

      Cynthia M. Porta, for plaintiffs.

      Edward L. Russakoff, for defendant.
    June 13, 2001
   MOTTO, J.,

This case arose out of an injury sustained by plaintiff David Kennedy when he fell in a parking lot owned by defendant Bill Rigotti, t/d/b/a Bill & Norm’s Auto Sales in February of 1993. Defendant has moved for summary judgment arguing that the two-year statute of limitations on the action has since run barring the plaintiffs from recovery.

In determining this motion for summary judgment, the issue is whether the plaintiff used reasonable diligence in properly informing himself of the facts and circumstances upon which his right of recovery is based, thereby allowing him to toll the running of the two-year statute of limitations of his claim by application of the “discovery rule.”

Kennedy was employed by New Castle Industries in New Castle, Pennsylvania when the events giving rise to this suit occurred. The parking lot used by the employees was to be inspected and maintained by Rigotti. On February 22, 1993, Kennedy was walking on said lot when he slipped and fell due to an accumulation of snow and ice. Kennedy was taken to Jameson Hospital where he was treated and released for injuries to his head and back. In April of 1993, Kennedy visited a doctor specializing in internal medicine. David informed the doctor that he had been suffering from neurological problems, such as a memory loss, since the time he fell. Kennedy was referred to Dr. Heyman of the Neurology Clinic of Jameson Hospital. Dr. Heyman diagnosed David Kennedy as having closed head trauma encephalopathy resulting from the accident; however, no treatment was assigned as his recovery was believed to occur over time.

In July of 1995, Kennedy was referred to behavioral neurologist Dr. Oscar Lopez due to continued memory lapses and other related problems. Kennedy was given supplements for a vitamin deficiency. As improvement from the vitamin supplements was not significant, Dr. Lopez had Kennedy undergo a neuro-psychological examination administered by Dr. Graham Radcliff in March of 1998. According to the diagnoses by Dr. Lopez and Dr. Radcliff, Kennedy suffers from dementia due, in part, to the accident that is the subject of this claim. This dementia is deemed to have caused cognitive impairment that is permanent in nature.

On February 22, 1999, Kennedy commenced this action by the issuance of a writ of summons. Kennedy then filed a complaint on April 29,1999, against Rigotti for the alleged negligence in caring for the parking lot when Kennedy fell, which fall he contends is the cause of his injuries. After filing his answer, Rigotti moved for summary judgment. Rigotti argues that the statute of limitations has run, thereby preventing plaintiffs from recovering in this suit.

DISCUSSION

“Summary judgment may properly be entered in favor of a defendant when the plaintiff’s cause of action is barred by the statute, of limitations.” Colonna v. Rice, 445 Pa. Super. 1, 4, 664 A.2d 979, 980 (1995), citing Brooks v. Sagovia, 431 Pa. Super. 508, 510, 636 A.2d 1201, 1202 (1994).

Under 42 Pa.C.S. §5524, any action to recover damages for injury to person or property which is founded on negligent conduct must be commenced within two years.

The running of the statute of limitations in personal injury cases generally begins on the date where the right to institute and maintain a suit arises, regardless of lack of knowledge, mistake or understanding. Pocono International Raceway Inc. v. Pocono Produce Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). The expiration of the two-year period from this date will, therefore, prevent a party from bringing suit.

An exception exists, however, where the injury is not known. In Pennsylvania, the “discovery rule” is followed whereby the limitations period does not start running if the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the statutory period. Colonna at 4-5, 664 A.2d at 980. More specifically, the period of limitation does not begin to run until discovery is reasonably possible. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 325, 608 A.2d 1040, 1043 (1992). “[Ojnce the patient is aware or should reasonably have become aware that medical treatment is causing [her] personal injury the statute begins and the prospective plaintiff is required to begin doing those things for which the statute of limitations specifically provides time: ‘an opportunity to select and consult with a lawyer, investigation, initiation of suit, discovery, joinder of additional parties, etc.’ ” Bradley v. Ragheb, 429 Pa. Super. 616, 621-22, 633 A.2d 192, 195 (1993).

A determination as to when the complaining party should know he has suffered an injury is generally a question of fact to be determined by a jury. Colonna at 5, 664 A.2d at 980. However, where the facts are so clear such that reasonable minds cannot find another point where complainant should reasonably be aware of injuries, the determination is a matter of law. Id.

Where a party fails to make inquiry into available information, that party fails to use reasonable diligence as a matter of law. Bradley v. Ragheb, 429 Pa. Super. 616, 624, 633 A.2d 192, 195 (1993). “If a party has the means of discovery within his [or her] power but neglects to use them, his [or her] claim will still be barred.” Bradley, supra at 621, 633 A.2d at 194, citing Burnside v. Abbott Laboratories, 351 Pa. Super. 264, 292, 505 A.2d 973, 988 (1985).

In light of the facts and the circumstances of the situation, we find that Kennedy did not exercise reasonable diligence in ascertaining information regarding his injury, thus requiring a grant of summary judgment for defendant.

In relying on the “discovery rule,” Kennedy argues that the dementia from which he is deemed to suffer was not diagnosed until several years from the date of the accident. While it is true that he was not aware of the diagnosis of dementia until nearly five years later, this Court attributes such delay to a lack of diligence by plaintiff in investigating his injury further. In addition, Kennedy was aware that he was symptomatic from the time of the accident and as a consequence of the accident.

According to the plaintiff, he struck his head upon falling in the parking lot operated by Rigotti in February of 1993 yet he was not made known of his dementia until 1998. As the case law shows, awareness of the exact diagnosis is not the proper time to begin the running of the statute of limitations. The “discovery rule” requires the plaintiff to use reasonable diligence in determining the injury where such information is available.

Kennedy was, indeed, aware of some injuries resulting from the fall as he had seen several doctors from the day of the event. This includes emergency room care at Jameson Hospital, periodic treatments for lumbar sprain symptoms, treatments due to dizziness, and the ultimate neuro-psychological exam at the behest of Dr. Lopez who provided the final diagnosis of dementia.

The required standard of diligence is that of a reasonable person. Five weeks following the accident, Kennedy was referred to Dr. Heyman, a specialist, for the ongoing memory loss as well as dizziness and personality change. This doctor did not recommend any specific treatment because he believed that Kennedy would make gradual recovery over time. Kennedy seemingly relied on this diagnosis; nevertheless, Kennedy was aware that he suffered an injury. Evidence shows that Kennedy did not experience the recovery that he was told would occur. When asked at deposition how long he had been suffering pain and memory loss since the accident, Kennedy replied “from day one.” (Deposition of D. Kennedy, p. 35).

When Kennedy met with Dr. Lopez in 1995, nearly two years had passed since he was told that he would recover over time. Again, Kennedy admitted in his deposition that he had been suffering since the accident. He was necessarily aware during this period that the prognosis of recovery was incorrect. Nevertheless, no complaint was filed until nearly four years after visiting Dr. Lopez. Finally, in 1998, plaintiff learned from Dr. Lopez, in collaboration with a neuro-psychologist, that he suffers dementia directly related to the injury suffered in 1993. Further the doctor considers this dementia to be permanent in nature.

The facts of this case are similar to that of Colonna v. Rice, supra. In that case, plaintiff was told by her dentist in 1985 that she had gum disease resulting in loose teeth. Plaintiff did not return to the dentist until 1988 even though the condition continued to worsen. In 1988, plaintiff needed to undergo a procedure for advanced gum disease. She finally brought suit against the defendant-dentist in 1992. In reviewing the granting of defendant’s motion for summary judgment, the court said, “A person using reasonable diligence should have been aware that the proper treatment was not being given for such condition at least as early as 1988.” 455 Pa. Super. 1, 8, 664 A.2d 979, 982.

When Kennedy was diagnosed by Dr. Heyman in May of 1993 as having closed head trauma encephalopathy resulting from the accident, and causing memory loss, dizziness and personality change, plaintiff possessed the requisite knowledge under the discovery rule to commence the running of the statute of limitations. It is not necessary that plaintiff know the full extent of his injuries. Bradley v. Ragheb, supra.

Similarly, Kennedy knew or he should have known that he was continuing to suffer from an injury sustained as a result of the fall as he experienced, contrary to the prognosis of Dr. Heyman, that he was not healing from pain and dizziness over time. As stated above, Kennedy acknowledged in deposition that he has been experiencing pain and dizziness since the day of the accident. Also, he sought the medical attention of Dr. Lopez due to this dizziness and memory loss in 1995 and did not file the complaint until 1999. Such a delay, in light of the facts known to Kennedy, was unreasonable and outside the period of the two-year statute of limitations.

For the reasons above stated, the court will issue a separate order granting the defendant’s motion for summary judgment.

ORDER

And now, June 13, 2001, after argument on the motion for summary judgment of the defendant, it is ordered, adjudged and decreed that the motion is granted; that summary judgment is hereby entered in favor of the defendant and against the plaintiffs, and that the plaintiffs’ complaint is dismissed.


source: Caselaw Access Project

author: KLEIN, J.,

license: Public Domain

text:
    Daniels v. Hospital of Philadelphia College of Osteopathic Medicine

      Daniel L. Thistle, for plaintiff.

      Kathleen Kramer, for defendant.
    June 14, 2001
   KLEIN, J.,

I. SUMMARY

Plaintiff, Patricia Daniels, filed this lawsuit on behalf of her son, Roderick Sterling, who was bom prematurely at the Hospital of Philadelphia College of Osteopathic Medicine. Plaintiff claims that because of hospital negligence, Roderick suffers from impaired cognitive and psychomotor functions.

Daniels attributes this harm to allegedly negligent observation and monitoring of the baby by hospital staff resulting in significant blood loss. Because of the blood loss, Roderick suffered acute anemia which lasted about a month. Roderick now suffers from deficiency of cognitive skills and he had problems with language development and psychomotor skills. Plaintiff attributes these problems to the acute anemia suffered while in the hospital.

To support this claim plaintiff offered the report of Dr. Adler as her expert witness. Dr. Adler opined that the problems that Roderick suffers from can be attributed to acute anemia. Although there is literature supporting the theory that the kind of deficits from which Roderick suffers can be caused by long-term iron deficient anemia, this is a different disease from the acute anemia from which Roderick suffered.

This court specifically asked for additional argument and briefing to hone in on the differences between the two types of anemia. After thorough review of the original and supplemental evidence, I granted an order precluding the testimony of Dr. Adler. This is because even after given the chance to supplement his report, Dr. Adler did not present evidence that there was sufficient generally accepted medical authority that acute anemia causes these kind of problems. Therefore, the requirements of Frye and Daubert were not met.

Once Dr. Adler’s testimony was precluded, there was insufficient evidence to go to a jury, and the case was dismissed on summary judgment. Daniels is now appealing the summary judgment decision.

Daniels claims that the court erred in granting the hospital summary judgment because:

(1) Plaintiff claims that her expert witness causation testimony satisfies the requirements of Blum v. Merrell Dow Pharmaceuticals Inc., 564 Pa. 3, 764 A.2d 1 (2000) and that of Daubert and Frye. This is untrue. Dr. Adler’s theory is that Roderick’s acute anemia and absence of other problems could lead to the difficulties claimed. However, this theory is not supported by a significant number of medical professionals. Dr Adler did not offer any evidence that his theory was supported with respect to acute anemia. The article that Dr. Adler did rely upon dealt with the defects of long-term iron deficient anemia which is not the same as acute anemia suffered by the plaintiff, and he presented no other evidence relating to acute anemia. This is not merely an oversight, since the doctor was specifically asked to address the difference between the two types of anemia.

(2) Plaintiff’s second claim is that the trial court incorrectly read Dr. Adler’s report and the Blum case. Although Dr. Adler only uses one article, Daniels asserts that it was representative of the vast medical literature on the subject. This argument is without merit for the reason that even though the article cites 41 sources, these sources talk about the problems related to iron deficient anemia, not the acute disease from which Roderick suffered. The plaintiff presents no literature or sources that support her theory when the problem is acute anemia following blood loss rather than long-term anemia.

(3)Plaintiff’s third claim is that the hospital: (a) failed to reference any body of scientific literature that stated that anemia does not cause cognitive and developmental delays, and (b) that the hospital failed to show that scientific literature relied on by Daniels’ expert was not generally accepted by the scientific community. This argument fails because the burden of proof is on the plaintiff, and the defendant has no burden to prove anything.

(4) Plaintiff’s fourth claim is that the court made factual determinations that should have been found by a jury. It is true that courts merely act as gatekeepers and should only decide if the mechanism of causation is accepted by the scientific community. However, it is the court’s job to decide if an expert witness’ opinion has achieved “general acceptance” in the medical community. I did not make any factual findings. I merely reviewed the record and articles presented by plaintiff to find they were devoid of any opinion stating that acute anemia causes these kinds of problems, and therefore that Dr. Adler’s theory did not exhibit the general acceptance standard that is required by the Blum IF test of scientific causation. Therefore, the testimony did not qualify to come in as expert testimony.

(5) Plaintiff’s last issue on appeal is that the court misinterpreted the standards of Blum and Frye. Blum held that the scientific methodology used by plaintiffs was flawed because they did not present any studies that established causation. Since in this case Daniels presented the article which traced lowered hemoglobin to the developmental delays, Daniels alleges that it is irrelevant that the anemia is caused by iron deficiency or blood loss. Further, Daniel alleges that the court’s attempt to distinguish between the two is medically incorrect. This argument fails because although Daniels’ expert relied on the article on the iron deficient anemia, he did not establish a connection between the two types of anemia.

The arguments will be discussed in more detail below.

n. FACTS

Roderick Sterling was born four weeks premature. On July 20, 1992, while in the neonatal intensive care unit at Osteopathic Hospital, a nurse placed an umbilical vein line on him. Upon removal of it, the umbilical site was noted to be oozing blood. Plaintiff alleges negligent observation and monitoring which led to Roderick losing in excess of 25 percent of his blood volume through his umbilical cord in about 15 minutes.

Because of the blood loss, Roderick suffered acute anemia, which lasted about a month. However, at no time during the first six months of life did he suffer from an iron deficiency. Roderick now has a defect in cognitive skills, which is evident by his low I.Q. level of about 80. In addition, he had problems with language development and psychomotor skills.

An expert witness presented by Daniels, Dr. Adler, said that it was his opinion that the hemorrhage caused anemia and it in turn caused the harm complained of. Dr. Adler continued, saying that the increased harm and prematurity is directly related to the development concerns and seizures that effect Roderick.

The defendant questioned whether Dr. Adler’s opinion that “anemia and low hemoglobin in infancy has significant and long-term effects on cognitive, psychomotor, and verbal skills,” was supported by members of the medical field. Dr. Adler filed a supplemental report in which he cited only one article. That article is “Effects of Iron Deficient Anemia on Cognitive Skills in Infancy and Childhood,” by Thomas Walter and others. The article discusses the results of studies performed on malnutritioned children, six months of age and older who suffered from chronic iron deficiency for a period of three months or longer. The case studies focus on the effects of long-term, total body iron deficiency on cognitive development not the effects acute anemia would have on long-term cognitive development. Defendant brought a motion for summary judgment arguing that the expert witness did not qualify and the case should be discharged. After extensive briefings and arguments the Honorable Richard B. Klein granted the summary judgment motion. Plaintiff is now appealing that decision.

in. DISCUSSION

The first argument on appeal is that the summary judgment should not have been granted because the expert’s causation testimony satisfies the requirements of Blum, Daubert, and Frye. Pennsylvania law adopted the Frye standard in Commonwealth of Pennsylvania v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977) and in a recent decision, Blum v. Merrell Dow Pharmaceuticals Inc., 564 Pa. 3, 764 A.2d 1 (2000), the Supreme Court of Pennsylvania has reiterated the Frye/Topa standard. The standard reached in Frye requires that the admissibility of the evidence depends upon the general acceptance of its validity by those scientists active in the field to which the evidence belongs. Topa at 229. The court then relies on such findings in order to determine if the evidence is admissible.

Roderick had acute anemia resulting from blood loss. Daniels’ expert failed to provide scientific proof which supports his opinion that cognitive defects may also arise from acute anemia. The expert witness presented only one article which dealt with problems arising from the iron deficient anemia, it did not talk about these problems arising from acute anemia which is what Roderick suffered from as a baby. Even after the court specifically asked for supplemental information on the two types of anemia Dr. Adler still did not present any sufficient evidence supporting the plaintiff’s theory that acute anemia causes these kind of problems.

Further, Daniels claims that Dr. Adler’s testimony fulfills the requirements of the Daubert test. Under Daubert, there are two criteria which expert’s findings must meet in order to be admissible in court. First, the conclusions should carry scientific validity, or they must have basis in the methods and procedures of science. Second, the evidence must be relevant to the issue in question. Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Although Daubert eliminates the idea that scientific community must have reached “general consensus” as to the expert’s purported findings, Daniels still does not fulfill the second criterion of the test. Daniels’ expert does not provide relevant testimony as to the acute anemia and its consequences. Instead, the testimony discusses the effects of iron deficient anemia. Thus, Daniels’ argument that the causation testimony satisfies the requirements of Blum, Frye, and Daubert has no merit.

Daniels’ second argument on appeal is that the trial court incorrectly read Dr. Adler’s report and the Blum test. Daniels claims that Dr. Adler’s report indicates that anemia and low hemoglobin may lead to cognitive and psychomotor defects later in life. Also because the article cites 41 sources, it is sufficient to exhibit “general acceptance” in the scientific community as required by the Topa/Frye standard. However, there are many types of anemia. The type of anemia described by the article is caused by chronic iron deficiency in a diet of malnutritioned children age six months and older over a period of three months or longer. Roderick, in this case, merely suffered from a fifteen minute blood loss and had no iron deficiency in his diet at any time after birth. Therefore, this argument fails because Daniels did not present any medical testimony on whether acute anemia from blood loss such as what was suffered by Roderick leads to any cognitive defects later in life.

Daniels’ third argument appeal is that the hospital failed to reference any body of scientific literature to prove that plaintiff’s witness testimony was not generally accepted by the medical community. This objection has no merit for the simple reason that plaintiff has the burden to plead and prove her case. The standard for summary judgment is that the nonproving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to do this establishes that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ertel v. Patriot-News Co., 544 Pa 93, 674 A.2d 1038 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d. 401 (1996). To support a medical malpractice claim and get it past summary judgment a plaintiff must present evidence from an expert “who will testify, to a reasonable degree of medical certainty, that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause of the harm suffered.” Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 892 (1990). When I prohibited the expert witness from testifying, plaintiff had no other expert witness to support her case, thus the case was correctly dismissed at summary judgment.

Plaintiff’s fourth claim on appeal is that the court made factual determinations that should have been up to the jury. Whether a witness is permitted to testify as an expert is a decision that rests within the sound discretion of the trial court. Bergman v. United Services Automobile Association, 742 A.2d 1101 (Pa. Super. 1999). This court should merely act as a gatekeeper and should only decide if the mechanism of causation is accepted by the scientific community. The jury then will decide how much weight to give the testimony to decide if Roderick’s deprivation was sufficient to cause his cognitive and psychomotor skills. Dr. Adler has relied solely on medical literature to support his opinion. Moreover, the article presents general acceptance of the principle that long-term iron deficiency in the diet of young children may cause cognitive defects. Daniels does not present any expert testimony in support of her purported position that short-term blood loss which may lead to low hemoglobin will produce developmental delays. Thus the plaintiff did not meet the standard necessary to be admitted as an expert opinion. The determination that there is no casual relationship between the alleged harm and Roderick’s current condition is not factual but pursuant to the role of the court under the Frye/Topa standard.

Plaintiff’s last argument is that the court’s statement that there are two different types of anemia is medically incorrect. Although Daniels claims, in the appellate brief, that the cause of anemia is irrelevant, Dr. Adler never made clear in his testimony that nutritional anemia is identical to the blood loss anemia, or at least that the consequences of one are indistinguishable from the other. Furthermore, there is a duration of the condition issue here that Daniels never addressed. Dr. Adler has not stated in his testimony that effects on health of anemia resulting from an iron deficiency over a period of three to six months is generally analogized to the acute anemia suffered in this case resulting from a 15 minute blood loss.

Consequently, this position has no merit on the basis discussed.

IV. CONCLUSION

The motion for summary judgment was correctly granted. The expert testimony of Dr. Adler did not meet required standards to be admitted. Without an expert witness the plaintiff did not present a prima facie medical malpractice case and it must be dismissed at summary judgment.

      . Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), adopted by the Pennsylvania Supreme Court in Commonwealth v. Topa, 471 Pa. 223, 231, 369 A.2d 1277, 1281 (1977).

      . Daubert v. Merrell Dow Pharmaceuticals Inc. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).