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Pennsylvania Supreme Court Issues Ruling on Discovery Rule and Due Diligence

Pennsylvania Supreme Court Issues Ruling on Discovery Rule and Due Diligence

In Nicolaou v. Martin, No. 44 MAP 2017 (Pa. Oct. 17, 2018) (Op. by Baer, J.), the Pennsylvania Supreme Court ruled that it is the jury who determines whether a plaintiff has acted reasonably in pursuing her claim with reasonable diligence once aware that she has been injured due to the negligence of another.

In 2001, Nancy Nicolaou was bitten by a tick on her ankle, which caused a rash, numbness and tingling in her left toe, fatigue, and lower back pain. Based on this information, Lyme disease was a primary diagnosis for consideration. From 2001 through 2007, Mrs. Nicolaou treated with no less than four different health care professionals, who all considered the diagnosis of Lyme disease; however, because lab tests were negative for Lyme diseas-*e professionals did not treat her for same. Several years elapsed and Mrs. Nicolauo’s conditioned worsened and she became incontinent and confined to a wheelchair. In 2006, an MRI revealed processes consistent with MS or Lyme disease. Again because repeat Lyme disease lab results were negative Mrs. Nicolauo did not receive standard antibiotic therapy. Instead, the health care professionals treated Mrs. Nicolaou as having MS, and administered steroids. The health care professionals reasoned that Mrs. Nicolaou did not have Lyme disease since all four standard laboratory tests for Lyme disease were negative. Importantly, in all of the laboratory reports, the laboratory advised the health care professional of the very real possibility of a false negative due to limitations of the tests.

Notwithstanding her health care professionals’ opinions, Mrs. Nicolaou suspected that she had Lyme disease, and stopped treating with her primary health care professionals in 2007. In 2009, Mrs. Nicolaou commenced treatment with a Lyme disease specialist, who acknowledged that Mrs. Nicolaou might have Lyme disease despite the negative lab tests, and treated her with standard antibiotic therapy for Lyme disease. Ultimately, Mrs. Nicolaou was offered a specialized test to test for Lyme disease, which she deferred because she did not have insurance or the funds to pay for the specialized test. Moreover, she wanted to determine the efficacy of the antibiotics. After a few months, Mrs. Nicolaou’s urinary problems abated and she started feeling better. She accumulated sufficient funds to pay for the specialized test and it was done.

On February 13, 2010, almost nine (9) years from the time she was bitten by the tick, Mrs. Nicolaou received her test results, and learned that she did in fact have Lyme disease. Later that day, Mrs. Nicolauo posted a message on her Facebook page stating that her test results were positive for Lyme disease. She also stated that she had been telling everyone for years that she thought she had Lyme disease, and that her doctors had ignored her. On February 10, 2012, Mrs. Nicolaou sued her health care professionals that treated her from 2001-2007, alleging negligence for failing to diagnose and treat her Lyme disease. She further claimed that due to her health care provider’s negligence, her Lyme disease infection became chronic and permanent, confining her to a wheelchair. 

After discovery was completed, the defendants filed a motion for summary judgment claiming that Mrs. Nicolaou’s claims should be dismissed because she filed her claim beyond the statute of limitations. More specifically, the defendants argued that Mrs. Nicolaou should have known that she had a compensable claim well before February 13, 2010 due to her Facebook post, and the fact that she was getting better on antibiotics administered to treat Lyme disease. The trial court agreed with the defendants and dismissed Mrs. Nicolaou’s claim; and the Pennsylvania Superior Court affirmed. The Pennsylvania Supreme Court agreed to hear Mrs. Nicolaou’s appeal.

In Pennsylvania, the statute of limitations for filing an action to recover damages for injuries to the person caused by the wrongful act, neglect, or negligence of another is two years. 42 Pa.C.S. § 5524(2). An exception to this general rule is the discovery rule, whichthe tolls the statute of limitations where the plaintiff is reasonably unaware that she has been injured and that her injury has been caused by another party’s conduct.Fine v. Checcio, 870 A.2d 850, 858 (Pa. 2005).

Under the facts of this case, and pursuant to the application of the discovery rule, the Pennsylvania Supreme Court felt the determination of the point in time Mrs. Nicolaou should have reasonably been aware that she had suffered a compensable injury is a factual issue best determined by the collective judgment, wisdom and experience of jurors. Moreover, the Court held that it was for the jury, and not a court, to determine whether a person in Mrs. Nicolaou’s circumstances acted reasonably in delaying the administration of a fifth Lyme disease test to confirm the probable diagnosis.

Image courtesy of Unsplash.

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