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Jurors should decide whether an allegedly injured patient has acted reasonably in not filing a professional negligence claim within the two-year statute of limitations, two plaintiffs lawyers argued to the Pennsylvania Supreme Court Thursday. Plaintiffs in two cases consolidated for argument said that the two-year clock for filing a cause of action should begin to run on the day that they realized that adverse symptoms were caused by negligence and were not normal after-effects of surgery. Defense lawyers in the two cases said judges should decide, as a matter of law, whether the statute of limitations should be tolled in a professional negligence case. During the argument in the two cases — captioned Ward v. Rice and Fine v. Checchio — attorneys debated whether the statute of limitations should be tolled during the period when a patient was arguably unaware of his negligence claim because he trusted his doctor’s assurances that jaw numbness and swelling following dental surgery were routine post-operative conditions. Eventually, the plaintiffs in Ward and Fine lost confidence in their treating doctors and filed negligence suits, but not until more than two years after their original surgeries. They did not file notice of their claims sooner, their attorneys explained, because the doctors continued to assure them that their conditions were to be expected following wisdom teeth extraction. The defense attorneys argued that the plaintiffs knew or reasonably should have known they were injured. Thursday, the justices indicated their decision would set a standard as to what a jury should consider when deciding the reasonableness of a lay person’s reliance on their doctor’s insistence that a post-operative condition was normal. The arguments were the penultimate of last week’s session, which the court held over three days in Courtroom 456 of City Hall. Chief Justice Ralph J. Cappy requested that the attorneys focus the Fine and Ward debate on the issue of the “discovery rule,” an exception to the general rule that once a statutory time period runs out a plaintiff is barred from filing suit. The discovery rule, Cappy explained, would apply when a plaintiff — despite reasonable due diligence — was unable to ascertain the injury and its cause within the applicable statute of limitations. Joe H. Tucker Jr., representing the plaintiff patient in Fine, told the justices that the discovery rule should be interpreted to give a plaintiff who doesn’t recognize his claim right away the same rights as a plaintiff whose injury is immediately recognizable as such. Tucker of Booth & Tucker referred to the Pennsylvania Supreme Court’s decision in Murphy v. Saavedra, which is predictive of how at least three justices may rule on the discovery rule question in Fine and Ward. In 2000, six justices split 3-3 in the Murphy case, resulting in the affirmation of the Superior Court’s decision to dismiss a medical malpractice claim as time-barred because the plaintiff hadn’t filed suit until more than two years after her original surgery. The opinion by former Justice Stephen A. Zappala supporting the affirmation of the Superior Court concluded that the patient knew or reasonably should have known that she had a malpractice claim shortly after a major operation. This was because her pain was of a different degree and location after the surgery than before, Zappala wrote. Cappy, joined by Justices Ronald D. Castille and Russell M. Nigro, wrote the Murphy opinion supporting a reversal of the Superior Court’s decision and saying the discovery rule should apply to extend the limitations period. The only other justice sitting on the current court who participated in Murphy was Sandra Schultz Newman, who joined Zappala. But Newman did not attend oral arguments last week because of a broken arm, and has indicated she will not be participating in the decision of the cases argued last week. In Ward and Fine, two Superior Court panels arrived at opposing results. The Ward panel reversed a Clearfield County trial judge’s dismissal of Rosezetta Marie Ward’s malpractice case as time-barred. In Fine, the Philadelphia trial court had denied the defendant’s motion for summary judgment before the case went to trial and a jury returned a verdict for the plaintiff, Eric Fine. The Superior Court reversed the Fine court’s denial of summary judgment because it said the case was time-barred. Noting the two panels’ contrary results, Cappy said, “We have at least six people to decide this, and I hope we don’t split again.” In his Murphy opinion, Cappy said that affirming the Superior Court would mean “patients will be compelled to file suit before they know whether their pain is linked to a physician’s action or is a normal side effect of the treatment or procedure. “Although the opinion in support of affirmance may be attempting to create a bright line rule by turning the grant of summary judgment on appellant’s pain, this standard charges appellant with an unrealistic burden of knowledge,” Cappy wrote. “This charges the patient with the knowledge that a medical professional would possess instead of that of a reasonable layperson.” Cappy echoed this concern at oral argument yesterday. “How is it a lay person untrained in medical procedure is to determine there’s been a negligence independent of another doctor’s opinion?” Cappy said. “What is it that should trigger an untrained citizen to act?” Ward’s attorney, Patrick J. Loughren of Loughren Loughren & Loughren in Pittsburgh, said the reasonableness of a plaintiff’s action should depend on what the patient did when they found their injury. “If you have a surgery, then you have symptoms and they’re unusual, you go get an X-ray,” Loughren told the justices. “If you go months later, it may not be reasonable.” Later, Cappy asked Loughren how long a citizen could reasonably rely on the continued assurances of their physician. “Until it is unreasonable,” Loughren replied. A jury should make that determination, he said. Loughren also brought up the doctrine of fraudulent concealment, which precludes a defendant from invoking a statute of limitations defense if the defendant concealed facts from a plaintiff — whether the concealment was intentional or not. “This means the defendant caused the plaintiff to lighten up on their diligence,” Loughren said. In Murphy, Cappy also noted the possibility of a situation where a plaintiff does not discover an injury and its cause until the tail end of the statutory period. Under Zappala’s opinion in Murphy, this plaintiff would still have to file a claim, even if the filing deadline were 24 hours away. But if the same plaintiff discovered her injury one day after the limitations period ran out, the discovery rule would apply, allowing two more years for filing a claim. Zappala noted that the discrepancy “may seem unfair to some,” but that such a result was “inevitable.” Cappy, in his opinion, said the result was “not merely unfair, but absurd and contrary to the purpose of the discovery rule.” Thursday, Nigro sat up and asked Bruce Morrison, the defense lawyer for the dentist in Fine, about this scenario. “What happens to a plaintiff who finds out two weeks before the original statute of limitations runs out. Is two weeks enough time to find a lawyer, file a complaint and get an expert consultation?” Nigro said. “The Legislature decided the bright line cut off is two years,” replied Morrison, an attorney at Marshall Dennehey Warner Coleman & Goggin. “The law has recognized the value of encouraging the prompt bringing of litigation. … In the vast majority of cases, you’re not going to have this informational epiphany on the eve of the statute of limitations. Do we decide to give up the value of the certainty of having a bright line cutoff for filing suit?” Castille immediately responded, “The answer by three of us here is yes,” he said, motioning to Cappy and Nigro on his left. “That’s why we have the discovery rule.” Justice Thomas G. Saylor asked Tucker why a patient should have two years to file suit from the day he discovered his negligence claim, if the discovery occurred six months after the original surgery. “Why should you have two more years if you’re still within the two years of the original injury?” Saylor said. “Because it’s unfair to the plaintiff,” Tucker said. “You’re creating two classes of plaintiffs, and that’s unconstitutional.” Allen Neeley of McQuaide Blasko Schwartz Fleming & Faulkner in State College argued for the accused dentist in Ward, Jeffrey W. Rice.

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