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The Pennsylvania Supreme Court has held that it is irrelevant to the discovery rule’s application whether the plaintiff’s injury was ascertainable within the statute of limitations period. Ruling on two consolidated appeals — both of which come in cases stemming from injuries allegedly received during wisdom teeth removal surgeries — the justices also concluded that the statute of limitations tolled under the doctrine of fraudulent concealment begins to run only when an injured party “knows or reasonably should know” the cause of his or her injury or when it occurred. In Fine v. Checcio, the justices reversed the Superior Court, which had overturned a Philadelphia judge’s decision to deny dentist Mary Anne Checcio’s motion for summary judgment. In Ward v. Rice, the court affirmed the Superior Court’s reversal of a Clearfield County Common Pleas trial court’s granting of summary judgment in favor of dentist Jeffrey Rice, but disagreed with the lower court’s approach in reaching that result. In its analysis of the discovery rule, the justices resolved a question that first arose four decades ago in the state Supreme Court case of Schaffer v. Larzelere and appears to have vexed Pennsylvania’s appellate jurists ever since: Whether or not the discovery rule is restricted to cases in which an injury or its cause is not reasonably discovered until after the expiration of the statute of limitations. “Today, we hold that it is not relevant to the discovery rule’s application whether or not the prescribed period has expired,” Chief Justice Ralph J. Cappy wrote. “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.” Cappy was joined by Justices Ronald D. Castille, Russell M. Nigro, Thomas G. Saylor, J. Michael Eakin and Max Baer. Justice Sandra Schultz Newman did not participate in the decision. According to the opinion, Checcio removed Eric Fine’s four wisdom teeth in July 1998. Fine experienced significant numbness on the left side of his lip and chin, and about a year after the surgery was performed, came to the conclusion that the persistence of that numbness was unusual. He filed suit in August 2000. Checcio moved for summary judgment, arguing that the two-year statute of limitations that began in July 1998 had run out by August 2000. The trial court denied her motion. In April 2002, a jury awarded Fine $500,000, according to the opinion. On appeal, the Superior Court ruled that the discovery rule was inapplicable, as Fine knew of his injury at the moment it occurred; and that the fraudulent concealment doctrine was not triggered, as it could not be established that Checcio kept the true nature of his injury from him. The lawsuit in Ward stems from the March 1995 removal of Rosezetta Ward’s four wisdom teeth. Like Fine, Ward also experienced persistent numbness on the left side of her face. She discussed the numbness with dentist Rice during a number of post-op visits, and he referred her to at least two other physicians, according to the opinion. In September 1997, Ward filed suit against Rice. In June 2002, the trial court in Ward granted Rice’s summary judgment motion, agreeing with him that the statute of limitations on Ward’s action had run out in March 1997. The Superior Court reversed on appeal, holding that Ward’s assurances of full recuperation gave Ward a false sense of security and could be considered actions of concealment. The justices turned to their analysis of the discovery rule first. “The purpose of the discovery rule has been 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 he has been injured, so that he has essentially the same rights as those who have suffered such an injury,” Cappy wrote. In Schaffer, the high court held that if an injury was not reasonably ascertainable within the prescribed period, the statute of limitations does not begin to run until discovery of the injury is reasonably possible. That decision has been interpreted two ways, Cappy noted. Some justices have believed it means that if it can be determined that an injury was reasonably ascertainable at any point within the prescribed period, the discovery rule does not apply. Other justices, he wrote, have read the holding in Schaffer as providing that the discovery rule always applies to toll the statute of limitations if, when the injury physically occurs, it or its cause is not reasonably knowable to the injured. “An interpretation of a statute of limitations that premises a party’s access to the discovery rule on whether he knew or was able to know of his injury and its cause within the prescribed period would in many instances lead to unreasonable and arbitrary results and would be contrary to our longstanding approach in this area,” Cappy wrote in support of the justices’ holding. Turning to the court’s analysis as to the doctrine of fraudulent concealment, the justices similarly held that the statute of limitations tolled by that doctrine begins to run only when the injured party “knows or reasonably should know of his injury and its cause.” “We hold that Dr. Checcio was not entitled to summary judgment because there were genuine issues of material fact necessary to her statute of limitations defense,” Cappy wrote. As for the Superior Court’s affirmed holding in Ward, Cappy rejected the lower court’s apparent focus “on whether a jury could find Ward’s failure to investigate the causes of her condition until some seven months after the surgery to be reasonable.” “The court should have asked and answered whether there are genuine issues of material fact as to whether Ward knew or was unable to know, despite the exercise of reasonable diligence, that she was injured and by what cause at the time the injury was inflicted,” he wrote. Thomas Sacchetta of Sacchetta & Baldino in Media represented Fine. “I think sometimes motions for summary judgment get decided too quickly, and I’m glad that the Supreme Court has seen fit to indicate that [trial courts] should look for material issues, and, if there are any, let them go to the jury,” Sacchetta said. Ward’s attorney, Patrick Loughren of Loughren Loughren & Loughren in Pittsburgh, said his client is pleased his case will now go before a jury. “I think the opinion sets a real strong standard that the trial court can’t resolve questions of fact as to whether or not the patient knew – or should have known – they were injured,” Loughren said. Attorneys from Marshall Dennehey Warner Coleman & Goggin defended Checcio. A call to the firm seeking comment was not immediately returned. Allen Neely of McQuaide Blasko Schwartz Fleming & Faulkner in State College represented Rice. He did not immediately respond to a call seeking comment.

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