Oral Argument

At oral argument last week looking at when the statute of limitations should toll in a medical malpractice case where there are many possible causes of injury and the proper defendant can’t be readily identified, perhaps it was Pennsylvania Supreme Court Justice Max Baer who spoke most succinctly:

"What do we do when the plaintiff doesn’t know who to sue?" Baer asked Thomas M. Chairs of Dickie, McCamey & Chilcote. Chairs’ client was one of two defendants hit with a $735,000 verdict before the Superior Court threw the award out on statute-of-limitations grounds.

Baer’s inquiry came after he and more than one of his colleagues urged attorneys arguing the case of Garman v. Heine last Wednesday in Pittsburgh to stay on point.

Chairs told Baer the court should "tread lightly" in going beyond what is required of plaintiffs — namely, the discovery rule that tolls the two-year statute once a plaintiff has enough information to go to a lawyer about his or her injuries.

The justices have already opted not to alter that discovery rule in medical malpractice cases in a previous decision.

When the justices took up Garman, the order granting allocatur said they would examine whether the Superior Court properly applied the high court’s 2009 ruling in Wilson v. El-Daief.

The Superior Court panel in Garman held that the statute of limitations in such cases tolls upon discovery of an injury that was caused by another’s conduct, even if it’s unclear at that point exactly who’s to blame.

Justice Thomas G. Saylor, who wrote for the majority in Wilson, said last week: "It’s not like you have to file a complaint that day."

Saylor was referring to the time when plaintiffs know they have a cause of action but the identity of the alleged tortfeasor is unclear.

For the plaintiffs’ attorney, Richard C. Angino of Angino & Rovner in Harrisburg, though, the identity of that defendant and the cause of action were the same thing.

But for Chairs, Saylor’s comments resonated with clarity.

"Amen," Chairs responded.

In an unreported August 2011 memorandum opinion in Garman, a three-judge Superior Court panel vacated a $735,000 jury award to plaintiffs Kelly Garman and her husband, Kent Garman, saying the statute of limitations on the negligence claim upon which they had been successful had actually expired a year before the claim was brought.

The court reasoned that the statute of limitations had begun tolling when Kelly Garman discovered she had been injured by a surgical sponge left inside her abdomen during one of several surgeries, rather than when she had pinpointed the exact day the sponge had been left.

The plaintiffs appealed to the Supreme Court, which took up the case to decide whether, in light of the certificate of merit requirement, the statute of limitations in medical malpractice cases where there are multiple potential causes of injury should toll upon confirmation of the specific cause of the injury, or simply upon discovery that the injury was the result of someone else’s conduct.

One question the court said it would grapple with was whether the certificate of merit requirement alters interpretation of the discovery rule where there are multiple possible causes of injury or more than one possible tortfeasor.

According to court records and previous reporting by the Law Weekly, the case dates back to 1993, when Garman had an emergency cesarean section, performed by Chairs’ client, Dr. Sohael Raschid. In 1997, during an exploratory operation, Dr. Laurice Heine discovered that a surgical sponge, one of possibly 30 used in the C-section, had been left in Garman’s abdomen.

Garman sued Raschid and Chambersburg Hospital, alleging negligence in the 1993 surgery, and received a jury award of about $522,000.

Afterwards, in June 1999, Garman had another C-section.

In May 2006, following a CT scan, Garman underwent surgery to remove a second retained sponge from her abdomen.

The problem was that Garman didn’t know where the second sponge came from.

She again filed suit, this time against Raschid and Chambersburg Hospital and Heine, the doctor who removed the first sponge. The lawsuit also named the doctor who performed the 1999 C-section and other defendants, alleging that all the parties were negligent for failing to remove the second sponge during either the 1997 exploratory operation or the 1999 procedure.

However, after filing that lawsuit, Garman and her husband obtained an expert report opining that the second sponge was indeed left during the 1993 surgery. They petitioned to file an amended complaint, including the 1993 surgery as the source of the second sponge, but Raschid and Chambersburg Hospital challenged the petition on statute-of-limitations grounds.

The trial court granted the Garmans’ petition, saying it was up to a jury to decide whether the Garmans exercised reasonable diligence in determining the second sponge was left during the 1993 surgery.

At trial in March 2010, the jury sided with the Garmans, entering a $735,000 verdict against Chambersburg Hospital and Raschid. The jury cleared Heine and the other defendants of civil liability, including the doctor who performed the second C-section.

But the Superior Court, in an unpublished decision, vacated the award, ruling that under Wilson, the statute of limitations ran out in May 2008, two years after doctors discovered the second sponge, and when Garman discovered she had been injured by another party’s conduct.

Chairs said the central issue is the question in the court’s allocatur order: Did the Superior Court properly apply Wilson?

"The answer is astoundingly yes," Chairs said.

"It’s not always astounding when they get it right," Baer joked.

But Angino told the justices the case is simple, despite its winding factual history.

The Superior Court, Angino said, had only complicated things.

He said identifying an unknown defendant responsible for the second sponge was, in fact, the same thing as identifying the plaintiffs’ cause of action and, therefore, it was that moment that tolled the statute of limitations.

"When they found the sponge, they didn’t know the cause," Angino said. "The sponge is fungible."

"But you know the sponge didn’t grow naturally," Justice Debra Todd replied. "What you don’t know is which doctor or which hospital" was responsible for leaving it.

"That’s right," Angino said.

Michael M. Badowski, of Margolis Edelstein in Camp Hill, Pa., represented Chambersburg Hospital.

Badowski argued that under the Tortfeasor Identification Rule, it is the plaintiffs’ burden to identify the source of their injuries.

"If you can’t, you can’t," Badowski said. "In this case, we couldn’t. And we still can’t."

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI.