The Pennsylvania Supreme Court has agreed to take up the appeal of a woman who aims to sue her doctor over an alleged misdiagnosis of her Lyme disease as multiple sclerosis. The woman’s case had been tossed out partly because of Facebook posts indicating she knew she suffered from the disease years before filing suit.
The justices on Aug. 18 granted allocatur in Nicolaou v. Martin to address whether plaintiff Nancy Nicolaou’s claims met an exception to the discovery rule since she “did not and was financially unable to, confirm [the defendant's] negligent misdiagnosis until final medical testing confirmed she had Lyme disease.”
Last year, a split Superior Court panel determined that Facebook posts made soon after her diagnosis indicating she suspected she had Lyme disease several years earlier undercut her argument that her case should have been allowed to proceed under an exception to the discovery rule. The nine-judge panel tossed the case in December, holding that Nicolaou failed to sue the doctor within the two-year statute of limitations.
Although that ruling affirmed a decision from the Lehigh County Court of Common Pleas that tossed the case on summary judgment, it also marked the reversal of a three-judge panel of the Superior Court, which had called for the statute of limitations issue to be resolved by a jury.
Nicolaou argued that, while she may have suspected Lyme disease, she did not believe she suffered from it and was only able to confirm she had the disease after a specific test in 2010, Superior Court Judge Jacqueline O. Shogan said in the en banc panel’s majority opinion. Nicolaou took that test about nine years after she began displaying symptoms.
However, Shogan cited two Facebook posts in the court records that the intermediate appeals court found undercut that argument.
“As underscored by the trial court, on Feb. 14, 2010, Mrs. Nicolaou posted, ‘I had been telling everyone for years i thought it was lyme…,’ to which one of her Facebook friends responded, ‘[Y]ou DID say you had Lyme so many times!’” Shogan said. “Mrs. Nicolaou’s Facebook post, indeed her own words, bear on the fallacy of her claim on appeal that ‘she didn’t believe it.’”
Nicolaou filed her suit in Feb. 10, 2012, nearly two years after her Facebook post indicated she suspected she had Lyme disease sooner.
Nicolaou had argued the statute of limitations didn’t start until the tests results came back Feb. 13, 2010.
Superior Court Judge Anne Lazarus wrote a dissenting opinion, arguing that the court should have left the statute of limitations question up to the jury. Superior Court President Judge Susan Peikes Gantman and Judge Mary Jane Bowes joined Lazarus.
Nicolaou discovered a tick bite on her ankle in 2001, and experienced numbness, tingling, fatigue and lower back pain soon afterward, according to court records. She eventually lost bladder control, had difficulty walking and was confined to a wheelchair.
She saw multiple doctors between 2001 and 2008, and was tested for Lyme disease, but the results were negative. She was diagnosed with MS in 2006, but she suspected the diagnosis was incorrect. In 2009, Nicolaou began treatment with Rita Rhoads, a nurse who specializes in Lyme disease.
Rhoads suspected Nicolaou suffered from Lyme disease, and ordered a test, but Nicolaou said she could not afford it and opted to see if antibiotics worked instead. Nicolaou ultimately underwent the test in 2010, which came back positive for Lyme disease.
After determining that the Facebook posts indicated Nicolaou was aware of the possibility that she suffered from Lyme disease prior to the 2010 test, Shogan looked to Nicolaou’s treatment with Rhoads before taking the test, which relieved many of her symptoms. According to Shogan, it was “without question” that Rhoads told Nicolaou she suspected Lyme disease was the cause as early as 2009, and that Lyme disease treatments relieved many of her symptoms.
“The standard of reasonable diligence was not met herein,” Shogan said. “Reasonable minds could not differ in this conclusion.”
Both Hamburg, Rubin, Mullin, Maxwell & Lupin attorney Nathan Murawsky, who represented Nicolaou, and Arthur Hankin of Blank Rome, who represented the defendants, did not return a call for comment.