2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

The party claiming the benefit of the “discovery rule” exception to the statute oflimitations bears the burden of establishing that he or she falls within it. Cochran v. GAF Corp.,666 A.2d 245 (Pa. 1995). It is clear that mistake or misunderstanding does not toll the statute oflimitations pursuant to the discovery rule. Id. A “reasonable diligence” standard applies, which“has some teeth.” Id. The Pennsylvania Supreme Court has described the required diligence inthis setting as follows:Cochran, 666 A.2d at 249.Id.Reasonable diligence is just that, a reasonable effort to discover thecause of an injury under the facts and circumstances present in thecase. Long ago we recognized that there are few facts whichdiligence cannot discover, but there must be some reason toawaken inquiry and direct diligence in the channel in which itwould be successful. This is what is meant by reasonablediligence.The Court stressed that:Reasonable diligence is an objective, rather than a subjectivestandard. Under this standards, the plaintiff’s actions must beevaluated to determine whether he exhibited those qualities ofattention, knowledge, intelligence and judgment which societyrequires of its members for the protection of their own interestsand the interests of others.C. Recent Case Law DevelopmentsIn Wilson v. El-Daief, 964 A.2d 354 (Pa. 2009), Mary Wilson filed a writ of summonsagainst Samir El-Daief, M.D., and Montgomery Hospital Medical Center in October of 2003.The subsequent complaint alleged that Dr. El-Daief negligently lacerated her radial nerve duringthe surgical procedures on her wrist and hand in May and August of 2000. Dr. El-Daief andMontgomery Hospital sought summary judgment claiming that Ms. Wilson filed her claimbeyond the requisite two year statute of limitations. Ms. Wilson argued that the discovery ruleapplied and tolled the statute of limitations until October 2001 when she first learned fromanother physician about her injury. Ms. Wilson noted that prior to finding out that she wasinjured, she was treating with Dr. El-Daief and another orthopedic surgeon for approximatelythirteen months, and was always told by Dr. El-Daief that there was nothing wrong, even thoughevidence suggested that Dr. El-Daief was told by the other orthopedic surgeon that there werefour possible causes for her condition. The common pleas court awarded summary judgmentand explained that Ms. Wilson’s cause of action arose after the second surgery in August of 2000when she experienced constant, persistent, excruciating pain. Within several weeks of thesecond surgery it was noted that Ms. Wilson’s hand contracted into a fist, her right elbow bentinward and her right elbow drew upward. The Superior Court affirmed.84