2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

found that the District Court was well within its rights to decline supplemental jurisdiction overthe state law claims of the defaulting defendants.In Byrne v. The Cleveland Clinic, 684 F. Supp. 2d 641 (E.D. Pa. 2010), the pro seplaintiff brought suit against defendant under the Emergency Medical Treatment and ActiveLabor Act (EMTALA), as well as a state law claim for breach of implied contract. Defendantsmoved to dismiss on multiple grounds, including plaintiff’s failure to file within the two yearstatutory period.The court notes that although a 12(b)(6) motion to dismiss does not specifically includethe statute of limitations defense, “the so-called ‘Third Circuit rule’ allows such a defense to beraised in a 12(b)(6) motion ‘if the time alleged in the statement of a claim shows that the cause ofactions has not been brought within the statute of limitation.’” Id. quoting Zankel v. TempleUniv., 245 Fed. Appx’ 196, 198 (3d Cir. 2007).The court also notes that in the case of a pro se litigant who files a complaint and whoseeks to proceed in forma pauperis, the constructive date of filing is the date that the court clerkreceives the complaint, not the date that the filing fee is paid, so long as the fee is eventually paideither by the litigant or the court grants the request to proceed in forma pauperis. The courtspecifically points out that the constructive date of filing is not the date the litigant mails thecomplaint or when the complaint is notarized.Although the docket listed the complaint as being filed on February 27, 2009, there was ahandwritten date of February 14, 2009 on the complaint, one day before the statute of limitationsran. The court acknowledged that although it could not yet be sure who wrote that date, thepossibility existed that it was the court clerk, in which case the complaint had been received andtherefore, constructively filed, within the statute of limitations. As the court could not make thedetermination of whether or not the complaint was timely filed based on the pleadings alone, thecourt held that the Third Circuit Rule did not bar the claim.The court held that it could not dismiss the breach of contract claim on the statute oflimitations grounds based on the same reasoning. It did, however, dismiss that claim on thegrounds that the plaintiff alleged merely a delay in treatment and not a breach based on thequality or result of the treatment.In Fine v. Checcio; Ward v. Rice, 870 A.2d 850 (Pa. 2005), the Supreme Court looked attwo cases, consolidated on appeal, in which Plaintiffs were patients that had sued dentists andalleged dental malpractice. In both cases, the dentist-Defendant moved for summary judgmentbased on the two year statute of limitations and the patient-Plaintiff raised the discovery rule andthe doctrine of fraudulent concealment. The Supreme Court ruled in both cases that dentist-Defendant was not entitled to summary judgment and issued two important holdings in thiscourse of their opinion.In Fine, Dr. Checcio had recommended that the patient’s four wisdom teeth be surgicallyextracted. Fine accepted this recommendation and signed a consent form with complications andconditions that could follow surgery, including numbness of the lip, tongue, chin and cheeks.Dr. Checcio removed the teeth on July 17, 1998. On that date Fine had numbness on both sides88