2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

of his face. According to Fine, on the ten occasions he saw Dr. Checcio between the surgery andOctober 9, 1998, the doctor told him it could take up to six months for the numbness to subside.About a year after the surgery, Fine came to believe the persistent numbness was abnormal. Hecommenced suit against Dr. Checcio on August 8, 2000. Dr. Checcio raised the statute oflimitations as a defense in her answer and new matter and subsequently filed a motion forsummary judgment asserting that the action was time-barred. Fine asserted that there weredisputed, material facts as to whether the limitations period was tolled under the discovery ruleor the doctrine of fraudulent concealment.The trial court denied Dr. Checcio’s motion. After trial resulted in a verdict in favor ofFine, and denied post-trial motions, Dr. Checcio appealed. The Superior Court reversed, rulingthat the limitations period began to run on the date of surgery and that Fine’s action, therefore,was barred.In Ward, plaintiff had her wisdom teeth extracted by Dr. Rice on March 28, 1995.Immediately following the surgery, Plaintiff experienced some numbness and occasional tinglingin her lip. Plaintiff told Dr. Rice of her condition, and he assured her it would go away. Plaintiffcontinued to treat with Dr. Rice until May, 1995. He continued to assure her the problems shewas having would subside. Plaintiff asked Dr. Rice for a referral on July 5, 1995, but it was notuntil September 20, 1995 that he directed her to another doctor. Her first visit to the new doctoroccurred on October 11, 1995. On September 26, 1997, Plaintiff filed a writ of summons. Dr.Rice filed a motion for summary judgment based on the statute of limitations and Wardresponded that her action was timely because the record showed the statute had been tolled underthe discovery rule and the doctrine of fraudulent concealment.The trial court granted the motion. The Superior Court remanded the case for furtherproceedings after finding that the discovery rule applied and the trial court had erred indismissing the lawsuit as time-barred.Because the cases covered the same issues, the Supreme Court consolidated the appeals.The Supreme Court decision reviewed the settled aspects of the discovery rule and then notedthat it remained unsettled whether the rule requires that it be determined whether the injury andits cause were reasonably ascertainable at any point within the prescribed statutory period. Oneschool of thought was that if they were—even if this occurred one day before the statutory periodended—the discovery rule does not apply and the statute is not tolled. Another camp believedthat the discovery rule always applies to toll the statute if at the time the injury occurs, the injuryor its cause is neither known nor reasonably knowable.The Supreme Court held that “the discovery rule applies to toll the statute of limitationsin any case where a party neither knows nor reasonably should have known of his injury and itscause at the time his right to institute suit arises.” Id. at 859. To adopt the alternate position, thecourt reasoned, could lead in many instances to unreasonable and arbitrary results. It would also,the court explained, nullify the recognized purpose of the rule, which is to see to it that personswho are reasonably unaware of an injury that is not immediately ascertainable have essentiallythe same rights as those who suffer an immediately ascertainable injury. Id. at 860.89