2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

would be applied in situations where a reasonably diligent claimant could not discover adefendant’s federal status. See Id. at 203.In Miller v. Philadelphia Geriatric Center, 463 F.3d 266 (3d Cir. 2006), Plaintiff’sdecedent was a severely-retarded sixty-four year old man with the mental age of a four-year-oldchild. Beginning in 1988, Decedent resided in a community living home, during which timeDefendant doctors provided psychiatric treatment and prescribed psychiatric medications toDecedent. On October 4, 1995, Decedent was admitted to Frankford Hospital with possibleacute rhabdomyolysis, a serious condition characterized by muscle breakdown. While Decedentwas in Frankford Hospital, Plaintiff discovered that decedent had suffered an adverse reaction tothe psychiatric medications. Decedent remained at Frankford Hospital until November 27, 1995at which time he was transferred to Philadelphia Geriatric Center. Decedent resided at PGC untilhe was transferred to Temple University Hospital on September 9, 1997. Decedent died atTemple University Hospital on September 24, 1997 with the cause of death listed as sepsis.Plaintiff (Decedent’s sister) subsequently brought a survival action against Defendants,alleging that Defendant physicians had negligently prescribed excessive doses of psychiatricmedications to decedent. Because one of the Defendant physicians was employed by a facilityreceiving funds from the federal government, Plaintiff sued the United States under the FTCA.The other Defendant physician was sued under Pennsylvania state law. Both Defendants raised astatute of limitations defense, arguing that Plaintiff’s claims were time-barred because they werebrought more than two years after the accrual of the injury. Plaintiff responded that the“discovery rule” should apply to toll the statute of limitations because Decedent’s injury was not“discoverable” until Decedent’s death. Plaintiff argued, furthermore, that in light of Decedent’sprofound mental retardation, she (i.e. Plaintiff) should be the “reasonable person” for purposes ofdetermining when Decedent’s injury was “discoverable.” The district court granted summaryjudgment in favor of Defendants, and plaintiff appealed to the Third Circuit.On appeal, the Third Circuit, in a split panel opinion, reversed the district court’s rulingand held in favor of Plaintiff under both the FTCA and Pennsylvania law, holding thatPennsylvania’s discovery rule did, in fact, toll the statute of limitations until decedent’s deathbecause a plaintiff exercising reasonable diligence could not have discovered Decedent’s injuryuntil that time. The majority of the panel based its decision on dicta contained in the 2005Pennsylvania Supreme Court’s Fine opinion, supra, which they found required a subjective,rather than an entirely objective, evaluation of when decedent should have been able to discoverhis injury and its cause. The Court also held that in cases involving the mentally retarded, a“narrow equitable exception” to the reasonable person standard should be carved out underfederal law for purposes of determining when an injury is “discoverable” and when the two-yearstatute of limitations should be tolled.In Miller v. Ginsberg, 874 A.2d 93 (Pa. Super. Ct. 2005), Plaintiff, who was born with acongenital defect known as a double ureter, contended that her ureter was negligently cut duringan operation on 1/18/96, and that surgery to repair the cut was negligently performed on 1/21/96.Plaintiff had had many prior surgeries, resulting in scar tissue and adhesions to the bowel. TheJanuary 1996 surgeries eventually were determined to have caused her injuries of bladder refluxand loss of a kidney. She commenced suit in June 1998.92