2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

A first trial resulted in judgment in favor of Defendant-urologist, but that was reversed.A second trial resulted in a hung jury. Before the third trial, the parties entered into a high/lowsettlement agreement. The jury determined that the statute of limitations did not bar the claimsince Plaintiff did not know or have reason to know that she had suffered injury caused by theJanuary 1996 surgeries more than two years before she filed suit. The jury awarded Plaintiff anamount well in excess of the high in the agreement. The trial court denied the urologist’s posttrialmotions and reduced the recovery to the agreed upon high. Both parties appealed.The Superior Court ruled that the high/low agreement was unambiguous and properlyenforced. With respect to the urologist’s claim that the statute of limitations barred the claim andthe jury instruction and decision were improper, the court disagreed. The court noted that in allthree trials, the trial courts had determined that the discovery rule was applicable due to thenature of Plaintiff’s injuries and was a question of fact for the jury. While Plaintiff may haveknown her ureter was cut at the time of the January 1996 surgeries, a jury could conclude that itwas not until she began treatment with a new doctor in August of 1996 that she became awareher injuries were related to these surgeries. This was particularly true since Plaintiff testified thatthe Defendant told her that her problems were not related to his treatment. The Superior Courtheld that there was no clear error of law, that the trial court had not abused its discretion in itsjury instruction on the statute of limitations, and that the statute of limitations did not bar theclaim.In Devine v. Hutt, 863 A.2d 1160 (Pa. Super. Ct. 2004), the Superior Court affirmed thetrial court’s grant of summary judgment in favor of Defendant physician because Plaintiffs’ didnot reply to new matter, which had asserted the affirmative defense of the statute of limitations.Plaintiffs thereby waived their claimed defenses of estoppel, agreement, agency and/or apparentauthority.Plaintiffs had filed their medical malpractice complaint about two weeks before thestatute of limitations expired, but did not have the complaint served on Defendant. A few daysafter the complaint was filed, a claims adjuster for the doctor’s insurer acknowledged receipt ofthe complaint and was given a ninety day extension to file an answer. He was not an attorneyand did not accept service on the doctor’s behalf. He later did provide Plaintiffs with the nameof an attorney for Defendant. About seven months after the complaint was filed, counsel forDefendant accepted service for the doctor but expressly reserved the right to assert theaffirmative defense of the statute of limitations.After preliminary objections were resolved, Defendant did file an answer including anotice to plead and asserting a factually detailed defense regarding expiration of the statute oflimitations. Plaintiffs did not reply to the new matter. Several months later Defendant filed amotion for summary judgment on the basis of the statute of limitations. Plaintiffs filed noresponse until seven months after this motion was filed. Defendant objected to the response asuntimely filed. The trial court granted the motion.On appeal, Plaintiffs raised several substantive arguments as to why their claim shouldnot be barred by the statute of limitations. The Superior Court found that Plaintiffs had waivedany defense to the application of the statute by failing to respond to Defendant’s new matter.The Court further found that Plaintiffs had waived their substantive arguments on appeal because93