Defense Digest

Pennsylvania Discovery Rule: Alive and Kickin'

The Pennsylvania SuperiorCourt was recently faced with the issue of whether the discovery rule applies where a plaintiff discovers an injury within the original statute of limitations but does not file suit until after it expired. Prior to the decision in Caro v. Glah, 2004 Pa. Super. 490 (Pa. Super. 2005), the Pennsylvania Supreme Court was evenly divided on the issue, but the Superior Court found that the reasoning and analysis in support of applying the discovery rule more persuasive.

In the case, the plaintiff underwent knee surgery by the defendant doctor on May 6, 1998. She continued to experience pain, which the defendant said would pass. On July 14, 1999, the plaintiff sought a second opinion due to the continuing knee pain. That doctor also said the pain would pass. Finally, on September 14, 1999, the plaintiff sought a third opinion due to the continuing knee pain. That doctor advised her that she had a fractured knee due to the surgery by the defendant and that she would need revision surgery to correct it. She filed her writ of summons against the defendant on September 13, 2001.

At the trial level, the defendant raised the two-year statute of limitations in his answer and new matter. Eventually, he filed a summary judgment motion on the same grounds. The plaintiff's argument in response was that she did not discover her injury until September 14, 1999; therefore, her action was timely filed within two years. The trial court disagreed, granted summary judgment, and dismissed the case.

On appeal to the Superior Court, the plaintiff successfully argued that the discovery rule should apply to exclude the period of time during which she was unaware of her injuries. The Superior Court reversed the trial court and remanded the case to the trial level.

In reaching its decision, the Superior Court reiterated that the statute of limitations begins to run as soon as the right to institute and maintain the suit arises; lack of knowledge does not toll the running of the statute of limitations, even if a person does not discover his injury until it is too late. However, the discovery rule acts as an exception to this general rule and arises from the "inability" of the injured, "despite the exercise of due diligence," to know of the injury or its cause.

In examining "due diligence," the Superior Court determined that a plaintiff's actions must be evaluated to determine whether he exhibited "those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others." In other words, a party is not under an absolute duty to discover the cause of his injury. Instead, he must exercise only the level of diligence that a reasonable man would employ under the facts and circumstances presented in a particular case.

In this case, the court found that the plaintiff did not become aware of her injury and who caused it until September 14, 1999. She diligently sought a second, then a third, medical opinion to determine the cause of her knee pain. Despite the fact that she discovered the alleged negligence seven months prior to the expiration of the statute of limitations, the discovery rule applied to toll the statute of limitations. Accordingly, it was not until her third consult on September 14, 1999, that the statute of limitations began to run. The fact that she appeared to have lost confidence in her doctor was, without more, insufficient to trigger the running of the statute of limitations. The plaintiff did not learn of her injury or its cause until the September 14, 1999, consult; therefore, the September 13, 2001, writ was timely filed.

Bottom line: It appears that as long as a plaintiff isn't sitting around doing nothing, the statute of limitations will be tolled.

*Maureen is a shareholder in our Scranton, PA office. She can be reached at (570) 496-4614 or mkelly@mdwcg.com.