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Wrongful Death Attorneys
Philadelphia, Pennsylvania
For Whom the Statute Tolls : When a plaintiff has been injured by the wrongful conduct of a defendant who is covered by insurance or has "deep pockets", there still remains the spectre of a statutory ogre that may deny what should have been a substantial just recovery. This bane to the existence of plaintiff's attorneys is the statute of limitations. In Pennsylvania a tort action must be commenced within two years from the time that the cause of action accrued. 42 PA C. S. §5502 (a) and §5524 (2) In Pennsylvania a cause of action accrues when the plaintiff could have first maintained the action to a successful conclusion. Thus the statute of limitations begins to run as soon as the right to institute and maintain a suit arises. Generally speaking, in a suit to recover damages for personal injuries, this right arises when the injury is inflicted. The injury is inflicted on the date of the accident or incident.
For example, in the case of a motor vehicle accident, it is the date of the accident. In the case of surgical negligence, it is the date of the surgery. So should the discriminating plaintiff's attorney show the potential plaintiff the door when the plaintiff comes to the attorney more than two years after the date of surgery? Not necessarily as our courts have carved out two exceptions that toll the statute, meaning that delay the beginning of the two-year period until sometime after the accident/incident date. These exceptions are "the discovery rule" and "the doctrine of fraudulent concealment."
On March 30, 2005, in the context of the consolidated appeals of two dental malpractice cases, Fine v. Checchio and Ward v. Rice , the Pennsylvania Supreme Court clarified "the discovery rule" and "the doctrine of fraudulent concealment". The facts of the cases are remarkably similar. Both Mr. Fine and Ms. Ward had their impacted wisdom teeth removed. Both suffered from numbness of the lip and chin after the dental procedure that eventually was determined to be a permanent condition. Both brought suit more than two years after the date of the removal of their teeth. Both had immediate numbness. Both claimed that the defendant dentists caused the injury by injuring the inferior alveolar nerve in their mouth. In both cases the defendant dentist testified that the patient was advised of being at higher risk for post-operative numbness and in both cases the plaintiff denied that such a conversation ever took place.
In the consolidated decision of Fine v. Checchio and Ward v. Rice, the Court explores the origin and development of the discovery rule. The rule has its origin in cases in which the injury or its cause was neither known nor reasonably knowable. The purpose of the rule was to exclude from the running of the statute of limitations that period of time during which a party who has not suffered an immediately ascertainable injury is reasonably unaware that he has been injured. An objective test of "reasonable diligence" on the part of the plaintiff was developed. An archetypical example is the surgical sponge that is carelessly left inside a plaintiff's body during surgery. More than two years can pass before the plaintiff has pain from the sponge becoming infected. Without the discovery rule the plaintiff would be barred from suit when there was no reasonable basis for him to know he suffered injury within the statutory period for filing suit.
Fine v. Checchio and Ward v. Rice extend the discovery rule to include a situation where the symptoms of the injury are known immediately. What needs to be discovered is that the symptoms are permanent and not a transitory condition to be expected from the surgery. The crux of the Court's decision in Fine and Ward is that the question of whether an injured party was able, by exercising reasonable diligence, to know that he had been injured and by what cause involves a factual determination for a jury. The statute of limitations is tolled until the injured party discovers or reasonably should discover that he has suffered an injury due to another party's conduct. The Court also cleared up a possible misinterpretation of wording in earlier cases where the injury was discovered or discoverable within the original two year period. It is now clear that a plaintiff always has a full two years to institute suit from the time he discovers or reasonably should discover the injury.
The Court also discussed the doctrine of fraudulent concealment which includes an unintentional deception. If for example the doctor or dentist conceals the injury or the permanency of the injury from the patient, then the theory of estoppel prevents the doctor from invoking the statute of limitations. Here again the Court explained that it is for a jury to decide whether the remarks were made. The Court ruled for the first time that reasonable diligence and not actual knowledge was the test for when the statute will commence after a fraudulent concealment.
Applying the discovery rule and fraudulent concealment to the facts in the two dental malpractice cases, the Pennsylvania Supreme Court reasoned that since the dentists claimed to have advised the plaintiffs of the injury, but the plaintiffs denied being told the numbness was anything but transitory, the cases could not be decided by Summary Judgment by the lower court. It is for the jury to decide who is telling the truth. The interesting twist here is that the patients knew they were numb right away but it was still for the jury to determine whether they knew they were injured. The outcome is anything but trivial as the Fine case involved a challenge to a half million dollar verdict. The lesson for both lawyers and clients is to examine carefully when and how the potential plaintiff learned of his injury and what the doctor was telling the patient. If the client was reasonably diligent and still could not have known of his injury for less than two years from the date he enters the lawyer's office the client may be the one for whom the statute tolls!
Copyright 2005 Eliot Hillel Lewis
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