Pa. Supreme Court to Hear Medical Liability Case with Statute of Limitations Implications

The Pennsylvania Supreme Court has agreed to hear an appeal in a medical liability case that could have implications on Pennsylvania’s statute of limitations for medical liability claims.

PAMED Supports Maintaining Integrity of Two-Year Statute of Limitations and Discovery Rule

On Nov. 6, 2017, the Pennsylvania Medical Society (PAMED)—with support from the American Medical Association (AMA)—filed an amicus brief in support of maintaining the integrity of the two-year statute of limitations and the discovery rule.

The AMA has joined the brief on its own behalf and as a representative of the Litigation Center of the American Medical Association and the State Medical Societies. The Litigation Center is a coalition among the AMA and the medical societies of each state, plus the District of Columbia, whose purpose is to represent the viewpoint of organized medicine in the courts. 

The AMA is the largest professional association of physicians, residents and medical students in the United States.  Additionally, through state and specialty medical societies and other physician groups seated in its House of Delegates, substantially all U.S. physicians, residents, and medical students are represented in the AMA's policy making process.  AMA members practice in every medical specialty area and in every state, including Pennsylvania.

PAMED thanks the AMA for its support.

In Nicolaou v. Martin et al., the plaintiff, Nancy Nicolaou, asserts that she could not have reasonably discovered that her medical providers had misdiagnosed her Lyme Disease as Multiple Sclerosis (MS) until a 2010 diagnostic test confirmed the disease. Social media posts by Mrs. Nicolaou, however, indicate otherwise.

Under Pennsylvania law, a plaintiff has two years from the date of alleged malpractice to file a medical liability claim. However, the commencement of this two-year period can be put on hold if a plaintiff, despite reasonable diligence, could not discover their injury. This exception is known as the “Discovery Rule.”

Background on the Case and Its Social Media Connection

In 2001, Mrs. Nicolaou sought medical treatment following a tick bite. Mrs. Nicolaou was experiencing maladies associated with tick bites such as a rash and numbness near the location of the bite. Over time, Mrs. Nicolaou’s symptoms expanded and worsened. Mrs. Nicolaou’s medical providers tested her for Lyme Disease four times; however, these tests all provided negative results. In 2006, Mrs. Nicolaou was diagnosed with and begun medical treatment for MS.

In July 2009, Mrs. Nicolaou sought help from Nurse Practitioner Rita Rhoads, a specialist in Lyme Disease. Nurse Rhoads told Mrs. Nicolaou that she probably had Lyme Disease and prescribed antibiotics to treat it, but a diagnostic test was needed to confirm the diagnosis. Mrs. Nicolaou did not take the diagnostic test until February of 2010. Mrs. Nicolaou had stopped purchasing medical insurance in 2005, because her insurance was not covering the cost of many of the tests ordered by her physicians, and she could thus not afford the test when it was initially recommended. On Feb. 12, 2010, the test results confirmed that Mrs. Nicolaou had Lyme Disease. The results were communicated to Mrs. Nicolaou on Feb. 13, 2010.

On Feb. 13, 2010, Mrs. Nicolaou posted on Facebook: “I had been telling everyone for years I thought it was Lyme and the doctors ignore(d) me,” to which a Facebook friend of Mrs. Nicolaou’s responded: “[Y]ou DID say you had Lyme so many times.” 

On Feb. 10, 2012, Mrs. Nicolaou filed a medical liability suit against Dr. James Martin and several other medical providers who had treated her between 2001 and 2008. The defendant medical providers filed a Motion for Summary Judgment arguing that no genuine issue of material fact existed as Mrs. Nicolaou’s claims were barred by the statute of limitations for medical liability suits. Mrs. Nicolaou countered that her two-year period to file a medical liability claim began on February 13, 2010. Until her final medical tests confirmed her Lyme Disease, Mrs. Nicolaou argued, she could not have reasonably discovered her previous medical providers’ misdiagnosis and thus had no basis for her suit.

The trial court granted the defendants’ Motion and dismissed Mrs. Nicolaou’s suit. Mrs. Nicolaou then appealed to the Superior Court, where a three-judge panel reversed the trial court’s decision. In December of 2016, after the defendants filed a motion for reargument before the entire court, the Superior Court reinstated the trial court’s decision.

The Superior Court held that Mrs. Nicolaou knew, or reasonably should have known, before Feb. 10, 2010 that her previous medical providers had misdiagnosed her Lyme Disease as MS.

To support this conclusion, the Superior Court cited evidence suggesting that Mrs. Nicolaou believed she had Lyme Disease long before her final test results confirmed it. This evidence specifically included Mrs. Nicolaou’s Facebook posts and her treatment with Nurse Rhoads. Mrs. Nicolaou’s Facebook posts, the Superior Court noted, undermined her argument that she did not believe she had Lyme Disease until her February 2010 diagnostic test.

The Superior Court further opined that, sometime during the course of her treatment with Nurse Rhoads, it was reasonable for Mrs. Nicolaou to realize her previous medical providers’ misdiagnosis.

In July of 2009, Mrs. Nicolaou sought the services of a Lyme Disease specialist, Nurse Rhoads. Between July and September of 2009, Nurse Rhoads treated Mrs. Nicolaou for Lyme Disease. Mrs. Nicolaou’s condition substantially improved because of Nurse Rhoads’ treatment. Nurse Rhoads even informed Mrs. Nicolaou that she thought Mrs. Nicolaou had Lyme Disease in July of 2009, medical testing was only needed to confirm Nurse Rhoads’ clinical diagnosis. Considering these facts, the Superior Court concluded sometime between July and September of 2009, it was reasonable for Mrs. Nicolaou to realize her misdiagnosis.

Which Issues Will the Pennsylvania Supreme Court Consider?

Following the Superior Court’s decision, Mrs. Nicolaou appealed to the Pennsylvania Supreme Court. On Aug. 18, 2017, the high Court granted Mrs. Nicolaou’s appeal. The following issues are now on appeal before the Supreme Court:

  1. Whether the Discovery Rule should apply when Mrs. Nicolaou did not, and was financially unable, to confirm misdiagnosis until final medical testing confirmed she had Lyme Disease on Feb. 13, 2010?
  2. Whether there is a genuine issue of material fact, which should be presented to a jury, as to whether the Discovery Rule should be applied?

PAMED will continue to monitor this case and share all updates with members. PAMED's Legal Resource Center provides quality, timely legal advocacy and resources for member physicians who practice in Pennsylvania, please visit www.pamedsoc.org/LegalResourceCenter for more details.

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