Justices Eye Evidence for Discovery Rule to Kick In, Beginning Limitations Period in Misdiagnosis Case
The Pennsylvania Supreme Court heard arguments Thursday in Nicolaou v. Martin, which involves a woman seeking to sue a doctor who allegedly misdiagnosed her Lyme disease as multiple sclerosis.
May 18, 2018 at 01:45 PM
4 minute read
Photo: Shutterstock
What is adequate confirmation of a patient's alleged misdiagnosis that would start the clock on the period for suing a doctor?
That was the question at issue during the Pennsylvania Supreme Court's argument Thursday in Nicolaou v. Martin, which involves a woman seeking to sue a doctor who allegedly misdiagnosed her Lyme disease as multiple sclerosis.
According to Nancy Nicolaou's lawyer, Nathan Murawsky of Hamburg, Rubin, Mullin, Maxwell & Lupin, there are several disputed factors, including her doctor holding fast to his diagnosis of multiple sclerosis and his client's inability to pay for a diagnostic test, and therefore the issue needs to go before a jury. His client's case was tossed out on summary judgement.
Murawsky told the justices that both the trial court and the en banc Superior Court panel, which each agreed that the case needed to be tossed due to the statute of limitations, had displayed a “deliberate ignorance” of the facts,” and “never engaged in a discussion” about what could have delayed Nicolaou in discovering she suffered from Lyme disease rather than multiple sclerosis.
Last year, a split Superior Court panel determined that numerous pieces of evidence, including Facebook posts made soon after her multiple sclerosis diagnosis, indicated she suspected she had Lyme disease more than two years before the statute of limitations allowing her to sue over the diagnosis expired.
Although the Superior Court's ruling affirmed a decision from the Lehigh County Court of Common Pleas that tossed the case on summary judgment, it also marked the reversal of a three-judge panel of the Superior Court, which had called for the statute of limitations issue to be resolved by a jury.
Nicolaou argued that, while she may have suspected Lyme disease, she did not believe she suffered from it and was only able to confirm she had the disease after a specific test in 2010. However, Superior Court Judge Jacqueline O. Shogan, writing for the Superior Court majority, cited two Facebook posts in the court records that the intermediate appeals court found undercut that argument.
“As underscored by the trial court, on Feb. 14, 2010, Mrs. Nicolaou posted, 'I had been telling everyone for years i thought it was lyme…,' to which one of her Facebook friends responded, '[Y]ou DID say you had Lyme so many times!'” Shogan said. “Mrs. Nicolaou's Facebook post, indeed her own words, bear on the fallacy of her claim on appeal that 'she didn't believe it.'”
Nicolaou filed her suit in Feb. 10, 2012, nearly two years after her Facebook post indicated she suspected she had Lyme disease sooner.
During arguments Thursday, Murawsky said the court ignored disputed facts, and that the Facebook posts have yet to be authenticated. He further contended that the court never delved into the impacts of having Nicolaou's doctor continue to deny that she suffered from Lyme disease, and the fact that only a nurse practitioner confirmed her Lyme disease diagnosis.
Nurses, he noted, cannot supply certificates of merit, which are needed for a plaintiff to bring a medical malpractice claim.
Mark Zolfaghari, chief medical litigation officer at St. Luke's University Health Network, who represented defendant Dr. James Martin before the justices, agreed that some facts may be disputed. However, he said reasonable minds could not differ from the fact that Nicolaou brought her suit outside the statute of limitations.
“There are always issues of fact, but the question is whether reasonable minds could differ,” Zolfaghari said.
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