On Oct. 18, 2018, the Pennsylvania Supreme Court decided Nicolaou v. Martin, 195 A.3d 880 (2018), a medical malpractice case that addressed the "discovery rule," a legal doctrine that tolls the statute of limitations where the plaintiff is reasonably unaware of an injury caused by another party's conduct, see Fine v. Checcio, 870 A.2d 850, 859 (Pa. 2005). The reasonable diligence required of a plaintiff is not an absolute standard but, rather, is "what is expected from a party who has been given reason to inform himself of the facts upon which his right of recovery is premised."

In the underlying case, Nancy Nicolaou asserted medical malpractice against her treating doctors for failing to diagnose her Lyme disease, instead asserting she had multiple sclerosis. After years of treatment Nicolaou's condition did not improve. While she suspected she might have Lyme disease, financial constraints precluded her from obtaining testing needed to confirm that diagnosis. Complicating the situation was the fact that one of the treating-defendant doctors repeatedly told Nicolaou she did not have Lyme disease, while a nurse Nicolaou sought on her own accord believed that she did have Lyme disease. Upon finally being able to pay for the testing, Nicolaou's suspicions of Lyme disease were confirmed.

The initial lawsuit was filed on Feb. 10, 2012, with the assumed statute of limitations starting from the date Nicolaou received her test results. The defense filed for summary judgment arguing that Nicolaou should have known before she obtained the results she had a cause of action. Using social media postings of Nicolaou as a basis, the defense argued Nicolaou was clearly aware she could have had Lyme disease prior to the test results. The trial court granted summary judgment claiming that Nicolaou suspected, and should have known of the potential malpractice as early as 2009: "Our review of the record, in the light most favorable to the Nicolaous, the nonmoving party, compels our conclusion that Mrs. Nicolaou knew, or reasonably should have known, between July and September 2009, that her long-standing health problems may have been caused by the appellees' failure to diagnose and treat her Lyme disease and therefore, such failure could have resulted from the appellees' negligence. Because we find that reasonable minds could not differ in this conclusion, and thus, there are no genuine issues of material fact, the trial court's entry of summary judgment was proper."

The Supreme Court, however, reversed. While the Nicolaou court preserved prior jurisprudence that the standard to be applied was objective in nature (what a reasonable person in the plaintiff's position knew or should have know as opposed to the actual person), the court reinforced that factual questions are for the jury. "Courts may not view facts in a vacuum when determining whether a plaintiff has exercised the requisite diligence as a matter of law, but must consider what a reasonable person would have known had he or she been confronted with the same circumstances that Nicolaou faced at the time." Those words have subsequently resonated throughout ensuing cases.

The direct effect upon Nicolaou was reinstating her chance to prove her case in court. The Supreme Court held that her financial ability to obtain medical care and comprehend her own health situation could not be ignored by the court in applying facts to the discovery rule. From a global perspective, though, the decision sent a clear message to trial courts that when questions of fact appear it must be the jury that resolves those issues, and that the courts cannot ignore socioeconomic circumstances that impact each individual situation.

The impact of the court's holding in Nicolaou, though, is not limited to medical malpractice cases. In Engleman v. Ethicon,  – A.3d — (Pa. Super. 2019), for example, the plaintiff pursued a personal injury action against medical device manufacturers. At trial, the jury determined factual issues specifically to the application of the discovery rule, ultimately finding in the plaintiff's favor. On appeal, the Superior Court, using Nicolaou as a basis, deferred to the jury's determination of when the plaintiff reasonably knew of  the injury, refusing to upset the jury's interpretation of the facts.

The Engleman court also relied on Nicolaou in reviewing the admissibility of FDA notices, precluded by the trial court, offered to establish the plaintiff's knowledge of his injury. The Superior Court held that such notices were irrelevant as a plaintiff is not expected to self-diagnose, but "only charged with the knowledge communicated to … her by the medical professionals who provided treatment and diagnosis." The impact of Nicolaou, in part, is that a plaintiff needs to scour the internet or take affirmative investigative steps to learn of their injury, but can solely rely upon information obtained by their treating physicians as a basis for reasonable diligence, as in Carlino v. Ethicon, 208 A.3d 92, 104 (Pa. Super. 2019), reargument denied (June 12, 2019) (Superior Court held that a plaintiff obtaining competing information from various physicians raises issues of fact that require jury determination); McLaughlin v. Bayer Essure, No. 14-7316 (E.D. Pa. Mar. 27, 2019).

Nicolaou has also been cited in the context of civil cases for sexual abuse. See Rice v. Diocese of Altoona-Johnstown, 2019 PA Super 186, 212 A.3d 1055 (2019), reargument denied (Aug. 14, 2019). In Rice, a plaintiff parishioner brought action against the diocese, bishop and monsignor for fraud, constructive fraud and civil conspiracy. The trial court dismissed the case on the basis of statute of limitations. The plaintiff appealed, claiming the trial court misapplied the discovery rule, the fraudulent-concealment doctrine, and the statute of limitations for civil conspiracy. The Superior Court held that Nicolaou effectively overruled past analysis in Meehan v. Archdiocese of Philadelphia, 870 A.2d 912 (Pa. Super. 2005) and Baselice v. Franciscan Friars Assumption, 879 A.2d 270 (Pa. Super. 2005), wherein the courts ignored or discounted pro-plaintiff facts, citing to the specific language in Nicolaou that facts cannot be viewed in a vacuum. "The recent analysis of the Supreme Court in Nicoloau … abrogated Meehan, Baselice, and this court's decisions applying them, sub silentio."

Interestingly, the long-term influence of Nicolaou may not be from the body of the opinion itself, but from an ancillary comment of Justice Max Baer, who wrote the unanimous opinion. In Footnote 14 of the opinion, Baer essentially opens the door for a fundamental change in the interpretation and application of the discovery rule.

For the first time in this litigation …, Plaintiffs contend that we should transform this commonwealth's discovery rule jurisprudence by adopting this author's position in Wilson v. El-Daief, 600 Pa. 161, 964 A.2d 354, 361 (2009), which advocated that we join the majority of jurisdictions that require specific medical evidence supporting a cause of action to commence the statute of limitations … (opining that based upon our adoption of the COM [certificate of merit] requirements and to protect innocent plaintiffs who are unsuspecting of a potential malpractice claim, this court should change from an "inquiry notice" jurisdiction—which ties commencement of the limitations period to actual or constructive knowledge of at least some form of significant harm and of a factual cause linked to another's conduct, without the necessity of notice of the full extent of the injury, the fact of actual negligence, or the precise cause of injury—to a "legal injury" jurisdiction, which commences the statute of limitations when the plaintiff has actual or constructive knowledge of the cause of action associated with the harm).

Unfortunately, as the original appeal to the Superior Court was taken pro se, the Supreme Court deemed this specific argument not preserved for appeal. However, based on Baer's comment, with the right factual scenario the discovery rule could be significantly expanded to require knowledge of a legal injury, as opposed to only inquiry notice. In practical application, that change would mean that a potential plaintiff's statute of limitations would run not when an injury was learned, but when the person learned that injury had a legal foundation—akin to level of knowledge sufficient for an expert to execute a certificate of merit. Without question, such a change to the discovery rule would have massive ramifications across all forms of litigation in Pennsylvania.

Editor's note: Nathan M. Murawsky, with the assistance of Kevin McGrath became involved in the Nicolaou case after Ms. Nicoloau had appealed the matter pro se to the Superior Court, and thereafter handled the appeal, including the oral arguments at both the Superior Court en banc and Supreme Court.  As of the date of this article, the matter has been remanded to the Lehigh County Court of Common Pleas for trial in 2020.

Nathan M. Murawsky is a principal at Hamburg Rubin Mullin Maxwell & Lupin in Lansdale. He  has handled personal injury actions throughout Pennsylvania for nearly 25 years.