J-E02001-16

                             2016 PA Super 300

NANCY NICOLAOU AND NICHOLAS                  IN THE SUPERIOR COURT OF
NICOLAOU                                           PENNSYLVANIA

                         Appellant

                    v.

JAMES J. MARTIN, M.D., AND LOUISE A.
DILLONSYNDER, CRNP, JEFFREY D.
GOULD, M.D., ST. LUKE’S HOSPITAL, ST
LUKE’S HOSPITAL AND HEALTH
NETWORK, ST LUKE’S HOSPITAL UNION
STATION MEDICAL SURGICAL CLINIC
D/B/A ST. LUKE’S SOUTHSIDE MEDICAL
CENTER, ST. LUKE’S ORTHOPAEDIC
SURGICAL GROUP, AND NAZARETH
FAMILY PRACTICE

                         Appellee                 No. 1286 EDA 2014


              Appeal from the Order Entered February 24, 2014
               In the Court of Common Pleas of Lehigh County
                     Civil Division at No(s): 2012-C-0518


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E.,
        BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J.,
        and OTT, J.

DISSENTING OPINION BY LAZARUS, J.:           FILED DECEMBER 22, 2016

     I respectfully dissent.    In my view, the majority has improperly

assumed the role of the fact-finder in determining whether the Nicolaous

were reasonably diligent in determining that Appellees had caused Mrs.

Nicolaou injury by failing to diagnose and treat her with Lyme disease

between 2001 and 2008.

     As the majority correctly states,
J-E02001-16


      [t]he discovery rule applies to toll the statute of limitations in
      any case in which a party is reasonably unaware of his or her
      injury at the time his or her cause of action accrued. . . . Only
      where the facts are so clear that reasonable minds could not
      differ may a court determine as a matter of law at the summary
      judgment stage, the point at which a party should have been
      reasonably aware of his or her injury and its cause and thereby
      fix the commencement date of the limitations period.

Fine v. Checcio 870 A.2d 850, 859. The foregoing requires a determination

of whether “the plaintiff was able, through the exercise of reasonable

diligence, to know that he or she had been injured and by what cause. . . .

[This] is not an absolute standard.”   Gleason v. Borough of Moosic, 15

A.3d 479, 485 (Pa. 2011).

      Here, the trial court found that the negligence Mrs. Nicolaou

complained of occurred between 2001 and 2008; the discovery rule applied

for a period of time thereafter. The court did not make a precise ruling as to

the length of time the discovery rule applied, but found that “a reasonable

person would have had reason to suspect injuries might have been caused

by medical treatment rendered by [Appellees] . . . on or about July 20,

2009[.]”   Trial Court Opinion, 2/24/14, at 12.    Regardless of the specific

date the discovery rule ceased to apply, the court determined that the filing

of the complaint on February 10, 2012, was untimely because “the evidence

supports the conclusion that the commencement of the statute of limitations

period began prior to February 10, 2010[.]” Id. at 9.

      In coming to its conclusion that the statute of limitations period began

to run prior to February 10, 2010, the trial court found that reasonable



                                    -2-
J-E02001-16



minds could not differ that with reasonable diligence, the Nicolaous would

have determined prior to that date that Mrs. Nicolaou had been injured by

not being diagnosed and properly treated for Lyme disease. Accordingly, the

crux of this appeal is whether the Nicolaous were not “reasonably diligent”

as a matter of law. Gleason, supra at 486 (citing Cochran v. GAF Corp.,

666 A.2d 245, 248 (Pa. 1995)). In reviewing the court’s decision, we must

consider the facts in the light most favorable to the Nicolaous as the non-

moving party. Fine, supra at 857.

      Instantly, it is not disputed that Mrs. Nicolaou suspected she had Lyme

disease in July 2009, when she began treatment with Nurse Practitioner Rita

Rhoads. Nurse Rhoads acknowledged that Mrs. Nicolaou turned down a fifth

Lyme disease test at the beginning of treatment, at least in part because she

was not in a position to pay for the test.     See Deposition of Rita Rhoads,

11/1/13, at 29 (Mrs. Nicolaou “did not have the money for [the test] at that

point” and she “just didn’t have the money for anything.”) In my opinion,

hardship regarding paying for a fifth test when first suggested, along with

four previous negative tests and Mrs. Nicolaou’s stated intention to

determine whether the antibiotics Nurse Rhoads had prescribed would work,

combine to create a jury question as to whether the Nicolaous were

reasonably diligent in determining the suspected injury actually had been

suffered.

      I emphasize that although “reasonable diligence is an objective test,

[i]t is sufficiently flexible . . . to take into account the difference[s] between

                                      -3-
J-E02001-16



persons and their capacity to meet certain situations and the circumstances

confronting them at the time in question.”       Id. at 870 (citation and

quotation marks omitted).   Accordingly, viewing the foregoing facts in the

light most favorable to the Nicolaous, I would reverse and remand the

matter to the trial court to permit the fact-finder to determine whether the

statute of limitations should have remained tolled until February 13, 2010,

the date Mrs. Nicolaou received positive Lyme disease results, thereby

making the Nicolaous’ complaint timely.

     President Judge Gantman and Judge Bowes join in this Dissenting

Opinion.




                                   -4-
