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Statute of Limitations – Discovery Rule.

August 18th, 2017

The Pennsylvania Supreme Court granted Appellant’s Petition for Allowance of Appeal In Nicolaou v. Martin, (August 18, 2017), on the issue of the discovery rule.  In an en banc decision, the Pennsylvania Superior Court dismissed Appellant’s medical malpractice claim based on the two year statute of limitations.    The Superior Court’s opinion may be found at 153 A.2d 383, (Dec. 22, 2016), and was written by Shogan, J.  Ford Elliott, P.J.E., Bender, P.J.E., Panella, Olson, and Ott, JJ. Joined.  Lazarus dissented and filed an opinion in which Gantman, P.J.,and Bowes, J. joined.

In 2001, Nancy Nicolaou was bitten by a tick.  Mrs. Nicolaou then began treating for a number of maladies that she associated with the tick bite. Over the years, four separate doctors ordered a number of tests, including four Lyme Disease tests, none of which were positive for lyme Disease.  An MRI of Mrs. Nicolaou’s brain suggested that she could be suffering from either Multiple Sclerosis (MS) of Lyme Disease.  Her doctors did not believe that she had Lyme Disease, however, and treated her for MS.  In 2007, Mrs. Nicolaou suspected that she was not suffering from MS but rather Lyme Disease due to symptoms surrounding her tick bite in 2001.  Mrs. Nicolaou then began treating with a nurse practitioner that she found on the internet who had a history of treating patients with Lyme Disease who had not been properly diagnosed.  The nurse practitioner performed a number of tests beginning in 2009, in which she recorded an assessment of probably Lyme Disease, and told Mrs. Nicolaou that she believed that shewas probably suffering from Lyme Disease.  The nurse practitioner recommended an additional test to confirm Lyme Disease, but Mrs. Nicolaou advised that she could not afford the test.  The nurse practitioner had the test done anyway, and on February 13, 2010, Mrs. Nicolaou was informed that the test was positive for Lyme Disease.  Mrs. Nicolaou posted a message on facebook that day indicating that she had suspected well before the positive test result that she had been suffering from Lyme Disease, but that the doctors had all ignored her.

Mrs. Nicolaou filed suit on February 10, 2012.  Defendants filed motions for summary judgment based on the statute of limitations, but Mrs. Nicolaou argued that she had been unable, through reasonable diligence to discover the cause of her condition until February 13, 2010.  The basis for Mrs. Nicolaou’s argument was that despite what she might have suspected, she had no basis for a medical malpractice action until she obtained confirmation by way of the positive test result on February 13, 2010.  The trial court granted Defendants’ Motions for Summary, and the Superior Court affirmed.  The Pennsylvania Supreme Court will ultimately decide the issue.

Truly cannot recommend Freeburn Law enough, especially Attorney Jon Schnarrs! He and his legal assistant, Ashley, were top notch with every step of my case. My questions were always answered promptly. My fears and anxiety were handled with the utmost level of respect and empathy. My workers comp case ending in our favor is just another accolade to add to my praises towards Attorney Schnarrs!