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Home My WebLink About00-179 CivilLINDA DICKINSON and DONALD DICKINSON, Husband and Wife, Plaintiffs Vo DAVID B. EVANS, M.D., BELVEDERE MEDICAL CORPORATION, BELVEDERE: MEDICAL CENTER, INC., ROBERT F. HALL, II, M.D., CARLISLE IMAGING ASSOCIATES, P.C., CARLISLE: HOSPITAL AND HEALTH SERVICES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 00-179 CIVIL TERM IN RE: MOTION FOR PARTIAL SUMMARY JUDGMENT OF DEFENDANTS DAVID B. EVANS, M.D., and BELVEDERE MEDICAL CORPORATION BEFORE HOFFER, P.J., HESS and OLER, JJ. OPINION and ORDER OF COURT OLER, J., May 23, 2003. In this civil action, Plaintiffs have sued various healthcare providers, including Defendants David B. Evans, M.D., and Belvedere Medical Corporation (hereinafter Defendants),~ for professional negligence arising out of an alleged failure to timely diagnose and treat Plaintiff Linda Dickinson's breast cancer. Plaintiffs also allege that Defendants failed to provide proper gynecological care to Ms. Dickinson in connection with a prior surgery which resulted in scar tissue remaining in the vaginal area and making intercourse painful. ~ A second ;;Belvedere Defendant," Belvedere Medical Center, Inc., is not represented of record, and according to Defendants' answer to Plaintiffs' complaint has been nonexistent since 1989. Defendants' answer with new matter to Plaintiffs' complaint, para. 3-4. The prior surgery occurred on December 31, 1996. Although Ms. Dickinson concededly perceived the pain within several weeks after surgery, she claims that she received numerous assurances from Defendants that nothing was wrong. Due in part to such assurances, according to her, she did not elicit a second opinion as to her condition until August 5, 1998. Plaintiffs' action herein was commenced on January 12, 2000. For disposition at this time is a motion filed by Defendants for partial summary judgment, based upon the statute of limitations, with respect to the aspect of Plaintiffs' claim relating to the 1996 surgery. STATEMENT OF FACTS In the context of a motion for summary judgment, the record includes pleadings, depositions, answers to interrogatories, affidavits, admissions, and expert reports) In the present case, the pertinent record consists of Plaintiffs' complaint, Defendants' answer with new matter to Plaintiffs' complaint, Plaintiffs' reply to Defendant's new matter, an affidavit of Plaintiff Linda Dickinson, deposition testimony of both Plaintiffs and Defendant Evans, Defendants' motion for partial summary judgment, Plaintiffs' answer to Defendants' motion for partial summary judgment, and Plaintiffs' supplemental answer to Defendants' motion for partial summary judgment. On a motion for summary judgment, the record "must be viewed in the light most favorable to the non-moving party .... ,,3 Viewed in this light, the relevant facts in this case may be summarized as follows: On December 31, 1996, Plaintiff Linda Dickinson underwent a hysterectomy, oophorectomies, and a paravaginal repair performed by Defendant Evans,4 an employee of Defendant Belvedere Medical Corporation.5 Following the surgery, Defendant Evans Pa. R.C.P. 1035.1 Dean v. Commonwealth of Pennsylvania, Department of Transloortation, 561 Pa. 503, 507, 751 A.2d 130, 1132 (2000). Plaintiff's complaint, para. 36(n); Defendants' answer with new matter to Plaintiffs' complaint, para. 56(a); Plaintiffs' reply to Defendants' new matter, para. 56(a); Deposition of Dr. David B. Evans, at 108. Plaintiffs' complaint, para.6; Defendants' answer with new matter to Plaintiffs' complaint, para. 6. 2 instructed Ms. Dickinson to refrain from intercourse for six weeks.6 When she resumed intercourse, according to Ms. Dickinson, she became aware that the opening to her vagina was tighter than it had been before the surgery and that intercourse was extremely painful.7 According to Ms. Dickinson, "[d]espite my complaints of tightness and pain, Dr. Evans repeatedly assured me during follow-up visits that everything was fine. He told me that there was 'good closure' and that he could not detect any problems.8 Ms. Dickinson testified that stretching procedures were recommended by Defendant Evans.9 When the problem refused to resolve itself under Defendant Evans' care, according to Ms. Dickinson, l° she solicited a referral to another gynecologist~ at Hershey Medical Center.~2 On August 5, 1998, that gynecologist examined her and she learned from him for the first time that her problem was the result of scar tissue from the surgery The second gynecologist performed this procedure, which should have been removed.~3 with a successful result.TM DISCUSSION Statement of Law Summary Judgment. Under Pennsylvania Rule of Civil Procedure 1035.2, it is provided as follows with respect to summary judgment: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or part as a matter of law: Defendants' motion for partial summary judgment, para. 6; Plaintiffs' answer to Defendants' motion for summary judgment, para. 6. Deposition of Linda Dickinson, at 290, 391. Affidavit of Linda Dickinson, para. 2. Deposition of Linda Dickinson, at 393-95. l0 Deposition of Linda Dickinson, at 394-95. ~ Deposition of Linda Dickinson, at 295. ~2 Deposition of Linda Dickinson, at 290-91. ~s Affidavit of Linda Dickinson, para. 4; Deposition of Linda Dickinson, at 290-93. 14 Deposition of Linda Dickinson, at 293-95. 3 (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will not bear the burden of proof at a trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issue to be submitted to a jury. When considering whether summary judgment is proper, a court must examine the record in the light most favorable to the non-moving party, with all doubts resolved against the moving party. Demmler v. SmithKline Becham Corp., 448 Pa. Super. 425, 430, 671 A.2d 1151, 1153 (1996) (citingDenlinger, Inc. v. Dendler, 415 Pa. Super. 164, 170, 608 A.2d 1061, 1064 (1992)). Statute of Limitations. Under 42 Pa. C.S.A. §5524, it is provided as follows with respect to the statute of limitations for personal injury claims based on negligence: The following actions and proceedings must be commenced within two years:... (2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another. Discovery Rule. Under a form of the "Discovery Rule" originally articulated in Ca&cart v. Keene Indus. Insulation, 324 Pa. Super. 123, 136-37, 471 A.2d 493, 500 (1984), the statute of limitations begins to run when the plaintiff knows, or reasonably should know: (1) that he or she has been injured, and (2) that his or her injury has been caused by another's conduct. See MacCain v. Montgomery Hospital, 396 Pa. Super. 415, 491-20, 578 A.2d 970, 972-73 (1990). Burden of Proof Where the statute of limitations is at issue, the burden of proof rests upon the plaintiff to demonstrate that the cause of action is not barred by the passage of time and that his or her failure to file the action in a timely fashion is excusable. See Corbett v. Weisband, 380 Pa. Super. 292, 309-10, 551 A.2d 1059, 1068 (1988). 4 Application of Law to Facts An application of the principles of law recited above to the facts of the present case does not support Defendants' position that Plaintiffs' claim arising out of the surgery on December 31, 1996, must be deemed barred by the statute of limitations. Specifically, Plaintiffs have placed on the record sufficient evidence to present a genuine isue of material fact as to whether the present action was commenced within two years of when Ms. Dickinson knew, or should have known, that she had been injured and that her injury had been caused by Defendants' conduct. For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 23rd day of May, 2003, upon consideration of the motion for partial summary judgment filed on behalf of Defendants David B. Evans, M.D., and Belvedere Medical Corporation, and for the reasons stated in the accompanying opinion, the motion is denied. BY THE COURT, Jeffrey M. Kornblau, Esq. Lynn Sare Kornblau, Esq. Gary Solomon, Esq. 610 Harper Avenue Jenkintown, PA 19046 Attorneys for Plaintiffs s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 5 Lauralee B. Baker, Esq. P.O. Box 932 Harrisburg, PA 17108-0932 Attorney for Defendants David B. Evans, M.D., and Belvedere Medical Corporation Leigh A.J. Ellis, Esq. 1800 Linglestown Road Suite 305 Harrisburg, PA 17110 Attorney for Defendants Robert F. Hall, II, M.D., and Carlisle Imaging Associates, P.C. Katherine B. Kravitz, Esq. 126 East King Street Lancaster, PA 19602-2893 Attorney for Defendant Carlisle Hospital and Health Services ~rc 6 7 LINDA DICKINSON and DONALD DICKINSON, Husband and Wife, Plaintiffs Vo DAVID B. EVANS, M.D., BELVEDERE MEDICAL CORPORATION, BELVEDERE: MEDICAL CENTER, INC., ROBERT F. HALL, II, M.D., CARLISLE IMAGING ASSOCIATES, P.C., CARLISLE: HOSPITAL AND HEALTH SERVICES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 00-179 CIVIL TERM IN RE: MOTION FOR PARTIAL SUMMARY JUDGMENT OF DEFENDANTS DAVID B. EVANS, M.D., and BELVEDERE MEDICAL CORPORATION BEFORE HOFFER, P.J., HESS and OLER, JJ. ORDER OF COURT AND NOW, this 23rd day of May, 2003, upon consideration of the motion for partial summary judgment filed on behalf of Defendants David B. Evans, M.D., and Belvedere Medical Corporation, and for the reasons stated in the accompanying opinion, the motion is denied. BY THE COURT, J. Wesley Oler, Jr., J. 9 Jeffrey M. Komblau, Esq. Lynn Sare Komblau, Esq. Gary Solomon, Esq. 610 Harper Avenue Jenkintown, PA 19046 Attorneys for Plaintiffs Lauralee B. Baker, Esq. P.O. Box 932 Harrisburg, PA 17108-0932 Attorney for Defendants David B. Evans, M.D., and Belvedere Medical Corporation Leigh A.J. Ellis, Esq. 1800 Linglestown Road Suite 305 Harrisburg, PA 17110 Attorney for Defendants Robert F. Hall, II, M.D., and Carlisle Imaging Associates, P.C. Katherine B. Kravitz, Esq. 126 East King Street Lancaster, PA 19602-2893 Attorney for Defendant Carlisle Hospital and Health Services ~rc