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HomeMy WebLinkAbout01-2155 CivilMADONNA ONESKY, Plaintiff VS. DR. STEPHEN M. RYDESKY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-2155 CIVIL CIVIL ACTION - LAW MOTION OF DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY AND HESS, JJ. OPINION AND ORDER Before the court is the motion of the defendant for summary judgment which contends that the plaintiff' s complaint is barred by the statute of limitations. The procedural history of this matter is as follows. The plaintiff, Madonna Onesky, filed the original complaint in this matter on November 17, 2000, in Berks County. An amended complaint was filed in December of 2000. Preliminary objections were filed to the amended complaint challenging venue. The preliminary objections were granted on March 13, 2001, and the action was transferred to Cumberland County. Thereafter, the plaintiff filed a second amended complaint on April 11, 2001. In his answer, the defendant raised in New Matter the contention that the plaintiff' s claims were barred by the statute of limitations. The plaintiff replied to the defendant's New Matter on May 31, 2001. The motion for summary judgment sub judice was filed in March of 2003. A motion for summary judgment may be properly granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Pa.R. Civ. P. 1035(b). "The record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." Hayward v. Medical Center of Beaver 01-2155 CIVIL County, 530 Pa. 320, 324, 608 A.2d 1040, 1042 (1992) (quoting Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991)). right is clear and free from doubt. Summary judgment may be entered only in cases where the Hayward, 530 Pa. at 324, 608 A.2d at 1042. Onesky's cause of action involves alleged dental malpractice by Rydesky in regard to the replacement of Onesky's amalgam fillings. The follows facts are admitted as true in Plaintiff Madonna Onesky's Answer to Defendant's Motion for Summary Judgment: On April 23, 1998 the ceramic onlays were inserted at numbers 30 and 31 and by April 25, 1998, Onesky "began to experience severe throbbing pain and swelling in the area of the cosmetic dentistry." (Second Amended Complaint, para. 8). Due to this pain and swelling, Onesky was seen on an emergent basis on April 28, 1998 and again on May 1, 1998 by Dr. Rydesky. At the time of the May 1, 1998 appointment, Dr. Rydesky prescribed pain medication and antibiotic for Onesky's "extreme discomfort and swelling." (Plaintiff deposition at pp. 38- 43). Onesky's pain at the area of teeth numbers 30 and 31 increased again, from May 4, 1998 to her next appointment on May 18, 1998. Onesky developed a painful 1 to 1 lA cm. "white blister" on the outside of her jaw in the area of number 30 and 31, which was lanced by Dr. Rydesky to drain the pus and relieve the swelling on four separate occasions beginning on May 18 through July 25, 1998. On or about May 18, 1998, Dr. Rydesky performed the first stage of a root canal on tooth number 30. On May 22, 1998, Onesky consulted with a William E. Black, DMD, in Harrisburg for a second opinion because "she was starting to lose a little bit of trust and faith in Dr. Rydesky." (Plaintiff' s deposition at p. 85, lines 12-14). According to her deposition, Onesky was concerned that the level of care she was receiving from Dr. Rydesky was substandard. 2 01-2155 CIVIL (Plaintiff' s deposition at p. 81). Onesky also said that she thought she was experiencing an inordinate amount of pain based on the treatment she had received from Dr. Rydesky. (Plaintiff' s deposition at p. 113). Dr. Black advised Onesky that "he had never seen a root canal performed like that, that it had looked very different to what he had learned in dental school." (Plaintiff's deposition at p. 89, lines 14-16). On May 28, 1998, Dr. Rydesky completed the root canal procedure and on June 4th he placed another ceramic restoration on tooth number 30. On July 8, 1998, Onesky returned to Dr. Rydesky's office due to an increase in the swelling in the same area and was again prescribed an antibiotic. In mid July 1998, Onesky told Dr. Rydesky there is "something wrong." (Plaintiff' s deposition at p. 100). Onesky ceased her treatment with Dr. Rydesky on September 30, 1998, and subsequently began treating with a John Sorge, DDS of West Chester, PA. Onesky's first contact with Dr. Sorge's office was November 16, 1998. Onesky acknowledged that she suspected the care she was receiving from Dr. Rydesky was improper as early as April of 1998, but received actual notice that Dr. Rydesky's work was improper from Dr. Sorge and endodontist Craig Hurtt, DMD of Villanova, PA, on November 19, 1998. In a professional liability action based on negligence the statute of limitations is two years from the date of"injuries to the person." 42 Pa.C.S.A. Section 5524. The discovery rule is an exception to this rule and its application tolls the running of the statute of limitations. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 325, 608 A.2d 1040, 1043 (1992). "The discovery rule provides that where the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed statutory period, the limitations period does not begin to run until the discovery of the injury is 3 01-2155 CIVIL reasonably possible." Id., quoting, Schaffer v. Larzelere, 410 Pa. 402, 406, 189 A.2d 267, 270 (1963). Under the discovery rule the statute of limitations is triggered when the Plaintiff knows or reasonably should know that: (1) she has been injured; and (2) her injury has been caused by the conduct of another. Levenson v. Souser, 557 A.2d 1081 (Pa. Super. 1989), Cathccart v. Keene Industrial Insulation, 471 A.2d 493 (Pa. Super. 1984). Pennsylvania has not adopted a per se "continuous treatment rule," tolling the statute of limitations in a malpractice case until the end of treatment by the defendant. Haggart v. Cho, 703 A.2d 522, 526 - 527 (1997), See Greenberg v. McCabe, 453 F.Supp. 765, 772 (1978), affirmed, 594 F.2d 854 (3d Cir. 1979), cert. denied, 444 U.S. 840, 100 S.Ct. 79, 62 L.Ed.2d 51 (1979). Rather, the courts of this Commonwealth simply apply the discovery rule to determine the date when a patient could reasonably be expected to know of his injury. Haggart, 703 A.2d at 527. In Walters v. Ditzler, 424 Pa. 445,227 A.2d 833 (1967), the Supreme Court stated: Presently pertinent are certain well settled legal principles: (a) mere mistake, misunderstanding or lack of knowledge do not toll the running of the statute of limitations; (b) if, through fraud, deception or concealment of facts, [a defendant] lulls an injured person or his representatives into a sense of security so that such person's vigilance is relaxed, then [the defendant] is estopped from evoking the statute; (c) the fraud which will toll the statute and effect and estoppel need not be fraud in the strictest sense, i.e., inclusive of an intent to deceive, but may be fraud in the broadest sense, i.e., inclusive of an unintentional deception. Walters_, 227 A.2d at 835. In the motion before this Court, the parties are in dispute over the date the plaintiff discovered the injury. Dr. Rydesky argues that the two year time period began to run as early as April 25, 1998, when Onesky became aware that her "severe throbbing pain and swelling" was the result of Dr. Rydesky's dental procedures. (Defendant's Motion for Summary Judgment, 4 01-2155 CIVIL para. 30). Dr. Rydesky also argues that the latest the statute of limitations should begin to run is on May 22, 1998, when Onesky obtained a second opinion from Dr. William Black regarding the problems she was having with Dr. Rydesky's restoration procedures. (Defendant's Motion for Summary Judgment, para. 31). During that visit, Dr. Black advised Onesky that "he had never seen a root canal performed like that, and that it had looked very different to what he had learned in dental school." (Plaintiff's deposition at p. 89, lines 14-16). Therefore, Dr. Rydesky argues that because Onesky's cause of action should have been commenced by no later than May 22, 2000, her November 17, 2000 filing failed to properly toll the applicable statute of limitations. (Defendant's Motion for Summary Judgment, para. 34). Onesky argues that although she did obtain a second opinion from Dr. Black, Dr. Black did not inform her that Dr. Rydesky's conduct was responsible for her injury (Plaintiff' s Answer to Defendant's Motion for Summary Judgment, para. 31). During the visit, Dr. Black never mentioned to Onesky that Dr. Rydesky' s procedure was wrong, he just stated that "he had never seen a root canal performed like that, and that it looked very different to what he had learned in dental school." (Plaintiff' s deposition p. 89). Onesky claims that she learned her injury was caused by Dr. Rydesky's conduct on November 19, 1998 when the x-rays taken by Dr. Sorge reveled that the root canal performed by Dr. Rydesky was done incorrectly. (Plaintiff' s Brief, 2). Therefore, Onesky argues that the filing of the complaint on November 17, 2000, was within the statute of limitation. Only where the facts are so clear that reasonable minds cannot differ may the commencement of the limitations period be determined as a matter of law. Hayward v. Medical Center of Beaver County, 530 Pa. at 325, 608 A.2d at 1040. In Hayward, appellant experienced shortness of breath immediately following surgery for a malignant tumor that was misdiagnosed. 5 01-2155 CIVIL The Supreme Court of Pennsylvania held that the material issue of fact as to when patient's injury was reasonably ascertainable precluded summary judgment based on statute of limitations. Id. The Hayward Court determined: A jury could very well find that appellant reasonably should have investigated the need for the surgery at the time that he was informed of the misdiagnosis, and thereby, have discovered the alleged malpractice. A jury, however, could just as well find the appellant acted reasonably in not investigating further and in being satisfied by appellee Cuddy's assurances that the surgery was indeed necessary. Because reasonable minds could differ as to when appellant's injury was reasonably ascertainable, a jury question is presented, and therefore, summary judgment is not appropriate. Id. at 326. Similarly, in this case, reasonable minds could differ as to when Onesky's injury was reasonably ascertainable. In other words, the plaintiff has placed on the record sufficient evidence to present a genuine issue of material fact as to when she knew or should have known that she had been injured and that her injury had been caused by Dr. Rydesky's conduct. The defendant also raises the issue of whether the plaintiff may avail herself of the discovery rule where the rule has not been specifically pled. According to Prevish v. Northwest Medical Center, 692 A.2d 192 (Pa. Super. 1997), a plaintiff who wishes to assert the discovery rule may do so in one of two ways: (1) by pleading in the complaint sufficient facts to sustain application of the rule; or (2) by waiting until the defendant asserts a statute of limitations defense in new matter and then raising the discovery rule in a responsive pleading. Id~. at 197, citing Fox v. Byrne, 363 Pa. Super. 70, 525 A.2d 428 (1987). The Reply to New Matter in the case does not mention the discovery rule and, to that extent, is inartfully drawn. The Second Amended Complaint, itself, however, pleads sufficient facts to sustain application of the "discovery" rule. Throughout the complaint, Onesky does mention that she underwent "severe, 6 01-2155 CIVIL throbbing pain and swelling in the area of the cosmetic dentistry" during her time with Dr. Rydesky. (Plaintiff' s Second Amended Complaint, para. 9, 20, 27, 29) As far as discovering any injury is concerned, Onesky writes in the Second Amended Complaint: 30. Dr. Sorge took periapical x-rays of Ms. Onesky that plainly revealed two problems, specifically, the root canal fill performed by Dr. Rydesky on tooth #30 was short of the required length to be acceptable and the restoration work done by Dr. Rydesky on tooth #31 was not correctly sealed. 31. Dr. Sorge, because of the intense pain Ms. Onesky was suffering, immediately referred her to Dr. Hurtt, a root canal specialist, who in addition to the above findings, also found a perforation involving tooth #30, caused by incorrectly performed root canal surgery, attributable to Dr. Rydesky. We will give the plaintiff the benefit of the doubt on the issue of pleading the discovery rule and conclude that the foregoing paragraphs are sufficient to sustain the rule's application. ORDER AND NOW, this day of June, 2003, the motion of the defendant for summary judgment is DENIED. BY THE COURT, Kevin A. Hess, J. James J. Woodworth, Esquire For the Plaintiff Thomas R. Miller, Esquire For the Defendant :rlm 7 MADONNA ONESKY, Plaintiff VS. DR. STEPHEN M. RYDESKY, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-2155 CIVIL CIVIL ACTION - LAW IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY AND HESS, JJ. ORDER AND NOW, this 18th day of June, 2003, the motion of the defendant for summary judgment is DENIED. BY THE COURT, James J. Woodworth, Esquire For the Plaintiff Thomas R. Miller, Esquire For the Defendant Kevin A. Hess, J. :rlm