Statute of Limitations, Discovery Rule, Whether Patient’s Due Diligence is Factual Question that Bars Grant of Summary Judgment in Medical Malpractice Action

Nicolau v. Martin, 153 A. 3d 383 (Pa. Super. 2016) (en banc); allocatur granted Aug. 18, 2017, appeal docket 44 MAP 2017


In 2001, a tick bit Nancy Nicolaou on her left ankle. Beginning in August, 2001, she began seeking medical treatment because she was experiencing a number of maladies that she associated with the tick bite.  At first, she developed a rash near the site of the bite, experienced numbness and tingling in her left toe, fatigue, and lower back pain. Over time, these symptoms expanded to include: incontinence, total loss of bladder control; tingling and numbness throughout her body, including both legs and feet; difficulty walking; and confinement in a wheelchair.  Between 2001 and 2008 several defendant physicians treated her.  They ordered a battery of tests, including four Lyme Disease tests; none of the tests produced a positive result for Lyme Disease. After an MRI of her brain in 2006, she was diagnosed with and treated for multiple sclerosis (MS).

Mrs. Nicolau continued to suspect she had Lyme Disease and learned through internet research that a nurse practitioner, Nurse Rhoads, had a history of treating patients for Lyme Disease whom other medical professionals had previously incorrectly diagnosed as suffering from MS. Nurse Rhoads met with and treated Mrs. Nicolaou on five occasions between July 20, 2009 and February 1, 2010.  Nurse Rhoads informed Mrs. Nicolau that she suspected Lyme Disease stemming from the 2001 tick bite and prescribed antibiotics that improved her condition. Nurse Rhoads  also recommended that, in order to confirm the diagnosis of Lyme Disease, Mrs. Nicolaou should undergo a new test offered by a company called IGeneX.  Mrs. Nicolau testified she did not get the test because she was waiting to see the effect of the antibiotics and because she could not afford the test.  She took the test in February, 2010, was informed she tested positive for Lyme Disease on February 13, 2010, and on February 10, 2012 brought suit against the physicians who treated her from 2001 through 2007.

The trial court granted summary judgment on statute of limitations grounds, concluding as a matter of law that the two year statute of limitations, though tolled, ran as to claims against the defendants before February 2012.  The en banc Superior Court affirmed, concluding: “Reasonable minds would not differ that Mrs. Nicolaou should have known as early as July 2009, and could have proven at that time, that she suffered from lyme disease.” 153 A.3d at 395.

Judge Lazurus, joined by President Judge Gantman and Judge Bowes, dissented:

[H]ardship 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 persons and their capacity to meet certain situations and the circumstances confronting them at the time in question.” … 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.

153 A.3d at 396-97.

The Supreme Court granted allocatur to determine whether under the facts presented the discovery rule due diligence question involves a disputed material fact that should be decided by a jury.

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