J-E02001-16

                             2016 PA Super 300



NANCY NICOLAOU AND NICHOLAS                    IN THE SUPERIOR COURT OF
NICOLAOU,                                            PENNSYLVANIA

                         Appellants

                    v.

JAMES J. MARTIN, M.D., 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,

                         Appellees                 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,
        PANELLA, SHOGAN, LAZARUS, OLSON, and OTT, JJ.

OPINION BY SHOGAN, J.:                         FILED DECEMBER 22, 2016

     Appellants, Nancy and Nicholas Nicolaou (“the Nicolaous”), appeal

from the February 24, 2014 order granting summary judgment in this

medical malpractice action in favor of Appellees, James J. Martin, M.D.;

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.
J-E02001-16


Luke’s Southside Medical Center; St. Luke’s Orthopaedic Surgical Group; and

Nazareth Family Practice. For the following reasons, we affirm.

       The trial court summarized the factual and initial procedural history of

this case as follows:

             The facts of the case provide that sometime in 2001,
       Nancy Nicolaou was bitten by a tick on her left ankle. Beginning
       in August, 2001, Mrs. Nicolaou began seeking medical treatment
       because she was experiencing a number of maladies that she
       associated with the tick bite. At first, Mrs. Nicolaou developed a
       rash near the sight [sic] of the bite and 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.

             Each of the [Appellees] acted as Mrs. Nicolaou’s treating
       physician at different times between 2001 and 2008.
       Mrs. Nicolaou was a patient of dismissed co-defendant Dr.
       Stephen P. Falatyn, an alleged agent of [Appellees] St. Luke’s
       Hospital and St. Luke’s Health Network, in August of 2001.
       Mrs. Nicolaou was a patient of [Appellee] Dr. James J. Martin, an
       alleged employee of [Appellee] Nazareth Family Practice, from
       approximately June 14, 2002 through June 14, 2005.
       Mrs. Nicolaou was a patient of co-defendant Louise A.
       Dillonsnyder, CRNP,[1] an alleged agent of [Appellees] St. Luke’s
       Hospital, St. Luke’s Health & Health Network, and St. Luke’s
       Hospital Union Station Medical Surgical Clinic, from May 27,
       2005 through December 20, 2006. Mrs. Nicolaou was a patient
       of [Appellee] Dr. Jeffrey D. Gould, an alleged agent of
       [Appellees] St. Luke’s Hospital and St. Luke’s Hospital & Health
       Network, in 2007 and 2008.


____________________________________________


1
  Louise Dillonsnyder was not included in the motion for summary judgment
that is the subject of this appeal, and she subsequently was dismissed as a
defendant. As such, she is not a party to this appeal.



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           During Mrs. Nicolaou’s treatment, Dr. Falatyn and
     [Appellees] Martin, Dillonsnyder, and Gould all ordered a battery
     of tests, including four Lyme Disease tests; none of the tests
     produced a positive result for Lyme Disease. Consequently the
     [doctors] did not diagnose Mrs. Nicolaou with or treat her for
     Lyme Disease.

           On July 3, 2006, [Appellee] Nurse Dillonsnyder ordered an
     MRI of the brain.      The results of the MRI suggested that
     Mrs. Nicolaou could be suffering from either multiple sclerosis
     (MS) or Lyme Disease. [The doctors] diagnosed Mrs. Nicolaou
     with and treated her for MS. Dr. Gould told Mrs. Nicolaou that
     she did not have Lyme Disease and he continued to believe that
     she did not have Lyme Disease. Mrs. Nicolaou stopped treating
     with the [Appellees] sometime in 2008.

           Sometime in 2007, Mrs. Nicolaou suspected that
     [Appellees] incorrectly diagnosed her with MS and that she was
     actually suffering from Lyme Disease due to the symptoms she
     experienced near the 2001 tick bite. As a result, Mrs. Nicolaou
     sought the help of Nurse Practitioner Rita Rhoads after
     Mrs. Nicolaou learned through research on the internet that
     Nurse Rhoads had a history of treating patients for Lyme Disease
     whom other medical professionals had previously incorrectly
     diagnosed as suffering from MS. Mrs. Nicolaou met with and
     was examined by Nurse Rhoads on five occasions between July
     20, 2009 and February 1, 2010, specifically: July 20, 2009;
     September 21, 2009; November 9, 2009; December 7, 2009;
     and February 1, 2010. During each of the appointments, Nurse
     Rhoads recorded an assessment of “probably Lyme [Disease]”
     stemming from the 2001 tick bite on Mrs. Nicolaou’s left ankle
     and prescribed antibiotics to fight the Lyme Disease. Also,
     during each of the appointments, Nurse Rhoads told
     Mrs. Nicolaou that she believed Mrs. Nicolaou was suffering from
     Lyme Disease, and that, as a result of that diagnosis,
     Nurse Rhoads was prescribing antibiotics to fight the Lyme
     Disease.

           During some of the appointments, Nurse Rhoads
     recommended that, in order to confirm Nurse Rhoads’ diagnosis
     of Lyme Disease, Mrs. Nicolaou should undergo a test offered by
     a company called IGeneX, Inc. (IGeneX). Mrs. Nicolaou testified
     that she did not get the test before February 1, 2010, because
     she wanted to see how her symptoms were going to react to the

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J-E02001-16


       antibiotics. Nurse Rhoads testified that Mrs. Nicolaou did not
       have the IGeneX test done when it was first recommended
       because Mrs. Nicolaou said she could not afford it. Mrs. Nicolaou
       testified that she voluntarily stopped purchasing medical
       insurance at some point in 2005 because her insurer was not
       covering the cost of many of the tests ordered by her physicians;
       she understood that she would be personally responsible for all
       costs associated with tests that might be ordered by her medical
       care providers going forward.

              Nurse Rhoads administered the IGeneX Lyme Disease test
       to Mrs. Nicolaou on February 1, 2010. Nurse Rhoads sent
       Mrs. Nicolaou’s test specimen to the IGeneX laboratory in Palo
       Alto, California. On February 12, 2010, IGeneX completed its
       analysis of the test. On February 13, 2010, Nurse Rhoads
       informed Mrs. Nicolaou via e-mail that the test results were
       positive for Lyme Disease.

             The day that Mrs. Nicolaou received the positive test
       results, she posted a message on her Facebook[2] page that
       confirmed her subjective opinion that she believed she had Lyme
       Disease well before receiving the IGeneX report:

              Today i got my blood test back from igenix [sic] labs
              to test for lyme disease and it came back
              positive!!!!!!!!!!!!! i had been telling everyone for
              years i thought it was lyme and the doctors ignore
              me, thank you god you have answerd [sic] my
              prayers!!!!!!!!!      Now its [sic] all in your
              hands!!!!!!!!!!!!

            [The Nicolaous] initiated this lawsuit against [Appellees] by
       way of [a] complaint filed on February 10, 2012. Amended
       complaints were filed on April 19, 2012 and May 31, 2012. In
       the second amended complaint, Mrs. Nicolaou asserts medical
       malpractice claims against each of the [Appellees]. Based on
       the injuries allegedly suffered by his wife as a result of
____________________________________________


2
   Facebook is a social networking site where “[u]sers of that Web site may
post items on their Facebook page that are accessible to other users,
including Facebook “friends” who are notified when new content is posted.”
Elonis v. United States, ___ U.S. ___, ___, 135 S.Ct. 2001, 2004 (2015).



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J-E02001-16


       [Appellees’] purported negligence, Mr. Nicolaou also asserts
       claims against each of the [Appellees] for loss of consortium.

              In their Answer with New Matter of [Appellees] to the
       Second Amended Complaint (Answer), [Appellees] averred a
       violation of the statute of limitations as an affirmative defense to
       all of the [Nicolaous’] claims.

              [The Nicolaous] averred in their Second Amended
       Complaint that although they did not initiate this action until
       more than three years after Mrs. Nicolaou’s last contact with
       [Appellees], the statute of limitations is not a bar to their claims
       due to the operation of the discovery rule. [The Nicolaous]
       assert that [Appellees] are estopped from asserting a statute of
       limitations defense because reasonable people in the position of
       [the Nicolaous] could not have discovered any negligence until
       February 13, 2010, at the earliest; the Complaint was filed
       within two years of that date.

Trial Court Opinion, 2/24/14, at 2–6 (citations to the record omitted).

       After discovery was completed, Appellees filed a motion for summary

judgment on December 6, 2013, and the Nicolaous filed a response on

December 31, 2013. The trial court granted Appellees’ motion on February

25, 2014, holding that the Nicolaous had commenced their action after the

prescribed statutory period for bringing the claim had expired, and that the

statute of limitations was not tolled by application of the discovery rule.

Trial Court Opinion, 2/24/14, at 14.3 On April 21, 2014, the Nicolaous filed a




____________________________________________


3
   An action to recover damages for injuries to the person caused by the
negligence of another must be commenced within two years. 42 Pa.C.S.
§ 5524(2).



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J-E02001-16


notice of appeal.4 While the trial court did not direct the Nicolaous to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), and they did not do so, the trial court filed an opinion in support of

its order on May 9, 2014.5

       The Nicolaous originally proceeded pro se in this appeal.      In a split

decision, a three-judge panel of this Court filed a Memorandum reversing

summary judgment, with one judge dissenting. Nicolaou v. Martin, 1286

EDA 2014 (Pa. Super. 2016) (unpublished memorandum).                 Thereafter,

Appellees filed a motion for reargument en banc.        On June 3, 2015, this

Court granted en banc reargument and withdrew the March 24, 2015

decision.

       The Nicolaous filed new pro se briefs, and Appellees timely filed their

briefs. In August of 2015, counsel entered his appearance on behalf of the

Nicolaous. Pursuant to the Nicolaous’ September 14, 2015 Motion To Permit

____________________________________________


4
    Although the Nicolaous filed the notice of appeal more than thirty days
after the trial court’s order granting summary judgment, the notice of appeal
is not untimely. Louise Dillonsnyder was not included in the summary
judgment motion, and therefore the order granting summary judgment was
not a final order from which the Nicolaous were required to appeal within
thirty days pursuant to Pa.R.A.P. 903(a). A final order is any order, inter
alia, that disposes of all claims and of all parties. Pa.R.A.P. 341(b)(1). All of
the claims and parties to this action were not disposed of until Louise
Dillonsnyder was dismissed from the action by praecipe dated March 28,
2014.
5
   The trial court’s Rule 1925(a) opinion directs us to the opinion attached to
its February 24, 2014 order granting summary judgment.



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J-E02001-16


a Supplemental Filing, we entered an order on September 21, 2015,

continuing oral argument and directing the Nicolaous to file a counseled,

supplemental brief, which they did on October 13, 2015. Appellees filed a

response to the supplemental brief on November 3, 2015.             This Court

entered an order striking both briefs on December 17, 2015, and directed

counsel for the Nicolaous to file an appropriate appellate brief pursuant to

the Pennsylvania Rules of Appellate Procedure. Although both parties filed

their briefs in January of 2016, the Nicolaous’ brief once again failed to

address the issues on appeal.      This Court was compelled to strike the

Nicolaous’ brief on March 17, 2016, and we directed counsel to file a proper

appellate brief addressing the relevant issues on appeal. On April 14, 2016,

the Nicolaous filed a brief, and on May 13, 2016, Appellees filed a responsive

brief. We entertained oral argument on August 2, 2016. This matter is now

ripe for disposition.

      The Nicolaous raise the following questions in this appeal:

         A. Did the Trial Court error in granting [Appellees’] Motion for
            Summary Judgment and holding that [the Nicolaous’]
            medical malpractice action was time barred under 42
            Pa.C.S. §5524(2) and did not meet the Discovery Rule
            Exception when [Mrs. Nicolaou] did not, and was
            financially unable to, confirm [Appellees’] negligent
            misdiagnosis until final medical testing confirmed she had
            Lyme Disease on February 13, 2010?

         B. Did the Trial Court abuse its discretion in granting
            [Appellees’] Motion for Summary Judgment when there
            was a genuine issue of material fact, which should be
            presented to a jury, as to whether [the Nicolaous’] medical
            malpractice action is tolled from the running of the Statute

                                     -7-
J-E02001-16


           of Limitations under 42 Pa.C.S. §5524(2) by the Discovery
           Rule?

The Nicolaous’ Brief at 2. We address the issues in tandem.

     Summary judgment is appropriate where there is no genuine issue of

material fact, and the moving party is entitled to relief as a matter of law.

Matharu v. Muir, 86 A.3d 250, 255 (Pa. Super. 2014) (en banc) (citing

Pa.R.C.P. 1035.2). We exercise plenary review in an appeal from an order

granting summary judgment. Id. As such, when reviewing whether there

are genuine issues of material fact, our standard of review is de novo;

therefore, “we need not defer to determinations made by lower courts.”

Gleason v. Borough of Moosic, 15 A.3d 479, 484 (Pa. 2011) (citing Fine

v. Checcio, 870 A.2d 850, 857 n.3 (Pa. 2005)).       Moreover, an appellate

court may reverse a grant of summary judgment only if there has been an

error of law or an abuse of discretion. Kennedy v. Robert Morris Univ.,

133 A.3d 38 (Pa. Super. 2016), appeal denied, 145 A.3d 166 (Pa. 2016).

“[W]e will view the record 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.” Matharu, 86 A.3d at 255.

     In essence, the trial court agreed with Appellees and granted summary

judgment, determining that the Nicolaous’ cause of action was barred by the

two-year statute of limitations applicable to negligence actions. 42 Pa.C.S.

§ 5524. The Nicolaous’ position is that the entry of summary judgment was

improper because they had been unable, through reasonable diligence, to

                                    -8-
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discover the cause of Mrs. Nicolaou’s injury until February 13, 2010, the

date Mrs. Nicolaou received the results of the IGeneX test, and therefore,

the applicable statute of limitations had been tolled until that time. Thus,

the Nicolaous contend that the trial court erred in concluding that their

medical malpractice action was time-barred by 42 Pa.C.S. § 5524(2).

     We analyze this case with consideration of the following principles:

     Generally, a cause of action first accrues when a party is injured,
     and an action for personal injury must be filed within two years
     to satisfy the statute of limitations. 42 Pa.C.S. § 5524(2). . . .
     The discovery rule is a judicially created exception that tolls the
     running of the applicable statute of limitations when an injury or
     its cause was not known or reasonably knowable. Fine v.
     Checcio, D.D.S., 582 Pa. 253, 870 A.2d 850 (2005). The
     discovery rule can toll the statute of limitations until a plaintiff
     could reasonably discover the cause of his injury in cases where
     the connection between the injury and the conduct of another is
     not apparent. Wilson v. El-Daief, 600 Pa. 161, 964 A.2d 354
     (2009).

            If the injured party could not ascertain he was injured and
     by what cause within the limitations period, “despite the exercise
     of reasonable diligence,” then the discovery rule is appropriate.
     Pocono International Raceway, Inc. v. Pocono Produce,
     Inc., 503 Pa. 80, 468 A.2d 468, 471 (1983). The test is
     objective but takes into account individual capacities and
     society’s expectations of “attention, knowledge, intelligence and
     judgment” for citizens to protect their own interests. Fine,
     supra at 858. The party who invokes the discovery rule has the
     burden of proving its applicability by establishing he acted with
     reasonable diligence in determining the fact and cause of his
     injury but he was unable to ascertain it. Weik v. Estate of
     Brown, 794 A.2d 907, 909 (Pa. Super. 2002). Thus, the key
     point that gives rise to application of the discovery rule “is the
     inability of the injured party, despite the exercise of reasonable
     diligence, to know that he has been injured and by what cause.”
     Drelles v. Manufacturers Life Ins. Co., 881 A.2d 822, 831
     (Pa. Super. 2005) (citing Fine, supra at 858).


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           This determination is a factual one as to whether the
     party, despite the exercise of reasonable diligence, was unaware
     of his injury and unable to determine its cause. Id. Where the
     rule’s application involves a factual determination regarding
     whether the plaintiff exercised due diligence in discovering his
     injury, the jury must decide whether the rule applies. Crouse v.
     Cyclops Industries, 560 Pa. 394, 745 A.2d 606 (2000).

Simon v. Wyeth Pharm., Inc., 989 A.2d 356, 365–366 (Pa. Super. 2009).

     The discovery rule “originated in cases in which the injury or its cause

was neither known nor reasonably knowable.” Lewey v. H.C. Frick Coke

Co., 31 A. 261 (Pa. 1895). The purpose of the discovery rule is to exclude

from the running of the statute of limitations that period during which a

party who has not suffered an immediately ascertainable injury is reasonably

unaware he has been injured, so that he has essentially the same rights as

those who have suffered such an injury. Hayward v. Medical Center of

Beaver County, 608 A.2d 1040, 1043 (Pa. 1992).

     Fine v. Checcio, 870 A.2d 850 (Pa. 2005), is the seminal case on the

discovery rule. The Fine Court held that “it is not relevant to the discovery

rule’s application whether or not the prescribed period has expired; the

discovery rule applies to toll the statute of limitations in any case where a

party neither knows nor reasonably should have known of his injury and its

cause at the time his right to institute suit arises.”   Id. at 859.   Once a

defendant raises the statute of limitations as an affirmative defense in new

matter, however, it is then the plaintiff’s obligation to present facts




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indicating that the discovery rule is applicable. Stein v. Richardson, 448

A.2d 558 (Pa. Super. 1982).

      Our Supreme Court has written extensively on this issue, and we turn

to the High Court for guidance in our disposition.

             Pennsylvania’s formulation of the discovery rule reflects a
      narrow approach “to determining accrual for limitations
      purposes” and places a greater burden upon Pennsylvania
      plaintiffs vis-á-vis the discovery rule than most other
      jurisdictions. Wilson v. El–Daief, supra at 364. . . . The
      discovery rule operates to balance the rights of diligent, injured
      plaintiffs against the interests of defendants in being free from
      stale claims, in furtherance of salient legislative objectives. Id.
      at 366 n.12. . . .

      [I]t is not relevant to the application of the discovery rule
      whether the prescribed statutory period has expired. Fine,
      supra at 859. The 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.
      Id. . . . 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. Id.

            The sine qua non of the factual inquiry into the
      applicability of the discovery rule in any given case is the
      determination whether, during the limitations period, the plaintiff
      was able, through the exercise of reasonable diligence, to know
      that he or she had been injured and by what cause. In this
      context, we have clarified that reasonable diligence is not an
      absolute standard. As we have stated:

            “There are very few facts which diligence
            cannot discover, but there must be some
            reason to awaken inquiry and direct diligence
            in the channel in which it would be successful.
            This is what is meant by reasonable diligence.”
            Put another way, “the question in any given case is

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           not, what did the plaintiff know of the injury done
           him? But, what might he have known, by the use of
           the means of information within his reach, with the
           vigilance the law requires of him?” While reasonable
           diligence is an objective test, “it is sufficiently
           flexible . . . to take into account the differences
           between persons and their capacity to meet certain
           situations and the circumstances confronting them at
           the time in question.” Under this test, a party’s
           actions are evaluated to determine whether he
           exhibited “those qualities of attention, knowledge,
           intelligence and judgment which society requires of
           its members for the protection of their own interest
           and the interest of others.”

                 Therefore, when a court is presented with the
           assertion of the discovery rule’s application, it must
           address the ability of the damaged party, exercising
           reasonable diligence, to ascertain that he has been
           injured and by what cause. . . . Where . . .
           reasonable minds would not differ in finding
           that a party knew or should have known on the
           exercise of reasonable diligence of his injury
           and its cause, the court determines that the
           discovery rule does not apply as a matter of
           law.

     Fine, supra, at 858–859 (citations and quotations omitted)
     (emphasis added).

            Nevertheless, the party asserting application of the
     discovery rule bears the burden of proof, Wilson, supra at 362,
     and Pennsylvania courts have not hesitated, where appropriate,
     to find as a matter of law that a party has not used reasonable
     diligence in ascertaining his or her injury and its cause, thus
     barring the party from asserting his or her claim under the
     discovery rule. Cochran v. GAF Corp., 542 Pa. 210, 666 A.2d
     245, 248 (1995).

Gleason, 15 A.3d at 484–486 (initial emphasis in original; second emphasis

added).




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      In considering the relevant statute of limitations and the potential

applicability of the discovery rule, the trial court stated as follows:

             The allegations of negligence by [Appellees] resulting in
      injury to Mrs. Nicolaou would have occurred during [Appellees’]
      care of Mrs. Nicolaou between 2001 and 2008. [The Nicolaous]
      initiated this lawsuit by way of complaint that was filed on
      February 10, 2012. Therefore, the prescribed statutory period
      expired and [the Nicolaous] are barred from bringing suit unless
      the discovery rule barred the running of the statute of limitations
      until sometime on or after February 10, 2010.

                                       * * *

             In this case, we find the evidence supports the conclusion
      that the commencement of the statute of limitations period
      began prior to February 10, 2010, and that such evidence is so
      clear that reasonable minds could not differ regarding that fact.

Trial Court Opinion, 2/24/14, at 9.

      The basis for the Nicolaous’ argument is that until Mrs. Nicolaous had

confirmation of lyme disease from the IGeneX test, there was no “basis for a

lawsuit.” The Nicolaous’ Brief at 17. Mrs. Nicolaou therefore maintains that

because she was unable to afford the cost of the test until February 1, 2010,

and thus did not receive confirmation of lyme disease until February 13,

2010, the trial court “erred in holding that reasonable minds could not differ

as to whether Mrs. Nicolaou exercised reasonable diligence . . . .” Id. at 18.

The Nicolaous posit:

            The facts presented, taken in a light most favorable to [the
      Nicolaous] establish that Mrs. Nicolaou could not afford testing
      needed to confirm the diagnosis and that while she may have
      suspected she had Lyme Disease, it had not been confirmed and
      she didn’t believe it. Therefore, a genuine issue of material
      fact exists as to whether reasonable minds differ as to the

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      knowledge and beliefs of [the Nicolaous] such that summary
      judgment was improper.

The Nicolaous’ Brief at 20 (emphasis added).               Our review of the record

compels our disagreement.

      Mrs. Nicolaou’s Facebook post, indeed her own words, bear on the

fallacy of her claim on appeal that “she didn’t believe it.” As underscored by

the trial court, on February 14, 2010, Mrs. Nicolaou posted, “I had been

telling everyone for years i thought it was lyme . . . .,” to which one of her

Facebook friends responded, “[Y]ou DID say you had Lyme so many times!”

Trial Court Opinion, 2/24/14, at 5; Memorandum of Law of Appellees in

Support of Summary Judgment, 12/6/13, at Exhibit F.

      It is necessary, then, to examine the propriety of the trial court’s

determination   that   “the    evidence      supports   the    conclusion    that    the

commencement      of   the    statute   of   limitations    period   began   prior    to

February 10, 2010,” which is two years before the Nicolaous filed their

complaint against Appellees on February 10, 2012.                    We have noted

previously that the party who invokes the discovery rule, Mrs. Nicolaous

herein, has the burden of proving its applicability and must do so by

establishing that she acted “with reasonable diligence in determining the fact

and cause of [her] injury but [s]he was unable to ascertain it.” Weik, 794

A.2d at 909.




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       Allegations of the complaint and Mrs. Nicolaou’s deposition testimony 6

proffer that she admittedly sought medical care in 2001 when she began

experiencing symptoms that she attributed to a tick bite, including a rash at

the site of the bite, numbness and tingling in her extremities, and back pain.

Second Amended Complaint, 5/31/12, at 6.               She treated with various

Appellees for multiple sclerosis (“MS”), despite suspecting that she suffered

from lyme disease.        Id. at 7–9.     Rita Rhoads, the nurse practitioner who

ultimately diagnosed Mrs. Nicolaou with lyme disease, testified that when

Mrs. Nicolaou first came to her on July 20, 2009, Mrs. Nicolaou told her she

had a “[d]iagnosis of [MS] but was told [she] may have lyme.” Deposition

of Rita Rhoads, 11/1/13, at 13. Further, a brain MRI7 conducted on July 3,

____________________________________________


6
  We note that the certified record contains only portions of Mrs. Nicolaou’s
November 6, 2013 deposition. Through our efforts to obtain the complete
deposition, the trial court communicated that “[n]either party made Ms.
Nicolaou’s entire deposition a matter of record. . . .Therefore, the trial court
was bound by the undisputed facts in the Motion for Summary Judgment.”
But see Commonwealth v. Barnett, 121 A.3d 534, 546 (Pa. Super.
2015), appeal denied, 128 A.3d 1204 (Pa. 2015), cert. denied sub nom.,
Barnett v. Pennsylvania, ___ U.S. ___, 136 S.Ct. 2391 (2016) (where the
accuracy of a document is undisputed and contained in the reproduced
record, we may consider it) (citing Commonwealth v. Brown, 52 A.3d
1139, 1145 n.4 (Pa. 2012)). In Barnett, as here, the reproduced record
contained the relevant missing transcripts, and there was no dispute as to
their contents. Due to the procedural posture of the instant case, however,
we have utilized only those portions of the deposition that are in the certified
record.
7
  “MRI, or magnetic resonance imaging, is a type of diagnostic radiography
used to make images of tissues and organs of the human body. Taber’s
Cyclopedic Medical Dictionary 1230 (19th ed. 2001).”       Northeastern
(Footnote Continued Next Page)


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2006, indicated findings “seen in infectious or inflammatory demyelinating

process, such as [MS] or Lyme Disease . . . .” Second Amended Complaint,

5/31/12, at 7; Deposition of Rita Rhoads, 11/1/13, at 40.

      It is striking and convincing of the correctness of the result below that

Mrs. Nicolaou’s symptoms dramatically improved upon treatment for lyme

disease, which was months before the positive blood test on February 1,

2010. Mrs. Nicolaou admittedly has suffered significant maladies. She lost

control of bowels and bladder, she eventually became confined to a

wheelchair, and she experienced systemic pain, numbness, and tingling.

Second Amended Complaint, 5/31/12, at 9. Mrs. Nicolaou eventually began

treating with nurse practitioner, Rita Rhoads. Id. at 10.

      Ms. Rhoads is a certified nurse practitioner with a master’s degree in

public health from Johns Hopkins University.        Deposition of Rita Rhoads,

11/1/13, at 8. She also is a member of ILADS, the International Lyme and

Associated Disease Society. Id. at 9. Ms. Rhoads first saw Mrs. Nicolaou on

July 20, 2009, which was nearly seven months before Mrs. Nicolaou

received the lyme-positive test. Ms. Rhoads stated that at that point, she

believed Mrs. Nicolaou had “[p]robable lyme . . . resulting in [MS].”

Appellees’ counsel asked Ms. Rhoads, “Did you discuss this with Ms. Nicolaou

and tell her that at this point, based upon the history that you had taken,
                       _______________________
(Footnote Continued)

Pennsylvania Imaging Ctr. v. Commonwealth of Pennsylvania, 35
A.3d 752, 753 n.1 (Pa. 2011).



                                           - 16 -
J-E02001-16


your examination, and everything she told you, that you thought she may

have lyme disease?”      Id. at 25.      Ms. Rhoads responded, “Correct.”              Id.

Based on that belief, on July 20, 2009, Ms. Rhoads prescribed, inter alia,

Minocycline to treat the lyme disease. Id. at 25–26. Ms. Rhoads reiterated

that she told Mrs. Nicolaou on July 20, 2009, that Ms. Rhoads was

prescribing the antibiotic for lyme disease.                 Id. at 26.         In fact,

Mrs. Nicolaou’s testimony confirmed that Ms. Rhoads told her she thought

Mrs. Nicolaou had lyme disease and was prescribing Minocycline to treat it.

Deposition of Nancy Nicolaou, 11/6/13, at 61.                    Ms. Rhoads described

Mrs. Nicolaou’s   improvement        upon     treatment     with    the   antibiotic   as

“absolutely amazing,” as of September 21, 2009, lending significant

reliability to Ms. Rhoads’ lyme-disease diagnosis. Deposition of Rita Rhoads,

11/1/13, at 31, 32.    Indeed, Mrs. Nicolaou testified that her “bladder and

bowel had went [sic] back to normal the first month of treatment” for lyme

disease. Deposition of Nancy Nicolaou, 11/6/13, at 67.

      Most   significantly,   the    record   reveals     that    on   July   20,   2009,

Ms. Rhoads prescribed a different test for lyme disease, IGeneX, than the

prior tests administered by Appellees. Mrs. Nicolaou, however, declined to

take the test at that time.         Deposition of Rita Rhoads, 11/1/13, at 29.

Ms. Rhoads explained the significance of the test, as follows:

      Many years ago, and I don’t know the exact date, I would say
      15, 20 years ago, the government decided that the lyme
      epidemic was rising and they needed a vaccine for lyme.


                                        - 17 -
J-E02001-16


            So they analyzed the lyme bacteria and said if we are
     going to build a vaccine, what vaccine is going to be the most
     effective against lyme?      When they did the analysis, they
     discovered the tail of the lyme organism—it’s a spirochete, so it
     has a tail.

           The tail of the lyme spirochete had two DNA bands on it,
     31 and 34, that were very different from most organisms. So
     they said we will build our vaccine around 31 and 34. Therefore,
     we’re going to take 31 and 34 out of all of the lyme testing
     because everybody’s going to get the vaccine and everybody’s
     going to be positive for 31 and 34. Therefore, if they’re positive
     for 31 and 34, it only means they had the vaccine, not that they
     have lyme.

          Okay. Well, they developed the vaccine LYMErix which
     was a huge disaster. A lot of people got significant lyme
     symptoms for the LYMErix, and it was taken off the market. . . .

            So when the CDC took the vaccine off the market, they
     didn’t say, oh, we failed; we’re going to have the labs put 31 and
     34 back in the [test]. So therefore Quest, Health Network,
     LabCorp, none of them have bands 31 and 34 in their testing.

          So we look for labs that do have 31 and 34 in the testing
     so that we can get complete bands. So for the majority of
     people, we use IGeneX in California. . . .

                                    * * *

     Q. And did you discuss with Ms. Nicolaou what you just laid out
     with me here today?

     A. Yes. Yes.

     Q. You had that discussion with her in July?

     A. Yes.

Deposition of Rita Rhoads, 11/1/13, at 27–29.

     Ms. Rhoads stated that Mrs. Nicolaou “just didn’t have the money for

anything.” Deposition of Rita Rhoads, 11/1/13, at 29. Counsel inquired:

                                   - 18 -
J-E02001-16


      Q. So other than the financial reason, there was no reason she
      couldn’t have had the test at that point, correct?

      A. Correct.

      Q.   She wasn’t on a drug that would have prevented this test—

      A. No.

      Q. —from being performed?

      A. No.

Id. at 29–30.

      Mrs. Nicolaou corrected counsel’s suggestion that she “lost” her health

insurance in 2005.      Deposition of Nancy Nicolaou, 11/6/13, at 34.

Mrs. Nicolaou stated, “I didn’t lose it.” Id. Counsel continued as follows:

      Q. What happened?

      A. I stopped paying for it.

      Q. Why did you stop paying for your health insurance?

      A. Because they refused paying for any of the tests that the
      doctors had ordered.

                                     * * *

      Q. [S]o you decided to just voluntarily stop paying for health
      insurance?

      A. Correct.

      Q. And then you became what is referred to as a self-pay?

      A. Correct.

      Q. So you knew that from that point forward any tests you
      wanted run you would have to pay for out of your own pocket,
      correct?

                                    - 19 -
J-E02001-16


       A. That’s correct.

Id. at 34–35.

       It is without question, then, that as early as July 20, 2009, Ms. Rhoads

informed Mrs. Nicolaou that Ms. Rhoads believed Mrs. Nicolaou had lyme

disease, Ms. Rhoads, in fact, treated Mrs. Nicolaou for lyme disease, the

treatment caused “amazing” improvement in Mrs. Nicolaou’s symptoms, and

Mrs. Nicolaou knew of the availability of an objective test that could confirm

Ms. Rhoads’ clinical diagnosis.        Moreover, for the ensuing seven months,

Mrs. Nicolaou refused to obtain the objective proof of the clinical diagnosis

Ms. Rhoads had rendered.8

       As our Supreme Court has expressed, the greater burden placed upon

Pennsylvania plaintiffs vis-á-vis the discovery rule, “is tied to ‘actual or

constructive knowledge of at least some form of significant harm and of a

factual cause linked to another’s conduct, without the necessity of notice of
____________________________________________


8
  Contrary to the suggestion of the Dissent, Dissenting Opinion at 3, there is
nothing in the record confirming that Mrs. Nicolaous was unable to pay for
the IGeneX test when Ms. Rhoads ordered it on July 20, 2009, only that
Mrs. Nicolaous chose not to do so. Mrs. Nicolaous had clarified that she
voluntarily stopped paying for her health insurance because she was
annoyed that it did not cover tests being ordered for her in 2005.
Deposition of Nancy Nicolaou, 11/6/13, at 34.            Mrs. Nicolaou further
acknowledged that her decision cast her into a category of self-pay
individuals. Id. at 35. Most telling, Mrs. Nicolaous testified that Ms. Rhoads
had recommended IGeneX but “she wanted to see how the antibiotics were
going to react to my symptoms,” id. at 75, thereby indicating a conscious
decision not to obtain the test, not an inability to afford it. Thus, review of
the record does not suggest that Mrs. Nicolaou could not afford the test, but
that she chose not to partake at that time.



                                          - 20 -
J-E02001-16


the full extent of the injury, the fact of actual negligence, or precise cause.’”

Gleason, 15 A.3d at 484–485. The Gleason Court reminds us that the sine

qua non of the factual inquiry into the applicability of the discovery rule in

any given case “is the determination whether, during the limitations period,

the plaintiff was able, through the exercise of reasonable diligence,” to know

that he had been injured and by what cause. Id. at 485. 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.

      Moreover, the standard of reasonable diligence was not met herein.

The question before us is not what the Nicolaous knew of the injury, but

rather, what might the Nicolaous have known, “by the use of the means of

information within [their] reach, with the vigilance the law requires of

[them]?” Gleason, 15 A.3d at 485.

      Our review of the record, in the light most favorable to the Nicolaous,

the non-moving party, compels our conclusion that Mrs. Nicolaou knew, or

reasonably should have known, between July and September, 2009, that her

long-standing health problems may have been caused by Appellees’ failure

to diagnose and treat her lyme disease and therefore, such failure could

have resulted from Appellees’ negligence. Because we find that reasonable

minds could not differ in this conclusion, and thus, there are no genuine

issues of material fact, the trial court’s entry of summary judgment was

proper.


                                     - 21 -
J-E02001-16


      Order of February 24, 2014, affirmed.

      P.J.E. Ford Elliott, P.J.E. Bender, and Judges Panella, Olson, and Ott

join this Opinion.

      Judge Lazarus files a Dissenting Opinion in which P.J. Gantman and

Judge Bowes join.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2016




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