J-S29001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 MELISSA SEMINARA AND CARMELO              :   IN THE SUPERIOR COURT OF
 SEMINARA                                  :        PENNSYLVANIA
                                           :
                    Appellant              :
                                           :
                                           :
              v.                           :
                                           :
                                           :   No. 3846 EDA 2017
 STUART DERSHAW, M.D. JOHN                 :
 STACK, M.D. HOLY REDEEMER                 :
 WOMEN’S CARE OF MONTGOMERY                :
 COUNTY AND HOLY REDEEMER                  :
 HOSPITAL AND MEDICAL CENTER.              :

                   Appeal from the Order October 25, 2017
            In the Court of Common Pleas of Montgomery County
                   Civil Division at No(s): No. 2014-31546


BEFORE:     PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY PANELLA, J.                           FILED AUGUST 31, 2018

      Melissa and Carmelo Seminara appeal pro se from the order entered in

the Montgomery County Court of Common Pleas, granting summary judgment

in favor of Stuart Dershaw, M.D., John Stack, M.D., Holy Redeemer Women’s

Care of Montgomery County, and Holy Redeemer Hospital and Medical Center

(collectively, Appellees). We affirm.

      The relevant facts and procedural history of this case are as follows. On

December 11, 2003, Mrs. Seminara underwent a cesarean section operation

(“C-section”) at Holy Redeemer Hospital and Medical Center. Mrs. Seminara

consulted   with   various   medical    professionals   following   the   surgery,

complaining that she “didn’t feel normal.” The Seminaras’ Amended


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S29001-18



Complaint, filed 7/20/15, at 9. Mrs. Seminara consulted with several doctors

about her illness, which she claimed presented symptoms including: “TIA mini

strokes, cerebral ischemia, brain injury, seizures, neuropathy, damage and

impairment in and to various organs, heart arrhythmias, frequent infections,

etc.” Id., at 13. Mrs. Seminara eventually became convinced her ailments

were due to a surgical sponge left inside of her body during her C-section,

which doctors were unable to confirm even after several radiological scans and

procedures.

      On November 26, 2014, the Seminaras filed a pro se complaint asking

for a judgment of $20,000,000.00 against Appellees, based on the allegation

that a surgical sponge was left in Mrs. Seminara’s body during the C-section.

The Seminaras later filed an amended complaint, alleging negligence against

each Appellee based on the alleged failure to remove the sponge following the

operation, and for inadequate medical care thereafter. The amended

complaint also included Mr. Seminara’s loss of consortium claim. The

Seminaras also filed identical certificates of merit as to each Appellee, which

stated medical expert testimony was not necessary for prosecution of their

claims, based on the doctrine of res ipsa loquitur.

      Appellees filed preliminary objections, which were sustained as to the

Seminaras’ claims of defamation and wanton conduct. Appellees then filed

answers and new matter. Following the discovery deadline, Appellees filed a

motion for summary judgment, alleging the Seminaras’ claims were barred by

the statute of limitations, and that the Seminaras failed to set forth a prima

                                     -2-
J-S29001-18



facie claim of medical malpractice. The court granted the motion, and

dismissed the Seminaras’ claims. The Seminaras filed a timely notice of appeal

and complied with the dictates of Pa.R.A.P. 1925(b). This appeal is now before

us.

      The Seminaras primarily argue that material disputed facts exist as to

whether the medical providers breached their duty of care. They assert

Appellees acted in bad faith by withholding relevant discovery information,

and thus sabotaging the Seminaras’ claims. Nevertheless, they claim they

provided sufficient evidence to show Appellees’ negligence, and that under the

doctrine of res ipsa loquitor, the Seminaras did not need to submit medical

expert testimony to support their claims.

      The Seminaras also dispute the court’s finding that they failed to file

their complaint within the statute of limitations. They claim they were unaware

until 2012 of the surgical sponge left in Mrs. Seminara’s body following her C-

section. They request this Court vacate the trial court’s order granting

Appellees’ motion for summary judgment, and remand for a trial. We decline

to do so.

      We review a challenge to the entry of summary judgment as follows.

      [We] may disturb the order of the trial court only where it is
      established that the court committed an error of law or abused its
      discretion. As with all questions of law, our review is plenary.

      In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. The rule states that where there is no
      genuine issue of material fact and the moving party is entitled to
      relief as a matter of law, summary judgment may be entered.

                                     -3-
J-S29001-18


      Where the nonmoving party bears the burden of proof on an issue,
      he may not merely rely on his pleadings or answers in order to
      survive summary judgment. Failure of a non-moving party to
      adduce sufficient evidence on an issue essential to his case and
      on which he bears the burden of proof establishes the entitlement
      of the moving party to judgment as a matter of law. Lastly, we
      will review the record in the light most favorable to the nonmoving
      party, and all doubts as to the existence of a genuine issue of
      material fact must be resolved against the moving party.

E.R. Linde Constr. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)

(citations omitted).

      The statute of limitations for a medical malpractice action is two years.

See 42 Pa.C.S.A. § 5524. The discovery rule may toll the statute of limitations

where an injury or its cause is not known or reasonably knowable. See

Nicolaou v. Martin, 153 A.3d 383, 389 (Pa. Super. 2016). However, the

discovery rule will only 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.” Id. (citations

omitted).

      The purpose of the discovery rule has been to exclude from the
      running of the statute of limitations that period of time 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.

Fine v. Checcio, 870 A.2d 850, 858 (Pa. 2005) (citation omitted).

      A medical malpractice claim sounding in negligence requires proof of the

same elements as in an ordinary negligence claim. K.H. ex rel. H.S. v.

Kumar, 122 A.3d 1080, 1093 (Pa. Super. 2015). “[T]o prevail in a medical



                                      -4-
J-S29001-18



malpractice action, a plaintiff must establish a duty owed by the physician to

the patient, a breach of that duty by the physician, that the breach was the

proximate cause of the harm suffered, and [that] the damages suffered were

a direct result of the harm.” Id. (citation omitted).

        Our courts have held that because the complexities of the human
        body place questions as to the cause of pain or injury beyond the
        knowledge of the average layperson, a medical malpractice
        plaintiff generally must produce the opinion of a medical expert to
        demonstrate the elements of his cause of action.

Miller v. Sacred Heart Hosp., 753 A.2d 829, 833 (Pa. Super. 2000) (citation

and internal quotation marks omitted).

        We have carefully reviewed the parties’ briefs, the certified record, the

relevant law, and the well-written opinion of the Honorable Richard P. Haaz,

and we conclude the Seminaras’ claims merit no relief. The trial court, in its

February 8, 2018 opinion, thoroughly reviewed the Seminaras’ claims

presented on appeal. The opinion accurately and comprehensively disposes of

those issues, with appropriate references to the record and without legal error.

Therefore, we affirm on that basis. See Trial Court Opinion, dated 2/8/18, at

1-15.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/18

                                       -5-
                                                                             2014-31546-0088     Opinion,
                                                                              Circulated 08/28/2018       Page 1
                                                                                                    10:08 AM




       COURT OF COMMON PLEAS MONTGOMERY COUNTY, PENNSYLVANIA
                             CIVIL ACTION

MELISSA SEMINARA and
CARMELO SEMINARA

              Plaintiffs                                          No. 2014-31546

       v.                                                         3846 EDA 2017

STUART DERSHA W, M.D., JOHN ST ACK,
M.D., HOLY REDEEMER WOMENS CARE
OF MONTGOMERY COUNTY, and HOLY
REDEEMER HEALTH SYSTEM d/b/a HOLY
REDEEMER HOSPITAL AND MEDICAL
                                                             111 ��IP.Ql�IJll
                                                      2014-31546-0088 2/91201812:04 PM # 11650041
                                                      Rcpt#Z3325675 Fee:$0 .00 Opinion
                                                                                                          11

CENTER                                                Main (Public)
                                                      MonlCo Prothonotary

              Defendants

                                        OPINION

HAAZ,J.                                                           February 8, 2018


INTRODUCTION AND BACKGROUND

       Plaintiffs, Melissa Seminara (Mrs. Seminara) and Carmelo Seminara (Mr. Seminara),

appeal this court's October 27, 2017 Amended Order granting Defendants' summary judgment

motion and dismissing all claims against Defendants Stuart Dershaw, M.D., John Stack, M.D.,

Holy Redeemer Women's Care of Montgomery County (Holy Redeemer Women's Care), and

Holy Redeemer Health System (Holy Redeemer).

       Plaintiffs filed a pro se Complaint on November 26, 2014.          Plaintiffs then filed an

Amended Complaint on July 21, 2015 alleging that Defendants Stack and Dershaw, as agents of

Defendants Holy Reedemer Women's Care and Holy Redeemer, provided sub-standard medical

care by failing to remove a surgical sponge following Mrs. Seminara's cesarean section on

December 11, 2003 and by failing to provide adequate follow-up care.          Plaintiff's Amended


                                            1

                                                                                                               /r
                                                                                                               /
                                                                             2014-31546-0088 Opinion, Page 2




Complaint alleges four counts of negligence, one against each of the named defendants.         The

Amended Complaint alleges that as a direct and proximate result of the sub-standard medical

care provided by Defendants, Mrs. Seminara suffered from "injuries and disability including but

not limited to [Transient Ischemic Attacks], cerebral ischemia, brain injury, seizures, neuropathy,

damage and impairment in and to various organs, heart arrhythmias, frequent infections, etc."

(Amended Complaint      1   4.2).   The Amended Complaint also includes a claim of loss of

consortium on behalf of Mr. Seminara. (Amended Complaint 13.13).

        On June 12, 2015, Plaintiffs filed four certificates of merit regarding each of the four

Defendants.   All four of these certificates of merit state that "the expert testimony of an

appropriate licensed professional is unnecessary for prosecution of the claim against this

defendant. I am basing my response on re[s] ipsa loquitur."

       Defendants' preliminary objections to claims of defamation and "wanton" conduct in the

Amended Complaint were sustained on December 3, 2015. On December 23, 2015, all four

Defendants filed Answers and New Matters, with Holy Redeemer and Holy Redeemer Women's

Care filing jointly. On June 28, 2016, the court entered an order setting a discovery deadline of

January 1, 2017.

       Defendants filed a motion for summary judgment on July 20, 2017. Plaintiffs filed a

response to the motion on July 28, 2017. The court granted Defendants' motions for summary

judgment on October 25, 2017.        The court entered an amended order granting Defendants'

motions and stating specifically that all claims against all Defendants were dismissed on October

27, 2017.

       On November 17, 2017 Plaintiffs filed a notice of appeal to the Superior Court. On

November 20, 2017 the court entered an order directing Plaintiffs to file a concise statement of



                                                2
                                                                              2014-31546-0088 Opinion, Page 3




errors complained of on appeal pursuant to Pa.R.A.P. l 925(b). On December 7, 2017 Plaintiffs

filed a statement of matters complained of on appeal setting forth the following issues:

Did the [trial court] err by giving absolutely no basis or reasoning for granting Summary
Judgment for Defendant and dismissing case? Plaintiff is left with only option to try and cover
every issue in Summary Judgment so that all non-documented questions/issues on this statement
are not waived. Does it set a precedent against Plaintiff to grant waiver using a question not
listed on their statement of issues?

Did the [trial court] err in dismissing this case for insufficient evidence where a preponderance
of admissible and inferred evidence showed that Defendants left a foreign body sponge in
Plaintiff Melissa Seminara during a C-section, especially where a Jury or layman would have
concluded that? Was it an error in claiming Res lpsa Loquitor could not be applied or that it
should be dismissed because an expert witness was not furnished? The [trial court] erred, all
requirements of Res lpsa were met. It also meets the exception as it relates to the Discovery rule.

Did the [trial court] err in finding that there was no genuine issue as to any material fact for a
jury to consider and that Defense was entitled to Judgment as a matter of law under PA Rule
 1035.2? Was it error in dismissing this case for insufficient evidence where the Plaintiff
established prima facie evidence? The trial court erred as a matter of fact by assuming Plaintiff
Melissa Seminara was not injured due to Medical Malpractice and the negligence of Defendants,
regardless of evidence and material fact in file along with a layman's ability to see the error and
dismissing all claims. (Similar to above but covering separately prima facie ).

Did the [trial court] err in granting Summary Judgment for Defense either without regard for or
review of Plaintiffs Answer in Opposition to Motion for Summary Judgment and then Amended
Order 2 days later to include it? Why wasn't a hearing scheduled?

Did the [trial court] err in granting Summary Judgment for Defense and ignoring Statute of
Limitations Requirements, Statute of Repose and Discovery Rule as it applies to Foreign Bodies?
Additionally, for failure to not recognize Plaintiffs continuing quest for treatment and diagnosis,
despite doctors repeatedly diagnosing and undiagnosing her?

Did the [trial court] err in not allowing Plaintiff their due right to trial by Jury? The trial court
erred by depriving them of their rights to an impartial hearing by a jury and Judge. Regardless of
the minimal amount of Medical Malpractice claims allowed to go through in Montgomery
County and much smaller amount with a fair chance at winning, Plaintiff is still entitled to a fair
trial.




                                                 3
                                                                             2014-31546-0088 Opinion, Page 4




Did the [trial court] err and show prejudice against Pro se Plaintiff? Pro se Plaintiff was warned
they had to meet all the requirements of the case and has done that but feels trial court granted
Summary Judgment for Defense slighting the Plaintiff with the opportunity of presenting case to
a jury. The trial court erred by denying same treatment, fairness and access to the legal system
and jury trial that someone with an attorney would be ensured of.

Did the [trial court] err when it failed to adhere to the law of the case when it granted Summary
Judgment in favor of the Defendants and against Plaintiffs on essentially all the same arguments
the court had denied Preliminary Objections and Motions to Dismiss?

Did the [trial court] err in granting Defense Summary Judgment and overlook Defense's
complete failure to cooperate and tum over requested Discovery and Documentation to
Plaintiffs? The [trial court] erred by not finding Defendants violated the rules of the case and
denying the Plaintiffs their right to Discovery and Documentation to be provided. It should also
be noted that issue is taken to the fact that Order of Summary Judgment (first one) was given one
day prior to the end of the 30-day period Plaintiff gave Defense for Documentation Production
and Interrogatories before they stated Motion was to be filed. This had been after 3 requests (all
of which were filed with court as well).

It is also Plaintiffs stance that court erred in allowing Defendants to not have to bear any weight
of Burden of Proof when the law clearly states they should.

(Alterations in original).

FACTUAL BACKGROUND

        Mrs. Seminara underwent a cesarean section on December 11, 2003 which was

performed by Defendant Dershaw of Holy Redeemer Women's Care at Holy Redeemer.

(Amended Cornplaint j'[ 3.2, 3.4, 3.5; Mrs. Seminara Dep. at 22:11-14). Plaintiffs allege that

Defendant Dershaw negligently failed to remove a surgical sponge and other surgical materials

from Mrs. Seminara's body following the surgery. (Amended Complaint f 3.3). Plaintiffs allege

that Defendant Stack, also of Holy Redeemer Women's Care at Holy Redeemer, provided sub-

standard medical care by delaying the procedure, causing it to be rushed, failing to employ

proper "storage, handling, and counting of sponges, gauze and other surgical materials prior to



                                                4
                                                                             2014-31546-0088 Opinion, Page 5




their use in cesarean surgery" and then providing subs-standard follow-up care.         (Amended

Complaint 112,3,4,5 of Negligence Count against Defendant Stack).

        A few days after the surgery Mrs. Seminara noticed she was not recovering as expected.

(Answer to Motion , 20). Plaintiffs repeatedly insisted that "it didn't feel normal and [Mrs.

Seminara] was not progressing positively or improving."           (Amended Complaint       1   5 of

Negligence Count against Defendant Dershaw). Mrs. Seminara testified that "in the beginning

... my husband was trying to figure out what went wrong." (Mrs. Seminara Dep. at 22:23-24).

       On February 4, 2004, Mrs. Seminara underwent an MRI which she alleges showed a

retained sponge in her abdomen. (Answer to Motion, 28; Answer to Motion Ex. "B"). The

radiologist at the time indicated to her that the MRI image was a tampon. (Mrs. Seminara Dep.

at 49:6-11; 149:3-8). Mrs. Seminara stated she did not believe this because the object was not in

the vaginal region, though it is unclear at what point she came to this conclusion.            (Mrs.

Seminara Dep. at 49:9-11 ).

       On December 9, 2005, Plaintiffs filed a Writ of Summons against Defendants Holy

Redeemer Women's Care and Holy Redeemer alleging medical malpractice. (Motion Ex. "F").

Mr. Seminara testified that this action was related to the allegedly sub-standard medical care that

these Defendants provided during Mrs. Seminara's cesarean section in 2003. (Mr. Seminara

Dep. at 93:6-9). Mr. Seminara also testified that Plaintiffs filed the Writ of Summons in 2005 to

ensure their time to file a claim within the period prescribed by the applicable statute of

limitations did not lapse. (Mr. Seminara Dep. at 92: 13-20). Plaintiffs never filed a complaint in

that action and a judgment of non pros was ultimately entered on April 10, 2006. (December

term, 2005, Case No. 1038, Philadelphia Court of Common Pleas).




                                                s
                                                                              2014-31546-0088 Opinion, Page 6




        In January or February 2009, Mrs. Seminara observed a note from Dr. Michael Birbaum,

a reproductive endocrinologist, to Dr. Reid-Fighera, a rheumatologist, suggesting she may have a

retained sponge inside her abdomen. (Mrs. Seminara Dep. at 26:18-27:23; 30:6; 39:1-8; Motion

Ex. "Z"). Plaintiff discussed this with Dr. Kaufman, her infectious disease physician, whom

Plaintiff claims did not believe she had a retained sponge. (Mrs. Seminara Dep. at 39:20-24).

Later in 2009 Mrs. Seminara's primary care physician, Dr. Douglas Kimmel, referred her to Dr.

Ernest Rosato at the University of Pennsylvania to further investigate the possibility of a retained

foreign body from the cesarean section. (Id. at 79:8-23). Plaintiff testified that after performing

"one, maybe two scans" Dr. Rosato concluded that there was no foreign body in Mrs. Seminara.

(Id. at 80:3-84:11).

        Mrs. Seminara then consulted with another obstetrician-gynecologist, Dr. Saul Jeck, in

2010 as she pursued her investigation of a retained sponge.           (Id at 85: 18-86:20).   After

performing some radiological studies, Dr. Jeck was unable to confirm the presence of a retained

sponge. (Id. at 99:2-20).

       In May 2010, Mrs. Seminara was evaluated by Dr. Ehab Akkary, a surgeon specializing

in retained foreign bodies. (Id. at 101:4-102:24). Dr. Akkary evaluated Mrs. Seminara's prior

radiological studies as well as a recent CT scan that was ordered for a suspected hemangioma.

(Motion Ex. "Q," Dr. Akkary's post-operative report). On November 16, 2010, Dr. Akk.ary

performed a laparoscopic exploratory surgery to remove the mass on the "posterior aspect of the

right lobe of the liver" he suspected to be a hemangioma.        Id    Dr. Akkary informed Mrs.

Seminara that "this might not be a retained sponge, and that all of the studies are consistent with

a hemangioma, however, if the hemangioma is symptomatic ... and affecting her quality of life,




                                                6
                                                                             2014-31546-0088 Opinion, Page 7




then it will be reasonable to excise it." Id.   During the surgery Dr. Akkary cut a vein that was

emerging from the mass and had to use surgical staples to stop the bleeding. Id.

        The pathology report of the excised mass indicated that it was not a sponge. (Motion Ex.

"R"; Mrs. Seminara Dep. at 130:17-133:15).           Mrs. Seminara testified that Dr. Akkary later

contradicted himself on this point, but there is nothing in the record to indicate that. (Mrs.

Seminara Dep. at 130: 17-20).

       On March 8, 2011, Mrs. Seminara underwent surgery to remove her gall bladder which

was performed by Dr. Luca Giordano. (Motion Ex. "T"). Surgical clips were used during this

surgery and a follow-up CT scan performed on March 15, 2011 showed that these clips remained

"along the posterior margin of the right hepatic lobe." (Motion Ex. "U").

       On November 26, 2012, Mrs. Seminara underwent an exploratory laparotomy which was

performed by Dr. Michael Wayne. (Motion Ex. "W"; Ex. "X"). Dr. Wayne's operative report

indicates that he removed "staple material" and "metallic clips."        (Motion Ex. "X").    The

subsequent pathology report indicates that the material removed was soft tissue, the largest piece

having staple material inside. (Motion Ex. "Y"). The final diagnosis in the pathology report

indicates "[pjerihepatic foreign body; [f]ibroadipose tissue with staples and old hemorrhage." Id.

Although Mrs. Seminara stated Dr. Wayne told her he found a sponge during a follow-up visit,

this statement is not reflected in any of the records. (Mrs. Seminara Dep. at 215: 1-216:21 ).

Plaintiff filed the instant action on November 26, 2014.

DISCUSSION

       A motion for summary judgment shall be granted if the documents of record show there

is no genuine issue as to any material fact and the moving party is entitled to judgment as a

matter of law. Pa.R.C.P. 1035.2(1); Bank of America, NA. v. Gibson, 102 A.3d 462, 465 (Pa.



                                                 7
                                                                              2014-31546-0088 Opinion, Page 8




Super. 2014). The court must restrict its review to material filed in support of and in opposition

to the motion for summary judgment and to uncontroverted allegations in the pleadings.

Pa.R.C.P. I 035.1; Overly v. Kass, 554 A.2d 970, 972 (Pa. Super. 1989). "Parties seeking to

avoid the entry of summary judgment against them may not rest upon averments contained in

their pleadings; rather, they are required to show, by depositions, answers to interrogatories,

admissions or affidavits that there is a genuine issue for trial].]" Overly, supra, 554 A.2d at 972.

"[Wjhere the non-moving party fails to adduce sufficient evidence to establish the existence of

an element essential to his case and on which he bears the burden of proof, then the moving party

is entitled to judgment as a matter of law." Ertel v. Patriot-News Co., 674 A.2d 1038, 1042 (Pa.

1996).

         An action to recover damages for personal injuries has a two-year statute of limitations.

42 Pa.C.S.A. § 5524.      "Generally, a cause of action first accrues when a party is injured,"

however, "[t]he 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 ... 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." Nicolaou v. Martin, 153 A.3d 383, 389 (Pa. Super. 2016) (quoting Simon v. Wyeth

Pharm, Inc., 989 A.2d 356, 365 (Pa. Super. 2009)). The burden is on the party invoking the

discovery rule, in this case Plaintiffs, to show that they acted with reasonable diligence in

determining the fact and cause of the injury but were unable to ascertain it. Id "[T]here 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." Id. at 391 (quoting Fine v. Checcio,

D.D.S., 870 A.2d 850, 858 (Pa. 2005)).     "[O]nce the plaintiff becomes aware of the injury and



                                                8
                                                                                             2014-31546-0088 Opinion, Page 9




    who occasioned ii, she is under a duty to investigate the matter and commence a cause of

    action." Caro v. Glah, 867 A.2d 531, 534 (Pa. Super. 2004) (quoting Burton-Lister v. Sigel,

    Sivitz and Lebed Assoc., 798 A.2d 231, 237 (Pa. Super. 2002)) (emphasis in original).

           Here, Plaintiffs did not commence a cause of action until November 26, 2014.

    Accordingly, it is necessary to examine the undisputed facts of record to determine if Mrs.

    Seminara could not ascertain she was injured and by what cause despite the exercise of due

    diligence before November 26, 2012. Mrs. Seminara claims she had no notice of the cause of

    her injury until the exploratory laparotomy performed by Dr. Wayne on November 26, 2012.

    This is belied by the undisputed facts of record. Mrs. Seminara alleges she was not recovering

    properly almost immediately after her 2003 cesarean section and suspected that Defendants had

    deviated from the standard of care. The pain in her abdomen was severe enough to cause her to

undergo an MRI on February 4, 2004 to investigate her concern. Plaintiffs then filed a Writ of

    Summons in 2005 alleging medical malpractice which Mr. Seminara testified was related to the

cesarean section. 1       Plaintiffs were aware of the injury and had formed a belief that Defendants

had caused it by 2005. Though Plaintiffs may not have known the exact cause of the injury, they

commenced an action which allowed them to utilize discovery procedures to investigate further

details. The discovery rule does not toll the statute of limitations all the way to the point where a

plaintiff knows the precise medical cause of her injury. Groover v. Riddle Mem 'l Hosp., 516

A.2d 53, 57 (Pa. 1986).

           In Groover, plaintiff received an injection in her right buttock while in the hospital

sometime between March 25, 1979 and April 3, 1979. From the time of the injection plaintiff

began to suffer pain and loss of control in her right leg. She consulted with various doctors over

the next several years in an attempt to ascertain the problem with her leg. None of these doctors
1
    December term, 2005, Case No. 1038, Philadelphia Court of Common Pleas;   see also   Mr. Seminara Dep. at 93:6-9.

                                                        9
                                                                             2014-31546-0088 Opinion, Page 10




were able to diagnose the source of the problem. In June 1983, a doctor informed her that the

pain in her leg was due to a sciatic nerve injury caused by the injection she received in 1979. On

September 3, 1983, plaintiff filed suit against the hospital and the physician who applied the

injection. The trial court granted summary judgment in favor of defendants finding that the

claim was filed beyond the statute of limitations.

       Plaintiff appealed and argued that the statute of limitations was tolled by the discovery

rule on the grounds that various doctors were unable to identify the cause of her injury until June

1983. The superior court affirmed the trial court's grant of summary judgment finding that the

statute of limitations began to accrue the day plaintiff received the painful debilitating injection.

The superior court reasoned that plaintiff knew or reasonably should have known that she was

injured and that the injury "was occasioned by a discrete medical procedure." Id. (quoting Held

v. Neft, 507 A.2d 839, 841 (Pa. Super. 1986)).

       Here, Mrs. Seminara began to investigate the specific possibility of a retained sponge

related to her 2003 cesarean section in 2009. Mrs. Seminara reviewed a note in 2009 from Dr.

Birbaum which suggested she may have a retained sponge. She then consulted with Dr. Kimmel,

Dr. Kaufman and Dr. Rosato later in 2009 regarding her concern of a retained sponge. She

consulted with Dr. Jeck and Dr. Akkary in 2010 about a retained sponge. These undisputed facts

all occurred four or more years before she commenced suit in 2014 claiming negligence arising

from a retained sponge from her 2003 cesarean section. Although Mrs. Seminara consulted with

a number of doctors who informed her she did not have a retained sponge, the discovery rule did

not toll the statute of limitations simply because Mrs. Seminara's subsequent treating physicians

did not know the cause of her injuries. See, e.g., Groover, supra, 516 A.2d at 57. Mrs. Seminara

may not have been certain of the exact foreign body allegedly in her abdomen by 2009, but she



                                                 10
                                                                            2014-31546-0088 Opinion, Page 11




did have knowledge of her injury, a belief as to the operative cause of her injury and a belief as

to the causal relationship between her injury and the operative conduct. See Bigansky v. Thomas

Jefferson Univ. Hosp., 658 A.2d 423, 427 (Pa. 1995).

        Plaintiffs filed the original complaint on November 26, 2014, almost eleven years after

her cesarean section performed in 2003.          The undisputed facts established she specifically

investigated her belief regarding a retained foreign body in 2009 and 2010. 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, 870 A.2d at 858. In the instant matter, the court

properly found that Plaintiffs' claim was filed years beyond the statute of limitations as a matter

oflaw and summary judgment in favor of Defendants was appropriate.

        Additionally, the court finds in this case Plaintiffs were required to produce an expert

report or testimony and that the lack of such an expert was fatal to their claim.        "Medical

malpractice consists of a negligent or unskillful performance by a physician of the duties which

are devolved and incumbent upon him on account of his relations with his patients, or of a want

of proper care and skill in the performance of a professional act." Quinby v. Plumsteadville

Family Practice, Inc., 907 A.2d l 061, l 070 (Pa. 2006). Since medical malpractice is a form of

negligence, Plaintiffs were required to demonstrate the elements of a negligence action: a duty

owed by the physician to the patient, a breach of that duty, that the breach was the proximate

cause of Plaintiffs' harm and that the damages suffered were a direct result of that harm. Id

Further, "[wjith all but the most self-evident medical malpractice actions there is also the added

requirement that plaintiff must provide a medical expert who will testify as to the elements of

duty, breach, and causation." Id. at 1070- 71.



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                                                                              2014-31546-0088 Opinion, Page 12




        Here, Plaintiffs provided no such expert but claim that the doctrine of res ipsa loquitor

applies in this case which would allow a jury to infer negligence from the circumstances

surrounding the injury. Res ipsa loquitor is "a rule that provides that a plaintiff may satisfy his

burden of producing evidence of a defendant's negligence by proving that he has been injured by

a casualty of a sort that normally would not have occurred in the absence of the defendant's

negligence." Id. at 1071. Its applicability is not precluded by the mere fact that the negligence is

related to a medical problem.      Id. at 1072.    In this case, however, res ipsa loquitor is not

applicable.

        The Supreme Court has formulated the evidentiary doctrine of res ipsa loquitor, in

pertinent part, as follows:

                (1) It may be inferred that harm suffered by the plaintiff is caused
                    by negligence of the defendant when

                (a) the event is of a kind which ordinarily does not occur in the
                    absence of negligence;

               (b) other responsible causes, including the conduct of the plaintiff
                   and third persons, are sufficiently eliminated by the evidence;
                   and

               ( c) the indicated negligence is within the scope of the defendant's
                    duty to the plaintiff.

               [Id. at l 071 (quoting Restatement (Second) of Torts§ 3280).]

       Ordinarily, a surgical sponge left in a patient would allow a fact-finder to infer

negligence without the requirement of expert testimony. Mrs. Seminara consulted with many

medical experts following her cesarean section. Those physicians could not agree that she had

retained a foreign body from the procedure, or even that she had retained a foreign body at all.

Her doctors disputed how to interpret the various radiological scans that she underwent. The

pathology report following the November 26, 2012 surgery with Dr. Wayne did not indicate the


                                                  12
                                                                                          2014-31546-0088 Opinion, Page 13




    removed tissue was a surgical sponge. It is not "self-evident" that a sponge was left in Mrs.

    Seminara as a result of her 2003 procedure or whether the material extracted by Dr. Wayne was

    related to her 2003 cesarean section as opposed to Mrs. Seminara's 2010 surgery with Dr.

    Akkary or to her 2011 surgery to remove her gallbladder with Dr. Giordano. The determination

    of exactly what material was found and the necessary causal link between any retained foreign

    body and her 2003 cesarean section is not self-evident, requires expert testimony and cannot be

reasonably inferred from the surrounding circumstances.                    This is especially true due to the

passage of significant time and two subsequent surgeries to her abdominal region. Simply stated,

other responsible causes, including the conduct of third parties, cannot be sufficiently eliminated

by the circumstances without expert testimony. Id. Res ipsa loquitor does not apply to the

factual record in this case.

           Further, Plaintiffs are also required to present expert testimony to show the harm she

    suffered was a factual cause of the alleged retained foreign body from 2003. It is not self-evident

that Mrs. Seminara's transient ischemic attacks, cerebral ischemia, brain injury, seizures,

neuropathy, damage and impairment in and to various organs, heart arrhythmias, and frequent

infections were causally related to any alleged negligence.2 In a medical malpractice action

expert testimony as to causation is required unless there is an "obvious causal relationship."

Grossman v. Barke, 868 A.2d 561, 567 (Pa. Super. 2005) (quoting Matthews v. Clarion Hosp.,

742 A.2d 1111, 1112 (Pa. Super 1999)).                  "An obvious causal relationship exists where the

injuries are either an 'immediate and direct' or the 'natural and probable' result of the alleged

negligent act." Id. (quoting Matthews, supra, 742 A.2d at 1112). Here, the causal relationship

between the harm Mrs. Seminara suffered and the alleged retained foreign body is not obvious

and expert testimony was required to establish it.
2
    See Amended Complaint ,i 4.2, setting forth the injuries she claims were caused by the retained sponge.

                                                          13
                                                                             2014-31546-0088 Opinion, Page 14




        In Grossman, plaintiff was consulting with a physician to obtain a pre-examination for a

knee replacement.      Plaintiff was sixty-nine years old, just over five feet tall, weighed

approximately 300 pounds and suffered from diabetes. At the time of the consultation plaintiff

had sutures in her ankle from a previous surgical procedure.          Plaintiff was sitting on the

examination table as defendant left the room to get a suture removal kit when plaintiff became

dizzy, fell from the table and fractured her pelvis.       The fractured pelvis required several

surgeries.   Plaintiff suffered complications including a bacterial infection which ultimately

required the removal of her hip. Plaintiffs medical expert testified that plaintiffs case was "one

of basic negligence as opposed to medical malpractice." Id at 564. The trial court granted

defendant's motion for summary judgment because plaintiff did not present the requisite expert

medical testimony to prove her claim of medical malpractice. Plaintiff appealed and the superior

held that expert testimony was required to establish both a deviation from the standard of care

and the causal relationship between plaintiff's injuries and the alleged negligence. Id. at 571.

       The superior court found that the causal relationship between the harm suffered by

plaintiff in Grossman, the fracture of plaintiffs pelvis and the bacterial infection leading to the

eventual removal of plaintiffs hip, was neither "immediate and direct" nor the "natural and

probable" result of the alleged negligent act. Id. The same is true here. A lay juror would

require the aid of expert medical testimony to conclude that Mrs. Seminara's claimed injuries of

transient ischemic attacks, cerebral ischemia, brain injury, seizures, neuropathy, damage and

impairment in and to various organs, heart arrhythmias and frequent infections were caused by a

retained surgical sponge or foreign body.      Such a causal relationship, if one exists, is not

obvious.

CONCLUSION



                                                14
                                                                      2014-31546-0088 Opinion, Page 15




       Accordingly, the court respectfully recommends that its October 27, 2017 Amended

Order granting summary judgment in favor of Defendants be AFFIRMED.

                                                     BY THE COURT
                                                                      II
                                                                        I

                                                                                         J


Copies sent   onJ/t)1dto:
Melissa Seminara, pro se
Carmelo Seminara, pro se
Amalia V. Romanowicz, Esquire
Albert Bryan Tomlinson, Esquire


cL-c�__,____?t.3�-�
Court Administration

               '
Secretary




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