J-A33033-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

NANCY NICOLAOU AND NICHOLAS             :   IN THE SUPERIOR COURT OF
NICOLAOU,                               :          PENNSYLVANIA
                                        :
                       Appellants       :
                                        :
                  v.                    :
                                        :
JAMES J. MARTIN, M.D., LOUISE A.        :
DILLONSNYDER, 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 ORTHOPEDIC 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: LAZARUS, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                    FILED MARCH 24, 2015

     Nancy and Nicholas Nicolaou (the Nicolaous) appeal pro se from the

trial court’s February 24, 2014 order granting summary judgment in favor of

James J. Martin, M.D.; Jeff D. Gould, M.D.; St. Luke’s Hospital; St. Luke’s

Hospital & Health Network; St. Luke’s Hospital Union Station Medical

Surgical Clinic (d/b/a St. Luke’s Southside Medical Center); St. Luke’s

Orthopedic Surgical Group; and Nazareth Family Practice (Appellees) in this

medical malpractice action. We reverse the order of the trial court.


* Retired Senior Judge assigned to the Superior Court.
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      The trial court has summarized the factual and 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 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 [] St. Luke’s Hospital and St. Luke’s
      Health Network, in August of 2001. Mrs. Nicolaou was a patient
      of [] Dr. James J. Martin, an alleged employee of [] 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 [] 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 [] Dr.
      Jeffrey D. Gould, an alleged agent of [] St. Luke’s Hospital and
      St. Luke’s Hospital & Health Network, in 2007 and 2008.

             During Mrs. Nicolaou’s treatment, Dr. Falatyn and []
      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, [] 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

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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J-A33033-14


     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 [treatment] with the
     [Appellees] sometime in 2008.

           Sometime in 2007, Mrs. Nicolaou suspected that the
     [doctors] 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
     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,


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J-A33033-14


     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 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 [] 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   assert[ed]   medical
     malpractice claims against each of the [Appellees]. Based on
     the injuries allegedly suffered by his wife as a result of the []
     purported negligence, Mr. Nicolaou also assert[ed] claims [] for
     loss of consortium.

        In their [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 the [doctors
     and hospitals], the statute of limitations is not a bar to their
     claims due to the operation of the discovery rule.          [The
     Nicolaous] assert that the [Appellees] are estopped from
     asserting a statute of limitations defense because reasonable
     people in the position of [Appellants] 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, 2/24/2014, at 2-6 (citations to the record omitted; some

capitalization and punctuation modified).




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      On December 6, 2013, after discovery was completed, Appellees filed

a motion for summary judgment.       On December 31, 2013, the Nicolaous,

through counsel, filed a response. On February 25, 2014, the trial court

granted Appellees’ motion, 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.   Id. at 14.2   On April 21, 2014, the Nicolaous filed a

notice of appeal.3 The trial court did not direct Appellants to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Nonetheless, in accordance with Pa.R.A.P. 1925(a), the trial court issued an

opinion in support of its order on May 9, 2014.4

      The Nicolaous raise the following issue for our review: “[w]hether the

trial judge erred in granting Appellee[s’] motion for summary judgment and


2
  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).
3
  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 Appellant would need to appeal within thirty
days pursuant to Pa.R.A.P. 903(a). A final order is any order that, inter alia,
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.
4
  The trial court’s Rule 1925(a) opinion directs the reader to the opinion
attached to its February 24, 2014 order granting summary judgment.



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J-A33033-14


holding that [their] action was time barred under [42 Pa.C.S. § 5524(2)] and

did not meet the discovery rule exception rather than having a jury

determine the issue?” The Nicolaous’ Brief at 2.

      We set forth our standard of review from an order granting summary

judgment.

             The standards which govern summary judgment are well
      settled. When a party seeks summary judgment, a court shall
      enter judgment whenever there is no genuine issue of any
      material fact as to a necessary element of the cause of action or
      defense that could be established by additional discovery. A
      motion for summary judgment is based on an evidentiary record
      that entitles the moving party to a judgment as a matter of law.
      In considering the merits of a motion for summary judgment, a
      court views 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.
      Finally, the court may grant summary judgment only when the
      right to such a judgment is clear and free from doubt. An
      appellate court may reverse the granting of a motion for
      summary judgment if there has been an error of law or an abuse
      of discretion.…

Swords v. Harleysville Ins. Companies, 883 A.2d 562, 566-67 (Pa.

2005) (citations omitted).

      We also set forth the principles of law governing claims with respect to

the expiration of the statute of limitations and the discovery rule.

             The discovery rule originated in cases in which the injury
      or its cause was neither known nor reasonably knowable. 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.



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           As the discovery rule has developed, the salient point
     giving rise to its application is the inability of the injured, despite
     the exercise of reasonable diligence, to know that he is injured
     and by what cause….

           Therefore, when a court is presented with the assertion of
     the discovery rules application, it must address the ability of the
     damaged party, exercising reasonable diligence, to ascertain
     that he has been injured and by what cause. Since this question
     involves a factual determination as to whether a party was able,
     in the exercise of reasonable diligence, to know of his injury and
     its cause, ordinarily, a jury is to decide it. Where, however,
     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.

            When the discovery rule applies, the statute of limitations
     does not commence to run at the instant that the right to
     institute suit arises, i.e., when the injury occurs. Rather, the
     statute is tolled, and does not begin to run until the injured party
     discovers or reasonably should discover that he has been injured
     and that his injury has been caused by another party’s conduct.
     Whether the statute of limitations has run on a claim is a
     question of law for the trial court to determine; but the question
     as to when a party’s injury and its cause were discovered or
     discoverable is for the jury.

Fine v. Checcio, 870 A.2d 850, 858-59 (Pa. 2005) (citations and quotation

marks omitted).

     Furthermore, we have also observed that

     [p]ursuant to application of the discovery rule, the point at which
     the complaining party should reasonably be aware that he has
     suffered an injury is a factual issue best determined by the
     collective judgment, wisdom and experience of jurors. Thus,
     once the running of the statute of limitations is properly tolled,
     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.




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Crouse v. Cyclops Indus., 745 A.2d 606, 611 (Pa. 2000) (citations and

quotations omitted; emphasis in original).

        On appeal, the Nicolaous argue that the issue of when Mrs. Nicolaou

“should have been reasonably aware that she suffered a misdiagnosis is

generally an issue of fact to be determined by the jury.” The Nicolaous’ Brief

at 4.5    The trial court disagreed, holding that in this case “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, 2/24/2014, at 9.6 Viewing the facts in the light most favorable to

the Nicolaous, we disagree.


5
  Appellees and the Dissent argue that we should dismiss this appeal
because of the Nicolaous’ failure to comply with Pa.R.A.P. 2119. See
Appellees’ Brief at 12-14. We recognize that the argument quoted supra is
actually set forth in the Summary of Argument section of the Nicolaous’
brief, as opposed to the Argument section. See The Nicolaous’ Brief at 4-5.
However, the argument is clearly stated and is the same argument briefed
and argued before the trial court.

      Moreover, we recognize the Nicolaous do not cite relevant legal
authority in either section. However, neither the parties nor the trial court
disputes the relevant case law. The issue before us is whether the trial court
erred in its application.

       A determination about whether this Court should dismiss an appeal for
failure to comply with appellate rules is discretionary. PHH Mortgage Corp.
v. Powell, 100 A.3d 611 (Pa. Super. 2014).           Because the argument is
easily discernable by this Court, we decline to dismiss the appeal as
suggested by Appellees and the Dissent.
6
    The Nicolaous filed a complaint on February 10, 2012.



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      While there is no question that Mrs. Nicolaou suspected she had Lyme

Disease in July of 2009 when she began treating with Nurse Rhoads, and

Nurse Rhoads offered Mrs. Nicolaou what would have been her fifth Lyme

Disease test at that time, Nurse Rhoads acknowledged that Mrs. Nicolaou

turned down this Lyme Disease test because she had “no money.” N.T.,

11/1/2013, at 23. Moreover, even though Mrs. Nicolaou’s symptoms began

to improve within a month of being treated as if she had Lyme Disease, she

had no medical confirmation of having Lyme Disease. On February 1, 2010,

Mrs. Nicolaou agreed to have the new Lyme Disease blood test performed.

On February 13, 2010, Mrs. Nicolaou’s Lyme Disease test came back

positive.   Mrs. Nicolaou filed her complaint less than two years later, on

February 12, 2012.

      A plaintiff’s actions must be 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 interests and the interests of others. In
      other words, a party is not under an absolute duty to discover
      the cause of his injury. Instead, he must exercise only the level
      of diligence that a reasonable man would employ under the facts
      and circumstances presented in a particular case.

Crouse, 745 A.2d at 611-12.

       Because reasonable minds could differ as to whether Mrs. Nicolaou

acted with reasonable diligence in choosing to delay her fifth Lyme Disease

test, “the question as to when [Mrs. Nicolaou’s] injury and its cause were

discovered or discoverable is for the jury.” Fine, 870 A.2d at 859.




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Accordingly, we hold that the trial court erred in granting summary

judgment, and we reverse the order of the trial court.

       Order reversed. Jurisdiction relinquished.

       Judge Lazarus joins the memorandum.

       Judge Wecht files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/24/2015




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