J-S74032-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

JOHN GORMAN                             :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                  v.                    :
                                        :
ARIA HEALTH, ARIA HEALTH SYSTEM,        :
AND BRIAN P. PRIEST, M.D.               :
                                        :
                                        :
APPEAL OF: JAMES M. MCMASTER,           :
EXECUTOR OF THE ESTATE OF JOHN          :
GORMAN                                  :     No. 1234 EDA 2014

               Appeal from the Order Entered March 17, 2014,
            in the Court of Common Pleas of Philadelphia County,
               Civil Division at No(s): May Term, 2012 No. 557

BEFORE: BENDER, P.J.E., DONOHUE and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                     FILED MARCH 05, 2015

      James M. McMaster, Executor of the Estate of John Gorman, (the

Estate) appeals from an order that granted the motion for summary

judgment filed by Aria Health (Aria) and Brian P. Priest, M.D. (Dr. Priest)

(collectively Appellees). We reverse and remand for further proceedings.

      On May 9, 2012, John Gorman (Mr. Gorman) initiated this action by

filing a praecipe to issue a writ of summons against Appellees and Aria

Health System. On July 19, 2012, Mr. Gorman filed a complaint against the

same parties.     The complaint consisted of one count of professional

negligence and one count of corporate negligence.

      Mr. Gorman died on October 8, 2012, and James M. McMaster,

executor of Mr. Gorman’s estate, later was substituted as the plaintiff in this



* Retired Senior Judge assigned to the Superior Court.
J-S74032-14


matter. We further note that the parties stipulated to dismissing Aria Health

System from the action and to dismissing Mr. Gorman’s corporate negligence

count.

      The trial court offered the following summary of the factual history of

this case.

             This lawsuit stems from Dr. Priest’s performance of a July
      12, 2004, coronary artery bypass graft carried out at the facility
      of [] Aria. During the surgical procedure, Dr. Priest failed to
      remove a large chest tube which would remain in [] Appellant’s
      chest until his passing. [Mr. Gorman] allege[d in his complaint]
      that, as a result of the retained chest tube, he incurred a fibrotic
      reaction in the left pleural space, aggravation of dyspnea on
      exertion, aggravation of interstitial lung disease, restriction of
      pulmonary function, damage to the lungs, anxiety, depression, a
      loss of life’s pleasures, pain and suffering, and additional
      injuries. [He further alleged that, in May of 2012, he was told
      for the first time that the retained chest tube was causing him
      pathology and complications.]

            On May 17th, 2009, [Mr. Gorman] had a CT scan of his
      chest performed.      Dr. Segal examined and informed [Mr.
      Gorman] that there appeared to be a chest tube or tracking in
      his chest, but was not sure which it was. During a July 14,
      2009, visit with Dr. G. Chris Christensen, III, [Mr. Gorman] was
      first advised there was definitely a tube in his chest.       In
      September of 2009, [Mr. Gorman], accompanied by his daughter
      and son-in-law, was examined by Dr. D’Alonzo who informed
      [Mr. Gorman] that he absolutely had a chest tube in his chest.
      [Mr. Gorman] was also told that removing the chest tube would
      ultimately do more harm than good.

Trial Court Opinion, 6/4/2014, at 2 (citations omitted).

      Appellees eventually filed a motion for summary judgment. Therein,

they maintained that Mr. Gorman was aware of the retained chest tube and

that the tube could cause health issues by, at the latest, September 7, 2009.



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Thus, according to Appellees, the two-year statute of limitations expired in

September of 2011.1 Because Mr. Gorman did not initiate this action until

May of 2012, Appellees contended that the statute of limitations bars the

professional negligence claim.

      In response to the motion for summary judgment, Mr. Gorman

conceded that, in 2009, he knew that the tube remained in his chest.

However, he stated that, at that time, he was unaware of the risks that the

tube presented and was not advised that he suffered damage as a result of

the tube. Mr. Gorman asserted he was told that there was greater risk of

harm if he had the tube removed than if he allowed it to remain in his chest.

According to Mr. Gorman, “[i]t was not until it became clear that the large

pleural effusion was due to the retained chest tube that [Mr. Gorman]

reasonably discovered he had an action against [Appellees].” Memorandum

of Law in Opposition to Motion for Summary Judgment, 2/28/2014, at

unnumbered page 8).       Mr. Gorman argued that summary judgment was

inappropriate because a genuine issue of material fact remained as to when

he discovered that the tube caused him to be injured.

      The trial court granted the motion for summary judgment. The court

offered the following rationale in support of its decision.

             [Mr. Gorman] claims that the statute of limitations was
      tolled until May 2012, when he was advised that the chest tube
      left inside of him from the July 12, 2004 surgery was causing his

1
  The parties do not dispute that Mr. Gorman’s medical malpractice claim is
subject to a two-year statute of limitations. 42 Pa.C.S. § 5524(2).


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     complications. However, contrary to [this] argument, actual
     knowledge of the exact nature of the injury is not the trigger for
     the running of the statute of limitations. Under Pennsylvania’s
     application of the discovery rule doctrine, it is not required that
     [Mr. Gorman] actually receives a precise medical diagnosis
     stating Appellees’ conduct was the cause of a particular injury for
     the statute of limitations to begin. Instead, Pennsylvania courts
     have repeatedly held that this standard requires the statute of
     limitations to run from the time plaintiff discovered or should
     reasonably have discovered the cause of harm or injury. In
     determining when a discovery should have been made, three
     independent phases of knowledge must be known or knowable
     to plaintiff before the limitation period commences: (1) the
     injury; (2) the operative cause of the injury; and, (3) the
     causative relationship between the injury and the operative
     conduct.

            Here, all three prongs of the test are met. First, [Mr.
     Gorman] and his family were well aware of his injury as they
     were put on notice numerous times in 2009 that [Mr. Gorman]
     had a tube in his chest. The presence of the tube in [Mr.
     Gorman’s] chest is, in and of itself, an actionable injury;
     indicating medical negligence on the part of the treating surgeon
     for failure to remove it. Moreover, [Mr. Gorman] admitted in his
     October 3, 2012 deposition that during a July 14, 2009 visit with
     Dr. Christensen, he was informed that he had a tube in his chest
     and that he understood that it should not have been there.
     Further, [Mr. Gorman] stated that the only operation he has ever
     had on his chest was the coronary artery surgery performed by
     Dr. Priest in 2004. In addition, [Mr. Gorman’s] daughter has
     stated that she, her father, and husband were all present for a
     September 2009 office visit with Dr. D’Alonzo who informed
     them [Mr. Gorman] absolutely had a chest tube in his chest.
     Thus, [Mr. Gorman] should have been more than aware of the
     operative cause of his injury and the causal relationship between
     the two.

            The applicable law clearly demonstrates that the statute of
     limitations began to run when [Mr. Gorman] learned, or should
     have learned, that there was a tube in his chest that should not
     have been there in July of 2009, or at the latest, September
     2009. There are no Pennsylvania cases which allow extension of
     the statute of limitations after an ascertainable tortious episode
     where there has not been fraud or concealment. It is of no


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J-S74032-14


     consequence that [Mr. Gorman] first learned the chest tube was
     causing complications until May 2012. The confirmation in 2009
     from Dr. Christensen that this foreign object was in fact a chest
     tube triggered the running of the statute of limitations. There
     are ample facts that would suggest the tube must have been left
     in [Mr. Gorman’s] chest during his 2004 coronary artery surgery,
     the most obvious fact being it was the only surgery ever
     performed on his chest.

           Although [Mr. Gorman] presents a sympathetic argument
     that he did not bring a lawsuit because he believed from his
     doctor that the actual removal of the tube might cause more
     harm than simply letting the tube remain; this is not a legally
     recognized basis for not instituting an action. This issue is
     actually an issue concerning proof of damages; it is not an issue
     of when a lawsuit must be filed. The discovery of a surgical
     implement, having been left in a patient through a negligent act,
     commences the statute of limitations.

            Upon learning there was a chest tube inside of his body
     that should not have been there, [Mr. Gorman] had a cause of
     action with which to bring a lawsuit. [Mr. Gorman] filed suit in
     July 2012, almost ten months after the two year statute of
     limitations had run from the latest applicable date according to
     the facts, September 2009. Therefore, because the statute of
     limitations began to run when [Mr. Gorman] first learned he had
     a chest tube in his chest in either July or September of 2009,
     and because [Mr. Gorman] filed his lawsuit in July 2012 well
     after the statute of limitations had expired, [he] is barred from
     trying this case.

Trial Court Opinion, 6/4/2014, at 3-5 (citations and quotation marks

omitted).

     After the Estate was substituted as the plaintiff, it timely filed a notice

of appeal.    The court did not direct the Estate to comply with Pa.R.A.P.

1925(b).     In its brief to this Court, the Estate asks us to consider the

following questions:




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J-S74032-14


      A. Did the lower [c]ourt err in granting the Motion for Summary
      Judgment on the basis that more than two years had passed
      since [Mr. Gorman] discovered a tube had been left in his chest
      during a surgical procedure and [Mr. Gorman] was therefore not
      reasonably diligent? [Mr. Gorman] alleged he discovered his
      right of action when he learned he actually suffered injury as a
      result of the tube remaining in his chest and commenced his
      action within two years of that date and the [c]ourt held the
      statute of limitations began to run when decedent was made
      aware the chest tube was left in his chest[.]

      B. Did the lower [c]ourt err in granting the Motion for Summary
      Judgment when there was a material issue of fact as to when
      [Mr. Gorman] discovered he had a cause of action against
      [Appellees] and as to whether he was reasonably diligent in
      learning his condition and injury?

The Estate’s Brief at 4 (trial court’s answers omitted).

      We review orders granting summary judgment as follows.

             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).




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     We begin our analysis by rejecting the trial court’s assertion that

“[t]he presence of the tube in [Mr. Gorman’s] chest is, in and of itself, an

actionable injury[.]” Trial Court Opinion, 6/4/2014, at 4. Our conclusion in

this regard is guided by this Court’s decision in Gregorio v. Zeluck, 678

A.2d 810 (Pa. Super. 1996).

     In November of 1988, Patricia Gregorio gave birth to a baby; Dr.

Zeluck performed her episiotomy.      After the delivery of the baby, the

incision for the episiotomy was packed with sponges.

            Approximately five days after her delivery, Ms. Gregorio
     complained that she was not feeling well. Specifically, she was
     itching, was not able to get comfortable when trying to fall
     asleep, and was bleeding; she was concerned because the
     bleeding was very dark. Ms. Gregorio telephoned [Dr. Zeluck’s]
     office, spoke with the receptionist … and was told by [the
     receptionist] that the symptoms Ms. Gregorio described were
     normal; the itching was caused by the stitches, and bleeding was
     expected after delivery. [The receptionist] assured Ms. Gregorio
     that she would inform the doctors of her call. A couple of days
     later, Ms. Gregorio again spoke with [the receptionist], who
     reassured her that her symptoms were not unusual.           After
     several more days, Ms. Gregorio experienced pain in her lower
     abdomen, and detected a very bad odor. She called the doctors’
     office several more times, and was advised that her “insides
     were shrinking back to normal” and that the doctors did not
     need to see her until her regularly scheduled six week checkup.

           According to Ms. Gregorio, she began to feel compelled to
     avoid people, even her baby, as a result of the odor she was
     experiencing; she was fearful people would notice the smell.
     Several weeks later, while in the shower, Ms. Gregorio felt a
     foreign object protruding from her vagina. After pulling it out,
     she telephoned the doctors’ office; it was determined that the
     object was a piece of surgical packing left inside of her after the
     delivery.




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            The Gregorios filed a complaint against [Dr. Zeluck and his
      practice] alleging medical malpractice based on the failure of the
      attending doctor, Dr. Zeluck, to remove sponges following the
      delivery, and on the failure of the doctors to respond to Ms.
      Gregorio’s complaints of odor. A jury trial commenced[]. At the
      conclusion of the Gregorios’ case, the doctors moved for a
      compulsory nonsuit.… [The trial court] granted the doctors’
      motion. The Gregorios’ motion for reconsideration and post-
      verdict relief was denied.    [The Gregorios appealed to this
      Court.]

Zeluck, 678 A.2d at 812.

      On appeal, this Court examined, inter alia,        “whether   Dr. Zeluck’s

failure to remove the sponge resulted in harm to Ms. Gregorio.” Id. at 813.

In so doing, the Court offered the following analysis.

            We conclude that the Gregorios failed to establish any link
      between Dr. Zeluck’s negligence and a legally cognizable injury.
      It was established that any physical pain experienced by Ms.
      Gregorio during the days following labor was not related to Dr.
      Zeluck’s negligence. In fact, the testimony revealed that Ms.
      Gregorio had no abnormal physical pain related to the sponge; it
      is the unpleasant odor resulting from the sponge of which Ms.
      Gregorio complains.

            Not every wrong constitutes a legally cognizable cause of
      action.... Not every loss constitutes a legal injury for which
      compensation is available. In an analogous case addressing the
      compensable harm issue, the Pennsylvania Supreme Court was
      asked to determine specifically whether asymptomatic pleural
      thickening, i.e., unaccompanied by disabling consequences or
      physical impairment, is a compensable injury giving rise to a
      cause of action. The Court concluded that no physical injury was
      established necessitating an award of damages. Similarly, in
      Lubowitz v. Albert Einstein Medical Center, 424 Pa.Super.
      468, 623 A.2d 3 (1993), this [C]ourt found no legally cognizable
      injury in an appellant’s fear that she would develop the AIDS
      virus after being exposed to it. We concluded that appellant, in
      her asymptomatic state, could not recover monetary damages.




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             Likewise, in the instant case, Ms. Gregorio suffered no
      disabling consequences, physical impairment, or physical
      symptoms as a result of her odor. While we sympathize with Ms.
      Gregorio and the unpleasant experience she endured, we find
      that the odor resulting from Dr. Zeluck’s negligence is not a
      sufficient physical injury to warrant damages.

Zeluck, 678 A.2d at 813-14 (citations, footnotes, and quotation marks

omitted).

      Zeluck demonstrates that the mere existence of a foreign object

retained in a patient’s body after a surgery does not amount to a medical

malpractice cause of action. Rather, such a cause of action exists when the

patient has suffered a compensable injury due to the negligent act of leaving

the foreign object in the patient’s body.

      Therefore, we proceed to the Estate’s argument that there exists an

genuine issue of material fact as to whether the statute of limitations bars

the medical malpractice claim. In so doing, we note the following principles

of law.

      Medical malpractice is defined as the unwarranted departure
      from generally accepted standards of medical practice resulting
      in injury to a patient, including all liability-producing conduct
      arising from the rendition of professional medical services. [T]o
      prevail in a medical 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 the damages suffered were a direct
      result of the harm.

Ditch v. Waynesboro Hosp., 917 A.2d 317, 321-22 (Pa. Super. 2007)

(citations and quotation marks omitted).




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      Our Supreme Court has explained the statute of limitations and the

discovery rule as follows.

             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.

            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).


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     When the record is viewed in a light most favorable to Mr. Gorman, it

establishes, in relevant part, the following.           Mr. Gorman had breathing

problems relating back to 1998. Those problems progressed, causing him to

see a pulmonologist, Marcia Segal, D.O., in February of 2009.                  After Mr.

Gorman’s May 5, 2009 follow-up appointment, Dr. Segal authored a report

wherein she diagnosed Mr. Gorman with idiopathic pulmonary fibrosis and/or

usual interstitial pneumonitis. Dr. Segal also observed a retained left-side

chest tube or tracking in a CAT scan of Mr. Gorman’s chest.                  Mr. Gorman

saw Dr. Segal for another follow-up appointment on June 30, 2009.

     On      July    14,   2009,    Mr.   Gorman    saw       pulmonologist    G.   Chris

Christensen, III, D.O.        Dr. Christensen authored a report wherein he

diagnosed Mr. Gorman with idiopathic fibrosis and noted the presence of the

retained tube.        While Dr. Christensen’s report states that some fibrotic

changes appeared to have occurred, he also observed no evidence of an

infection in that area. Moreover, Dr. Christensen opined that there was clear

evidence of the lung disease in 2002 and suspected the onset of the disease

to predate that year. Both Dr. Segal and Dr. Christensen suggested that Mr.

Gorman follow up at Temple University.

     On September 7, 2009, Mr. Gorman saw Gilbert D’Alonzo, D.O., for a

second opinion.        Dr. D’Alonzo found Mr. Gorman’s lung disease to be

consistent    with     idiopathic   pulmonary      fibrosis    and   usual    interstitial

pneumonitis.        Dr. D’Alonzo’s report notes that Mr. Gorman “does have a



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retained fragment of a left chest [sic], which does not seem to be a

problem.”   Motion for Summary Judgment, 1/31/2014, at Exhibit B. 2        Dr.

D’Alonzo stated that he would not tamper with the chest tube.

      None of the medical reports of record indicates that the multiple

physicians who treated Mr. Gorman believed the retained chest tube in any

way was causing Mr. Gorman’s lung difficulties.       In fact, Dr. D’Alonzo’s

report seems to suggest that he believed the tube was not problematic.

      Dr. Christensen continued to treat Mr. Gorman.        According to Mr.

Gorman’s deposition testimony, which occurred on October 3, 2012, the first

time a doctor informed him that the chest tube was causing him any

problem was in a letter written by Dr. Christensen. Mr. Gorman could not

recall when Dr. Christensen sent that letter, but he speculated that it could

have been a year-and-a-half ago.             Motion for Summary Judgment,

1/31/2014, at Exhibit B, Mr. Gorman’s 10/3/2012 afternoon deposition

testimony, at 13.   That letter is in the record but is not dated.   It states,

inter alia, Dr. Christensen’s belief that “there is a contributing element of

[Mr. Gorman’s] restriction caused by the retained chest tube causing a

fibrotic reaction in the left pleural space.” Motion for Summary Judgment,

1/31/2014, at Exhibit B.

      Mary Ellen McMaster, Mr. Gorman’s daughter, stated at her deposition

that she learned for the first time that the tube was a problem for her father

2
  Exhibit B of Appellees’ motion for summary judgment is lengthy.          Dr.
D’Alonzo’s report is located at the end of that exhibit.


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from a report authored by Dr. Christensen.     She believed Dr. Christensen

wrote the report in “2011 or 2012.”         Motion for Summary Judgment,

1/31/2014, Exhibit C, at 32.      James McMaster, Mary Ellen McMaster’s

husband, testified at his deposition that Dr. Christensen informed the family

that the tube made Mr. Gorman’s lung disease worse.

     In its present state, the record demonstrates that Dr. Priest owed Mr.

Gorman a duty when he performed the 2004 surgery.         The record further

suggests that Dr. Priest breached that duty in 2004 by failing to remove

tubing from Mr. Gorman’s chest. While Mr. Gorman clearly discovered that

breach of duty in 2009, the record is unclear as to whether the retained tube

caused him to be injured and, if so, when Mr. Gorman learned or should

have learned of that injury. Stated differently, questions of fact remain as

to whether Dr. Priest’s alleged breach of duty caused Mr. Gorman a

compensable injury and when Mr. Gorman learned or should have learned of

the existence of such an injury. The answers to these questions will inform

a determination of whether the statute of limitations bars Mr. Gorman’s

medical malpractice claim. A jury should make such factual determinations.

Fine, 870 A.2d at 859.

     For these reasons, we conclude that the trial court erred by granting

Appellees’ motion for summary judgment. Accordingly, we reverse the trial

court’s order and remand for further proceedings.

     Order reversed. Case remanded. Jurisdiction relinquished.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/5/2015




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