Phila. judge seeks to have ruling dismissing med mal suit against Temple affirmed by Superior Court

By Jon Campisi | Jul 12, 2012

A Philadelphia judge has filed an opinion in a medical malpractice case in which he seeks to have a state appellate court panel affirm an earlier decision by the trial court to grant judgment on the pleadings to the defendants in the case.

A Philadelphia judge has filed an opinion in a medical malpractice case in which he seeks to have a state appellate court panel affirm an earlier decision by the trial court to grant judgment on the pleadings to the defendants in the case.

In a July 3 opinion, Common Pleas Court Judge Allan L. Tereshko seeks to have state Superior Court judges uphold his decision granting judgment to Temple University Hospital and doctor Vani Dandolu in a case in which the defendants were being sued for medical malpractice by Philadelphia resident Deysi Rivera.

The underlying case stemmed from injuries Rivera claims to have sustained following an abdominal hysterectomy and procedure for stress urinary incontinence.

The Oct. 17, 2007, procedure took place at Temple University Hospital with Dandolu as the attending physician.

Rivera claimed she began experiencing constant pain in her abdomen and blood in her urine following the surgery, according to background information on the case.

In early October 2008, Rivera was given a CAT scan that revealed kidney problems, specifically, two punctuate stones, which were removed during a procedure at Maria de los Santos Health Center two months later.

Rivera filed her complaint against Temple and the doctor that performed her initial surgery in late October 2010 containing negligence claims and various other counts.

The trial court sustained the defendant’s preliminary objects on Feb. 3, 2011, striking all claims of recklessness, vicarious liability, corporate negligence and intentional infliction of emotional distress from the complaint.

The defendants subsequently filed another motion that sought to have the balance of the claims dismissed because they were time-barred by a statute of limitations.

A judge agreed, granting a defense motion for judgment on the pleadings on July 19, 2011.

The court determined that the plaintiff filed her claim a full year after the expiration of the limitations period.

The defendants further denied that the discovery rule was applicable because the plaintiff alleged that she discovered her injuries on Dec. 9, 2008, which was within the two-year statutory period.

The court granted the defense motion for judgment on Aug. 22, 2011 with the plaintiff subsequently filing a motion for reconsideration.

The trial court refused to reconsider its earlier order on Aug. 22, 2011, and the plaintiff appealed the order to a higher court in late September 2011.

The issue to be addressed on appeal is whether the trial court erred in granting the defendants’ motion for judgment on the pleadings.

The plaintiff argues that although the statutory period should have expired on Oct. 17, 2009, a year before she filed her complaint, the statute of limitations was tolled by virtue of the discovery rule, rendering her complaint timely filed.

In his opinion, Tereshko wrote that “reasonable minds could not differ in finding that, in the exercise of reasonable diligence, Plaintiff Rivera knew or should have known of her injury and its cause within the statutory period. Plaintiff’s failure to exercise reasonable diligence to discover the cause of the injury sooner prohibits her from using the discovery rule exception to the statute of limitations; therefore the limitations period should not be tolled.”

Tereshko wrote that the plaintiff failed to seek medical attention until almost a year after she should have known of her injury.

“There is no evidence Plaintiff did anything to ascertain the cause of her injury until she went to a doctor almost a year later,” the opinion states. “Even if Plaintiff believed her pain to be a year-long side effect of the surgery, she had the responsibility to do more than just assume the pain was normal and to seek out the actual cause of the pain.”

Tereshko wrote that Dandolu, the doctor, never told the plaintiff her year-long pain and bloody urine were normal side effects and that the woman did nothing more than assume the pain was just a side effect from the prior procedure.

The judge wrote that even if the court assumes the plaintiff was reasonable in assuming her injuries were just side effects in the beginning, “it is not reasonable to wait 15 months for verification. Therefore, a holding that the discovery rule does not apply in this case will not lead to an unreasonable and arbitrary result because Plaintiff was not reasonably diligent and thus, cannot take advantage of the tolling of the limitations period.”

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