HARRISBURG – A plaintiff’s appeal of summary judgment against a pair of medical facilities and two neurosurgeons has been quashed and labeled “untimely”, according to the Superior Court of Pennsylvania.

This decision in Dawn M. Cubano’s appeal versus the Hershey Medical Center, Penn State Hershey Neurosurgery, Jonas M. Sheehan and Moksha Ranasinghe, was rendered on Aug. 29, per Judges Victor P. Stabile, William H. Platt and Eugene B. Strassburger III.

Cubano underwent surgery on Oct. 9, 2008 for treatment of back and leg pain. After the operation, Cubano claimed she began to experience new post-surgical symptoms of severe burning, tingling and numbness of her right side from her buttocks to her toes from Oct. 11-13, 2008.

On Oct. 15, 2008, Cubano went to Hershey Medical Center, and Sheehan performed a second surgery on her the next day. Cubano further claimed after the second surgery, she awoke with “new and disabling symptoms including bowel constipation, severe neuropathic rectal and bowel pain, urinary retention, numbness extending from her right buttock to her toes and a total lack of voluntary dorsiflexion in her right foot and toes resulting in complete right foot drop.”

Cubano brought negligence claims against neurosurgery physician Sheehan and neurosurgery resident Ranasinghe, alleging improper performance of her spinal surgery. Though expert reports were due to be submitted on Sept. 11, 2015, the reports never materialized and based on their absence, the Dauphin County Court of Common Pleas opted to grant the motion for summary judgment on Oct. 26, 2015.

Though required to submit an appeal within 30 days, or by Nov. 25, 2015, Stabile said court records showed Cubano’s appeal to the Superior Court was not filed until Nov. 27 of last year – 32 days after the summary judgment motion was granted. Cubano’s counsel later claimed the appeal notice was in fact timely submitted, and could not explain why it had not been docketed by Nov. 25 of last year.

“Defendants acknowledge that our courts will permit an untimely appeal in extraordinary circumstances through an appeal nunc pro tunc,” Stabile said. “However, plaintiff did not file an appeal nunc pro tunc but simply asked, in her response to this Court’s Rule to Show Cause, that we treat the appeal as nunc pro tunc. Regardless, plaintiff has not identified any extraordinary circumstances that prevented a timely filing of the appeal.”

Stabile added, “Her counsel did not explain why, for example, he did not file a notice of appeal simultaneously with the motion for reconsideration. Nor does he explain why he simply did not drive to the Dauphin County Courthouse, not even 40 miles from his office, to file the appeal in person.”

“Instead, he waited until November 24 to contact the Dauphin County Prothonotary, learned that the motion for reconsideration had been denied, and learned that the October 23 order was actually docketed on October 26, making the deadline for filing an appeal the next day, November 25,” Stabile said.

“Because her appeal was not timely filed, the appeal must be quashed,” Stabile concluded.

Superior Court of Pennsylvania case 2055 MDA 2015

Dauphin County Court of Common Pleas case 2013-CV-08035

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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