Facebook Post Helps To Torpedo Lyme Disease Misdiagnosis Case

162017_132140396847214_292624_nIn its decision filed on December 22, 2016, the Superior Court of Pennsylvania (“Appellate Court”) held that reasonable minds could not differ in the conclusion that the medical malpractice plaintiff knew, or reasonably should have known, between July and September, 2009, that her long-standing health problems may have been caused by the medical malpractice defendants’ failure to diagnose and treat her Lyme disease and therefore, such failure could have resulted from the defendants’ medical negligence. The Appellate Court therefore held that there are no genuine issues of material fact and the trial court’s entry of summary judgment for the medical malpractice defendants was proper.

The Underlying Facts

The Lyme disease malpractice plaintiff was bitten by a tick on her left ankle in 2001. Beginning in August, 2001, the plaintiff began seeking medical treatment because she was experiencing a number of maladies that she associated with the tick bite: at first, the plaintiff developed a rash near the site of the tick bite and experienced numbness and tingling in her left toe, fatigue, and lower back pain. Over time, her 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.

On July 3, 2006, an MRI of the plaintiff’s brain  suggested that the plaintiff could be suffering from either multiple sclerosis (MS) or Lyme disease. A doctor diagnosed the plaintiff with and treated her for MS, and the doctor told the plaintiff that she did not have Lyme disease.

Sometime in 2007, the plaintiff suspected that she was incorrectly diagnosed 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, the plaintiff sought the help of a nurse practitioner (NP) after the plaintiff learned through research on the internet that the NP had a history of treating patients for Lyme disease whom other medical professionals had previously incorrectly diagnosed as suffering from MS.

The NP told the plaintiff that she believed that the plaintiff was suffering from Lyme disease, and the NP prescribed antibiotics to treat the Lyme disease. On February 1, 2010, the NP administered the IGeneX Lyme Disease test to the plaintiff. On February 13, 2010, the NP informed the plaintiff via e-mail that the test results were positive for Lyme disease.

On the same day that the plaintiff received the positive Lyme disease 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 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 my prayers!!!!!!!!! Now its all in your hands!!!!!!!!!!!!”

The plaintiff filed her Lyme disease medical malpractice complaint on February 10, 2012, and subsequently filed amended complaints on April 19, 2012 and May 31, 2012. Each of the medical malpractice defendants named in the medical malpractice complaints acted as the plaintiff’s treating physician at different times between 2001 and 2008.

The medical malpractice defendants filed a motion for summary judgment, which the trial court granted, holding that the plaintiff had commenced her Lyme disease misdiagnosis lawsuit after the prescribed two-year statutory period for bringing the claim had expired (42 Pa.C.S. § 5524), and that the statute of limitations was not tolled by application of the discovery rule.

The plaintiff appealed. arguing that the entry of summary judgment was improper because she had been unable, through reasonable diligence, to discover the cause of her injury until February 13, 2010, the date on which she received the results of the IGeneX test, and therefore, the applicable statute of limitations had been tolled until that time.

The Discovery Rule

The Appellate Court noted that generally, a cause of action first accrues when a party is injured, and an action for personal injury must be filed within two years to satisfy the statute of limitations. 42 Pa.C.S. § 5524(2). Nonetheless, the 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.

The discovery rule can toll the statute of limitations until a plaintiff could reasonably discover the cause of her injury in cases where the connection between the injury and the conduct of another is not apparent. If the injured party could not ascertain she was injured and by what cause within the limitations period, despite the exercise of reasonable diligence, then the discovery rule is appropriate.

The reasonable diligence test is objective but takes into account individual capacities and society’s expectations of attention, knowledge, intelligence, and judgment for citizens to protect their own interests. The party who invokes the discovery rule has the burden of proving its applicability by establishing she acted with reasonable diligence in determining the fact and cause of her injury but she was unable to ascertain it. Thus, the key point that gives rise to application of the discovery rule is the inability of the injured party, despite the exercise of reasonable diligence, to know that she has been injured and by what cause.

The determination is a factual one as to whether the party, despite the exercise of reasonable diligence, was unaware of her injury and unable to determine its cause. Where the discovery rule’s application involves a factual determination regarding whether the plaintiff exercised due diligence in discovering her injury, the jury must decide whether the rule applies.

The Appellate Court’s Decision

The Appellate Court stated that the plaintiff’s Facebook post, which was in her own words, bear on the fallacy of the plaintiff’s argument that until she had confirmation of Lyme disease from the IGeneX test, there was no basis for a lawsuit because she did not believe that she had Lyme disease even though she suspected that she had Lyme disease.

The Appellate Court further noted that the NP had informed the plaintiff as early as July 20, 2009 that she believed that the plaintiff had Lyme disease; the NP had treated the plaintiff for Lyme disease that resulted in “amazing” improvement in the plaintiff’s symptoms; and, the plaintiff knew of the availability of an objective test that could confirm the NP’s Lyme disease clinical diagnosis but the plaintiff refused to obtain the test for seven months.

The Appellate Court held that reasonable minds would not differ that the plaintiff should have known as early as July 2009, and could have proven at that time, that she suffered from Lyme disease, and that the plaintiff had not met the standard of reasonable diligence.

The Dissenting Opinion

The three-judge dissenting opinion argued that the majority had improperly assumed the role of the fact-finder in determining whether the plaintiff was reasonably diligent in determining that the medical malpractice defendants had caused her injury by failing to diagnose and treat her for Lyme disease between 2001 and 2008: considering the facts in the light most favorable to the plaintiff as the non-moving party (i.e., the plaintiff’s hardship regarding paying for a fifth test when first suggested, along with four previous negative tests, and the plaintiff’s stated intention to determine whether the antibiotics the NP had prescribed would work), combine to create a jury question as to whether the plaintiff was reasonably diligent in determining the suspected injury actually had been suffered.

Source Nicolaou v. Martin, 2016 PA Super 300.

If you or a loved one suffered a serious injury (or worse) as a result of the misdiagnosis of Lyme disease in the United States, you should promptly find a Lyme disease lawyer who may investigate your Lyme disease claim for you and represent you in a Lyme disease malpractice case, if appropriate.

Click on the “Contact Us Now” tab to the right, visit our website, or call us toll-free in the United States at 800-295-3959 to be connected with Lyme disease attorneys in your state who may assist you.

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This entry was posted on Saturday, January 7th, 2017 at 5:15 am. Both comments and pings are currently closed.

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