Philadelphia Injury Lawyer Blog

If you are suffering from severe pain and ongoing disability after surgery, you may need to consult with a Philadelphia injury attorney who is experienced in medical malpractice litigation even while you are still seeking to determine whether you have an injury as a result of the surgery. This is an underlying message in the February 2009 decision of the Pennsylvania Supreme Court in Wilson v. Samir El-Daief M.D., 964 A.2d 354 (Pa. 2009). This case demonstrates that Pennsylvania's "discovery rule" presents a complex obstacle course that may trip up even the most diligent patient.

Mary Wilson suffered from constant persistent excruciating pain after her hand surgery and within several weeks her hand contracted into a fist, her right elbow bent inward and her right shoulder drew upward. Despite 20 appointments with her surgeon and his consultant there was no diagnosis given to her that let her know her problems were from a medical mistake that happened during her surgery. Indeed the two doctors did not believe her serious pain and disabling injuries were related to her surgery, so how could she have? When she finally lost confidence in her doctor and sought a third opinion, it was more than two years from the surgery. Exploratory surgery then revealed that her radial nerve had been lacerated. Despite filing suit seven months after this discovery, her case was dismissed by the trial court and the first level appellate court based on the two year statute of limitations. The Supreme Court allowed her appeal and while the opinion reinstated her lawsuit, it was with the burden of proving to the jury that for less than two years before the suit was filed, she did not have either actual or constructive knowledge that she was injured and that the injury was from her surgery, despite using reasonable diligence to find out.

While her suit is "still breathing", proving medical malpractice in a court room is hard enough without the extra burden of proving that the statute of limitations hadn't run before suit was filed. The Supreme Court in footnote 21 in Wilson gives good advice to avoid such a situation. "...this Court has stressed that the timely pursuit of legal representation may be necessary...It is certainly possible that discussions with an attorney may expedite medical diagnosis, since attorneys have access to litigation resources and can supply advice concerning what measures (such as exploratory surgery) will best maximize an injured person's chance of recovery." The dissent which would have allowed the suit as a matter of law, pointed out in footnote 2 that your doctor's self preservation instincts may overcome their duty to you saying: "While it is not in the record, as a matter of common sense, we can divine that Dr. Nutt was appreciative of Dr. El-Daief's referral of this as well as other patients, and was not about to jeopardize the referral relationship by explaining to appellant that Dr. El-Daief's malpractice was the cause of her difficulties."