“Inquiry Notice” for Establishing the Statute of Limitations
On August 15, 2017, Gilda DiDomizio (DiDomizio) commenced a medical malpractice action. DiDomizio claimed the Thomas Jefferson University Hospital (TJUH) misdiagnosed her with sarcoidosis, and this misdiagnosis delayed the cancer diagnosis and limited her treatment options.
By way of history, in August 2011, DiDomizio had an extensive smoking history and sought treatment at TJUH because she was coughing up blood. A biopsy was inconclusive, and a re-biopsy was recommended if clinically indicated. Between September 2011 and 2015, DiDomizio followed up with specialists at TJUH every three months, including pulmonary physician, Sandra B. Weibel, M.D., complaining of feeling run down and generally ill. In 2011, a PET scan was normal, while CT scan showed findings consistent with Sarcoidosis, a chronic disease. DiDomizio was treated with methotrexate and prednisone for the “working diagnosis” of Sarcoidosis.
In 2012, the cardiology department saw DiDomizio for palpitations and noted that pulmonary had a working diagnosis of sarcoidosis that had not been definitively proven, and they recommended a lung biopsy that she declined due to her history of significant issues. In 2013, Dr. Weibel advised DiDomizio that her February 7, 2013 CT scan showed an increased mass and although it was possible this was sarcoidosis, cancer was always a possibility, and more diagnostic testing (bronchoscope) was required, but DiDomizio declined. A March 2, 2013 PET revealed increased metabolic activity in two of DiDomizio’s lung nodes; however, DiDomizio claimed she was not told about this.
DiDomizio’s last outpatient visit with Dr. Weibel occurred on February 9, 2015. A March 23, 2015 CT scan and biopsy did not show evidence of malignancy or granulomatous inflammation and the related report recommended further investigation if malignancy was clinically suspected. On June 15, 2015, DiDomizio requested a second opinion from TJUH pulmonary physician Michael Unger, M.D. because her symptoms were not improving. Dr. Unger confirmed the sarcoidosis diagnosis and recommended that she continue her treatment of prednisone.
DiDomizio was admitted to TJUH from July 13, 2015, to July 21, 2015, for evaluation due to left shortness of breath. Pulmonary attending physician Robert R. Manoff, M.D., noted DiDomizio’s “purported sarcoidosis,” diagnosis in 2011 and that a CT scan completed upon her recent admission showed a pulmonary embolism and a mass in her lung. She underwent a bronchoscopy and was diagnosed with cancer. On July 28, 2015, DiDomizio had an outpatient consultation with TJUH oncologist Jennifer M. Johnson, M.D. PhD. She had radiation treatment from August 5, 2015, through August 20, 2015. Upon completion of this treatment, TJUH physicians reported that her cancer was in remission.
In December 2015, DiDomizio began to feel ill again, and she returned to TJUH for treatment in January 2016 when her health continued to decline. An April 11, 2016 biopsy showed a right lung pulmonary adenocarcinoma. On April 14, 2016, DiDomizio saw Dr. Johnson, who noted progression of her lung cancer and that her diagnosis of sarcoidosis precluded use of immune oncologic agents to treat it. On April 20, 2016, DiDomizio saw oncologist Charu Aggarwal, M.D., at Penn Medicine for an opinion regarding further management and she agreed that using immunotherapy was challenging, given her history of sarcoidosis.
In May 2016, DiDomizio sought treatment for the adenocarcinoma at The Hospital at the University of Pennsylvania (HUP). On July 6, 2016, DiDomizio was seen by pulmonary specialist Mary Katherine Porteous, M.D., who confirmed that there was no pathological confirmation of sarcoidosis, but could not exclude the diagnosis. Dr. Porteous felt that DiDomizio’s current CT findings were more suggestive of consolidative fibrotic changes likely a combination of radiation fibrosis and adenocarcinoma; and therefore prednisone therapy was discontinued.
Based on this history, TJUH filed the motion for summary judgment in which they argued that DiDomizio knew she had been diagnosed with lung cancer prior to her July 21, 2015 discharge from TJUH, and because she did not file her cause of action until August 15, 2017, her claims were barred by the Statute of Limitations. The trial court initially denied TJUH’s motion for summary judgment because DiDomizio claimed that she learned in July 2016 that she might not have sarcoidosis. However, on re-argument, the trial court relied on the recently released Supreme Court decision in Rice v. Dioceses of Altoona-Johnston, 255 A.3d 237 (Pa. 2021), which supported TJUH’s position the statute of limitations began to run when DiDomizio discovered she had lung cancer in July 2015, not when she consulted with Dr. Porteous in 2016.
On appeal, the Pennsylvania Superior Court wrestled with the facts to determine whether they were more compatible with the facts in Rice, wherein the Court reaffirmed that inquiry notice “t[ies] commencement of the limitations period to actual or constructive knowledge, versus the case of Nicolaou v. Martin, 195 A.3d 880 (Pa. 2018), wherein the Supreme Court held “courts may not view facts in a vacuum when determining whether a plaintiff has exercised the requisite diligence (to know the injury or its cause) as a matter of law, but must consider what a reasonable person would have known had he or she been confronted with the same circumstances.” The Nicolauo court concluded under its circumstances it was in the province of a jury to determine whether an untrained lay person reasonably should have known that he or she had been misdiagnosed.
Here, the Superior Court concluded that Nicolauou controlled the facts of the case because there was much uncertainty about whether DiDomizio knew or should have reasonably known that that she was injured when she was diagnosed with cancer in July 2015; therefore the case was remanded back to the trial court for disposition.