IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA LARRY A. BRION and BARBARA, Plaintiffs : No. 99-00008 : R. SOUNDARARAJAN, M.D., F.A.C.S., and SANDY & ROCKOFF UROLOGICAL ASSOCIATES, : Summary Judgment Defendants OPINION AND ORDER
This matter came before the Court on the defendant’s Motion for
Summary Judgment and the plaintiffs’ Motion to Amend/Motion to Compel. The
On or about November 5, 1996, Plaintiff Larry Brion (hereinafter Mr. Brion)
went to the office of Defendant Dr. Soundararajan (hereinafter Dr. Sandy) seeking
medical advice and treatment for urological and prostate problems. Plaintiffs’
Complaint, ¶ 6. Dr. Sandy diagnosed Mr. Brion’s condition as localized carcinoma of
the prostate. Plaintiffs’ Complaint, ¶ 11. On January 17, 1997, Dr. Sandy performed a
radical retropubic prostatectomy on Mr. Brion. Plaintiffs’ Complaint, ¶ 13. During
surgery Dr. Sandy cut the left external iliac vein. Plaintiffs’ Complaint, ¶ 14. Mr. Brion
was discharged from the hospital on January 21, 1997.
On January 27, 1997, Barbara Brion called Dr. Sandy to report Mr. Brion
was very sick and short of breath. Plaintiffs’ Complaint, ¶ 16. Dr. Sandy sent Mr. Brion
for x-rays and a thoracic CT scan. Plaintiffs’ Complaint, ¶ 18, 19. Dr. Sandy told Mr.
Brion to see his internist, Dr. Vasudevan, within the next couple of days. Plaintiffs’
Complaint, ¶ 18. Later that day, Mr. Brion was taken to the hospital by ambulance. He
remained hospitalized until February 3, 1997. Plaintiffs’ Complaint, ¶ 22. During this
time, Mr. Brion was treated for deep vein thrombosis and acute pulmonary embolus.
On or about February 8, 1997, Dr. Sandy telephoned Mr. Brion and
informed him he was prescribing a medication known as Floxin. Plaintiffs’ Complaint, ¶
24. In accordance with Dr. Sandy’s instructions, Mr. Brion began taking Floxin as
prescribed. Plaintiffs’ Complaint, ¶ 24. Mr. Brion became ill the next day. Mrs. Brion
contacted Dr. Sandy, who referred Mr. Brion to other doctors. Plaintiffs’ Complaint, ¶
25-30. On February 17, 1997, Mr. Brion was hospitalized for arthralgia, myalgia and
fever secondary to Floxin therapy. Plaintiffs’ Complaint, ¶ 31, 32. He remained
hospitalized through February 23, 1997. Plaintiffs’ Complaint, ¶ 35. Following
discharge from the hospital and up to the filing of the Complaint, Mr. Brion suffered from
incontinence. Plaintiffs’ Complaint, ¶ 33.
On January 5, 1999, the plaintiffs field a writ of summons against the
defendants. On April 13, 1999, the plaintiffs filed their complaint, which contained three
(3) counts: (1) medical negligence against Dr. Sandy; (2) respondeat superior against
Sandy & Rockoff Urological Associates, P.C.; and (3) loss of consortium against both
the defendants. On May 3, 1997, the defendants filed preliminary objections to the
plaintiffs’ complaint challenging paragraph 36(H). By stipulation, the parties agreed to
The parties engaged in discovery. On or about January 9, 2001, the
plaintiffs provided a copy of the report of Eric Hochberg, M.D. to the defendants. On or
about July 12, 2001, the defendants provided a copy of the report of John Belis, M.D., to
On or about August 1, 2001, the plaintiffs filed a motion to amend/motion
to compel in which they requested leave to amend the complaint to assert Dr. Sandy
was negligent for failing to perform a nerve-sparing radical prostatectomy (hereinafter
nerve-sparing procedure) instead of the radical retropubic prostatectomy performed on
January 17, 1997, and to seek damages for the permanent post-operative impotence
experienced by Mr. Brion. On or about August 6, 2001, the defendants filed their
motion for summary judgment. In their motion the defendants assert the plaintiffs do no
have expert testimony to support the allegations in their complaint or their new
allegations regarding the nerve-sparing procedure. The defendants further contend the
plaintiffs should not be permitted to amend their complaint because they are seeking to
assert a new cause of action after the expiration of the statute of limitations. The
plaintiffs counter that their allegations regarding the nerve-sparing procedure are merely
an amplification of the allegations contained in paragraphs 36 (E) and (G) of the
Complaint or, in the alternative, they did not know about the nerve-sparing procedure
until they received Dr. Hochberg’s report in late 2000. Therefore, the plaintiffs argue the
discovery rule exception to the statute of limitations applies. In response to the
defendants’ motion for summary judgment, the plaintiffs also obtained a supplemental
report from Dr. Hochberg on or about September 6, 2001.
The Court held argument on both parties’ motions on October 24, 2001.
After review of the parties’ briefs and the relevant case law, the Court finds in favor of
Pennsylvania Rule of Civil Procedure 1035.2 states:
After the relevant pleadings are closed but within such time as to not
unreasonably delay trial, any party may move for summary judgment in whole orin part as a matter of law
(2) if, after the completion of discovery relevant to the motion, including
the production of expert reports, an adverse party who will bear the burden ofproof at trial has failed to produce evidence of facts essential to the cause ofaction or defense which in a jury trial would require the issues to be submitted toa jury.
Pa.R.Civ.P. 1035.2(2). In order to establish a prima facie case of medical negligence, a
plaintiff must establish: (1) a duty owed by the physician to the patient; (2) the
physician’s breach of that duty to the patient; (3) that the breach of that duty was the
proximate cause of, or a substantial factor in, bringing about the harm suffered by the
patient; and (4) that the damages suffered by the patient were a direct result of that
harm. Mitzefelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 891 (1990); Miller v. Sacred
Heart Hospital, 753 A.2d 829, 833-34 (Pa.Super. 2000). A plaintiff must be able to offer
an expert witness who will testify to a reasonable degree of medical certainty that the
acts of the physician deviated from acceptable standards and that such deviation was
the proximate cause of the harm suffered for the case to be submitted to a jury. Miller,
supra; see also, Mitzefelt, supra., 584 A.2d at 892; Eaddy v. Hamaty, 694 A.2d 639, 642
The plaintiffs in this case cannot meet their burden of proof with respect to
the theories pled in their complaint. In their complaint, the plaintiffs assert Dr. Sandy
negligently performed the surgery by cutting the left external iliac vein, he failed to
recognize Mr. Brion was suffering from deep vein thrombosis and pulmonary embolus
on or about February 8, 1997 and he should not have prescribed Floxin. The plaintiffs
aver these deviations caused the deep vein thrombosis, pulmonary embolus,
incontinence, rigors, fever chills, other general pain and suffering, and a loss of
consortium. Dr. Hochberg’s report, however, does not support these theories. Although
Dr. Hochberg opined that Dr. Sandy deviated from the standard of care when he cut the
left external iliac vein and failed to diagnose pulmonary embolus, he further opined that
these deviations did not cause the right-sided deep venous thrombosis and acute
pulmonary embolus or any other deleterious effects. Dr. Hochberg also opined that
there was no deviation of the standard of care regarding the use of Floxin and that Mr.
Brion merely had an unexpected and unfortunate adverse reaction to this medication.
Since the plaintiffs do not have expert testimony to establish a deviation with respect to
the use of Floxin or causation on the other theories pled in the complaint, the plaintiffs
have failed to produce evidence of facts essential to their cause of action. Therefore,
summary judgment is appropriate under Rule 1035.2(2).
The only theory that Dr. Hochberg expresses an opinion regarding both a
deviation and causation is that Dr. Sandy failed to perform a nerve-sparing procedure,
which increased the risk of erectile dysfunction. This theory, however, is not pled in the
plaintiffs’ complaint. The plaintiffs’ filed a motion to amend the complaint to raise this
Rule 1033 provides that a party, by leave of court, may amend his
pleading at any time. Pa.R.Civ.P. 1033. The decision whether to allow a proposed
amendment of a pleading is within the sound discretion of the court, and that decision
will not be disturbed on appeal absent an abuse of discretion. Pastore v. Anjo
Construction Company, 396 Pa.Super. 58, 68, 578 A.2d 21, 27 (1990). A party may not
amend a pleading, though, if it adds a new cause of action after the running of the
statute of limitations. Becker v. Copeland Corp., 785 A.2d 1003, 1005 (Pa.Super.
2001); Romah v. Hygienic Sanitation Co., 705 A.2d 841, 857-58 (Pa.Super. 1997). A
new cause of action does not exist if plaintiff’s amendment merely adds to or amplifies
the original complaint. Reynolds v. Thomas Jefferson University Hospital, 676 A.2d
1205, 1211 (Pa.Super. 1996). A new cause of action arises if the amendment proposes
a different theory or a different kind of negligence than the one previously raised or if the
operative facts supporting the claim are changed. Romah, supra; Reynolds, supra.
The plaintiffs claim they are merely amplifying paragraphs 36(E) and (G)
of the original complaint. This Court cannot agree. These paragraphs state:
36. The negligence of the Defendant, Dr. R.
failing to possess the requisite skills necessary to properlytreat and care for Larry A. Brion for prostate cancer;
G. failing to possess the skills necessary to
properly carry out the operative procedure
Plaintiffs’ Complaint, ¶ 36 (E) and (G). Clearly, paragraph 36(G) refers to the radical
retropubic prostatectomy actually performed by Dr. Sandy. When the complaint is read
as a whole, paragraph 36(G) alleges Dr. Sandy did not possess the skills to perform the
radical retropubic prostatectomy without cutting the left external iliac vein. It does not in
any way put the defendants on notice that the plaintiffs believed a different surgery
should have been performed. Similarly, paragraph 36(E), when read in the context of
the entire complaint, does not give any indication to the defendants that a different
surgery should have been performed. The operative facts in the original complaint are
that: (1) Dr. Sandy cut the left external iliac vein when he performed the surgery; (2) he
failed to recognize Mr. Brion was suffering from deep vein thrombosis and pulmonary
embolus after surgery; and (3) he should not have given Mr. Brion a prescription for
Floxin. For the theory which the plaintiffs have sufficient expert testimony, the operative
facts are: (1) that Mr. Brion was a good candidate for the nerve-sparing procedure; (2)
this procedure would have decreased the likelihood of impotence as compared to the
radical retropubic prostatectomy; and (3) the nerve-sparing procedure should have been
chosen by Dr. Sandy instead of the surgery he performed. Since these operative facts
are different from those contained in the original complaint, the plaintiffs’ theory that a
nerve-sparing procedure should have been performed would be a new cause of action.
The statute of limitations for a personal injury claim is two (2) years. 42
Pa.C.S. §5524(2). Mr. Brion’s surgery occurred on or about January 16, 1997.
Following surgery, Mr. Brion suffered from erectile dysfunction. He did not have this
The plaintiffs contend the statute of limitations is tolled in this case due to
the discovery rule. Plaintiffs assert that they had no knowledge that a nerve-sparing
procedure existed and was a treatment option for Mr. Brion until they received Dr.
Hochberg’s report dated November 19, 2000. Thus, the plaintiffs argue they are entitled
to the benefit of the discovery rule and the statute of limitations for this claim would not
The discovery rule is a judicially created device which tolls the running of
the applicable statute of limitations until the point when the plaintiff knows or reasonably
should know: (1) that he has been injured, and (2) that his injury has been caused by
another party’s conduct. Capelli v. York Operating Co, Inc., 711 a.2d 481, 485
(Pa.Super. 1998), quoting Pearce v. Salvation Army, 449 Pa.Super. 654, 658, 674 A.2d
1123, 1125 (1996). The limitations period begins to run when the injured party
possesses sufficient critical facts to put him on notice that a wrong has been committed
and that he need investigate to determine whether he is entitled to redress. Id. The
discovery rule is an exception to the general rule that the statute of limitations begins to
run as soon as the right to institute and maintain a suit arises. Therefore, one claiming
the benefit of the exception bears the burden of establishing that he falls within it.
Cochran v. GAF Corp., 542 Pa. 210, 216, 666 A.2d 245, 248-49 (1995). Lack of
knowledge, mistake or misunderstanding does not toll the running of the statute of
limitations. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 324, 608 A.2d
1040, 1042 (1992), quoting Pocono International Raceway, Inc. v. Pocono Produce Inc.,
503 Pa. 80, 84, 468 A.2d 468, 471 (1983).
In order to meet their burden, the plaintiffs are required to establish that
they acted with reasonable diligence to determine the fact of their injury and its cause.
Capelli, supra at 485. Reasonable diligence is just that, a reasonable effort to discover
the cause of an injury under the facts and circumstances present in the case. Cochran,
supra at 217, 666 A.2d at 249. There are few facts which diligence cannot discover, but
there must be some reason to awaken inquiry and direct diligence in the channel in
which it would be successful. Id. Reasonable diligence is an objective standard. Id.
Under this standard, the plaintiffs’ actions must be evaluated to determine whether they
exhibited those qualities of attention, knowledge, intelligence and judgment which
society requires of its members for the protection of their own interests and the interests
In the case at bar, the plaintiffs have not offered any evidence to show that
they acted with reasonable diligence. Although the claim they did not know of the
existence of a nerve-sparing procedure until Dr. Hochberg’s report dated November 16,
2000, no evidence was submitted regarding their efforts to discover this information.
The plaintiffs filed a writ of summons in January 1999. Obviously, by this time Mr. Brion
believed he suffered injuries as a result of the surgery performed by Dr. Sandy or he
would not have hired an attorney to file suit on his behalf. Certainly by this point, the
plaintiffs would have an obligation to use diligence to determine if they were entitled to
redress and, if so, under what theories. The plaintiffs need only know that they were
injured and it was caused by the treatment rendered by Dr. Sandy; they need not know
that the medical treatment was negligent. Szpynda v. Pyles, 433 Pa.Super. 1, 6, 639
A.2d 1181, 1184 (1994). Furthermore, a diligent investigation may require one to seek
further medical examination as well as competent legal representation. Cochran, supra
at 217-18, 666 A.2d at 249. Plaintiffs have neither offered evidence to establish the
efforts they took to seek medical advice to ascertain whether Dr. Sandy’s conduct was
negligent nor have they given any explanation why they could not have obtained Dr.
Hochberg’s report prior to November 16, 2000, nearly two (2) years after the filing of the
writ of summons. Furthermore, although Dr. Hochberg’s report was dated November
16, 2000, the plaintiffs made no effort to amend their complaint to add this new theory
until they filed their motion to amend on or about August 1, 2001. Based on the facts of
this case, the Court must conclude that the plaintiffs knew Mr. Brion suffered
incontinence and impotence as a result of the surgery performed by Dr. Sandy no later
than the filing of the writ of summons in January 1999. In fact, in their brief in support of
the discovery rule to extend the statute of limitations, the plaintiffs admit they knew Mr.
Brion’s impotence was an injury caused by the surgery performed by Dr. Sandy prior to
receiving Dr. Hochberg’s report. The plaintiffs stated: “Certainly, there came a time
when Mr. Brion became aware his impotence was not merely a post-operative
complaint that would resolve. Mr. Brion ascertained that his impotence was an injury.
Mr. Brion connected the cause of his impotence to Dr. Sandy’s negligence during the
surgery. However, at no time after the surgery did the plaintiffs realize that there existed
an option of nerve-sparing surgery until they received the information contained in Dr.
Hochberg’s report.” Plaintiffs’ Brief in Support of the Discovery Rule to Extend Statute
of Limitations, page 6. As previously stated, however, the plaintiffs need not know a
defendant’s conduct was negligent for the statute of limitations to begin to run.
Szpynda, supra. Once the plaintiffs realized Mr. Brion’s impotence was an injury
caused by Dr. Sandy’s surgery, they had an obligation to diligently investigate whether
Dr. Sandy’s conduct was negligent, including seeking medical consultation or advice. If
plaintiffs did not realize there existed the option of a nerve-sparing procedure, it appears
it was simply because they did not inquire.
AND NOW, this ___ day of January, 2002, it is ORDERED and
The Court GRANTS the defendants’ Motion for Summary Judgment.
The Court DENIES the plaintiffs’ Motion to Amend because the
proposed amendment would add a new cause of action beyond the
statute of limitations. Since the Motion to Compel seeks to require
Dr. Sandy to answer questions regarding the nerve-sparing
procedure, which is a theory not pled in the complaint and
amendment is not allowed, questions regarding the nerve-sparing
procedure are not relevant. Thus, the motion to compel also is
_______________ Kenneth D. Brown
Bret J. Southard, EsquireWilliam Hebe, EsquireWork fileGary Weber, Esquire (Lycoming Reporter)Law clerk
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