J-S74032-14

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

JOHN GORMAN

v.

ARIA HEALTH, ARIA HEALTH SYSTEM, 

AND BRIAN P. PRIEST, M.D.

APPEAL OF: JAMES M. MCMASTER, 

EXECUTOR OF THE ESTATE OF JOHN 

GORMAN

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 

 No. 1234 EDA 2014

Appeal from the Order Entered March 17, 2014,

in the Court of Common Pleas of Philadelphia County, 

Civil Division at No(s): May Term, 2012 No. 557

BEFORE: BENDER, P.J.E., DONOHUE and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 05, 2015

James M. McMaster, Executor of the Estate of John Gorman, (the 

Estate) appeals from an order that granted the motion for summary 

judgment filed by Aria Health (Aria) and Brian P. Priest, M.D. (Dr. Priest) 

(collectively Appellees). We reverse and remand for further proceedings.

On May 9, 2012, John Gorman (Mr. Gorman) initiated this action by 

filing a praecipe to issue a writ of summons against Appellees and Aria 

Health System. On July 19, 2012, Mr. Gorman filed a complaint against the 

same parties. The complaint consisted of one count of professional 

negligence and one count of corporate negligence.

Mr. Gorman died on October 8, 2012, and James M. McMaster, 

executor of Mr. Gorman’s estate, later was substituted as the plaintiff in this 
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matter. We further note that the parties stipulated to dismissing Aria Health 

System from the action and to dismissing Mr. Gorman’s corporate negligence 

count.

The trial court offered the following summary of the factual history of 

this case.

This lawsuit stems from Dr. Priest’s performance of a July 

12, 2004, coronary artery bypass graft carried out at the facility 

of [] Aria. During the surgical procedure, Dr. Priest failed to 

remove a large chest tube which would remain in [] Appellant’s 

chest until his passing. [Mr. Gorman] allege[d in his complaint] 

that, as a result of the retained chest tube, he incurred a fibrotic 

reaction in the left pleural space, aggravation of dyspnea on 

exertion, aggravation of interstitial lung disease, restriction of 

pulmonary function, damage to the lungs, anxiety, depression, a 

loss of life’s pleasures, pain and suffering, and additional 

injuries. [He further alleged that, in May of 2012, he was told 

for the first time that the retained chest tube was causing him 

pathology and complications.]

On May 17th, 2009, [Mr. Gorman] had a CT scan of his 

chest performed. Dr. Segal examined and informed [Mr. 

Gorman] that there appeared to be a chest tube or tracking in 

his chest, but was not sure which it was. During a July 14, 

2009, visit with Dr. G. Chris Christensen, III, [Mr. Gorman] was 

first advised there was definitely a tube in his chest. In 

September of 2009, [Mr. Gorman], accompanied by his daughter 

and son-in-law, was examined by Dr. D’Alonzo who informed 

[Mr. Gorman] that he absolutely had a chest tube in his chest. 

[Mr. Gorman] was also told that removing the chest tube would 

ultimately do more harm than good. 

Trial Court Opinion, 6/4/2014, at 2 (citations omitted).

Appellees eventually filed a motion for summary judgment. Therein, 

they maintained that Mr. Gorman was aware of the retained chest tube and 

that the tube could cause health issues by, at the latest, September 7, 2009. 
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Thus, according to Appellees, the two-year statute of limitations expired in 

September of 2011.1 Because Mr. Gorman did not initiate this action until 

May of 2012, Appellees contended that the statute of limitations bars the 

professional negligence claim. 

In response to the motion for summary judgment, Mr. Gorman 

conceded that, in 2009, he knew that the tube remained in his chest. 

However, he stated that, at that time, he was unaware of the risks that the 

tube presented and was not advised that he suffered damage as a result of 

the tube. Mr. Gorman asserted he was told that there was greater risk of 

harm if he had the tube removed than if he allowed it to remain in his chest. 

According to Mr. Gorman, “[i]t was not until it became clear that the large 

pleural effusion was due to the retained chest tube that [Mr. Gorman] 

reasonably discovered he had an action against [Appellees].” Memorandum 

of Law in Opposition to Motion for Summary Judgment, 2/28/2014, at 

unnumbered page 8). Mr. Gorman argued that summary judgment was 

inappropriate because a genuine issue of material fact remained as to when 

he discovered that the tube caused him to be injured. 

The trial court granted the motion for summary judgment. The court 

offered the following rationale in support of its decision.

[Mr. Gorman] claims that the statute of limitations was 

tolled until May 2012, when he was advised that the chest tube 

left inside of him from the July 12, 2004 surgery was causing his

 

1 The parties do not dispute that Mr. Gorman’s medical malpractice claim is 

subject to a two-year statute of limitations. 42 Pa.C.S. § 5524(2).
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complications. However, contrary to [this] argument, actual 

knowledge of the exact nature of the injury is not the trigger for 

the running of the statute of limitations. Under Pennsylvania’s 

application of the discovery rule doctrine, it is not required that 

[Mr. Gorman] actually receives a precise medical diagnosis 

stating Appellees’ conduct was the cause of a particular injury for 

the statute of limitations to begin. Instead, Pennsylvania courts 

have repeatedly held that this standard requires the statute of 

limitations to run from the time plaintiff discovered or should 

reasonably have discovered the cause of harm or injury. In

determining when a discovery should have been made, three 

independent phases of knowledge must be known or knowable 

to plaintiff before the limitation period commences: (1) the 

injury; (2) the operative cause of the injury; and, (3) the 

causative relationship between the injury and the operative 

conduct.

Here, all three prongs of the test are met. First, [Mr. 

Gorman] and his family were well aware of his injury as they 

were put on notice numerous times in 2009 that [Mr. Gorman] 

had a tube in his chest. The presence of the tube in [Mr. 

Gorman’s] chest is, in and of itself, an actionable injury; 

indicating medical negligence on the part of the treating surgeon 

for failure to remove it. Moreover, [Mr. Gorman] admitted in his 

October 3, 2012 deposition that during a July 14, 2009 visit with 

Dr. Christensen, he was informed that he had a tube in his chest 

and that he understood that it should not have been there. 

Further, [Mr. Gorman] stated that the only operation he has ever 

had on his chest was the coronary artery surgery performed by 

Dr. Priest in 2004. In addition, [Mr. Gorman’s] daughter has 

stated that she, her father, and husband were all present for a 

September 2009 office visit with Dr. D’Alonzo who informed 

them [Mr. Gorman] absolutely had a chest tube in his chest. 

Thus, [Mr. Gorman] should have been more than aware of the 

operative cause of his injury and the causal relationship between 

the two.

The applicable law clearly demonstrates that the statute of 

limitations began to run when [Mr. Gorman] learned, or should 

have learned, that there was a tube in his chest that should not 

have been there in July of 2009, or at the latest, September 

2009. There are no Pennsylvania cases which allow extension of 

the statute of limitations after an ascertainable tortious episode 

where there has not been fraud or concealment. It is of no 
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consequence that [Mr. Gorman] first learned the chest tube was 

causing complications until May 2012. The confirmation in 2009 

from Dr. Christensen that this foreign object was in fact a chest 

tube triggered the running of the statute of limitations. There 

are ample facts that would suggest the tube must have been left 

in [Mr. Gorman’s] chest during his 2004 coronary artery surgery, 

the most obvious fact being it was the only surgery ever 

performed on his chest. 

Although [Mr. Gorman] presents a sympathetic argument 

that he did not bring a lawsuit because he believed from his 

doctor that the actual removal of the tube might cause more 

harm than simply letting the tube remain; this is not a legally 

recognized basis for not instituting an action. This issue is 

actually an issue concerning proof of damages; it is not an issue 

of when a lawsuit must be filed. The discovery of a surgical 

implement, having been left in a patient through a negligent act, 

commences the statute of limitations. 

Upon learning there was a chest tube inside of his body 

that should not have been there, [Mr. Gorman] had a cause of 

action with which to bring a lawsuit. [Mr. Gorman] filed suit in 

July 2012, almost ten months after the two year statute of 

limitations had run from the latest applicable date according to 

the facts, September 2009. Therefore, because the statute of 

limitations began to run when [Mr. Gorman] first learned he had 

a chest tube in his chest in either July or September of 2009, 

and because [Mr. Gorman] filed his lawsuit in July 2012 well 

after the statute of limitations had expired, [he] is barred from 

trying this case.

Trial Court Opinion, 6/4/2014, at 3-5 (citations and quotation marks 

omitted).

After the Estate was substituted as the plaintiff, it timely filed a notice 

of appeal. The court did not direct the Estate to comply with Pa.R.A.P. 

1925(b). In its brief to this Court, the Estate asks us to consider the 

following questions:
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A. Did the lower [c]ourt err in granting the Motion for Summary 

Judgment on the basis that more than two years had passed 

since [Mr. Gorman] discovered a tube had been left in his chest 

during a surgical procedure and [Mr. Gorman] was therefore not 

reasonably diligent? [Mr. Gorman] alleged he discovered his 

right of action when he learned he actually suffered injury as a 

result of the tube remaining in his chest and commenced his 

action within two years of that date and the [c]ourt held the 

statute of limitations began to run when decedent was made 

aware the chest tube was left in his chest[.] 

B. Did the lower [c]ourt err in granting the Motion for Summary 

Judgment when there was a material issue of fact as to when 

[Mr. Gorman] discovered he had a cause of action against 

[Appellees] and as to whether he was reasonably diligent in 

learning his condition and injury?

The Estate’s Brief at 4 (trial court’s answers omitted).

We review orders granting summary judgment as follows.

The standards which govern summary judgment are well 

settled. When a party seeks summary judgment, a court shall 

enter judgment whenever there is no genuine issue of any 

material fact as to a necessary element of the cause of action or 

defense that could be established by additional discovery. A 

motion for summary judgment is based on an evidentiary record 

that entitles the moving party to a judgment as a matter of law. 

In considering the merits of a motion for summary judgment, a 

court views the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine 

issue of material fact must be resolved against the moving party. 

Finally, the court may grant summary judgment only when the 

right to such a judgment is clear and free from doubt. An 

appellate court may reverse the granting of a motion for 

summary judgment if there has been an error of law or an abuse 

of discretion....

Swords v. Harleysville Ins. Companies, 883 A.2d 562, 566-67 (Pa. 

2005) (citations omitted).
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We begin our analysis by rejecting the trial court’s assertion that 

“[t]he presence of the tube in [Mr. Gorman’s] chest is, in and of itself, an 

actionable injury[.]” Trial Court Opinion, 6/4/2014, at 4. Our conclusion in 

this regard is guided by this Court’s decision in Gregorio v. Zeluck, 678 

A.2d 810 (Pa. Super. 1996).

In November of 1988, Patricia Gregorio gave birth to a baby; Dr. 

Zeluck performed her episiotomy. After the delivery of the baby, the 

incision for the episiotomy was packed with sponges. 

Approximately five days after her delivery, Ms. Gregorio 

complained that she was not feeling well. Specifically, she was 

itching, was not able to get comfortable when trying to fall 

asleep, and was bleeding; she was concerned because the 

bleeding was very dark. Ms. Gregorio telephoned [Dr. Zeluck’s] 

office, spoke with the receptionist ... and was told by [the 

receptionist] that the symptoms Ms. Gregorio described were 

normal; the itching was caused by the stitches, and bleeding was 

expected after delivery. [The receptionist] assured Ms. Gregorio 

that she would inform the doctors of her call. A couple of days 

later, Ms. Gregorio again spoke with [the receptionist], who 

reassured her that her symptoms were not unusual. After 

several more days, Ms. Gregorio experienced pain in her lower 

abdomen, and detected a very bad odor. She called the doctors’ 

office several more times, and was advised that her “insides 

were shrinking back to normal” and that the doctors did not 

need to see her until her regularly scheduled six week checkup.

According to Ms. Gregorio, she began to feel compelled to 

avoid people, even her baby, as a result of the odor she was 

experiencing; she was fearful people would notice the smell. 

Several weeks later, while in the shower, Ms. Gregorio felt a 

foreign object protruding from her vagina. After pulling it out, 

she telephoned the doctors’ office; it was determined that the 

object was a piece of surgical packing left inside of her after the 

delivery.
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The Gregorios filed a complaint against [Dr. Zeluck and his 

practice] alleging medical malpractice based on the failure of the 

attending doctor, Dr. Zeluck, to remove sponges following the 

delivery, and on the failure of the doctors to respond to Ms. 

Gregorio’s complaints of odor. A jury trial commenced[]. At the 

conclusion of the Gregorios’ case, the doctors moved for a 

compulsory nonsuit.... [The trial court] granted the doctors’ 

motion. The Gregorios’ motion for reconsideration and postverdict relief was denied. [The Gregorios appealed to this 

Court.]

Zeluck, 678 A.2d at 812.

On appeal, this Court examined, inter alia, “whether Dr. Zeluck’s 

failure to remove the sponge resulted in harm to Ms. Gregorio.” Id. at 813. 

In so doing, the Court offered the following analysis. 

We conclude that the Gregorios failed to establish any link 

between Dr. Zeluck’s negligence and a legally cognizable injury. 

It was established that any physical pain experienced by Ms. 

Gregorio during the days following labor was not related to Dr. 

Zeluck’s negligence. In fact, the testimony revealed that Ms. 

Gregorio had no abnormal physical pain related to the sponge; it 

is the unpleasant odor resulting from the sponge of which Ms. 

Gregorio complains.

Not every wrong constitutes a legally cognizable cause of 

action.... Not every loss constitutes a legal injury for which 

compensation is available. In an analogous case addressing the 

compensable harm issue, the Pennsylvania Supreme Court was 

asked to determine specifically whether asymptomatic pleural 

thickening, i.e., unaccompanied by disabling consequences or 

physical impairment, is a compensable injury giving rise to a 

cause of action. The Court concluded that no physical injury was 

established necessitating an award of damages. Similarly, in 

Lubowitz v. Albert Einstein Medical Center, 424 Pa.Super. 

468, 623 A.2d 3 (1993), this [C]ourt found no legally cognizable 

injury in an appellant’s fear that she would develop the AIDS 

virus after being exposed to it. We concluded that appellant, in 

her asymptomatic state, could not recover monetary damages.
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Likewise, in the instant case, Ms. Gregorio suffered no 

disabling consequences, physical impairment, or physical 

symptoms as a result of her odor. While we sympathize with Ms. 

Gregorio and the unpleasant experience she endured, we find 

that the odor resulting from Dr. Zeluck’s negligence is not a 

sufficient physical injury to warrant damages.

Zeluck, 678 A.2d at 813-14 (citations, footnotes, and quotation marks 

omitted).

Zeluck demonstrates that the mere existence of a foreign object 

retained in a patient’s body after a surgery does not amount to a medical 

malpractice cause of action. Rather, such a cause of action exists when the 

patient has suffered a compensable injury due to the negligent act of leaving 

the foreign object in the patient’s body.

Therefore, we proceed to the Estate’s argument that there exists an 

genuine issue of material fact as to whether the statute of limitations bars 

the medical malpractice claim. In so doing, we note the following principles 

of law.

Medical malpractice is defined as the unwarranted departure 

from generally accepted standards of medical practice resulting 

in injury to a patient, including all liability-producing conduct 

arising from the rendition of professional medical services. [T]o 

prevail in a medical malpractice action, a plaintiff must establish 

a duty owed by the physician to the patient, a breach of that 

duty by the physician, that the breach was the proximate cause 

of the harm suffered, and the damages suffered were a direct 

result of the harm.

Ditch v. Waynesboro Hosp., 917 A.2d 317, 321-22 (Pa. Super. 2007) 

(citations and quotation marks omitted).
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Our Supreme Court has explained the statute of limitations and the 

discovery rule as follows.

The discovery rule originated in cases in which the injury 

or its cause was neither known nor reasonably knowable. The 

purpose of the discovery rule has been to exclude from the 

running of the statute of limitations that period of time during 

which a party who has not suffered an immediately ascertainable 

injury is reasonably unaware he has been injured, so that he has 

essentially the same rights as those who have suffered such an 

injury. 

As the discovery rule has developed, the salient point 

giving rise to its application is the inability of the injured, despite 

the exercise of reasonable diligence, to know that he is injured 

and by what cause....

Therefore, when a court is presented with the assertion of 

the discovery rules application, it must address the ability of the 

damaged party, exercising reasonable diligence, to ascertain 

that he has been injured and by what cause. Since this question 

involves a factual determination as to whether a party was able, 

in the exercise of reasonable diligence, to know of his injury and 

its cause, ordinarily, a jury is to decide it. Where, however, 

reasonable minds would not differ in finding that a party knew or 

should have known on the exercise of reasonable diligence of his 

injury and its cause, the court determines that the discovery rule 

does not apply as a matter of law. 

When the discovery rule applies, the statute of limitations 

does not commence to run at the instant that the right to 

institute suit arises, i.e., when the injury occurs. Rather, the 

statute is tolled, and does not begin to run until the injured party 

discovers or reasonably should discover that he has been injured 

and that his injury has been caused by another party’s conduct. 

Whether the statute of limitations has run on a claim is a 

question of law for the trial court to determine; but the question 

as to when a party’s injury and its cause were discovered or 

discoverable is for the jury. 

Fine v. Checcio, 870 A.2d 850, 858-59 (Pa. 2005) (citations and quotation 

marks omitted).
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When the record is viewed in a light most favorable to Mr. Gorman, it 

establishes, in relevant part, the following. Mr. Gorman had breathing 

problems relating back to 1998. Those problems progressed, causing him to 

see a pulmonologist, Marcia Segal, D.O., in February of 2009. After Mr. 

Gorman’s May 5, 2009 follow-up appointment, Dr. Segal authored a report 

wherein she diagnosed Mr. Gorman with idiopathic pulmonary fibrosis and/or 

usual interstitial pneumonitis. Dr. Segal also observed a retained left-side 

chest tube or tracking in a CAT scan of Mr. Gorman’s chest. Mr. Gorman 

saw Dr. Segal for another follow-up appointment on June 30, 2009.

On July 14, 2009, Mr. Gorman saw pulmonologist G. Chris 

Christensen, III, D.O. Dr. Christensen authored a report wherein he 

diagnosed Mr. Gorman with idiopathic fibrosis and noted the presence of the 

retained tube. While Dr. Christensen’s report states that some fibrotic 

changes appeared to have occurred, he also observed no evidence of an 

infection in that area. Moreover, Dr. Christensen opined that there was clear 

evidence of the lung disease in 2002 and suspected the onset of the disease 

to predate that year. Both Dr. Segal and Dr. Christensen suggested that Mr. 

Gorman follow up at Temple University.

On September 7, 2009, Mr. Gorman saw Gilbert D’Alonzo, D.O., for a 

second opinion. Dr. D’Alonzo found Mr. Gorman’s lung disease to be 

consistent with idiopathic pulmonary fibrosis and usual interstitial 

pneumonitis. Dr. D’Alonzo’s report notes that Mr. Gorman “does have a 
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retained fragment of a left chest [sic], which does not seem to be a 

problem.” Motion for Summary Judgment, 1/31/2014, at Exhibit B.2 Dr. 

D’Alonzo stated that he would not tamper with the chest tube.

None of the medical reports of record indicates that the multiple 

physicians who treated Mr. Gorman believed the retained chest tube in any 

way was causing Mr. Gorman’s lung difficulties. In fact, Dr. D’Alonzo’s 

report seems to suggest that he believed the tube was not problematic.

Dr. Christensen continued to treat Mr. Gorman. According to Mr. 

Gorman’s deposition testimony, which occurred on October 3, 2012, the first 

time a doctor informed him that the chest tube was causing him any 

problem was in a letter written by Dr. Christensen. Mr. Gorman could not 

recall when Dr. Christensen sent that letter, but he speculated that it could 

have been a year-and-a-half ago. Motion for Summary Judgment, 

1/31/2014, at Exhibit B, Mr. Gorman’s 10/3/2012 afternoon deposition 

testimony, at 13. That letter is in the record but is not dated. It states, 

inter alia, Dr. Christensen’s belief that “there is a contributing element of 

[Mr. Gorman’s] restriction caused by the retained chest tube causing a 

fibrotic reaction in the left pleural space.” Motion for Summary Judgment, 

1/31/2014, at Exhibit B.

Mary Ellen McMaster, Mr. Gorman’s daughter, stated at her deposition 

that she learned for the first time that the tube was a problem for her father 

 

2 Exhibit B of Appellees’ motion for summary judgment is lengthy. Dr. 

D’Alonzo’s report is located at the end of that exhibit.
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from a report authored by Dr. Christensen. She believed Dr. Christensen 

wrote the report in “2011 or 2012.” Motion for Summary Judgment, 

1/31/2014, Exhibit C, at 32. James McMaster, Mary Ellen McMaster’s 

husband, testified at his deposition that Dr. Christensen informed the family 

that the tube made Mr. Gorman’s lung disease worse. 

In its present state, the record demonstrates that Dr. Priest owed Mr. 

Gorman a duty when he performed the 2004 surgery. The record further 

suggests that Dr. Priest breached that duty in 2004 by failing to remove 

tubing from Mr. Gorman’s chest. While Mr. Gorman clearly discovered that 

breach of duty in 2009, the record is unclear as to whether the retained tube 

caused him to be injured and, if so, when Mr. Gorman learned or should 

have learned of that injury. Stated differently, questions of fact remain as 

to whether Dr. Priest’s alleged breach of duty caused Mr. Gorman a 

compensable injury and when Mr. Gorman learned or should have learned of 

the existence of such an injury. The answers to these questions will inform 

a determination of whether the statute of limitations bars Mr. Gorman’s 

medical malpractice claim. A jury should make such factual determinations. 

Fine, 870 A.2d at 859.

For these reasons, we conclude that the trial court erred by granting 

Appellees’ motion for summary judgment. Accordingly, we reverse the trial 

court’s order and remand for further proceedings.

Order reversed. Case remanded. Jurisdiction relinquished. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/5/2015