2003 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
11-5-2003 

# P a rk hi l l v . Gor don P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 02-4082

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w . v i l l a no va . e du/thir dc ir c uit_2003/1391 NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT No: 02-4082 PA TR ICIA PA RK HIL L; WILLIAM PARKHILL

v. LAWRENCE GORDON Patricia Park hill, Appellant Ap peal f rom the U nited S tates D istrict Co urt for the Eas tern Dis tri ct of Pennsy lvania ( CivilAction No. 01-cv- 06597) District Judge: H onorab le Harve y Bartle, III Submitte d Pursuant to Third Circ uit LAR 34.1(a)

November 3, 2003 Be for e: M cK EE and SM ITH , Circuit Judges , and W EIS , Senior Cir cuit J udge
.

OPI NION M cK ee, Circuit

Judge
. Patri cia Parkhi ll appe als t he dist rict court’ s dismi ssal of

her medicalmalpractice clai m against t

he defendant Lawrence Gordon, M.D. under the appl icabl e stat utue of limi tati ons. Parkhillclai ms that her lawsuit should not

be barred be cause the stat ute of1 Otosclerosis is a “growth of spongy bone in the inner ear where it gr adually obstructs the vestibular or cochlear window, or both, and cause s progressive deafness.” Webster’s Thir d International Dictionary

1599 (1971).
2 A stapendectomy involves the removal of the stapes bone in the middle ear and an insertion of a prosthetic device to conduct sound to the inner ear.
3 The Dela

ware Cou nty dischar ge rep ort prep ared by

Dr. Gord on stated : It was noted that the middle ear was entirely ossified and ther e were no ossicles visible. There was an apparent aber rant facial nerve running to the middle ea r as well. No reconstruction was possible and the ear was closed and the operation was terminated. The eve nts of the operati on were

describ ed fully

to the pat ient on the

first post-operative day

with her understanding of the lack of fe asibility for the reconstruction of the middle ear. Her condition was good and she was to be followed in the private office. 2 limi tati ons should have been tol led under Penns yl vania’s discovery r ule. For the r easons th atfol lo w, we wil l a ffi rm. I. Well over 20 y ears ago Pat rici a Parkil l rece ived a medica l examination of her l eft ear by Dr. Lawrence Gordo n, an otolary ngologist. Dr. Gordon diagnosed otosclerosis, 1 and recommended that

correct ive sur gery be performed. Parkhil l agree d, and on April5, 19 79 , P ar kh ill w as ad m itte d t o D ela w ar e C ou nt y M em or ial H os pi tal fo r a sta pe de cto m y. 2 On April 6, 1979, Dr. Gordon began the s tapedect omy. However, after making an initial i ncisi on and explori ng the le ft middl e ear, he termi nated the procedure . He did not remove the st apes bone nor di d he implant a prosthetic device. The hospita l dis charge report prepared by

Dr. Gordon explai ns that he aborte d the st apedectomybecause of an apparent aberrant facialnerve. 3 In D r. Go rdon ’s prof ession al me dical o pinion , this(App. 301a.) 3

conditi on made the surge ry impractical because the location of the facialnerve he thought he o bse rve d m ade fur ther surg ical in vol vem ent to o da nge rou s. Not surpri singl y, Dr. Gordon now has no recol lection of the procedure he performed on Parkhi ll, but he does not contest the accur acy of t

he 1979 dischar ge statem ent. Pa rkhill do es no t reme mb er w hethe r she e ver h ad a p ost-op erative offic e visit wit h D r. G ord on o r an y othe r do ctor reg ard ing the c ond ition of h er lef t ear. Parkhil l did not

seek a second opi nion aft er the aborted s urgeryand took no st eps to purchas e a heari ng aid for he r left ear. At s ome point i n the mid-1980' s, Parkhillbegan to los e heari ng in her right ear. Par khill ’s hearing became progr essive ly worse and in the early 1990's s he purchased ahearing a id without the invol vement of a phy sici an. Finall y, in 1998, Par

khillwent to see Dr. Kenneth Rosen, an ot olary ngologis t, for the dif ficul ties she was having with her ri ght ear. Dr. Rosen and his partner , Dr. Todd Row an, told Parkill that they could no t help her w ith the hearing p roblem in h er right ear. In Dec embe r of 200 0, Parkhill got an in fection in her lef t ear, the ear that Dr. Gordon operated on twenty- two year s earl ier. On December 26, 2000, Parkhi ll was referred to D r. Marc R osen, ano ther otolaryngologist. Af ter reviewing a CT scan, Dr. Rosen informed Parkhi ll t hat, in his professi onal opini on, a st apedectomycould be performed to correct her hearing in both ears. Af ter h er m eetin g w ith D r. Ro sen , Par khi ll dec ided to o btain a se con d op inio n.4 We exerc ise plen ary review over the distric t court’s legal c onclu sions a nd its

app licatio n of lega l pre cep ts to f acts . I.B.S. Financial Corp. v. Seidman & A ssociates, LLC , 136 F.3d 940, 945 (3rd Cir. 199 8). The d istrict court’s factual findings a re rev iew ed f or c lear e rror. Id. It is unc ontes ted tha t the ap plicab le statute of lim itations is two years. 4 She wa s refe rred to anoth er otola ryngolo gist, D r. Josep h A tkins. D r. Atk ins ag reed w ith Dr. Rosen, and recommended Dr. Thomas Wilcox perform the operation. On April2, 2001, Dr. Wil cox performed a l aser st apedectomyon Parkhil l’s l eft ear . The surger y was
a su cce ss an d P ark hill re gain ed n orm al he arin g in her left e ar. Some twenty- three y ears after Dr. Gordon aborted the initial s tapedect omy on her left ear, Par khillsued Gordon for medica l malpra ctic e all eging he negl igentl y aborted the correct ive sur gery on her lef

t ear. The district c ourt ruled the stat ute of l imit ations barred Parkhil l’s l awsuit and entered judge ment for Dr. Gordon. This appealfollowed. 4 II. As noted, Par

khillargues that the stat ute of l imit ations should have bee n toll ed under P ennsylvania’s discov ery rule and her claim was the reafter not time-b arred. M ore specifi call y, she clai ms that t he discovery rule shoul d have tol led the stat ute of limi tati ons, the dist

rict court pl aced too much rel iance on her fail ure to obt ain a sec ond opin ion b ecau se it w ould not h ave c ause d her to learn that the prob lem in her ea r cou ld have been corr ected, and Dr. Gordon’s r epresent ations to her amount ed to fraudulent
con cea lme nt th at als o to lled t he s tatut e of limita tion s . A. The Discovery Rule5 See 42 P a. C ons . Sta t. An n. § 5 524 (2). 5

As we noted earli er, t

he parti es agree t

hat Pennsy lvania

law appli es and that

the applic able st atute of limi tati ons is two years . Parkhi ll’ s suit is cl early

beyond t hat peri od of limi tati ons. However, Penns yl vania’s discovery rule tol ls the appli cable st atute of lim ita tio ns in ce rta in in sta nc es w he re a p lai nt iff is u na bl e to lea rn of hi s/h er in ju ry. 5 Murph y v. Saavedra , 746 A .2d 92 , 94 (P a. 200 0). Th e rule p rovid es that if the inju ry is not k now n to the plaintiff , and s uch k now ledge cann ot reas onab ly be asce rtained with in the st atutor

y period, t

he limi tati ons peri od does not begi n to run until t he discovery of t

he inju ry is rea son ably p oss ible. Id. Bef ore ap plying the disco very rule a cour t mus t, however, fi rst a ddress “t he abil ity

of the i njured par

ty , exerc isi ng reasonable diligence , to know that she has been inj ured by the act of another .” Id. (citing Pocono Int’l Raceway v. Pocono Produce, Inc. , 468 A .2d 468, 47 1 (Pa. 198 3)) (emph asis added ). Th e sta nda rd o f “re aso nab le” d ilige nce is an obj ectiv e on e. Bur nside v. Ab bott Labs ., 505 A. 2d 973, 988 (Pa. Super. 1985) . Parkhi ll must have “exhibi ted thos e quali ties of attention, kno wledg e, intelligence and jud gmen t which so ciety requires of its mem bers for the pr otection of the ir own int erest and the i nteres ts of others. ” Id. Therefore, Parkhil l’s c onduct must be e valuat ed in te rms of what she shoul d have known had she acte d w ith re aso nab le dil igen ce. See Dal ry mpl e v. Bro wn , 701 A.2 d 16 4, 16 7 (P a. 19 97)
. He re, the d istrict cou rt conc luded that Pa rkhill did not ex ercise th e requ isite diligen ce be caus e a rea sona ble pe rson w ould have soug ht a sec ond opin ion w ithin6

twenty -two y ears of t

he crit ical procedure, since t

he conti nuing probl ems with her hearing. “[A] dili gent inve sti gation mayrequir e one to see k further medical examinati on.” Co chr an v . GA F C orp ., 666 A.2 d 24 5, 24 9 (P a. 19 95)
. Parkhill cites Lew ey v . H.C . Fri cke Co ke C o., 31 A. 261 (Pa. 1895) , in arguing t hat she w as justified in not seek ing a secon d opinion because she relied on th e advice o f Dr. Gordon for 22 ye ars after her s urgery . In Lewey , the plaintiff relied upon the discove ry rule to b ring an action in tresp ass eig ht years af ter the d efen dant h ad en tered h is land to subter raneousl y exca vate coal . The Lewey cou rt tolle d th e sta tute o f lim itatio n re aso nin g, that “ [t]he pl ainti ff had no knowledge of the tres pass upon hi[ s] [l and] or the removal of his coaland no means of knowledge withi n his re ach.” Lew ey, 31 A . at 26 1. Here, however, Parkhil l obvious ly knew of the surgery on her left ear, and the means of discove ring Dr. Gordon’s err or. Par khill ’s subst antia l heari ng loss over the course of t

he ensuing 22 y ears and fai lure t o seek furt her medicalatte ntion for such a pr otra ct ed p er io d di stin gui sh h ercas e fr om Lew ey. Parkhil l “continued to s uffer subs tantial he aring lo ss in he r left ear with all its detrim ental c onse quen ces fo r her q uality of lif e.” (Appel lant’ s Brief at 18). Yet, she chose not to seek medi cal attenti on or seek a
seco nd o pinion . Acc ordin gly, she ca n no t now mak e the sh ow ing n ecess ary to corre ctly invoke the discovery rule. B. Getting a Second Opinion Parkhil l conte nds that

a second opini on would not have re vealed that her he aring7

could be re store d. However, her argument i s purel y spe culative becaus e she did not seek
a se con d op inio n no r intro duc e ev iden ce th at do ing so w oul d ha ve b een futil e.

C. Th e Do ctrine of F raud ulent C oncea lment Parkil l argues that he r clai m should not be bar red by the st atute of limi tati ons because Dr. Gordon’ s repre sentations const itute fraudul ent conceal ment under Pennsyl vania l aw. “Where, ‘t hrough fraud or

concealment , the defendant caus es the plaintiff to relax his vig ilance or de viate f rom his righ t of inq uiry,’ the de fend ant is estopped fr om invoking the bar of the stat ute of l imit ations .” Molineux v. Reed , 532 A.2d 792, 794 (Pa. 1987) (quoting Schaffer v. Larzelere , 189 A .2d 267, 26 9 (Pa. 196 3)); Nesbitt v. Eri e Coach Co. , 204 A.2d 473, 475 (Pa. 1964) . However, “[m]ere mistake , misunderst anding or l ack of knowledge is insuffi cient however, and t

he burden of prov ing su ch fra ud o r con cealm ent, by ev idenc e w hich is c lear, pre cise an d con vincin g, is upon the ass erti ng party .” Id. at 794 (cit ation omi tted) . The burden of pr oving fraudul ent
con cea lme nt re sted sole ly on P ark hill. The district c ourt concluded that Parkhil l did not

establ ish Dr. Gordon’s fraudul ent
conc ealm ent, be caus e the e viden ce on ly show ed tha t “Dr . Go rdon simp ly expres sed h is medica l opinion that it wa s not feasible to rec onstruct her ea r.” (App. 10 a.) Mo reover, the trial c ourt found t

hat Parkhi ll was “not

discour aged from seeki ng further advice. ” Id. On appeal, Parkhillargues that the tri al court ’s fact ual fi nding that

she was not6 The trial court’s factual findings are reviewed for clear err

or. I.B.S Financial Corp. v. Seidman &

Associates, LLC , 136 F.3d 940, 945 (3rd Cir. 1998). Under the clearly erroneous standard, this court “may

reverse only

if the findings are unsupported by substantial evidence, lack of adequate evidentiary support in the record, are aga inst the clear weight of evidence or where the district court has misapprehended the we ight of the evidence.” Id. 8 discourag ed from seeking f urther advice was clea r error. 6 Parkhill testified that Dr. Gordon never tol d her not t o seek out a s econd opini on. However, she presented no evidence t

hat Dr. Gordon at

tempted t o relax he r dil igence or suggest t

hat she not

seek further medical t

reatment for her l eft ear . The onlyevidence Par khillputs forth that tends to sho w sh e w as disc oura ged f rom seek ing fu rther ad vice a re D r. Go rdon ’s repo rts and repres entations that the reconst ructi on of the ear

was not feasi ble. Parkhil l pres ented nothing t o allow the dist rict court t o conclude that Gordon dis couraged her from recei ving a second opini on. Therefor e, the court’ s factua l findi ng is consi stent with the record, and its co nclu sion doe s no t con stitute clea r erro r. III. For allthe above r easons, we will affi rm the dis tri ct court ’s deci sion gra nting
sum ma ry judg me nt.9

TO THE CLERK OF THE CO URT:

Please fi le the foregoing Opini on.

/s/ Theodore A. McKee Circuit Judge