Application of the Fraudulent Concealment Exception to Pennsylvania’s Statute of Limitations

As most practitioners are aware, under Pennsylvania law the statute of limitations in personal injury cases is two years from the date the cause of action accrued. In the context of medical malpractice, this typically means that a claim needs to be filed within two years of the date a plaintiff was injured.

As with most states, Pennsylvania provides certain exceptions to the running of the statute of limitations. The most commonly known exception is referred to as the “discovery rule.” Pursuant to the discovery rule, the statute of limitations is tolled if the plaintiff, despite exercising reasonable diligence, does not realize that he has been injured. In this case, the two year statute of limitations does not begin to run until the plaintiff either discovers or should have discovered that he was injured.

The discovery rule is a well known and frequently utilized exception to Pennsylvania’s statute of limitations. Most practitioners are aware of the rule and a large body of case law has fleshed out it finer details. A less frequently cited exception to the statute of limitations involves fraudulent concealment. Fraudulent concealment is founded on the principle of estopple. A defendant should not be permitted to invoke the statute of limitations if through fraud or concealment, “he causes the plaintiff to relax his vigilance or deviate from his right of inquiry into the facts.” Fine v. Checcio, 870 A.2d 850, 860 (Pa. 2005).

As applied to the statute of limitations, the term “fraudulent concealment” is somewhat of a misnomer. It does not require a defendant to have acted with intent to deceive a plaintiff. It is used in a broader sense and covers circumstances involving “unintentional deception.” Id.

The Pennsylvania Superior Court’s decision in Ward v. Rice is a good example of how the fraudulent concealment exception to the statute of limitation can be effectively used in a medical malpractice case. In Ward, the plaintiff experienced numbness in her lip after having her wisdom teeth removed. Her physician repeatedly assured her that the numbness was only temporary. As a result, the plaintiff did not discover the permanency of her condition or her physician’s negligence until after the expiration of the two year statute of limitations. The Superior Court refused to apply the statute of limitations to the plaintiff’s claim. It held that in circumstances where a physician “lulls” a patient into thinking that her injury is a normal side effect or only a temporary condition, the statute of limitations may be tolled until the plaintiff could have discovered the truth. Id. The Pennsylvania Supreme Court upheld the Superior Court’s conclusion and stated that whether a plaintiff was “lulled” by a physician is a factual question for the jury. See Fine, 870 A.2d at 862.

The upshot of the Ward and Fine decisions is that plaintiffs may avoid having their claims barred by the statue of limitations in circumstances where they receive assurances that their injury is a normal side effect or is only temporary. This is true even where the plaintiff had reason to know about the injury more than two years prior to filing a claim. As it is not uncommon for physicians to assure their patients that injuries incurred during medical treatment will improve with time, it is important for practitioners to be aware of the fraudulent concealment exception.

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