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HomeMy WebLinkAbout96-4281 civilBRENDA WOLF and ERIC · IN THE COURT OF COMMON PLEAS OF WOLF, her husband, · CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs Vo WILLIAM J. POLACHECK, JR., : NO. 96-4281 CIVIL M.D., CRAIG W. FULTZ, M.D., CUMBERLAND ORTHOPEDIC ASSOCIATES, LTD., and HOLY SPIRIT HOSPITAL, Defendants IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT HOLY SPIRIT HOSPITAL Before HOFFER, P.J. and GUIDO, J. ORDER OF COURT AND NOW, June 30, 1999, pursuant to the Opinion filed on this date, Defendant Holy Spirit Hospital's Motion for Summary Judgment is hereby granted. Robin J. Marzelia, Esquire Linda Porr Sweeney, Esquire 3513 North Front Street Porr & Associates, P.C. Harrisburg, PA 17110 1850 William Penn Way, Suite 209 For the Plaintiffs P.O. Box 10696 Lancaster, PA 17605-0696 Craig A. Stone, Esquire For Defendants Dr. Polacheck, Dr. Fultz, Mette, Evans & Woodside and Cumberland Orthopedic 3401 North Front Street Associates, Ltd. P.O. Box 5950 Harrisburg, PA 17110-0950 For Defendant Holy Spirit Hospital BRENDA WOLF and ERIC : IN THE COURT OF COMMON PLEAS OF WOLF, her husband, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. WILLIAM J. POLACHECK, JR., : NO. 96-4281 CIVIL M.D., CRAIG W. FULTZ, M.D., CUMBERLAND ORTHOPEDIC ASSOCIATES, LTD., and HOLY SPIRIT HOSPITAL, Defendants IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT HOLY SPIRIT HOSPITAL Before HOFFER, P.J. and GUIDO, J. OPINION HOFFER, P.J.: In this opinion, the Court shall address Defendant Holy Spirit Hospital's Motion for Summary Judgment. The facts which give rise to this case are as follows: in August of 1994, Plaintiff, Brenda Wolf, was told by her physician, Defendant, Dr. William J. Polacheck, that she needed surgery to correct instability in her right knee. On August 15, 1994, the surgical procedure was performed at Holy Spirit Hospital by Dr. Polacheck. After surgery, Mrs. Wolf's knee became infected. Mrs. Wolf now suffers from osteomyelitis, has permanent impairment of the range of motion in her right knee, and suffers from chronic pain in the knee. On July 29, 1996, Mrs. Wolf and her husband filed the complaint in the above captioned case alleging that her injuries are a result of negligence on the part of Dr. Polacheck, his medical partnership, Cumberland Orthopedic Associates, Ltd., Dr. 96-4281 CIVIL Fultz and Holy Spirit Hospital. No cross claims have been filed by Dr. Polacheck, Dr. Fultz, or Cumberland Orthopedic Associates, Ltd. against Holy Spirit Hospital. The pleadings in the case are now closed. In December of 1997, Plaintiffs and Holy Spirit Hospital signed a stipulation of the parties which provided for the voluntary discontinuance and termination of all claims against the hospital, with prejudice. The stipulation was sent to Linda Porr Sweeney, counsel for Dr. Polacheck, Dr. Fultz and Cumberland Orthopedic Associates, Ltd. but has never been signed or entered on the record. Neither Plaintiffs nor Dr. Polacheck and his co-defendants have produced any expert reports which criticize the care given Mrs. Wolf at Holy Spirit Hospital. Because no response to the stipulation was received, the hospital served on the other defendants written interrogatories, including expert interrogatories. The interrogatories have not been answered. On October 8, 1998, Holy Spirit Hospital filed its motion for summary judgment alleging that there is no genuine issue of material fact as to the alleged negligence on the part the hospital and that Holy Spirit Hospital is entitled to judgment as a matter of law. Dr. Polacheck, Dr; Fultz and Cumberland Orthopedic Associates, Ltd. failed to file a response to the motion or a brief of the law supporting their position, if they oppose the motion. 96-4281 CIVIL Discussion Motions for summary judgment are governed by Pa. R. C. P. 1035.2 which provides: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (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 of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury tdal would require the issues to be submitted to a jury. Pa. R. C. P. 1035.2. In deciding a motion for summary judgment, this Court will "view the record in the light most favorable to the non moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." Ertel v. Patriot News Co., 544 Pa. 93, 98-99, 674 A.2d 1038, 1041 (1996). Traditional medical malpractice cases, where the negligence of a defendant is not obvious, require a plaintiff to present expert testimony to establish, to a reasonable degree of medical certainty, that the defendant's actions deviated from the appropriate standard of care and that those actions were the proximate cause 96-4281 CIVIL of the harm suffered by the plaintiff. Welsh v. Bul.qer, 548 Pa. 504, 513, 698 A.2d 581,585 (1997). In Welsh, the Pennsylvania Supreme Court addressed the issue of corporate negligence by a hospital and the evidence necessary to support such a claim. Id. The court held: that, unless a hospital's negligence is obvious, a plaintiff must produce expert testimony to establish that the hospital deviated from an accepted standard of care and that the deviation was a substantial factor in causing the harm to the plaintiff. Id. at 514, 698 A.2d at 585. In the case at bar, no genuine issue of material fact exists. It would be necessary that at least one other party to the action present expert testimony asserting negligence on the part of Holy Spirit Hospital in order to prevail against the hospital. No such testimony has been presented to the Court. Dr. Polacheck, Dr. Fultz and Cumberland Orthopedic Associates, Ltd. have not filed cross claims against Holy Spirit Hospital. The record reflects that Plaintiffs have agreed to discontinue their case, with prejudice, against the hospital. Therefore, the Motion for Summary Judgment filed by the Defendant Holy Spirit Hospital is granted. 4