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HomeMy WebLinkAbout94-4495 civilKEITH GEMBUSIA, : lt~dividually and ' JOSEPH T. GEMBUSIA and : NANCY J. GEMBUSIA, : Individually, ' Plaintiffs ' : VS. MORTON RUBIN, M.D., ORTHOPEDIC SURGEONS, LTD., SI VAN DO, M.D. and PHYSICIANS OF REHABILITATION MEDICINE, P.C., Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 94-4495 JURY TRIAL DEMANDED IN RE: MOTION OF DEFENDANT= SI VAN DO M.,__M~D_~D. AND PHYSICIANS OF REHABILITATION MEDIC1NE P.,_~_Q~C. FOR SUMMARY JUDGMENT BEFORE HESS AND OLER, JJ. ORDER AND N OW, this day of December, 1999, the motion of the defendants, Si Van Do, M.D., and Physicians of Rehabilitation Medicine, P.C., for summary judgment, is GRANTED. B Y THE COURT, ~SS~ · Charles G. Young, III, Esquire For the Plaintiffs Melinda Shoop, Esquire Amy F oerster, Esquire For Defendants Si Van Do, M.D., and Physicians of Rehabilitation Medicine, P.C. Craig B. Stone, Esquire For Defendants Morton L. Rubin, M.D., and Orthopedic Surgeons, Ltd. :rim KEITH GEMBUSIA, ' l~dividually and ' JOSEPH T. GEMBUSIA and · NANCY J. GEMBUSIA, ' Individually, ' Plaintiffs ' · VS. : · MORTON RUBIN, M.D., : ORTHOPEDIC SURGEONS, : LTD., SI VAN DO, M.D. and · PHYSICIANS OF : REHABILITATION : MEDICINE, P.C., : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- LAW 94-4495 JURY TRIAL DEMANDED IN RE: MOTION OF DEFENDANT S_~J._I VAN DO M_,___M~_~D. AND PHYSICIANS OF REHABILITATION MEDICINE P.,_.~_~C. FOR SUMMARY JUDGMENT BEFORE HESS AND OLER, JJ. ORDER AND NO W, this day of December, 1999, the motion of the defendants, Si Van Do, M.D., and Physicians of Rehabilitation Medicine, P.C., for summary judgment, is GRANTED. BY THE COURT, SS, · Charles G. Young, III, Esquire For the Plaintiffs Melinda Shoop, Esquire Amy F oerster, Esquire For Defendants Si Van Do, M.D., and Physicians of Rehabilitation Medicine, P.C. Craig B. Stone, Esquire For Defendants Morton L. Rubin, M.D., and Orthopedic Surgeons, Ltd. 'rlm KEITH GEMBUSIA, Individually and JOSEPH T. GEMBUSIA and NANCY J. GEMBUSIA, Individually, Plaintiffs VS. MORTON RUBIN, M.D., ORTHOPEDIC SURGEONS, : LTD., SI VAN DO, M.D. and : PHYSICIANS OF : REHABILITATION : MEDICINE, P.C., : Defendants : IN THE COURT ()F COMMON PLEAS OF CUMBERLAND COUNTY. PENNSYLVANIA CIVIL ACTION- LAW 94-4495 JURY TRIAL DEMANDED IN RE' MOTION OF DEFENDANT. SI VAN DO, M.D., AND PHYSICIANS OF REHABILITATION MEDICINE, P.C.. FOR SUMMARY JUDGMENT BEFORE HESS AND OLER. JJ. OPINION AND ORDER This case arises out of a series of treatments that the plaintiff received from July of 1992 until January of 1993. The plaintiff, Keith Gembusia, sustained an injury while playing football two years prior to the commencement of treatment. The plaintiff first presented to co-defendant, Dr. Morton Rubin (hereinafter "Dr. Rubin"), complaining of right elbow pain and reduced range of motion on July 30, 1992. Dr. Rubin examined the plaintiff, determined that he was not able to fully extend and flex his right elbow, and detected evidence of fluid in the elbow joint. Dr. Rubin checked for, but did not find, evidence of infection. On August 21, 1992, Dr. Rubin performend an arthroscopy on the plaintiff' s elbow, prior to which Dr. Rubin had several lab tests performed on the fluid in the elbow. These tests revealed no infection at that time. Dr. Rubin also had tests performed after the procedure, which likewise did not show any sign of infection. 94-4495 CIVIL Dr. Rubin continued to treat the plaintiff after his operation. In November of 1992, Dr. Rubin examined the plaintiff; who showed no signs of infection but also no improvement in range of motion. Dr. Rubin consequently referred the plaintiff to co-defendant, Dr. Si Van Do (hereinafter "Dr. Do"), a physiatrist. Dr. Do examined records provided by Dr. Rubin, and on December 1, 1992, Dr. Do examined the plaintiff. After the examination Dr. Do recommended treatments of ultrasound and hot pack applications. Dr. Do made no reference to infection in his letter to Dr. Rubin. Keith continued his follow-up ~vith Dr. Rubin and received a corticosteroid injection in December of 1992. Again, at that time, the doctor saw no sign of infection. Dr. Rubin subsequently recommended that Keith be seen by Dr. Phillip Marone, an orthopedic surgeon, which he did on May 5, 1993. At that time, he was diagnosed as having an infectious condition in his right elbow. The plaintiff contends that the infection developed in Keith' s elbow as a result of the surgery performed by Dr. Rubin in August of 1992. He contends that Dr. Do was negligent in failing to include the possibility of infection in his initial differential diagnosis. Dr. Do brings this motion for summary judgment, arguing that the plaintiff has failed to present sufficiem basis for his claim. The standard for summary judgment has been long established. Under Pa.R.C.P. 1035.2(2), summary judgment may be granted as a matter of law. [I]f, after the completion of discovery relevant to the motion, including the producing 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 trial would require the issues to be submitted to a jury. 94-4495 CIVIL In the case at bar, the plaintiff has offered no expert or other evidence that can in any way link the plaintiff' s injuries to some deficiency in Dr. Do's care. Dr. Do examined the plaintiff once in between examinations conducted by his primary physician, Dr. Rubin. In November and again in January Dr. Rubin examined the plaintiff and found no infection. Dr. Rubin sent Dr. Do the plaintiff' s records, which indicated that tests for infection had been conducted, and asked Dr. Do to consult on the narrow issue of treating plaintiff' s range of motion. While Dr. Do may have considered infection when he examined the plaintiff, there was no reason for him to deal with this issue in his report to Dr. Rubin. This was not the purpose for which he had been consulted. In the meantime, he had been assured that tests for infection had been conducted and were negative. Summary judgment is available if, after examining all of the evidence in the light most favorable for the non-moving party, it is clear as a matter of law that there is no basis for a claim. Holmes v. Lado, 412 Pa. Super. 218 (1992). In this case, the plaintiff has offered no expert report that will prove that Dr. Do acted unreasonably, or that his actions or inactions brought any harm to the plaintiff. Se___~e Collins v. Hand, 431 Pa. 378 (1968). ORDER AND NOW, this 2 o" day of December, 1999, the motion of the defendants, Si Van Do, M.D., and Physicians of Rehabilitation Medicine, P.C., for summary judgment, is GRANTED. BY THE COURT, 94-4495 CIVIL Charles G. Young, III, Esquire For the Plaintiffs Melinda Shoop, Esquire Amy Foerster, Esquire For Defendants Si Van Do, M.D., and Physicians of Rehabilitation Medicine, P.C. Craig B. Stone, Esquire For Defendants Morton L. Rubin, M.D., and Orthopedic Surgeons, Ltd. :rlm