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Home My WebLink About95-1500 CivilALICIA P. MORITZ, Plaintiff MICHAEL L. GLUCK, M.D., LYNNE BRITTON, M.D., IRA J. PACKMAN, M.D., PETER M. BRIER, M.D., RICHARD SCHREIBER, M.D., INTERNISTS OF CENTRAL PA, and WILLIAM A. SULLIVAN, M.D., Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION -- LAW · No. 95-1500 CIVIL TERM IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS MICHAEL L. GLUCK, M.D., L. LYNN BRITTON, M.D., IRA J. PACKMAN, M.D., PETER M. BRIER, M.D., RICHARD SCHREIBER, M.D., AND INTERNISTS OF CENTRAL PA BEFORE HOFFER, P.J., and OLER, J. ORDER OF COURT AND NOW, this ~'/~ day of December, 1998, upon consideration of the motion for summary judgment filed on behalf of Defendants Michael L. Gluck, M.D., L. Lynn Britton, M.D., Ira J. Packman, M.D., Peter M. Brier, M.D., Richard Schreiber, M.D., and Internists of Central PA, and for the reasons stated in the accompanying opinion, the motion is granted and summary judgment is entered in favor of the moving defendants. BY THE COURT, esley Oler ~.,JJ. ' John G. DiLeonardo, Esq. 4650 Fritchey Street Harrisburg, PA 17109 27 South Arlene Street Harrisburg, PA 17112 Attorney for Plaintiff Peter J. Curry Esq. 305 North Front Street P.O. Box 999 Harrisburg PA 17108-0999 Attorney for Defendants Gluck, Britton, Packman, Brier, Schreiber, and Internists of Central PA Daniel L. Grill, Esq. Suite 209 1850 William Penn Way P.O. Box 10696 Lancaster, PA 17605-0696 Alicia P. Moritz 4215A King George Drive Harrisburg, PA 17109 Plaimiff ALICIA P. MORITZ, Plaintiff MICHAEL L. GLUCK, M.D., LYNNE BRITTON, M.D., IRA J. PACKMAN, M.D., PETER M. BRIER, M.D., RICHARD SCHREIBER, M.D., INTERNISTS OF CENTRAL PA, and WILLIAM A. SULLIVAN, M.D., Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION -- LAW ; · No. 95-1500 CIVIL TERM IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS MICHAEL L. GLUCK, M.D., L. LYNN BRITTON, M.D., IRA J. PACKMAN, M.D., PETER M. BRIER, M.D., RICHARD SCHREIBER, M.D., AND INTERNISTS OF CENTRAL PA BEFORE HOFFER, P.J., and OLER, J. OPINION and ORDER OF COURT OLER, J., December 8, 1998. In this medical malpractice action, Plaintiff has alleged that she has been damaged by the prescription of unnecessary addictive medication. For disposition at this time is a motion for summary judgment filed on behalf of various defendants, premised upon the unavailability of expert testimony to support Plaintiff's case at trial. For the reasons stated in this opinion, the motion for summary judgment will be granted.~ STATEMENT OF FACTS This action was commenced by the filing of a praecipe for writ of summons on March 23, 1995. Plaintiff's amended complaint was filed on February 26, 1996. Preliminary objections to the complaint were denied on June 10, 1996. Responsive pleadings with new ~ A similar motion was granted on behalf of Defendant William A. Sullivan, M.D., on August 21, 1998. A second defendant, Holy Spirit Hospital, was dismissed from the case by a stipulation of counsel. See Order of Court, April 4, 1997. The motion subjudice has been filed by the remaining defendants. matter and replies thereto have been filed. Following a discovery conference on February 4, 1998, the court directed Plaintiff to provide to Defendants' counsel a report "from an expert who is prepared to testify on behalf of Plaintiff in this case in support of the claim for medical malpractice." On July 13, 1998, the aforementioned Defendants filed a motion to preclude the use of expert testimony by Plaintiff at trial, on the ground that the report provided lacked any specifics as to the Defendants. On July 16, 1998, the court issued a rule to show cause upon Plaintiff in response to the motion of the said Defendants. No answer to this rule was filed by Plaintiff. Upon motion of the Defendants, the court issued an order precluding expert testimony on behalf of Plaintiff on August 21, 1998. Defendants' present motion for summary judgment followed on September 16, 1998. No answer was filed to the motion for summary judgment by Plaintiff. Oral argument was held on October 7, 1998. Plaintiff's counsel did not appear for the argument, nor was a brief submitted in opposition to Defendants' motion. DISCUSSION A motion for summary judgment is govemed by the following Rule of Civil Procedure in Pennsylvania: RULE 1035.2 MOTION 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 ... which in a jury trial would require the issues to be submitted to a jury. "[S]ubparagraph (2) [of the rule applies where], the record contains insufficient evidence of facts to make out a prima facie cause of action.., and, therefore, there is no issue to be submitted to a jury .... To defeat this motion, the adverse party must come forth with evidence showing the existence of the facts essential to the cause of action .... "Committee Note, Pa. R.C.P. 1035.2. The purpose of this portion of the rule is obviously to protect a party against whom an essential allegation cannot be supported with evidence from the burden of going to trial in order to secure a resolution of the matter. See Eaddy v. Hamaty, __ Pa. Super. , __, 694 A.2d 639, 643 (1997). Under the rules of procedure, "[s]ummary judgment may be entered against a party who does not respond." Pa. R.C.P. 1035.3(d). Finally, the general rule is well-settled in Pennsylvania that "a plaintiff must introduce expert testimony to show that a defendant-doctor's conduct varied from accepted medical practice." Joyce v. Boulevard Physical Therapy & Rehabilitation Center, P.C., __ Pa. Super. __, __., 694 A.2d 648, 654 (1997). Summary judgment is appropriate in a malpractice action when the plaintiff has been precluded from presenting necessary expert testimony. Ballod v. Department of Corrections, 44 Cumberland L.J. 336 (1995), afl'd, 676 A.2d 1333 (Pa. Commw. Ct. 1996). In the present case, expert testimony is unavailable to support Plaintiff's malpractice action at trial. In addition, no response was made by Plaintiff to Defendants' motion for Based upon the foregoing authority, the following order will therefore summary judgrnent. be entered. ORDER OF COURT AND NOW, this 8th day of December, 1998, upon consideration of the motion for summary judgment filed on behalf of Defendants Michael L. Gluck, M.D., L. Lynn Britton, M.D., Ira J. Packman, M.D., Peter M. Brier, M.D., Richard Schreiber, M.D., and Internists of Central PA, and for the reasons stated in the accompanying opinion, the motion is granted and summary judgment is entered in favor of the moving defendants. BY THE COURT, John G. DiLeonardo, Esq. 4650 Fritchey Street Harrisburg, PA 17109 27 South Arlene Street Harrisburg, PA 17112 Attorney for Plaintiff Peter J. Curry, Esq. 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Attorney for Defendants Gluck, Britton, Packman, Brier, Sctireiber, and Internists of Central PA Daniel L. Grill, Esq. Suite 209 1850 William Penn Way P.O. Box 10696 Lancaster, PA 17605-0696 Alicia P. Moritz 4215A King George Drive Harrisburg, PA 17109 Plaintiff /s/J. Wesley Oler, Jr, J. Wesley Oler, Jr., J.