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CARL ET AL. v. MATZKO (12/12/68)

decided: December 12, 1968.

CARL ET AL., APPELLANTS,
v.
MATZKO, APPELLANT



Appeals from judgments of Court of Common Pleas of Columbia County, Oct. T., 1964, No. 296, in case of Bruce Carl, Jr., a minor, by Bruce Carl, Sr. et al. v. M. J. Matzko et al.

COUNSEL

Robert E. Bull, Paul Matzko, and Obermayer, Rebmann, Maxwell & Hippel, and Clark, Ladner, Fortenbaugh & Young, for appellant.

Gailey C. Keller, with him Smith, Eves and Keller, for appellees.

Arthur M. Peters, Jr., for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 213 Pa. Super. Page 448]

The parents of Bruce Carl, Jr. brought this action on their son's behalf and in their own right against defendants, Dr. M. J. Matzko and Dr. F. B. Clemens, for their alleged malpractice in the care and treatment of their son. The jury rendered a verdict of $1000 for the parents and $1000 for the minor, against both defendants. After post-trial motions were argued, the court entered judgment against Dr. Matzko but granted judgment n.o.v. for Dr. Clemens. Dr. Matzko has now appealed the verdict against him, and the plaintiffs have appealed the granting of judgment n.o.v. to Dr. Clemens.

The relevant facts, as found by the lower court, are as follows: At 10:00 a.m. on Friday, August 21, 1964, Bruce Carl, Jr., then seventeen years of age, was piling rocks in a stream near his home in Beach Haven, Luzerne County. As he bent over to lift a heavy rock, he felt a "stinging sensation" in the right testicle. The pain persisted and after a short interval, Bruce found his testicle to be quite red. When he pressed it, he became sick and threw up. At about 1:30 p.m., his parents took him to the office of Dr. M. J. Matzko.

Dr. Matzko examined Bruce, prescribed medication, and advised rest. The boy returned home and rested. The pills seemed to give some temporary relief; however, pain continued throughout the night and next morning.

[ 213 Pa. Super. Page 449]

At 3:30 p.m. on Saturday, Bruce accompanied his family to a picnic. They returned home, however, shortly after 6:00 p.m. because of the boy's intense pain.

The mother was unable to reach Dr. Matzko. At 9:00 p.m. Bruce was taken to the Berwick Hospital and briefly examined by Dr. F. B. Clemens who was designated as the weekend doctor for the community. Dr. Clemens completed an "Emergency and Accident Register". After the printed word "Treatment" he wrote "torsion of the spermatic cord -- temperature 101.3 degrees." He then prescribed antibiotics and analgesics, and admitted Bruce into the hospital. He never treated Bruce again.

The boy was next seen on Monday morning, August 24th, by Dr. Matzko. He continued the treatment of Dr. Clemens, changing only the type of antibiotics prescribed. Furthermore, the scrotum was elevated with cold compresses being applied. The hospital history and physical examination report made by Dr. Matzko at that time concludes, as follows: "Diag. (1) Acute epididymitis (2) Orchitis, acute right severe (3) Torsion of right testicle."

Even though Bruce experienced some intervals of comfort and sleep between Monday and Wednesday, the pain became more severe and the discoloration of the scrotum more pronounced. On Thursday, August 27th, Bruce's condition worsened dramatically. At his mother's insistence, Dr. James B. Gormley, surgeon for the Berwick Hospital, was consulted. After an examiination, Dr. Gormley diagnosed "possible torsion" and advised and performed immediate surgery.

The Operation Record signed by Dr. Gormley reads, in part, as follows: "The right testicle was found to be involved in a partial torsion with apparent compromise of the return ...


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