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LAWRENCE J. WILLINGER v. MERCY CATHOLIC MEDICAL CENTER SOUTHEASTERN PENNSYLVANIA (06/28/76)

decided: June 28, 1976.

LAWRENCE J. WILLINGER, JR., ADMINISTRATOR OF THE ESTATE OF LEONARD WILLINGER, DECEASED, PLAINTIFF-APPELLEE,
v.
MERCY CATHOLIC MEDICAL CENTER OF SOUTHEASTERN PENNSYLVANIA, FITZGERALD MERCY DIVISION, DEFENDANT-APPELLANT, AND DR. MARTIN T. BRENNAN AND DR. JOSEPHINE L. GO, ADDITIONAL DEFENDANTS-APPELLEES



Appeal From Judgment of the Court of Common Pleas, of the County of Delaware Dated November 10, 1975. No. 13819 of 1969. No. 610 October Term, 1976.

COUNSEL

F. Kirk Adams, Springfield, for defendant-appellant.

Jeffrey M. Stopford, Philadelphia, for plaintiff-appellee.

John S. J. Brooks, Media, for additional defendants-appellees.

Watkins, President Judge, and Jacobs, Hoffman, Price, Van der Voort and Spaeth, JJ.

Author: Hoffman

[ 241 Pa. Super. Page 459]

On June 26, 1974, a Delaware County jury awarded appellee-Lawrence J. Willinger, Jr., ("plaintiff", herein), a verdict of $455,199.75, in a wrongful death and survival action for the death of Leonard Willinger, against appellant, Mercy Catholic Medical Center ("defendant", herein.) Appellant contends that the court erred in refusing to allow an amendment to its third party complaint

[ 241 Pa. Super. Page 460]

    against appellees Dr. Brennan and Dr. Go ("additional defendants", herein) during trial and that the court erred in its jury charge.

There is no dispute about the tragic facts which led to this lawsuit. On June 2, 1969, plaintiff's five-year-old son, Leonard, entered defendant-hospital for a tonsillectomy. The boy was examined on the day of the operation and, medical records indicate, was in excellent health. In preparation for the operation which was to be performed by additional defendant-Brennan, the child was placed under anesthesia by a nurse-anesthetist under the supervision of additional defendant-Go, an anesthesiologist. Apparently, additional defendant-Go was then called to an emergency operating room to treat another patient. Thereafter, as all parties agree,*fn1 the nurse-anesthetist negligently monitored administration of the anesthesia. When additional defendant-Brennan arrived in the operating room, he noticed that the child had the "color of a cadaver" and that his heart had stopped beating. The nurse-anesthetist was still administering a full does of anesthesia and, although she was stationed near the child, she was not using her stethescope to monitor his heartbeat.

At that point, additional defendant-Brennan performed emergency resuscitative procedures. The child's heart quickly returned to a normal rate; as a result of the prolonged heart stoppage,*fn2 however, the child suffered from serious brain damage. On July 23, 1969, never having recovered from this tragedy, the child died.

On November 6, 1969, plaintiff filed a complaint in trespass solely against defendant. On January 14, 1970,

[ 241 Pa. Super. Page 461]

    defendant filed a praecipe for a writ to join Dr. Brennan and Dr. Go as additional defendants. Defendant filed its answer to the complaint on March 16, 1970. During the next fifteen months, the parties conducted extensive discovery. In September, 1972, defendant filed its complaint against the additional defendants. After further discovery, the matter was finally tried in June, 1974. On June 26, 1974, the jury awarded plaintiff damages in the amount of $455,199.75. This appeal followed the denial of defendant's post-trial motions.

As the facts indicate, negligence of the nurse-anesthetist could not be seriously contested. Thus, the critical issue at trial was the agency of the nurse-anesthetist. The first issue raised by defendant is whether the defendant admitted agency of the anesthetist in its pleading.

Plaintiff made the following allegations in this complaint:

"3. On or about June 2, 1969, defendant through its agents, servants and employees, acting within the course and scope of their employment, did so carelessly and negligently treat said Leonard Willinger . . . that he ...


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