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JULIA M. ACKER v. DR. PETER V. PALENA AND THOMAS JEFFERSON UNIVERSITY HOSPITAL (10/20/78)

decided: October 20, 1978.

JULIA M. ACKER, APPELLANT,
v.
DR. PETER V. PALENA AND THOMAS JEFFERSON UNIVERSITY HOSPITAL, APPELLEES



No. 334 October Term, 1977, Appeal from the Judgment of the Philadelphia Court of Common Pleas at July Term, 1975, Trial Div., Law No. 4072, dated October 7, 1976.

COUNSEL

Daniel M. Jaffe, Philadelphia, for appellant.

No appearance entered nor brief submitted for appellee, Palena.

Joseph R. Davison, with him Robert F. Rossiter, Philadelphia, for appellee, Thomas Jefferson University Hospital.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Price, J., files a dissenting statement, in which Jacobs, President Judge, joins. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 260 Pa. Super. Page 216]

Appellant contends that the lower court erred in granting summary judgment on the grounds that the statute of limitations barred her complaint in trespass. We agree and, therefore, reverse the order of the lower court.

On July 30, 1975, appellant instituted a medical malpractice action against appellees by filing a complaint in trespass in the Philadelphia County Court of Common Pleas. Appellant alleged that on November 14, 1972, as she was working at a grinding wheel at her job, a foreign object from the grinding wheel flew into her left eye. The following day, November 15, 1972, appellant consulted Dr. Palena,*fn1

[ 260 Pa. Super. Page 217]

    an opthalmologist, for an examination of her injured left eye. The examination revealed a rhegmaginous retinal detachment of that eye; Dr. Palena recommended surgery to correct the condition. Consequently, on November 15, 1972, appellant entered appellee Thomas Jefferson University Hospital as Dr. Palena's patient and remained under his care during the period of her hospitalization.

On November 17, 1972, Dr. Palena performed surgery on appellant's eye in an attempt to correct the detached retina. During the surgery, a rupture in the sclera, or white portion, of appellant's left eye caused a hemorrhage in that eye. The hospital discharged appellant on November 22, 1972; she remained in Dr. Palena's care for several months thereafter. During that time, appellant visited Dr. Palena at his office for examinations. Appellant alleged that she "was at all times advised that the operative procedure had corrected the problem with her eye and that it would just be a matter of time before her vision returned." According to appellant's complaint, Dr. Palena never informed her that the condition of her eye was deteriorating.

In July of 1973, appellant terminated her relationship with Dr. Palena. Shortly thereafter, on August 9, 1973, appellant consulted another opthalmologist, Dr. Kurz, at Hunterdon Medical Center, in Flemington, New Jersey. Dr. Kurz informed appellant that the severely deteriorated condition of her left eye required surgical removal of the eye. On October 18, 1973, Dr. Kurz removed appellant's left eye. In her complaint, appellant also alleged, inter alia, that Dr. Palena negligently performed surgery on her left eye on November 17, 1972, and that Thomas Jefferson University Hospital negligently employed Dr. Pelana as its agent. Finally, appellant alleged that she did not become aware of any negligence until August 9, 1973, when she consulted Dr. Kurz who advised her that the condition of her left eye required its removal.

In his new matter in response to appellant's complaint, Dr. Palena asserted that the two year personal injury statute of limitations barred appellant's action. Appellee

[ 260 Pa. Super. Page 218]

Thomas Jefferson University Hospital filed a motion for summary judgment in which it denied the existence of an agency relationship with Dr. Palena and also asserted the bar of the statute of limitations. Specifically, appellees maintained that because the statute of limitations began to run from the time of appellant's alleged injury during the operation on November 17, 1972, the statute of limitations precluded appellant's complaint filed on July 30, 1975, more than two years after the injury. Neither appellees nor appellant filed any depositions of ...


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