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decided: February 2, 1979.


No. 1240 October Term, 1978, Appeal from the Order Dated February 17, 1978, of the Court of Common Pleas of Montgomery County, Civil Action-Law, at 75-15083.


William F. Sutton, Philadelphia, for appellant.

Joseph M. Walker, Norristown, for appellee, Donald Dormer, additional defendant.

Cercone, Spaeth and Lipez, JJ.

Author: Cercone

[ 263 Pa. Super. Page 177]

This is an appeal from an order of the Common Pleas Court of Montgomery County which granted additional defendant's motion for summary judgment and dismissed appellant-defendant's complaint against additional defendant. We affirm the decision of the lower court.

This action resulted from a traffic accident wherein the plaintiff, Vincent Lasprogata sustained a fractured right femur. An open reduction operation was performed on the femur and a metal plate was inserted and attached with two screws. One of the screws allegedly broke which impeded the healing process and necessitated further treatment.

Prior to the instant action, Lasprogata brought suit in trespass against Donald Dormer, the driver of the vehicle involved in the accident, alleging that Dormer's negligence was the proximate cause of his injuries. That lawsuit was concluded when Lasprogata signed a general release in which he released Dormer, for a sum of $15,000.00, from further liability on the claim. The release specifically stated it applied to "Donald Dormer only." Subsequently, Lasprogata brought suit against Dr. M. Qualls, the physician who performed the open reduction surgery, the hospital, and the manufacturer and distributor of the surgical products involved. Dr. Qualls joined Donald Dormer as an additional

[ 263 Pa. Super. Page 178]

    defendant alleging that the injuries averred by the plaintiff were proximately caused solely by Dormer's negligence in the auto accident. Qualls' complaint alternatively averred that Dormer was "liable for contribution with defendants, or jointly or severally liable."

Dormer moved for summary judgment on the basis of the release he had executed with Lasprogata in the prior action. The lower court granted the motion after appellant doctor had filed an answer and memorandum of law opposing the motion. Appellant doctor's motion for reconsideration and reargument was denied and this appeal followed.

Appellant asks us to address two issues*fn1 which we believe revolve around the central question of whether the operator of the vehicle which injures a plaintiff and the physician who allegedly rendered negligent treatment of those injuries are joint tortfeasors. The lower court found as a matter of law that the original wrongdoer and the treating physician were not joint tortfeasors and no right of contribution*fn2 existed between them. The court held that

[ 263 Pa. Super. Page 179]

    the doctor's complaint against the driver did not state a valid cause of action because the injuries sustained by the plaintiff arose in part from the unrelated action of the defendant-doctor alone thus negating the status of joint tortfeasors between the doctor and the additional defendant.

We agree with the decision of the lower court. Case law specifically holds that a tortfeasor originally causing an injury and a physician who subsequently aggravates or causes a new injury are not joint tortfeasors. Bandle v. Vernick, 66 Pa.D.&C.2d 457 (1974);*fn3 Gertz v. Campbell, 4 Ill.App.3d 806, 282 N.E.2d 28, aff'd in part and rev'd in part on other grounds, 55 Ill.2d 84, 302 N.E.2d 40 (1973); Annot. 8 A.L.R.3d 639 (1966). The acts of the original wrongdoer and the negligent physician are severable as to time, neither having the opportunity to guard against the other's acts, and each breaching a different duty owed to the injured plaintiff. While they are two active tortfeasors, they are not actually acting "jointly" when using that term in the strict sense.*fn4 As we have held in Embrey v. Borough of West Mifflin et al., 257 Pa. Super. 168, 390 A.2d 765 (1978),*fn5 to the extent that the acts of the

[ 263 Pa. Super. Page 180]

    original tortfeasor and those of the physician are capable of separation, the damages should be apportioned accordingly. This apportionment does not necessarily follow the statutory rules for contribution among tortfeasors applicable in situations where such tortfeasors are characterized as joint.*fn6 Instead, where identifiable acts of negligence of the original wrongdoer and the negligent physician are separate from each other in nature and time, the damages are accordingly apportionable.

This position does not ignore the Restatement (Second) of Torts § 457 which says:

"If the negligent actor is liable for another's bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third parties in rendering aid which the other's injury reasonably requires, irrespective of whether such acts are done in a proper or negligent manner."

Pennsylvania case law supports this Restatement section. Thompson v. Fox, 326 Pa. 209, 192 A. 107 (1937); Lebesco v. Southeastern Pa. Transp. Auth., 251 Pa. Super. 415, 380 A.2d 848 (1977). Although the posture of Pennsylvania law in accordance with § 457, supra, would seem to be at odds with the principle of the separateness of liability between the tortfeasor and the doctor in this case, there is no inconsistency present. This is so because the injured plaintiff could have brought suit against Dormer, the driver, in the prior action for the full extent of his injuries, that is, the pain and suffering and expenses of the fractured femur as well as the aggravation of the injury. Instead, plaintiff sued Dormer for the injuries he caused, after which Dormer alone was released. Subsequently, plaintiff sued the doctor, hospital, and manufacturer of the surgical supplies for their alleged negligent acts and breach of contract only from the time their respective conduct began; he does not claim damages for any injury Dormer may have caused him since he already recovered those damages in the prior action.

[ 263 Pa. Super. Page 181]

Thus, Section 434 of the Restatement (Second) is pertinent and applicable in reconciling the apparently inconsistent views concerning the issue before us.

Section 434 provides that:

"(1) It is the function of the court to determine . . .

(b) whether the harm to the plaintiff is capable of apportionment among two or more causes; and

(2) It is the function of the jury to determine, in any case in which it may reasonably differ on the issue, . . .

(b) the apportionment of the harm to two or more causes."

In the Embrey case, supra, the damages were apportioned by the jury in relation to the separate and independent negligent acts of the original wrongdoer and the acts of the physician. It is significant to note that in Embrey, both defendants were original defendants in the suit. In the instant case, Dormer, the driver and additional defendant, has already been released from his obligation and owes no monies to Lasprogata nor to the doctor who is accountable for his own allegedly negligent acts. Therefore, the instant action should proceed against the original defendants alone.

Some clarification is necessary concerning the effect of the release in this case. The traditional rule was that a release of the original wrongdoer also released the negligent physician. Thompson v. Fox, supra; Annot. 39 A.L.R.3d 260 (1971). This was based on the theory that there could only be one full compensation for a wrong. However, subsequent cases recognized that the release of the original wrongdoer may not have fully compensated an injured person for the damages he sustained at the hand of the treating physician. A growing number of courts have either accepted or are accepting this latter rationale and recognize that a release of the original wrongdoer does not in itself preclude an action against the negligently treating physician. Derby v. Prewitt, 12 N.Y.2d 100, 236 N.Y.S.2d 953, 187 N.E.2d 556 (1962);

[ 263 Pa. Super. Page 182]

Ash v. Mortensen, 24 Cal.2d 654, 150 P.2d 876 (1944); see cases compiled in 39 A.L.R.3d at 273. The appellate courts of Pennsylvania have not squarely dealt with this issue, but lower court decisions have begun to follow the more modern rule. E. g., Com. Nat'l Bank v. Harrisburg Polyclinic Hosp., 71 Pa.D.&C.2d 542 (1975); Bandle v. Vernick, supra; Gealt v. Kubiak, (No. 2), 62 Pa.D.&C.2d 482 (1973). The crucial issue then becomes whether the release was intended to release all parties and be full compensation on the claim. In the release before us, the express language released "Donald Dormer only." The consideration for that release covered only the damages sustained as the result of Dormer's negligent acts. Under Section 434 of the Restatement, supra, the facts of this case support the principle which holds that plaintiff's damages resulting from the doctor's negligence remain apportionable. In the suit against the doctor, Lasprogata will be restricted to the proof of damages directly resulting from the physician's actions, thus preventing double recovery.

Appellant does not question the propriety of the suit against him,*fn7 but only the effect of the release on the rights between him and the additional defendant. The cases cited by appellant*fn8 clearly deal with the possibility of true joint liability, and not with the unique situation of an original wrongdoer and the separate acts of a treating physician.

Order of the lower court affirmed.

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