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BRUCE PEACEMAN AND VICTORIA PEACEMAN v. ORLANDO P. TEDESCO (05/28/80)

decided: May 28, 1980.

BRUCE PEACEMAN AND VICTORIA PEACEMAN, HIS WIFE, PETITIONERS
v.
ORLANDO P. TEDESCO, M.D., EDWIN W. SHEARBURN, III, M.D., THE LANKENAU HOSPITAL AND G. D. SEARLE & COMPANY, RESPONDENTS. BRUCE PEACEMAN AND VICTORIA PEACEMAN, HIS WIFE, PETITIONERS V. ORLANDO P. TEDESCO, M.D., EDWIN W. SHEARBURN, III, M.D., THE LANKENAU HOSPITAL, SEARLE & CO. AND G. D. SEARLE & COMPANY, RESPONDENTS



Appeals from the Order of the Arbitration Panels for Health Care in case of Bruce Peaceman and Victoria Peaceman, his wife v. Orlando P. Tedesco, M.D., Edwin W. Shearburn, III, M.D., Searle & Co. and G. D. Searle & Company, No. M77-0141, Montgomery County.

COUNSEL

Martin Heller, attorney for appellants.

James J. McEldrew, with him, Joseph H. Foster and Justin J. McCarthy, of counsel White and Williams, for appellees.

Judges Wilkinson, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge Rogers. Dissenting Opinion by Judge Wilkinson, Jr.

Author: Rogers

[ 51 Pa. Commw. Page 546]

The appellants, Bruce Peaceman and Victoria, his wife, commenced a malpractice action against a number of health care providers, including the surgeon who operated on Mrs. Peaceman, named in their complaint as Edwin W. Shearburn, III, M.D., by filing their complaint with the Administrator of Arbitration Panels for Health Care pursuant to the Health Care Services Malpractice Act, Act of October 15, 1975, P.L. 390, as amended, 40 P.S. ยง 1301.101 et seq. They averred, inter alia, that Victoria Peaceman consulted Edwin W. Shearburn, III, M.D. in connection with symptoms relating to her right breast; that Edwin W. Shearburn, III, M.D. told Victoria Peaceman that he would perform a biopsy on the right breast; that Edwin W. Shearburn, III, M.D. did not tell her that if he found a malignancy he would immediately perform

[ 51 Pa. Commw. Page 547]

    a right modified radical mastectomy; and that Edwin W. Shearburn, III, M.D., having found a malignancy, immediately performed a right modified radical mastectomy without informing her beforehand. The plaintiffs assert that this was negligent conduct.

Edwin W. Shearburn, III, M.D. was a resident at Lankenau Hospital, Montgomery County. His father, Edwin W. Shearburn, Jr., M.D. was a surgeon and was at the times involved in this matter the Chief of the Division of Surgery at Lankenau. It was the father, Edwin W. Shearburn, Jr., M.D. who talked with Mrs. Peaceman and who performed the surgery. Service of the complaint was made by sending it certified mail to the address, including room number, at Lankenau of the father, Edwin W. Shearburn, Jr., M.D. A receipt for its delivery was signed by Edwin W. Shearburn, Jr., M.D.'s secretary or receptionist, one Liz Norman.

An attorney-at-law entered an appearance for Edwin W. Shearburn, III, M.D. and an answer was filed by Edwin W. Shearburn, III, M.D. in which he denied that he "performed the surgery as alleged" or that he "performed any of the acts averred" and in which he averred that "he did not make any warranties as averred". That answer was filed about ten months before the statute of limitations ran on the appellants' claims.

About five weeks after the statute of limitations ran, Edwin W. Shearburn, III, M.D. filed a Motion for Summary Judgment, alleging that it was his father, Edwin W. Shearburn, Jr., M.D., who performed the mastectomy on Mrs. Peaceman and that he, Edwin W. Shearburn, III, M.D. did not see or participate in the care of Mrs. Peaceman until after the operation had been performed by his father.

The Peacemans, faced with Edwin W. Shearburn, III, M.D.'s Motion for Summary Judgment, filed a

[ 51 Pa. Commw. Page 548]

Motion to Correct Name of Party pursuant to Pa. R.C.P. 1033, to change the name of the defendant from Edwin W. Shearburn, III, M.D. to Edwin W. Shearburn, Jr., M.D. In their Motion the plaintiffs averred, in addition to the fact that they had intended to name as the defendant the person who performed the operation, that Edwin W. Shearburn, III, M.D.'s name appeared in the medical records on Mrs. Peaceman's discharge summary. In answer to the latter allegation, Edwin W. Shearburn, III, M.D. answered that his name also appeared on at least three progress notes.

The Administrator overruled the plaintiffs' Motion to Correct Name on the ground that to do so would impermissibly bring a new party on the record as a defendant after the running of the statute of limitations. He granted Edwin W. Shearburn, III, M.D.'s Motion for Summary Judgment because it was undisputed that he had not performed the operation. The plaintiffs below have appealed, contending that the Administrator's refusal to grant their Motion to Correct Name, the effect of ...


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