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MICHAEL J. MALLOY AND HELEN MALLOY v. J. RUSH SHANAHAN (08/22/80)

filed: August 22, 1980.

MICHAEL J. MALLOY AND HELEN MALLOY, APPELLANTS,
v.
J. RUSH SHANAHAN, M.D.



No. 1526 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Chester County, Civil Action - Law, No. 122 May Term, 1972, Dated April, 10, 1978.

COUNSEL

J. Keath Fetter, West Chester, for appellants.

John S. J. Brooks, Media, for appellee.

Price, Watkins and Hoffman, JJ. Price, J., concurs in the result. Hoffman, J., files a dissenting opinion.

Author: Watkins

[ 280 Pa. Super. Page 442]

This is an appeal from the order of the Court of Common Pleas, Civil Division, of Chester County, which denied appellant's motion for a new trial.

This is a medical malpractice suit brought in trespass and assumpsit but tried only in trespass. The jury returned a verdict in favor of the doctor-appellee and against the appellants.

The record indicates that the appellant, Mrs. Helen Malloy, was suffering from what was diagnosed as rheumatoid arthritis and sought appellee's help as the result of a referral from an arthritis clinic.

After examination and diagnosis, relief from the pain and swelling was sought through use of aspirin, Butazolidin and later Indocin which treatment was discontinued because of the effect of the drugs on the appellant (upset stomach, etc.).

The appellee then prescribed Chloroquine in August of 1958 which gave the appellant relief. The prescription was for 100 tablets, 250 milligrams per tablet to be taken one tablet per day. The same prescription was given to the appellant in October, 1965 and January, 1967.

The prescription as given made no allowance for refilling and was for a drug which was not legally refillable without prescription. The appellant, however, got two pharmacies to continually refill the prescription and she took one tablet a day from 1959 to 1971 without the knowledge or consent of the appellee.

As a result of the prolonged use of the drug, the appellant developed retinopathy and became partially blind.

The appellee testified that he told the appellant of the possible side effects and toxicities associated with the use of the drug. The appellant denied that this was true.

The sole question on appeal is whether a doctor who renders treatment to a patient ...


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