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JOHN J. KEATING v. REUBEN ZEMEL (09/05/80)

filed: September 5, 1980.

JOHN J. KEATING, APPELLANT,
v.
REUBEN ZEMEL, M.D., ALLEGHENY GENERAL HOSPITAL, A NON-PROFIT CORPORATION, AND R. ZEMEL, A PENNSYLVANIA PROFESSIONAL CORPORATION, ROBERT EMMETT WALLEY, III, M.D.



COUNSEL

Michael R. Ford, Pittsburgh, for appellant.

David H. Trushel, Pittsburgh, for Zemel, appellee.

George M. Weis, Pittsburgh, for Allegheny Hospital, appellee.

Thomas J. Reinstadtler, Pittsburgh, for Walley, appellee.

Cavanaugh, Hoffman and Van der Voort, JJ.

Author: Cavanaugh

[ 281 Pa. Super. Page 130]

This appeal is from the grant of a motion for summary judgment in favor of appellee, Robert Emmett Walley, III, M.D., and against appellant, John J. Keating. Walley is one

[ 281 Pa. Super. Page 131]

    of three defendants in a medical malpractice action brought by Keating.

Summary judgment may only be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Pa.R.C.P. 1035(b). On appeal the record must be examined in the light most favorable to the non-moving party. Bollinger v. Palmerton Area Com. Endeavor, Inc., 241 Pa. Super. 341, 361 A.2d 676 (1976); Lane v. Schacht, 260 Pa. Super. 68, 393 A.2d 1015 (1978). In compliance with this standard we recite the factual history from undisputed facts of record or those contained in appellant's affidavit filed in opposition to appellee's motion for summary judgment.*fn1

Appellant underwent surgery on June 6, 1974, and it is now apparent that a foreign body was left in appellant at the situs of his abdominal surgery. After complaint of pain a further procedure was performed on October 14, 1975, and the foreign body was removed. Within two years of the latter date, suit was instituted against the surgeon in the 1974 operation, Reuben Zemel, M.D. and the Allegheny General Hospital. Appellant's original theory was that Dr. Zemel employed a sixteen-inch red rubber catheter at the site of the surgery and negligently failed to remove it. He alleged that the presence of the foreign body went undiscovered until its removal by endoscopy on October 14, 1975. Appellant relied upon portions of the Allegheny General Hospital records in identifying the foreign body. For example, the "Final Diagnosis" states, "(1) Foreign body (sixteen-inch rubber catheter) from stomach and along curve of duodenum." The object is similarly described in the discharge summary. This description found its way into appellant's past medical history during a subsequent hospitalization and was also relied upon by appellant's consultant, Cyril H. Wecht, in the formation of his opinions concerning the

[ 281 Pa. Super. Page 132]

    case. However, the hospital record is at least to some degree ambiguous since the gastrointestinal endoscopy report relating to the removal of the foreign body mentions it three times as simply "tube" (with a blank space before the word in each instance). On June 3, 1977, still within two years of the discovery of the foreign object and the removal by endoscopy, appellant's counsel took the deposition of Dr. Brodmerkel, the physician who performed the gastrointestinal endoscopy. He denied knowledge of the origin of the tube, but described it as buff yellow and gave a manufacturer's identification. Previously, on deposition, Dr. Zemel had denied any knowledge of the tube removed from appellant. Finally, on June 28, 1978, well beyond two years after the removal of the tube, Dr. Zemel's attorney took the deposition of appellee, Dr. Walley, who had been the attending anesthesiologist at the surgery in ...


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