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CHERYL WALLACE v. RONALD HORVATH (12/29/80)

filed: December 29, 1980.

CHERYL WALLACE, APPELLANT,
v.
RONALD HORVATH, M. D. AND CHESTNUT HILL HOSPITAL



No. 1034 October Term, 1979 Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Div., Law, at No. 4544, March Term, 1976.

COUNSEL

Francis T. McDevitt, Philadelphia, for appellant.

David E. Faust, Philadelphia, for appellees.

Brosky, Hoffman and Van der Voort, JJ. Brosky, J., files a concurring opinion.

Author: Hoffman

[ 283 Pa. Super. Page 180]

Appellant contends that the lower court erred in granting appellees' motion for summary judgment because her injuries were not reasonably discoverable within the period allowed by the statute of limitations. We disagree and, accordingly, affirm the order of the lower court.

Summary judgment can only be granted in clear cases where there is no genuine issue of material fact. See, e. g., Schacter v. Albert, 212 Pa. Super. 58, 239 A.2d 841 (1968). See also Pa.R.Civ.P. 1035(b). Additionally, the evidence must be viewed in the light most favorable to the non-moving

[ 283 Pa. Super. Page 181]

    party and all doubts must be resolved against the moving party. See Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979); Just v. Sons of Italy Hall, 240 Pa. Super. 416, 368 A.2d 308 (1976). While the question of reasonableness is normally left for the jury, Ragan v. Steen, 229 Pa. Super. 515, 331 A.2d 724 (1974), that issue may be taken from a jury when the court concludes that fair and reasonable persons could not differ in their conclusions based on the available facts. See Just v. Sons of Italy Hall, supra, 240 Pa. Super. at 428, 368 A.2d at 314. Cf. Restatement (Second) of Torts ยง 328B, comment g (1965).

Viewed according to these standards, the facts of this case are as follows. On January 1, 1974, appellant broke her right arm when she fell on the steps of her residence. She went immediately to Chestnut Hill Hospital where x-rays were taken and a steel plate was surgically implanted. Dr. Horvath, who performed the operation, placed appellant's arm in a cast. In response to appellant's complaints of pain and tightness, Dr. Horvath removed the cast, opened blisters which had developed on appellant's wrist, and replaced the cast. Three or four days later, the second cast was removed because appellant's skin had begun to peel. Appellant, who testified at her deposition that her arm "looked like hamburger" where the skin had peeled, never informed Dr. Horvath of the pain she still suffered.

Appellant later told Dr. Horvath that she wanted to go home to her family in Maine because she was unable to care for herself. She requested her records so her family physician could continue treatment. On the day she was discharged from the hospital, Dr. Horvath refused to release the records and told appellant to return in two weeks for observation. Three or four days later, appellant returned to the hospital because her arm had begun to smell. Although Dr. Horvath was unavailable, another doctor then allegedly refused to treat appellant because she was a patient of Dr. Horvath.

On January 22, 1974, appellant travelled to Maine and consulted her family physician, ...


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