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CARMELLO MARQUEZ v. HAHNEMANN MEDICAL COLLEGE AND HOSPITAL PHILADELPHIA AND DOUGLAS HOLSCLAW (01/20/81)

decided: January 20, 1981.

CARMELLO MARQUEZ, A MINOR, BY DIONISIA MARQUEZ, HIS GUARDIAN AND DIONISIA MARQUEZ, IN HER OWN RIGHT
v.
HAHNEMANN MEDICAL COLLEGE AND HOSPITAL OF PHILADELPHIA AND DOUGLAS HOLSCLAW, M.D. AND BONITA FALKNER, M.D. ATTORNEY GENERAL, EDWARD BIESTER, APPELLANT



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Carmello Marquez, a minor, by Dionisia Marquez, his guardian and Dionisia Marquez, in her own right v. Hahnemann Medical College and Hospital of Philadelphia, and Douglas Holsclaw, M.D. and Bonita Falkner, M.D., No. 1246 December Term, 1977.

COUNSEL

Gwendolyn T. Mosley, Deputy Attorney General, with her Harvey Bartle, III, Acting Attorney General, for appellant.

Harry Lore, with him Robert F. Simone, and Martin Heller for appellee.

President Judge Crumlish and Judges Mencer, Rogers, MacPhail and Palladino. Judges Wilkinson, Jr., Blatt, Craig and Williams, Jr. did not participate. Opinion by Judge Mencer. Concurring Opinion by Judge MacPhail.

Author: Mencer

[ 56 Pa. Commw. Page 190]

Carmello Marquez, a minor, by Dionisia Marquez, his guardian, and Dionisia Marquez, in her own right, filed a complaint with the Administrator for Arbitration Panels for Health Care (Administrator) under the provisions of the Health Care Services Malpractice Act (Act), Act of October 15, 1975, P.L. 390, as amended, 40 P.S. § 1301.101 et seq.*fn1 This complaint

[ 56 Pa. Commw. Page 191]

    stated a claim for damages resulting from the furnishing of medical services which were provided by Hahnemann Medical College and Hospital of Philadelphia and Douglas Holsclaw, M.D., and Bonita Falkner, M.D.

Prior to the first meeting of the arbitration panel to which the Administrator referred this complaint, the parties agreed to settle the claim for the sum of $1 million. At this point, because a minor was involved, the parties should have sought approval of the settlement from the Administrator, as provided in

[ 56 Pa. Commw. Page 192]

Section 307(b) of the Act, 40 P.S. § 1301.307(b).*fn2 However, a different course was pursued which produced this appeal.

Martin Heller, Esquire, and Robert F. Simone, Esquire, attorneys for the plaintiffs, filed a petition with the Court of Common Pleas of Philadelphia County (Court) seeking to obtain an order of court approving the settlement and fixing counsel fees pursuant to the provisions of Pa. R.C.P. No. 2039.*fn3 This petition led to the entry of an order, on December 15, 1977, which approved the settlement and authorized a fee to attorneys Heller and Simone in the amount of $333,333.

Following this court order, the settlement was submitted to the Administrator for approval, as provided in Section 307(b) of the Act. The Administrator initially declined to approve the settlement until ...


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