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April 6, 1981

Stephanie Anne BOSWORTH, a minor by her parent and natural guardian, Stephen E. Bosworth, and Stephen E. Bosworth in his own right, Plaintiffs,
L. G. PLUMMER, an individual and Latrobe Area Hospital, Inc., a corporation, jointly and severally, Defendants

The opinion of the court was delivered by: COHILL

Stephen E. Bosworth brought this diversity action in his own right and as the parent and natural guardian of Stephanie Anne Bosworth. He asserts claims for damages against defendants, Dr. Lloyd Gordon Plummer and Latrobe Area Hospital, Inc., as a result of their alleged malpractice in connection with the birth of Stephanie Anne Bosworth on April 21, 1971. Stephanie is afflicted with a condition commonly referred to as "cerebral palsy." The plaintiffs allege that the defendants' malpractice during the labor and delivery process was the proximate cause of this affliction.

Mr. Bosworth filed this action on December 8, 1977, six years and seven months after Stephanie's birth. The parties have conducted extensive discovery and have submitted their pretrial statements. The defendants now move for summary judgment on the ground that the plaintiffs' claims are barred by the statute of limitations. Latrobe Area Hospital, Inc. ("Latrobe Hospital") also moves for summary judgment on the ground that the plaintiffs lack essential expert testimony linking Stephanie's injury to the hospital's conduct.

 A federal court will grant summary judgment only "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 that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When considering a motion for summary judgment, a court must view the facts in the light most favorable to the non-moving party. Goclowski v. Penn Central Transportation Company, 571 F.2d 747, 751 (3d Cir. 1977). The movant has the burden of establishing that no genuine issue of fact exists. Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 848 (3d Cir. 1974). With these principles in mind, we now turn to an examination of the merits of the defendants' motions.


 On April 20, 1971, Joanne Bosworth, Stephanie's mother, began to notice complications with her pregnancy. Pursuant to instructions given by Doctor Lloyd Plummer, she entered Latrobe Hospital at eight that evening. Dr. Plummer delivered Stephanie the following morning. The baby did not begin to breathe until four minutes after birth. During that four minute period, Dr. Plummer aspirated the baby's nose, mouth and endotracheal tree. The baby subsequently was placed in an incubator and was provided with mechanical assistance in respirating. Later that same day, Stephanie was transferred to Children's Hospital and then to Magee Women's Hospital in Pittsburgh for intensive care for her breathing problems.

 A few hours after Stephanie's birth, Nurse Sarnesso and Dr. Sarver informed Stephanie's parents that the baby had stopped breathing for four minutes, that respiratory complications had resulted from this lapse, and that the baby might be transferred to Children's Hospital. Later that day, a resident at Magee Women's Hospital told Mr. Bosworth that Stephanie had been placed on a respirator. After extensive treatment, Stephanie gained the ability to breathe without assistance and eventually was released from the hospital.

 In September or October of 1971, Dr. Chorazy of Children's Hospital informed Stephanie's parents that she was suffering from cerebral palsy. Stephanie began to have mild seizures when she was approximately a year old. Her parents understood the seizures to be a consequence of the cerebral palsy. Soon after the seizures began, Mr. Bosworth, who worked as a sales representative in the medical supply industry, briefly discussed his daughter's condition with Dr. McKenzie, who was the Chief of the Anesthesiology Department at Magee Women's Hospital. Dr. McKenzie told Mr. Bosworth that Stephanie's cerebral palsy could have resulted from a multitude of occurrences. Mr. Bosworth recalls two of the possible explanations: prolonged labor and a blood clot in the umbilical cord.

 The Bosworths subsequently moved from Latrobe to Wheeling, West Virginia. In December, 1975, Mrs. Bosworth consulted Dr. Ashme Abdel-Messih, a gynecologist in the Wheeling area, because she was interested in having another child. After obtaining and reviewing Dr. Plummer's records, Dr. Abdel-Messih informed Mrs. Bosworth that Stephanie's difficulties were not hereditary and were not the result of any physiological defect, but rather, that they arose solely from the events surrounding the labor and the delivery.

 Based upon Dr. Abdel-Messih's opinion, the Bosworths discussed with an attorney in West Virginia the possibility of initiating a lawsuit against Dr. Plummer and Latrobe Hospital. That attorney referred the Bosworths to an attorney in Pittsburgh, who filed the present action on December 8, 1977. Prior to Mrs. Bosworth's visit with Dr. Abdel-Messih, the Bosworths had not conducted any investigation nor made any inquiry to discover the root of Stephanie's difficulties. Mrs. Bosworth is not a party to this action.


 The defendants contend that the statute of limitations expired on the plaintiffs' claims long before Mr. Bosworth filed this lawsuit. We must apply the Pennsylvania statute of limitations to this diversity case because the substantive law of Pennsylvania supplies the plaintiffs with their causes of action. See Guaranty Trust Co. v. York, 326 U.S. 99, 108-10, 65 S. Ct. 1464, 89 L. Ed. 2079 (1945). The applicable statute provides that "(e)very suit hereafter brought to recover damages for injury wrongfully done to the person ... must be brought within two years from the time when the injury was done and not afterwards." Act of June 24, 1895, P.L. 236, § 2, 12 Pa.Stat.Ann. § 34 (1953) (current version at 42 Pa.Cons.Stat.Ann. § 5524 (Purdon's Pamphlet 1980)). This statute of limitations embodies the following three policies: (1) rights should be enforced without unreasonable delay; (2) after a certain period of time a defendant should have repose and should be spared from defending against a stale claim; and (3) it is wasteful to use judicial resources to decide stale claims on stale evidence. Anthony v. Koppers Company, Inc., 284 Pa.Super. 81, 425 A.2d 428, 441 (1980).

 Recognizing that the traditional rule often produced harsh results in the area of medical malpractice litigation, the Pennsylvania Supreme Court modified that rule in Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959). The claim in Ayers arose from the defendant's failure to remove a gauze sponge from the body of the plaintiff upon completion of surgery to repair an ulcer. Although the plaintiff had continued to suffer discomfort following the operation, the cause of that discomfort was not discovered until nine years later. After the offending sponge was removed, the plaintiff initiated a malpractice action against the original surgeon. The trial court entered judgment for the defendant on the ground that the action was time-barred.

 On appeal, the Supreme Court reversed. Acknowledging that the Act of June 24, 1895 requires that a tort action " "be brought within two years from the time when the injury was done '," the court held that "(t)he injury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable." 397 Pa. at 290, 154 A.2d at 792 (emphasis in original). The court determined that a doctor should not escape liability for ...

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