No. 1968 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division, of Philadelphia County, June Term, 1979, No. 2798.
Avram G. Adler, Philadelphia, for appellants.
Charles B. Burr, Philadelphia, for Smith, appellee.
Thomas J. Finarelli, Philadelphia, for Winthrop, appellee.
Wickersham, Rowley and Montemuro, JJ.
[ 307 Pa. Super. Page 263]
This is an appeal from an order granting summary judgment in favor of the appellees in a medical malpractice action. Suit was filed in 1979 by Catherine Petri (appellant), in her own right and as the parent and natural guardian of Kenneth Petri, Jr., (Kenneth). Appellant asserted claims for damages against Dr. William Smith and Winthrop Laboratories, Inc.,*fn1 (appellees) as a result of their alleged negligence in connection with Kenneth's birth in 1965. At the close of the pleadings in the case, Dr. Smith and Winthrop Laboratories, Inc., filed separate motions for summary judgment on the ground that the appellant's suit was barred by the two year statute of limitations.*fn2 In response, appellant raised the applicability of the "discovery rule"*fn3 averring that it was not reasonably possible for her to have discovered the wrong done Kenneth until, 1977, and, thus, the applicable two year statute of limitations did not begin to run until then. Additionally, appellant made a constitutional claim averring that Pennsylvania's statute of limitations in personal injury cases, which holds minors
[ 307 Pa. Super. Page 264]
accountable equally with adults, was violative of the minor's equal protection and due process rights. After considering appellant's "discovery rule" argument, as well as her constitutional claim, the trial court rejected both of them and entered summary judgment in favor of the appellees. This appeal of that decision followed. We reverse.
Kenneth Petri, Jr. is the first-born child of Catherine and Kenneth Petri. He is currently seventeen years old, and has been mentally and physically retarded since birth. Presently, he remains unable to walk or talk, and suffers from abnormal reflexes, muscle tone and posture.
Kenneth was born, after a markedly difficult pregnancy, at Abington Memorial Hospital, Abington, Pennsylvania, on September 15, 1965, at 4:19 p.m. by way of a "frank breech presentation."*fn4 Dr. William Smith, one of the appellees, was his delivering obstetrician. During the course of her labor with Kenneth, appellant received two doses of a synthetic narcotic analgesic called demerol,*fn5 a drug manufactured by the second appellee, Winthrop Laboratories, Inc. The liability of Dr. Smith in the instant case is premised on his negligence in delivering Kenneth.*fn6 The liability of Winthrop
[ 307 Pa. Super. Page 265]
Laboratories, Inc. is premised on its negligence in failing to adequately warn Dr. Smith of the dangers inherent in the use of demerol.
Within twenty-four (24) hours of Kenneth's birth, appellant knew that all was not well with her newborn son. She was informed at some point during that period by Dr. John J. Shields, Kenneth's pediatrician, that some "damage" could have been done to Kenneth. Specifically, at her deposition, she recalled Dr. Shields telling her at the hospital:
Later in her deposition, in response to another question concerning her conversations with Dr. Shields in the hospital, she replied in the following fashion:
He had just stated to me that time would tell and show. It was all up to time to see what would happen and he said these things happen . . .
During the years following Kenneth's birth, Catherine Petri and her husband had three more children. She gave birth in 1967, 1970 and 1972 to three normal, healthy sons. Dr. Smith was not the attending obstetrician at any of those deliveries, although appellant did see him five times on a professional basis for post-natal care after Kenneth's birth. In her deposition testimony, appellant stated that any concerns she may have had with respect to the hereditary aspect of Kenneth's condition were assuaged by Dr. Shields' assurances, and those of his associate, Dr. Ickler, that the minor appellant's condition was "a one time thing, probably, never happen again." When asked ...