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CHARLOTTE G. MORGAN AND GRIFFITH MORGAN v. JOHN L. SBARBARO (11/12/82)

filed: November 12, 1982.

CHARLOTTE G. MORGAN AND GRIFFITH MORGAN, APPELLANTS,
v.
JOHN L. SBARBARO, JR. M.D.



No. 196 Philadelphia, 1981 Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 4620 July Term, 1975.

COUNSEL

Ronald E. Metter, Philadelphia, for appellants.

Kenneth F. DeMarco, Philadelphia, for appellee.

Cavanaugh, Brosky and Montgomery, JJ.

Author: Cavanaugh

[ 307 Pa. Super. Page 309]

Mrs. Charlotte G. Morgan has been afflicted with rheumatoid arthritis since 1952. Since then she has undergone operations for a left knee arthroplasty in 1963, a right knee synovectomy in 1966, a left knee fusion in 1968 and a total right hip replacement in 1970, all before the incident out of which this medical malpractice action came about.

Sometime in 1973 her left hip also became very painful. Her internist referred her to a Dr. Gartland who felt and recommended that before the left hip surgery her right knee should be strengthened. However, Dr. Gartland did not perform knee surgery and her internist referred her to Dr. John L. Sbarbaro.

Dr. Sbarbaro performed a right knee arthoplasty, an operation which involves placing metal wedges in the knee bones, on May 21, 1973. An infection developed in the wound. Mrs. Morgan was discharged to home care from the hospital on June 13, 1973, but when the infection got worse she was readmitted on July 3, 1973. Eventually, Dr. Sbarbaro informed Mrs. Morgan that the right knee needed fusion. The fusion was performed on July 24, 1973.

Mrs. Morgan and her husband commenced this medical malpractice action by Writ of Summons on August 1, 1975, more than two years after the fusion was performed.

At pre-trial conference the sole issue asserted by Mrs. Morgan was lack of informed consent based on the sole allegation that Dr. Sbarbaro had failed to warn her that a post-operative infection might result from the arthoplasty procedure and that such infection might require a right knee fusion.

[ 307 Pa. Super. Page 310]

The court below, Bullock, J., granted Dr. Sbarbaro's motion for summary judgment holding that the two year statute of limitations on personal injury actions, 12 P.S. ยง 34, had run, reasoning pursuant to our decision in Anthony v. Kopper's Co., Inc., 284 Pa. Super. 81, 425 A.2d 428 (1980)*fn1 that when the fusion was performed on July 24, 1973, Mrs. Morgan had all the necessary information to herald a possible tort, viz: (1) knowledge of the injury; (2) knowledge of the operative cause of the injury; and (3) knowledge of the causative relationship between the injury and the operative conduct.

In this appeal, Mrs. Morgan contends that because she remained under Dr. Sbarbaro's care until early 1974, having had the fusion pins removed at his office in September, 1973 and thereafter by telephone concerning draining from one of the pin canals, the statute of limitations should be tolled until she went to another physician in 1974. She asks that we adopt the doctrine of "continuing care" from other jurisdictions as a ground for tolling the statute of limitations in medical malpractice cases urging that the ...


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