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ALINE RICHARDSON v. EUGENE LABUZ (04/10/84)

decided: April 10, 1984.

ALINE RICHARDSON, ADM. OF THE ESTATE OF ROY A. RICHARDSON, DECEASED
v.
EUGENE LABUZ, M.D. ET AL. HAZLETON STATE GENERAL HOSPITAL ET AL., APPELLANTS. ALINE RICHARDSON, ADM. OF THE ESTATE OF ROY A. RICHARDSON, DECEASED, V. EUGENE LABUZ, M.D. ET AL. EUGENE LABUZ, M.D., APPELLANT



Appeals from the Order of the Court of Common Pleas of Luzerne County in the case of Aline Richardson, Administratrix of the Estate of Roy A. Richardson, Deceased v. Eugene LaBuz, M.D., Victor Greco, M.D. and Hazleton State General Hospital, No. 4182-C of 1980.

COUNSEL

Randall G. Gale, Deputy Attorney General, with him Mark E. Garber, Jr., Deputy Attorney General, David F. Snyder, Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for appellants, Hazleton State General Hospital and Department of Public Welfare.

Paul A. Barrett, Nogi, O'Malley, Harris & Schneider, P.C., for appellant, Eugene LaBuz, M.D.

John R. Lenahan, Jr., Lenahan & Dempsey, for appellant, Victor Greco, M.D.

Joseph A. Quinn, Jr., with him Neil L. Conway, Hourigan, Kluger & Spohrer Associates, of counsel, Daniel I. Murphy, Stradley, Ronon, Stevens & Young, for appellee, Aline Richardson, Administratrix of the Estate of Roy A. Richardson, Deceased.

Judges Craig, Doyle and Blatt, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 81 Pa. Commw. Page 439]

In these two consolidated cases, the Commonwealth's Hazleton State General Hospital, the Pennsylvania Department of Public Welfare and Dr. Eugene LaBuz appeal from an order of the Court of Common Pleas of Luzerne County, denying their motions for a new trial in a medical malpractice case, which had resulted in a jury verdict in favor of the plaintiff for $1,500,000, plus delay damages.

History

On the morning of May 2, 1977, Roy Richardson, plaintiff's thirty-one year old husband, was injured in an auto accident on Interstate 80 in Pennsylvania. He arrived at the emergency room at Hazleton State General Hospital at approximately 3:50 a.m. The emergency room nurse testified that Richardson was conscious and complaining of chest pain and breathing difficulty, which progressively worsened while he remained in the emergency room. The nurse immediately summoned Dr. Martyak, the emergency room physician then on duty, who examined the patient and ordered x-rays. Dr. Martyak then prepared to leave the hospital to make a house call, and contacted Dr. LaBuz, the general surgeon on call, to attend to Richardson. Dr. LaBuz read and admittedly misinterpreted Richardson's x-rays, failing to diagnose a progressive pneumothorax condition caused by multiple fractured ribs and a punctured lung, which eventually resulted in complete respiratory collapse and the death of Roy Richardson.

After reading the x-rays, Dr. LaBuz telephoned Dr. Greco, a thoracic surgeon, and gave him a very brief account of Richardson's injuries. Dr. LaBuz told Dr. Greco that the patient was "stable," and Dr. Greco said he would be "right down." After Dr. LaBuz

[ 81 Pa. Commw. Page 440]

    moved Richardson to an ordinary hospital room, he left the hospital. In the meantime, Dr. Greco had responded to another emergency call at a different hospital, and did not arrive at Hazleton State General until after Richardson died at 6:35 a.m.

Aline Richardson flew to Pennsylvania from her home in St. Maarten, the Netherland Antilles, the following day to transport her husband's body home. No one at the hospital discussed the cause of her husband's death with Mrs. Richardson, nor had anyone performed an autopsy.

Not until one year later did Mrs. Richardson begin to look into the details surrounding her husband's death. She had the body exhumed, arranged for an autopsy, and reviewed the medical records from her husband's brief stay at Hazleton State General. Shortly after completing analysis of this data, Mrs. Richardson filed suit on April 26, 1979, charging the hospital and Drs. LaBuz and Greco with medical malpractice in a wrongful death and survival action.

The uncontradicted expert testimony established, and Dr. LuBuz admitted, that he provided Richardson with inadequate medical care, that Richardson's injuries were otherwise survivable, and that LaBuz's malpractice was a contributing factor to Richardson's death. The evidence further established that Dr. Martyak, an employee of the hospital, was negligent in abandoning the patient, and that the hospital, owned and operated by the Commonwealth, was negligent in staffing its emergency room with unqualified personnel, and in failing to follow its own guidelines for operation of the emergency room and periodic personnel review.

At the close of the plaintiff's case, the court granted Dr. Greco's motion for compulsory non-suit

[ 81 Pa. Commw. Page 441]

    because none of the parties offered any expert testimony regarding negligence on Dr. Greco's part. Accordingly, the jury's verdict of $1,500,000 was apportioned as follows: Dr. LaBuz, 10%; Dr. Martyak, 15%; Commonwealth of Pennsylvania, 75%. The jury attributed $837,000 to the wrongful death action, and $663,000 to the survival action. The court added delay damages under Pa. R.C.P. No. 238 at the rate of 10% per annum, not compounded, from October 15, 1979 to September 30, 1981. The trial court denied defendants' motions for new trial and this appeal followed.

Issues

Dr. LaBuz raises four issues and the Commonwealth raises twenty. Our task is to view all of the evidence and to determine whether the court en banc abused its discretion or committed an error of law in denying the motions for new trial. Handfinger v. Philadelphia Gas Works, 439 Pa. 130, 266 A.2d 769 (1970).

Both the Commonwealth and Dr. LaBuz raise questions concerning the statute of limitations as to the wrongful death action, involving the length of the limitation period and its proper starting point. The Commonwealth continues to question the trial court's grant of a compulsory non-suit in favor of Dr. Greco. Other issues affecting liability involve a rejection of a pleading amendment sought by the Commonwealth, its claim for a mistrial on the basis of newspaper publicity and various contentions concerning trial conduct, evidence rulings and the closing arguments and charge given to the jury.

As to damages, Dr. LaBuz seeks to avoid the imposition of delay damages, the Commonwealth argues for the application of a statutory dollar maximum on

[ 81 Pa. Commw. Page 442]

    the amount of damages recoverable against it, and both of those defendants pursue questions pertaining to evidentiary rulings affecting damages.

Statute of Limitations

General

Dr. LaBuz asserted the statute of limitations as a bar to the wrongful death action by way of affirmative defense in his new matter as required by Pa. R.C.P. No. 1030. Later, LaBuz moved for judgment on the pleadings and summary judgment based on the statute of limitations. In view of the approaching trial date, the trial court declined to hear arguments on the motions, deferring consideration of the matter until the pretrial conference. At that time, the trial judge ruled, as a matter of law, that the statute of limitations had not expired on the wrongful death action, and therefore granted the plaintiff's motion to exclude any evidence relative to the expiration of the statute. LaBuz and the Commonwealth both noted exceptions to the judge's ruling, although that date was the first time on which the Commonwealth raised the statute of limitations.

Waiver by the Commonwealth

In its opinion on the motions for new trial, the court en banc ruled that, under Pa. R.C.P. No. 1032, the Commonwealth had waived the statute of limitations defense by failing to assert it affirmatively in new matter. The Commonwealth now argues that, under Gagliardi v. Lynn, 446 Pa. 144, 285 A.2d 109 (1971), it should not have been precluded from asserting the statute of limitations defense because, inasmuch as both co-defendants had raised the defense in a timely manner, the tardy plea would not surprise the plaintiff, and the protection of the statute of limitations

[ 81 Pa. Commw. Page 443]

    should extend to all defendants. Gagliardi does support the Commonwealth's argument on this point, but we believe that the liberal construction approach manifested in that case was overshadowed by the Pennsylvania Supreme Court's later pronouncements of strict adherence to the rules of issue preservation in Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974), and Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (1981). Accordingly, we agree with the court en banc that the Commonwealth waived the statute of limitations defense by not raising it seasonably in new matter.

One-year or Two-year Limitation

On May 2, 1977, the date of Richardson's death, the statute of limitations on wrongful death actions was one year.*fn1 With enactment of the new Judicial Code, which became effective June 27, 1978, the statute of limitations on wrongful death actions was enlarged to two years.*fn2 The new statute did not revive any actions barred under the former statute before the effective date of the new Code.*fn3 Therefore, Dr. LaBuz argues, the one-year limitation was a conclusive bar, in that it had expired on May 2, 1978, before the effective date of the new Code.

Discovery Rule as to Limitation

However, the trial court ruled that the statute began to run on April 2, 1979, as the date Mrs. Richardson

[ 81 Pa. Commw. Page 444]

    discovered the cause of her husband's death, rather than on the date of death itself. In so ruling, the trial court applied the discovery rule which Pennsylvania courts have characterized as follows:

With the question of "reasonableness" as a constant qualification running through the decisional law, the principle emerges that three independent phases of knowledge must be known or knowable to plaintiff before the limitations period commences: (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.

Anthony v. Koppers, 284 Pa. Superior Ct. 81, 97, 425 A.2d 428, 436 (1980) (emphasis in original). After trial of the present case, the Supreme Court reversed the Superior Court Koppers decision on other grounds, holding the discovery rule inapplicable to wrongful death actions. Anthony v. Koppers, 496 Pa. 119, 436 A.2d 181 (1981), rev'g 284 Pa. Superior Ct. 81, 425 A.2d 428 (1980).

Dr. LaBuz argues that the Koppers decision should be given retroactive effect, thereby making Richardson's date of death the triggering date for the statute of limitations. In that event, the wrongful death action would have been fully barred before the effective date of the Code, and the one-year, rather than the two-year, statute would apply.

A judicial decision will be limited to prospective application only if it "establishes a new principle of law, either by overruling clear past precedent or by deciding an issue of first impression whose resolution was not clearly foreshadowed." Schreiber v. Republic Intermodal Corp., 473 Pa. 614, 622, 375 A.2d 1285, 1289 (1977).

[ 81 Pa. Commw. Page 445]

The Supreme Court noted that Koppers presented a case of first impression for its consideration. By holding the discovery rule inapplicable to wrongful death actions, the court departed from the general judicial trend in Pennsylvania of extending the discovery rule to an increasing variety of situations. See Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959) and its progeny.

Dr. LaBuz argues that Workmen's Compensation Appeal Board v. Chobanian, 19 Pa. Commonwealth Ct. 632, 339 A.2d 126 (1975), "clearly foreshadowed" the result in Koppers ; in Chobanian, this court held the discovery rule inapplicable to death actions arising under section 315 of the Pennsylvania Occupational Disease Act.*fn4 However, Koppers construed an entirely different statute from that applicable in Chobanian. Indeed, the Superior Court did not see Chobanian clearly as foreshadowing the ultimate Koppers rule, resulting from the Supreme Court's reversal of its decision to extend the discovery rule to wrongful death actions. Anthony v. Koppers Co., Inc., 284 Pa. Superior Ct. 81, 425 A.2d 428 (1981).

Therefore, we believe that Koppers did establish a new principle of law by deciding an issue of first impression whose resolution was not clearly foreshadowed. The principle announced by Koppers should therefore be given prospective effect only, and ...


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