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GERARD CAPONE v. J. ARNOLD DONOVAN (08/24/84)

filed: August 24, 1984.

GERARD CAPONE, JR., GERARD CAPONE AND MARIA CAPONE, HIS WIFE, APPELLANTS,
v.
J. ARNOLD DONOVAN, JR., M.D. AND M.J. STACKOWSKI, M.D.



No. 324 Harrisburg, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Union County, No. 1061, 1980.

COUNSEL

Ambrose R. Campana, Williamsport, for appellants.

Paul A. Barrett, Scranton, for Donovan, appellee.

Diane L. Anderson, Philadelphia, for Stackowski, appellee.

Wickersham, Wieand and Cercone, JJ.

Author: Wieand

[ 332 Pa. Super. Page 187]

If a plaintiff's football injury has been misdiagnosed and mistreated successively by several physicians so as to result in a permanent injury, does settlement with one physician bar an action against the other physicians? The trial court held that a second action was barred and entered summary judgment in favor of the physicians. We reverse.

Gerard Capone, Jr., sustained a broken arm during football scrimmage at Bucknell University on September 13, 1977. He was treated the same day by Doctors J. Arnold Donovan, Jr., and M.J. Stackowski, who took x-rays and applied a long-arm cast. During succeeding weeks, while

[ 332 Pa. Super. Page 188]

    he continued to be treated by Doctors Donovan and Stackowski, Capone's arm failed to heal properly. On October 7, 1977, Capone went to see Dr. Anthony J. Persico, a physician who practiced in the vicinity of Capone's home in New Jersey. Persico took additional x-rays and applied a splint wrapped in an ace bandage. Capone saw Dr. Persico three or four times but discomfort resulted from the continued failure of the arm to heal. Finally, when in July, 1978 the arm still had not healed, Capone visited Dr. Francis P. Milone. Milone performed surgery to correct the injury. He told Capone that, because of the nature of the fracture, surgery should have been performed immediately after the injury was sustained.

Capone and his parents commenced an action in the courts of New Jersey to recover damages attributable to Dr. Persico's failure to make a correct diagnosis and render proper treatment. That case was settled for the sum of $25,000. A release was executed as follows:

KNOW ALL MEN BY THESE PRESENTS:

That MARIA CAPONE hereinafter designated as the Releasor, for and in consideration of the sum of ...


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