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BRENDA MURRAY AND RICHARD MURRAY v. UNIVERSITY PENNSYLVANIA HOSPITAL AND DR. STEVEN DE VOE AND DR. JOHN E. HUNT AND DR. CYNTHIA W. COOK AND DR. LUIGI MASTROIANNI (02/21/85)

filed: February 21, 1985.

BRENDA MURRAY AND RICHARD MURRAY, H/W, APPELLANTS,
v.
UNIVERSITY OF PENNSYLVANIA HOSPITAL AND DR. STEVEN DE VOE AND DR. JOHN E. HUNT AND DR. CYNTHIA W. COOK AND DR. LUIGI MASTROIANNI, JR., APPELLEES. BRENDA MURRAY AND RICHARD MURRAY, H/W V. UNIVERSITY OF PENNSYLVANIA HOSPITAL AND DR. STEVEN DE VOE AND DR. JOHN E. HUNT AND DR. CYNTHIA W. COOK AND DR. LUIGI MASTROIANNI, JR. APPEAL OF UNIVERSITY OF PENNSYLVANIA HOSPITAL AND DR. CYNTHIA W. COOK



No. 2899 Philadelphia, 1982, No. 2968 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 910 August Term, 1976.

COUNSEL

Brian R. Steiner, Philadelphia, for appellants (at 2899) and appellees (at 2968).

Richard A. Kolb, Philadelphia, for appellants (at 2968) and appellees (at 2899).

Cavanaugh, Wieand and Cirillo, JJ. Cavanaugh, J., files a dissenting opinion.

Author: Wieand

[ 340 Pa. Super. Page 405]

The rules of law applicable to this action for breach of an express warranty given in connection with a tubal ligation are fairly well established. The manner in which they should be applied to the facts of the instant action is not so readily apparent because application is shrouded in procedural confusion.

A doctor and patient may, if they choose to do so, contract that a course of treatment will produce a specific result. If that result is not achieved, the patient may then have an action for breach of contract even though the doctor has exercised the highest degree of professional care. See: Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 486, 453 A.2d 974, 975 (1982). See also: Colvin v. Smith, 276 A.D. 9, 92 N.Y.S.2d 794 (1949); 61 Am.Jur.2d, Physicians & Surgeons ยง 161 (1981).

An action for breach of contract must be commenced within six years.*fn1 Such an action is not controlled by the two year statute of limitations which is applicable to actions for professional negligence causing injury to another's person.*fn2 It has been held, however, that the two year statute applicable to causes of action for personal injuries cannot be avoided by the expedient of pleading in contract.

[ 340 Pa. Super. Page 406]

    they also sought an award of monetary damages to compensate the wife-plaintiff for her personal injuries, including pain and suffering, and her husband for the loss of his wife's consortium. Both defendants filed an answer in which they pleaded the two year statute of limitations as a complete defense to the action. At trial, the court instructed the jury that if the plaintiffs were entitled to recover, the wife-plaintiff should be awarded damages for pain and suffering. The defendants did not object to this instruction. The jury returned a verdict in favor of the Murrays and against Dr. Cook and the hospital. Damages were awarded to the wife-plaintiff in the amount of $21,000 and to Richard Murray in the sum of $5,300. Post trial motions were filed. The trial court denied the defendants' motion for judgment n.o.v. but granted a new trial. It granted a new trial because "the jury was permitted to award damages for personal injuries resulting from an act which occurred two years before the plaintiff commenced the action . . . ." The court apparently concluded that although the plaintiffs could recover the costs involved in correcting defendants' failure to perform their contract, a claim for personal injuries was barred by the two year statute of limitations.

Although we agree that a claim for personal injuries against a physician, whether premised upon medical malpractice or breach of warranty, is subject to the two year statute of limitations, we disagree with the trial court's application of the rule in this case. Here, the plaintiffs also had a cause of action for breach of contract to achieve a specific result. This cause of action was not barred by the statute of limitations. When it became necessary to instruct the jury regarding the damages to be recovered in the latter action, the court erroneously included pain and suffering and loss of consortium as recoverable damages. However, the defendants did not object to the trial court's jury instructions allowing recovery for such damages. The error in those instructions, therefore, was waived. See: Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Tyus v. Resta, 328 Pa. Super. 11, 31, 32,

[ 340 Pa. Super. Page 408476]

A.2d 427, 438 (1984); Tronzo v. Flohr Chevrolet, Inc., 231 Pa. Super. 455, 331 A.2d 555 (1974). The error in the trial court's jury instructions regarding damages has also been waived because it was not asserted as a reason in support of defendants' motion for new trial. See: Cherry v. Willer, 317 Pa. Super. 58, 463 A.2d 1082 (1983). See also: Daset Mining Corp. v. ...


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