Appeal from the Order of the Court of Common Pleas, Greene County, Civil Division, at No. 946 of 1982 AD.
Bryan W. Pizzi, II, Washington, for appellants (at 914), for appellee (at 963).
William D. Phillips, Washington, for Wu, appellant (at 963), for Wu, appellee (at 914).
James F. Israel, Pittsburgh, for Mering, appellant (at 963), for Mering, appellee (at 914).
Brosky, Wieand and Lederer, JJ.*fn*
[ 343 Pa. Super. Page 453]
This is an appeal from the order denying appellants' motion for a new trial and entering judgment in this medical malpractice case. Appellees have filed a cross-appeal from the judgment. Of the many issues raised on appeal, the only one we find meritorious and deserving our attention is that issue raised by the appellees on cross-appeal concerning the husband's award for loss of consortium. Appellees claim that the trial court should have reduced the appellant-husband's award for loss of consortium by the percentage of negligence the jury attributed to his injured wife. We agree and order the judgment modified.
Appellants instituted an action in trespass for injuries sustained by the wife and for husband's loss of consortium due to the malpractice of the appellee physicians. The case was tried by a jury. Because there was evidence introduced as to the appellant-wife's contributory negligence, the trial court charged the jury on comparative negligence.
[ 343 Pa. Super. Page 454]
The jury returned a verdict finding each appellee 25.5% negligent and the appellant-wife 49% negligent. The jury found the wife's damages to be $25,000 and the husband's damages to be $5,000.
Appellants then filed a motion requesting the addition of delay damages under Pa.R.Civ.P. No. 238. In answer to appellants' motion, appellees requested the trial court to mold the verdict by reducing the husband's consortium damages to reflect the wife's degree of negligence and limit Rule 238 damages to that reduced amount.
After considering the various post-trial motions, the trial court entered ...