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OHIO CASUALTY GROUP INSURANCE COMPANIES v. ARGONAUT INSURANCE COMPANY AND THOMAS J. JUDGE (11/04/85)

decided: November 4, 1985.

THE OHIO CASUALTY GROUP OF INSURANCE COMPANIES, PETITIONER
v.
ARGONAUT INSURANCE COMPANY AND THOMAS J. JUDGE, SR., AS DIRECTOR OF THE MEDICAL PROFESSIONAL LIABILITY CATASTROPHE LOSS FUND OF THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS



Original Jurisdiction in case of The Ohio Casualty Group of Insurance Companies v. Argonaut Insurance Company and Thomas J. Judge, Sr., as Director of the Medical Professional Liability Catastrophe Loss Fund of the Commonwealth of Pennsylvania.

COUNSEL

Patrick J. Shannon, Ronald H. Heck and Associates, P.C., for petitioner.

David H. Trushel, Trushel, Wood & Israel, for respondent, Argonaut Insurance Company.

Gwendolyn T. Mosley, Deputy Attorney General, with her, Allen C. Warshaw, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent, Thomas J. Judge, Sr.

Judges Rogers and MacPhail, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 92 Pa. Commw. Page 562]

Before us are a motion for partial summary judgment filed by the Argonaut Insurance Company (Argonaut) and the preliminary objections filed by the Director of the Medical Professional Liability Catastrophe Loss Fund (Fund)*fn1 to a petition for review filed by the Ohio Casualty Group of Insurance Cos. (Ohio Casualty). We will deny the motion for partial summary judgment and overrule the preliminary objections.

In order to understand the contentions of each party, it is necessary to examine the underlying medical malpractice claim.*fn2 On or about July 16, 1975, Joyce Mihelic (patient) was involved in a serious motorcycle accident. The patient was admitted to Lee Hospital (hospital) in Johnstown, Pennsylvania, suffering from a supracondular fracture of her right femur in addition to multiple abrasions and lacerations. Dr. William Davison treated the patient, placing a long leg cast on the patient's right leg.

On September 26, 1975, the patient returned to Dr. Davison for removal of the cast. Although x-rays revealed that the leg had not properly healed, Dr. Davison removed the cast.

[ 92 Pa. Commw. Page 563]

On November 4, 1975, the patient was readmitted to the hospital suffering from complications with her leg. Although the patient was discharged on December 23, 1975, she was readmitted to the hospital on July 27, 1976, again with complaints concerning her leg. Dr. Davison, after examining the patient, concluded that a previously inserted condular plate should be removed from the patient's leg.

On July 28, 1978, the patient underwent surgery for removal of the condular plate, with Dr. Davison performing the surgery. Dr. Davison neglected to administer post-operative antibiotic spray. The patient was discharged from the hospital on August 5, 1976.

On October 19, 1976, the patient was admitted to the emergency room at the hospital where an examination revealed the presence of infection in the distal femur and an infected non-union. A previous examination ...


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