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CARMEN DEFAZIO AND FLORENCE DEFAZIO v. ALEXANDER LABE (03/24/86)

filed: March 24, 1986.

CARMEN DEFAZIO AND FLORENCE DEFAZIO, H/W, APPELLANTS,
v.
ALEXANDER LABE, M.D. AND ZASLOW, PORTNER, COHEN, LABE & JOSHI, M.D.'S, A PROFESSIONAL CORPORATION AND/OR PARTNERSHIP AND GAD GUTTMANN, M.D., AND KALISH, KAUFFMAN, GUTTMANN & PUGLISI, M.D.'S, A PROFESSIONAL ASSOCIATION, AND/OR CORPORATION AND/OR PARTNERSHIP, TRADING AS AND ALSO KNOWN AS ORTHOPEDIC SURGICAL ASSOCIATES. CARMEN DEFAZIO AND FLORENCE DEFAZIO V. ALEXANDER LABE, M.D. AND ZASLOW, PORTNER, COHEN, LABE & JOSHI, M.D.'S, A PROFESSIONAL CORPORATION AND/OR PARTNERSHIP AND GAD GUTTMANN, M.D., AND KALISH, KAUFFMAN, GUTTMANN & PUGLISI, M.D.'S, A PROFESSIONAL ASSOCIATION, AND/OR CORPORATION AND/OR PARTNERSHIP, TRADING AS AND ALSO KNOWN AS ORTHOPEDIC SURGICAL ASSOCIATION. APPEAL OF GAD GUTTMANN, M.D. AND KALLISH, KAUFFMAN, GUTTMANN AND PUGLISI, M.D.'S



Appeal from the Orders of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 4672 December Term 1980.

COUNSEL

Anthony P. Baratta, Philadelphia, for appellants in No. 1653 and appellees in No. 1879.

Paul M. Chalfin, Philadelphia, for Guttmann, appellants in No. 1879 and appellees in No. 1653.

Wickersham, Tamilia and Hoffman,*fn* JJ.

Author: Wickersham

[ 352 Pa. Super. Page 122]

These are consolidated cross-appeals from two separate orders*fn1 entered by the Honorable Charles Wright of the Court of Common Pleas of Philadelphia County.

[ 352 Pa. Super. Page 123]

The instant cross appeals originate from a complex medical malpractice action brought by plaintiffs/appellees, Carmen DeFazio and Florence DeFazio, his wife, against Alexander Labe, M.D. (hereinafter Dr. Labe), and his associates,*fn2 and Gad Guttmann, M.D. (hereinafter Dr. Guttmann), and his associates. Guttmann and his associates are appellants herein. In the trial court below, appellees claimed the combined negligent management and treatment of the above doctors made it necessary to amputate appellee, Carmen DeFazio's left index finger and part of his left palm. Appellees' theory of liability was centered on Dr. Guttmann's alleged negligence in failing to remove a tube which he had placed in Mr. DeFazio's finger to irrigate it and rid it of infection. Appellees' expert witness, Dr. Mark Nissenbaum, testified that Dr. Guttmann deviated from the standard of orthopedic surgeons practicing in the community by leaving the irrigation tube in appellee's finger for an extended period of time when there was not any sign of improvement. Dr. Martin Beller, an orthopedic surgeon, testified as a defense expert and disputed appellees' contention, stating that Dr. Guttmann did in fact conform to the medical standards of the community. The jury returned a verdict in the amount of $300,000 against Drs. Labe and Guttmann. The respective negligence of each was assessed at eighty per cent (80%) and twenty per cent (20%).

Appellants, Dr. Guttmann and his associates filed motions for new trial and/or judgment n.o.v. Appellees, the verdict winners, also filed a motion for judgment n.o.v. The lower court dismissed appellants' motions, finding they violated Philadelphia County Rule 240. The lower court further dismissed appellees' motion for judgment n.o.v. on the ground that the filing of such a motion by the verdict winner was not warranted by any authority. Their post-verdict motions being denied, the parties now file these timely appeals.

[ 352 Pa. Super. Page 124]

Appellants raise four issues,*fn3 and appellees, a sole issue,*fn4 for our review. We will address appellants' issues first. Appellants initially allege error by the lower court in dismissing their post-trial motions as proscribed by Philadelphia Rule 240(C)(4).*fn5 Rule 240(C)(4) states, in pertinent part, that:

Counsel filing exceptions or post-trial motions shall insure that the notes of testimony, if required, are ordered from the court reporter and shall notify the Post-Trial Motion Clerk in writing when the notes have been ordered. In cases in which there is no dispute about the notes to be transcribed, counsel filing the ...


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