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RUTH TOBIN-COWAN HELD v. BURTON H. NEFT (04/03/86)

filed: April 3, 1986.

RUTH TOBIN-COWAN HELD, AN INDIVIDUAL, APPELLANT,
v.
BURTON H. NEFT, M.D., AN INDIVIDUAL, RAYMOND J. BOYLAN, M.D., AN INDIVIDUAL, PITTSBURGH ANESTHESIA ASSOCIATES, LTD., A PROFESSIONAL CORPORATION AND CENTRAL MEDICAL HEALTH SERVICES, A CORPORATION, APPELLEES



Appeal From Order December 26, 1984, Court of Common Pleas, Civil Division, Allegheny County No. G.D. 82-23267

COUNSEL

John T. Tierney, III, Pittsburgh, for appellant.

Kenneth J. Nolan, Pittsburgh, for Neft, appellee.

Lynn E. Bell, Pittsburgh, for Boylan, appellee.

Louis C. Long, Pittsburgh, for Central Medical, appellee.

Cavanaugh, Johnson and Watkins, JJ.

Author: Cavanaugh

[ 352 Pa. Super. Page 197]

In this case, appellant, Ruth Cowan Held contends that the lower court erred in granting summary judgment in favor of the appellees. The judgment was entered by the Honorable Martin Wekselman of the Court of Common Pleas of Allegheny County on the ground that the statute of limitations barred Held's claim. We agree.

Summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Pa.R.C.P. 1035(b).

In addition, we are mindful that in considering a motion for summary judgment the court must examine the record in the light most favorable to the non-moving party; that the court's function is not to decide issues of fact but merely to determine whether any such issues exist; and that all doubts as to the existence of a genuine issue of material fact must be resolved in favor of the non-moving party . . . . We also note that 'ordinarily most questions relating to the applicability of the defense of the statute of limitations are questions of fact to be determined by the jury' . . . . Specifically, the question of whether a plaintiff has exercised due diligence in discovering the incidence of his injury is usually a jury question . . . . 'Whether the statute has run on a claim is usually a question of law for the judge, but where, as here, the issue involves a factual determination, i.e. what is a reasonable period, the determination is for the jury.'

[ 352 Pa. Super. Page 198]

This is not to say that there are not instances where summary judgment may be ordered in malpractice actions based upon a statute of limitations defense. Entry of summary judgment is proper where the plaintiff fails to plead facts sufficient to toll the statute, . . . or admits facts sufficient to admit the limitations defense . . . . or fails in his response, by affidavits, or as otherwise provided, to set forth facts showing that there is a genuine issue for trial, Pa.R.C.P. No. 1035(d), or where the evidence relied upon by the plaintiff is inherently incredible . . .

Taylor v. Tukanowicz, 290 Pa. Super. 581, 435 A.2d 181 (1981) (citation omitted).

On December 14, 1979, Ruth Held was surgically treated for the revision of scars which were the result of an automobile accident. The anesthesiologist involved, Dr. Boylan, placed an intravenous solution into her left hand. Held noticed that the intravenous was not running properly and had to be stopped and restarted. She found this procedure to be very painful. Although she was discharged the next day, Held phoned the hospital the following week and spoke with an anesthesiologist about the pain in her arm. Dr. Boylan wrote on Held's record that the phlebitis which caused the pain was due to the medication. This notation was dated December 21, 1979. At another part of her record, Boylan also wrote that the pain was "most likely" due to the irritating effects of the medication. Although Held's brief does not question the authenticity of these notations, she contends that this information was not conveyed to her on December 21, 1979, or at anytime thereafter. According to Held, the intense, throbbing type of pain, redness, and tenderness in her arm lasted approximately two months before slowly subsiding. She claims that ...


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