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THERESA ERKENS AND JOHN ERKENS v. C. NICHOLAS TREDENNICK (05/22/86)

filed: May 22, 1986.

THERESA ERKENS AND JOHN ERKENS, HER HUSBAND, APPELLANTS,
v.
C. NICHOLAS TREDENNICK, M.D.



Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Butler County at No. A.D. No. 83-030, Book 123, Page 30.

COUNSEL

Leonard E. Price, Pittsburgh, for appellants.

John W. Jordan, IV, Pittsburgh, for appellee.

Brosky, Olszewski and Popovich, JJ.

Author: Popovich

[ 353 Pa. Super. Page 237]

This is an appeal from a judgment entered in favor of appellee, C. Nicholas Tredennick, M.D. We affirm.

Appellants, Theresa and John Erkens, instituted a medical malpractice action against appellee for damages sustained when Theresa Erkens suffered from an infection in her right eye and, thereafter, had permanent vision loss in that eye. Following a jury trial, a verdict was entered on behalf of appellee. A timely motion for post-trial relief was filed and denied. Judgment was then entered, and this appeal followed.

Six issues are raised by appellants: (1) the trial court erred in denying a motion in regard to the composition and questioning of the jury panel; (2) the trial court erred in automatically bifurcating the liability and damage issues; (3) the trial court erred by not striking the testimony of Dr. Swan; (4) the trial court erred in not entering judgment n.o.v.; (5) the trial court erred in not ordering a new trial; and, (6) the trial court erred in holding post-trial arguments prior to receipt of the transcript.

[ 353 Pa. Super. Page 238]

The first issue raised concerns whether it was error for the trial court to refuse to challenge for cause four potential jurors who indicated a relationship with appellee. The record reveals that the prospective jurors were asked whether they or members of their immediate families had been professionally attended by appellee. Four answered in the affirmative, at which time, each was individually questioned if this would prevent him or her from rendering a true and impartial verdict based solely on the evidence. Each of the four replied it would not, and two of these individuals did serve on the jury. Appellants contend the physician/patient relationship is a situational relationship which requires the trial court to presume the likeliness of prejudice. We, however, are unable to reach this issue because it has not been properly preserved for our review.

We are constrained to agree with appellee that although appellant did object to patients of one Dr. Wick serving as jurors, appellant made no record objection regarding patients of appellee. The following is the entire discussion of this issue contained in the transcript:

[ 353 Pa. Super. Page 30]

THE COURT: This is Theresa Erkens and John Erkens versus C. Nicholas Tredennick, M.D. It is docketed at A.D. No. 83-030 Book 123 Page 30. We are in chambers with respective counsel, Leonard Price for the plaintiff and Giles Gaca for the defendant. ...


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