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REBECCA DION v. GRADUATE HOSPITAL UNIVERSITY PENNSYLVANIA (01/30/87)

filed: January 30, 1987.

REBECCA DION, EXECUTRIX OF THE ESTATE OF LEWIS DION, DECEASED, APPELLANT,
v.
THE GRADUATE HOSPITAL OF THE UNIVERSITY OF PENNSYLVANIA, ABBOTT LABORATORIES, DR. WILLIAM BLAKEMORE, SAMUEL BURKE, ET AL.



Appeal from the Judgment Entered March 5, 1986 in the Court of Common Pleas of Philadelphia County, Civil No. 2841 December 1972.

COUNSEL

Fred Lowenschuss, Philadelphia, for appellant.

Albert Piccerilli and Robert Mulhern, Philadelphia, for appellees.

Cirillo, President Judge, and Montemuro and Johnson, JJ. Montemuro, J., joins Cirillo, President Judge, except for Section I-c.

Author: Cirillo

[ 360 Pa. Super. Page 418]

Rebecca Dion, Executrix of the Estate of Lewis Dion, appeals from a final judgment of the Court of Common Pleas of Philadelphia County.

In 1972, appellant, Rebecca Dion, instituted a wrongful death and survival action. She alleged medical malpractice and product liability claims arising from the administration of "Penthrane" anesthesia to her husband during surgery. Appellant's husband, Lewis Dion, died as a result of acute peritonitis caused by renal failure due to Penthrane toxicity.

Initially, more than fifty defendants were named in this suit. At the time of trial, as the result of settlements and other dispositions, four defendants remained: Abbott Laboratories (Abbott), the manufacturer of Penthrane; Dr. Blakemore, the surgeon; Dr. Stone, the anesthesiologist,

[ 360 Pa. Super. Page 419]

    and Mr. Burke, a nurse anesthetist. At the close of appellant's case, the court granted a non-suit in favor of Abbott Laboratories. The jury returned a verdict in favor of Dr. Blakemore and Mr. Burke and against Dr. Stone. Subsequently, appellant's motion for a new trial was denied.

On appeal, appellant alleges the following: (1) the trial court erred in granting a non-suit in favor of Abbott Laboratories; (2) the trial court erred in excluding appellant's proposed expert witness testimony against Abbott Laboratories; and (3) the preparation and trial of appellant's case were prejudiced by the trial court's erroneous rulings regarding pretrial discovery and its refusal to impose sanctions against Abbott Laboratories for willful destruction of documents.

We note first that appellee Dr. Blakemore filed a motion to dismiss the appeal as to him because no claims were pursued against him on this appeal. The motion was denied without prejudice to raise the issue in briefs and at argument.

Pennsylvania Rule of Appellate Procedure 2116(a) provides in part:

The statement of the questions involved must state the question or questions in the briefest and most general terms . . . [and] ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby.

Appellant's brief raised three issues regarding her claim against Abbott. No mention of appellee Dr. Blakemore is made. We find that appellant has not carried forward in her brief any claim against Dr. Blakemore, and therefore any claims against him are waived. See Commonwealth v. Whiteman, 336 Pa. Super. 120, 485 A.2d 459 (1984) (ordinarily when Superior Court decides issues on appeal, it restricts itself to the statement of questions involved in the appellant's brief for a definition of the issues to be decided).

I

Appellant first raises the question of whether the trial court properly granted a non-suit in favor of Abbott. Before

[ 360 Pa. Super. Page 420]

    we address this issue, it is necessary to explain the basis of the trial court's action.

A.

Appellant's primary theory of liability was Abbott's failure to adequately warn of the dangers of Penthrane in its package insert. Mrs. Dion alleged that she introduced evidence of Abbott's own documents showing that the use of Penthrane was contraindicated in a patient such as Lewis Dion, and that Abbott failed to give such a warning. Specifically, appellant alleged that Mr. Dion had a history of elevated B.U.N. (blood urea nitrogen) and creatinine levels, and the package insert failed to adequately warn of the dangers of Penthrane to patients with such a history.

Abbott's Penthrane warnings in the package insert cautioned as follows:

WARNINGS

INSTANCES OF TUBULAR DYSFUNCTION, ESPECIALLY HIGH OUTPUT RENAL FAILURE, SOMETIMES LEADING TO DEATH, HAVE BEEN REPORTED. THE MECHANISM WHEREBY PENTHRANE MAY CAUSE RENAL DYSFUNCTION IS NOT KNOWN. HOWEVER, THERE APPEARS TO BE A RELATIONSHIP TO TOTAL DOSAGE. SPECIAL CARE TO AVOID UNNECESSARILY DEEP ANESTHESIA IS REQUIRED, ESPECIALLY IN AGED OR OBESE PATIENTS, AND IN SURGICAL PROCEDURES OF LONG DURATION, AND DURING ASSISTED OR CONTROLLED VENTILATION. IT SHOULD BE APPRECIATED THAT ABSENCE OF HYPOTENSION CANNOT BE RELIED UPON AS EVIDENCE THAT DOSAGE HAS NOT BEEN EXCESSIVE. OTHER SIGNS SHOULD BE USED AS A GUIDE TO PROPER DOSAGE.

ALL PATIENTS WHO RECEIVE PENTHRANE (METHOXYFLURANE) SHOULD BE MONITORED FOR URINARY OUTPUT ...


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