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JAMES J. BICKFORD AND LOUISE BICKFORD v. RAYMOND JOSON (10/15/87)

filed: October 15, 1987.

JAMES J. BICKFORD AND LOUISE BICKFORD, H/W, APPELLANTS,
v.
RAYMOND JOSON, M.D., AND MERCY CATHOLIC MEDICAL CENTER FITZGERALD-MERCY DIVISION



Appeal from Order Entered May 18, 1986, Court of Common Pleas, Civil Division, Delaware County, No. 82-6107.

COUNSEL

James Beasley, Philadelphia, for appellants.

Lori Olitsky Strauss, Philadelphia, for Joson, appellee.

Thomas J. Ericson, Havertown, for Mercy, appellee.

Cavanaugh, Olszewski and Tamilia, JJ.

Author: Cavanaugh

[ 368 Pa. Super. Page 212]

In this claim by appellants, James J. and Louise Bickford, for personal injuries on the basis of medical malpractice, the parties by cross motions for summary judgment, brought before the trial court the issue of the statute of limitations. After consideration of the record, the court found appellants' suit to be barred by the running of the statute of limitations and dismissed. We affirm.

[ 368 Pa. Super. Page 213]

The claim of malpractice is based on the assertion that the appellees, Raymond Joson, M.D., and Mercy Catholic Medical Center, failed to perform appropriate diagnostic studies, particularly a myelogram within twenty-four hours (or so) of appellant's hospitalization. A myelogram is a diagnostic study which consists of roentgenography of the spinal cord after injection of a contrast medium. Mr. Bickford was hospitalized after he fell down a flight of stairs at his residence on March 23, 1976 and suffered quadriplegia. It is appellants' contention that had the myelogram been timely done, a decompressive laminectomy would have been indicated and performed with the result that his quadriplegia would have been alleviated or reversed.

In order to determine whether or not the trial court erred in granting summary judgment on the basis of the statute of limitations, we must properly focus on the posture of the case before the trial court. That is, in order to grant summary judgment, the court must determine that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Pa.R.C.P. 1035(b). Thus, for summary judgment purposes, appellees must concede that appellants have stated facts which support a cause of action. The efficacy of the claim and the facts which appellants claim in support of it must be unchallenged. The complaint, in general terms, alleges close to twenty averments of negligence and malpractice. The gist of the cause of action, however, has been reduced by appellants to a simple claim that a substantial cause of Mr. Bickford's paralysis is the failure of Dr. Joson to perform a myelogram. It is conceded that appellant's fall down a flight of stairs in his house on March 23, 1976 caused him to become paralyzed, but, it is claimed, if a myelogram had been performed very soon after his admission to Mercy Catholic Medical Center a decompressive laminectomy may have been performed reversing the paralysis. Since Mr. Bickford left the care of appellees, Joson and Mercy Catholic Medical Center, upon his discharge from the hospital on May 17, 1976, the negligence or malpractice in failing to perform the myelogram may fairly be stated to have occurred

[ 368 Pa. Super. Page 214]

    at least during the period of admission from March 23 to May 17, 1976. Suit was not commenced until May 2, 1982.

The efficacy of limitation laws has won unequivocal judicial approval. For example, our highest court has recognized that the defense of the statute of limitations is not a technical defense but is substantial and meritorious.

"Statutes of limitation are vital to the welfare of society and are favored in the law . . . . They promote repose by giving a stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence . . . . Mere delay, extended to the limit ...


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