The opinion of the court was delivered by: MAURICE B. COHILL, JR.
Before this Court is a Motion for Summary Judgment, accompanied by a brief, filed by defendants Daniel C. Carneval, D.O., and Presque Isle Orthopedic Group, Inc. (Presque Isle), and plaintiffs' brief in opposition. For the reasons set forth below, we will deny this motion.
Plaintiffs Margarida and David Youngren have brought this action against Dr. Carneval and Presque Isle for medical malpractice. Ms. Youngren sustained injuries in an automobile accident on November 14, 1988, when the vehicle she was driving was rear-ended by a car driven by Keith T. Osborne. Ms. Youngren consulted Dr. Carneval for treatment of pain in her lower back and extremities. Following consultation and examination, Dr. Carneval performed low lumbar surgery on July 17, 1989.
Plaintiffs filed a claim against State Farm Mutual Automobile Insurance Company, the insurance carrier for Mr. Osborne, the driver of the other car. On August 30, 1990, the Youngrens accepted a settlement in the amount of $ 50,000 from State Farm, an amount equal to the limit of Mr. Osborne's liability coverage. Both signed a general release form releasing Keith T. Osborne and "all other persons" from all liability related to the accident. The release read, in pertinent part:
The undersigned hereby releases and forever discharges Keith T. Osborne his heirs, executors, administrators, agents and assigns, and all other persons, firms or corporations liable or, who might be claimed to be liable...from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from an accident which occurred on or about the 14 day of November, 1988 at or near 4000 block of Peach St., Erie, PA. THE UNDERSIGNED EXPRESSLY RESERVE THE RIGHT TO PURSUE CLAIMS FOR UNINSURED AND/OR UNDERINSURED MOTORISTS' BENEFITS.
Defs.' Br. Exhibit A-1. (Capitalized words were typewritten and inserted into the form release.)
In October of 1992, Ms. Youngren was involved in a second automobile accident, and sought medical treatment from James J. White, M.D., an orthopedic surgeon. Her complaint alleges that it was not until this consultation that she discovered that the surgery performed by Dr. Carneval, in relation to her first accident, had been performed on the left side of her spine. The crux of plaintiffs' malpractice claim is that this surgery should have been performed on the right side of the spine, but was negligently performed on the left side. Ms. Youngren alleges that she thus endured a useless and unnecessary surgical procedure, and that as a result of defendants' negligence she has, for several years, continued to experience pain and must now undergo a second surgical procedure.
We note at the outset that both parties requested oral argument on this motion. After reviewing the outstanding briefs submitted by both sides we felt that we could resolve the issue without hearing argument.
This Court has diversity jurisdiction pursuant to 28 United States Code Section 1332. A federal court sitting in diversity must apply the substantive law of the state's highest court. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). The parties agree that Pennsylvania law governs this case.
Federal Rule of Civil Procedure 56(c) provides that 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 judgment as a matter of law." Fed.R.Civ.P. 56(c); Boyle v. Governor's Veterans Outreach and Assist. Ctr, 925 F.2d 71, 75 (3d Cir. 1991). The facts must be ...