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08/19/97 SUSAN FANCSALI v. UNIVERSITY HEALTH CENTER

August 19, 1997

SUSAN FANCSALI, A MINOR, BY PAUL FANCSALI AND KIMBERLEE FANCSALI, HER PARENTS AND NATURAL GUARDIANS, AND PAUL FANCSALI AND KIMBERLEE FANCSALI, HUSBAND AND WIFE, APPELLANTS
v.
UNIVERSITY HEALTH CENTER OF PITTSBURGH, A PENNSYLVANIA CORPORATION; AND MAGEE-WOMEN'S HOSPITAL, A PENNSYLVANIA CORPORATION, AND ROBERT GUTHRIE, M.D., MICHAEL BALSAN, M.D., DENA HOFKOSH, M.D., BRIAN CLISTA, M.D., BILINSKI, M.D., L. COOK, M.D. K. SUKAROCHANA, M.D., ASHOOK K. GAIN, M.D., J. PIPEPI, M.D., J.D. ABINO, M.D., MARK S. SCHER, M.D., INDIVIDUALS; AND MAGEE-WOMEN'S HOSPITAL, DEPARTMENT OF RADIOLOGY, JULES H. SUMKIN, D.O., MEDICAL DIRECTOR, THOMAS BENDER, M.D., JOCYLINE L. MEDINA, M.D., CHRISTOPHER M. JOHNS, M.D., FREDERICK S. SHERMAN, M.D.; AND MAGEE-WOMEN'S HOSPITAL, DEPARTMENT OF ULTRASOUND/OBSTETRICS AND GYNECOLOGY, LYNDON M. HILL, MEDICAL DIRECTOR, JERRY G. MARTIN, M.D., SHEILA M. WARD, M.D.; AND, MAGEE-WOMEN'S HOSPITAL, DEPARTMENT OF REPRODUCTIVE GENETICS, JOHN A. BARRANGER, M.D.; AND SOUTHWESTERN PEDIATRIC ASSOCIATION, A PENNSYLVANIA PROFESSIONAL CORPORATION, HARVEY M. RUBIN, M.D., K.G. PAI, M.D., E. MARKUS, M.D., AND ANTHONY F. GENTILE, M.D., MICHAEL F. PUTINETTI, M.D., K.G. PAI, M.D., E. MARKUS, M.D., AND ANTHONY F. GENTILE, M.D., MICHAEL F. LUPINETTI, M.D., AND GARY J. CONNOR, M.D., T/D/B/A GENTILE LUPINETTI ASSOCIATES; IN RE: SUSAN FANCSALI, A MINOR; APPEAL OF: SUSAN FANCSALI, A MINOR, BY AND THROUGH HER PARENTS AND GUARDIANS, PAUL FANCSALI AND KIMBERLEE FANCSALI



Appeal from the Order entered September 30, 1996, Court of Common Pleas, Allegheny County, Civil Division, at No. 94-11033.

Appeal from the Order entered September 30, 1996, Court of Common Pleas, Allegheny County, Orphans Division, at No. 6882 of 1995. Before WEKSELMAN, J.

Before: Tamilia, Johnson and Brosky, JJ. Opinion BY Johnson. Brosky, J. files a Dissenting Opinion.

The opinion of the court was delivered by: Johnson

OPINION BY JOHNSON, J.

Filed August 19, 1997

We are asked to determine whether a medical malpractice action by parents on behalf of their child may be discontinued without prejudice as to the child's claim upon an allegation by the parents of their alleged financial inability to pursue the action. The trial court found that the parents were not required to file suit but chose to do so and that, having made that choice, could not impose unreasonable burdens on the defendants. We conclude that the findings of the trial court are supported by the record, and that the trial court did not abuse its discretion in denying the request to discontinue the minor's action without prejudice. Accordingly, we affirm.

Susan Fancsali was born on July 16, 1992. Shortly after birth, she contracted a Group B streptococcus infection which caused her to suffer from hypoxia, encephalopathy and other complications. Paul and Kimberlee Fancsali, the father and mother of Susan, commenced a medical malpractice action on behalf of their minor daughter by writ of summons on July 6, 1994. The Defendants filed a rule to file a complaint on August 24, 1994. Almost four months later, on December 16, 1994, the Fancsalis presented a motion for extension of time to engage in discovery. The motion alleged that on August 26, 1994, the Fancsalis had been informed by legal counsel for Magee-Women's Hospital (Magee), one of the defendants, that a 1992 sonogram film connected to the treatment of Susan was not available for review. The motion further alleged that the Fancsalis had submitted copies of the medical records received from Magee to their experts for review. The motion went on to allege that, on December 8, 1994, the plaintiffs' experts advised the Fancsalis that additional records would have to be obtained in order for the experts to render an opinion.

On the basis of these averments, the Fancsalis alleged that they required additional time to engage in discovery to secure the complete medical record from Magee and thereafter permit their experts to review the records of the complete medical file. In response to the motion, Judge R. Stanton Wettick entered an order granting the Fancsalis an additional forty-five days, until January 31, 1995, with the right to request additional time thereafter.

On February 7, 1995, the Fancsalis presented a Petition for Leave to Discontinue a Minor's Action Without Prejudice in the Orphans' Court Division of the trial court. The defendants filed objections to this petition. Nine months later, on November 6, 1995, and after oral argument on the petition and objections, Judge I. Martin Wekselman entered the following order:

ORDER OF COURT

AND NOW, this 6th day of November, 1995, after argument and due consideration, it is ordered, adJudged and decreed that Paul Fancsali and Kimberlee Fancsali, parents and natural guardians of Susan Fancsali, a minor, be and are hereby granted leave to conduct such discovery as they deem necessary, and file a complaint on or before March 1, 1996, it being understood that no further extensions will be granted.

BY THE COURT:

s/Wekselman, J.

The order did not expressly refer to the request for a discontinuance without prejudice. Rather, it strictly granted leave to the Fancsalis to conduct "such discovery as they deem necessary, and file a complaint on or before March 1, 1996." By implication, the request for a discontinuance without prejudice was rejected.

At the November 1995 hearing, the Fancsalis represented to Judge Wekselman that they had experienced difficulties in obtaining the necessary medical records from the various medical providers. After the records were received and forwarded to their medical experts, the Fancsalis were informed that considerable additional discovery would be required including the taking of many depositions before the experts would be able to render an opinion as to the possible negligence of the defendants. The Fancsalis told their attorneys that they could not afford the expense involved in such pretrial discovery; the attorneys indicated both to their clients and to the court that the attorneys could not afford to undertake the financing of the pretrial matters on behalf of the Fancsalis. The Fancsalis now argue that Judge Wekselman committed error when he denied their petition to discontinue their daughter's action without prejudice.

A discontinuance is the exclusive method of voluntary termination of an action, in whole or in part, by a plaintiff before the commencement of trial. Pa.R.C.P. 229(a). No action to which a minor is a party shall be discontinued except after approval by the court pursuant to a petition presented by the guardian of the minor. Pa.R.C.P. 2039(a). "Decisions as to the granting of such requests for discontinuance rest in the discretion of the trial Judge and can be reviewed only as to the abuse of that discretion." Failor v. Westex, Inc., 413 Pa. Super. 343, 347-48, 605 A.2d 390, 393 (1992); Martinelli v. Mulloy, 223 Pa. Super. 130, 133, 299 A.2d 19, 20 (1972). With this standard of review before us, we review Judge Wekselman's order.

In entering the November 1995 order, Judge Wekselman weighed the factors set forth in Foti v. Askinas, 432 Pa. Super. 604, 639 A.2d 807 (1994), relating to when a motion for discontinuance without prejudice would be appropriate. In Foti, the parents had brought a medical malpractice action on behalf of their daughter who was born with severe deformities of the right leg requiring amputation of the leg one year after birth. The plaintiffs were unable to present an expert witness to establish that the medical practitioner/defendants were negligent in administering the drug Compazine during the first trimester of the mother's pregnancy. At the time of the discontinuance, the case had been pending for almost five years. Depositions had been taken, interrogatories exchanged and several motions ruled on by the court. In concluding that the trial court had abused its discretion in granting the discontinuance without prejudice, this Court considered the purposes behind the Minority Tolling Statute, 42 Pa.C.S. ยง 5553, as well as the effect that entry of a discontinuance order would have on ...


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