Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fessenden v. Robert Packer Hospital

Superior Court of Pennsylvania

July 23, 2014

RICHARD G. FESSENDEN AND MARLENE FESSENDEN, Appellants
v.
ROBERT PACKER HOSPITAL, GUTHRIE CLINIC LTD., AND DAVID HERLAN, M.D., Appellees

Argued June 25, 2014.

Page 1226

Appeal from the Judgment of the Court of Common Pleas, Bradford County, Civil Division, No.: 10 MM 00207. Before BEIRNE, J.

John E. Lavelle, Garden City, NY, for appellants.

Eugene P. Feeney, Scranton, for appellees.

BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J. OPINION BY WECHT, J.

OPINION

Page 1227

WECHT, J.:

Richard and Marlene Fessenden (" the Fessendens" ) appeal the June 24, 2013 order granting summary judgment in favor of Robert Packer Hospital, Guthrie Clinic Ltd., and David Herlan, M.D. (collectively " Appellees" ). For the reasons set forth below, we reverse.

On August 13, 2004, Richard Fessenden (" Fessenden" ) underwent an esophagogastrectomy [1] at Robert Packer Hospital. The procedure was performed by David Herlan, M.D. During that procedure, a laparotomy sponge was left inside of Fessenden's abdomen. Shortly after the 2004 esophagogastrectomy, Fessenden began experiencing intermittent lower abdominal pain. On July 28, 2008, Fessenden went to the emergency room with severe abdominal pain. At that time, a CAT scan revealed the presence of the laparotomy sponge in the upper right quadrant of Fessenden's abdomen.

On August 20, 2008, Dr. Burt Cagir performed an exploratory laparotomy, wherein the sponge was removed, and an adjacent abdominal abscess was drained. The procedure also necessitated the removal of Fessenden's gallbladder and a portion of his small bowel.[2] Dr. Cagir's operative report for this procedure indicated the following: " Entered into the abscess

Page 1228

cavity which, upon exploration, was found to contain a retained laparotomy sponge." Deposition of Burt Cagir, M.D., 4/25/2013, at 36. On August 28, 2008, Fessenden required a second procedure for further drainage of the abscess. Fessenden remained hospitalized until September 8, 2008.

On March 31, 2010, the Fessendens filed the instant medical malpractice action. In their complaint, the Fessendens alleged that Appellees negligently provided medical care to Fessenden by failing to explore, inspect, and otherwise confirm that all foreign objects were removed from Fessenden's body before his surgical incision was closed. The Fessendens also brought a count against Appellees for loss of consortium. In their certificate of merit filed pursuant to Pa.R.C.P. 1042.3(a)(3),[3] the Fessendens averred that expert testimony of an appropriately licensed medical professional was unnecessary for the prosecution of their claim. Instead, the Fessendens intended to rely upon the doctrine of res ipsa loquitur, [4] which allows the fact-finder to infer from the circumstances surrounding the injury that the harm suffered was caused by the negligence of the defendant.

On December 28, 2012, Appellees filed a motion for summary judgment. Therein, Appellees argued that the doctrine of res ipsa loquitur was not applicable to the Fessendens' claims. Appellees additionally argued that the Fessendens failed to present expert testimony that otherwise would establish causation. On June 26, 2013, the trial court issued a memorandum opinion and order granting Appellees' motion for summary judgment. Therein, the trial court held that the Fessendens failed to " provide[] any evidence that the damages complained of were a result of the retained sponge." Trial Court Opinion (" T.C.O." ), 6/26/2013, at 3 (unnumbered). On July 17, 2013, the Fessendens filed a timely notice of appeal. On July 23, 2013, the trial court ordered the Fessendens to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.