Brislin v. Chiavacci

58 Pa. D. & C.4th 437, 2001 Pa. Dist. & Cnty. Dec. LEXIS 343
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedMay 18, 2001
Docketno. 99-CV-456
StatusPublished

This text of 58 Pa. D. & C.4th 437 (Brislin v. Chiavacci) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brislin v. Chiavacci, 58 Pa. D. & C.4th 437, 2001 Pa. Dist. & Cnty. Dec. LEXIS 343 (Pa. Super. Ct. 2001).

Opinion

CORBETT, J,

On April 14, 1999, plaintiff filed a complaint against the defendants alleging an injury as a result of the alleged malpractice of the defendants. Defendants have all filed answers and the parties have conducted extensive discovery. Defendants Y. Barry Kurtzer M.D., Greentown Medical Center, Eugene J. Chiavacci M.D. and Steindel, Malloy, Cronkey & Chiavacci all move for summary judgment alleging that plaintiff cannot raise genuine issues of material fact [439]*439as to the expiration of the statute of limitations. Therefore, all argue they are entitled to judgment as a matter of law. We have had the opportunity to review the record, as well as the submissions of the parties and we held oral argument on April 16, 2001.

BACKGROUND

On or about July 26, 1996, the plaintiff was involved in a motor vehicle accident. Within a few days of the accident, she came under the care of defendant Y. Barry Kurtzer M.D. and defendant Greentown Medical Associates RC. Plaintiff testified that she saw Dr. Kurtzer on one occasion approximately three days after her auto accident. (N.T. p. 50.) She alleges Dr. Kurtzer radio-graphed her left leg and informed her that nothing was wrong other than soft swollen tissue damage. (N.T. pp. 11, 20, 21.) As a result, plaintiff continued to work and further testified that following her visit with Dr. Kurtzer, she did not believe “there was anything wrong because I was told there was nothing wrong.” (N.T. p. 20.) Plaintiff alleges that a physician’s assistant from Kurtzer’s office stopped into her place of employment and after seeing her swollen left knee caused Ms. Brislin to undergo an MRI. (N.T. p. 21.)

Plaintiff proceeded to have an MRI performed at Northeastern Pennsylvania Imaging Center and according to plaintiff’s testimony, she was told by a person at Northeast that she did indeed have a fracture of her leg. (N.T. p. 22.) Plaintiff alleges, based on the findings of the MRI, that Dr. Kurtzer referred her to defendants Dr. Eugene J. Chiavacci and Steindel, Malloy, Cronkey & Chiavacci. (N.T. p. 22.) Plaintiff came under the care of [440]*440Dr. Chiavacci on or about August 8, 1996. Plaintiff had no other treatment, conversations or discussions with Dr. Kurtzer or anyone at Greentown after beginning treatment with Dr. Chiavacci. Plaintiff treated with Dr. Chiavacci from August 8, 1996, to November 21,1996. Plaintiff testified that her first visit was a very brief visit wherein she was told she had a non-displaced fracture of the leg and that she was going to be put in a leg brace but did not need to be casted. (N.T. p. 23.) Subsequent thereto the plaintiff wore the leg brace and used crutches as well as attended physical therapy. Plaintiff alleges that Dr. Chiavacci discussed the possibilities of surgery with plaintiff but decided against it based on her Charcot joint. (N.T. pp. 26, 32.) Additionally, plaintiff claims that during her treatment with Dr. Chiavacci, she inquired why it was taking her leg so long to heal. (N.T. p. 26.) Plaintiff testified that Dr. Chiavacci informed her that her diabetes was slowing her healing process. (Id. pp. 26, 28.)

After treating with Dr. Chiavacci until November 1996, plaintiff decided to get a second opinion and came under the care of Dr. Harry Schmaltz on December 10, 1996. Dr. Schmaltz immediately casted plaintiff’s leg. Plaintiff avers that the doctor offered no explanation or comments to the plaintiff as to why her leg had not been previously casted, however, he believed the cast would be a good idea. (N.T. p. 29.) On March 5, 1997, the plaintiff’s cast came off and the fracture was healed. (Id. p. 30.) Plaintiff avers that after the cast came off her leg had bowed to the side as a result of which she had to have corrective surgery on May 15, 1997. Post surgery, the plaintiff claims her leg was still unstable and Dr. Schmaltz considered doing a left knee replacement but [441]*441decided against it due to plaintiff’s Charcot joint. (N.T. p. 32.)

Plaintiff next came under the care of Dr. Johanson from Temple University at the request of her insurance carrier given the protracted nature of the plaintiff’s treatment. Plaintiff alleges that Dr. Johanson determined that plaintiff had no Charcot joint and performed a knee replacement on September 16, 1998, and October 1998. (N.T. pp. 32-33.) Plaintiff claims that Dr. Johanson was the first to inform her that the reason for the delay in her healing was because of inadequate care in the beginning of her condition. (N.T. p. 37.) Up until that time she alleges she believed the doctor when he told her that her healing was delayed due to her diabetes. (N.T. p. 26, 28, 41 and 44.) With respect to the treatment of the plaintiff by Dr. Schmaltz and Dr. Johanson, both doctors have yet to be deposed in this matter.

Defendants have filed for summary judgment arguing that the plaintiff’s case is time barred because she did not begin her action until January 29, 1999, more than two years and eight months after her first visit with Dr. Kurtzer and more than two years after her last visit with Dr. Chiavacci. Plaintiff responds first that the discovery rule is applicable in this matter and secondly, that discovery is still ongoing. Since we have had the opportunity to review the record and the submissions and arguments of the parties, we will address these arguments below.

DISCUSSION

A motion for summary judgment places the burden upon the moving party. The moving party must show [442]*442that there exists no genuine issue of any material fact for trial. Pa.R.C.P. 1035.2. The moving party must be entitled to judgment as a matter of law and the moving party has the burden of proving that no genuine issue of material fact exists. Washington v. Baxter, 553 Pa. 434, 440, 719 A.2d 733, 737 (1998). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Id. An entry of summary judgment is granted only in cases where the right is clear and free of doubt. Accu-Weather v. Prospect Communications Inc., 435 Pa. Super. 93, 644 A.2d 1251 (1994). The moving party has the burden of proving the nonexistence of any genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Rapagnani v. Judas Co., 736 A.2d 666, 668 (Pa. Super. 1999). To withstand such a motion, the non-moving party must adduce sufficient evidence on a crucial issue as to which that party bears the burden of proof so as to demonstrate that a jury could return a verdict in favor of the non-movant. Homes ex rel. Homes v. Philadelphia Housing Authority, 737 A.2d 825, 828 n.4 (Pa. Commw. 1999).

In the instant matter, the defendants argue that they are entitled to summary judgment as the discovery rule is inapplicable and the plaintiff instituted her action more than two years after she knew or in the exercise of reasonable care should have known that she was injured as a result of either Dr. Kurtzer or Dr. Chiavacci’s treatment. Plaintiff argues that she was unaware of the injury that the mistreatment caused until after she was told by Dr. Johanson. In the alternative, she argues that discovery is ongoing as Dr. Schmaltz and Dr.

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Related

Washington v. Baxter
719 A.2d 733 (Supreme Court of Pennsylvania, 1998)
Hames Ex Rel. Hames v. Philadelphia Housing Authority
737 A.2d 825 (Commonwealth Court of Pennsylvania, 1999)
Accu-Weather, Inc. v. Prospect Communications, Inc.
644 A.2d 1251 (Superior Court of Pennsylvania, 1994)
Kramer v. Dunn
749 A.2d 984 (Superior Court of Pennsylvania, 2000)
Rapagnani v. Judas Co.
736 A.2d 666 (Superior Court of Pennsylvania, 1999)
Washington v. Baxter
719 A.2d 733 (Supreme Court of Pennsylvania, 1998)

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Bluebook (online)
58 Pa. D. & C.4th 437, 2001 Pa. Dist. & Cnty. Dec. LEXIS 343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brislin-v-chiavacci-pactcompllackaw-2001.