Checchio v. Frankford Hospital

35 Pa. D. & C.4th 143
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedJanuary 8, 1998
Docketno. 7264
StatusPublished

This text of 35 Pa. D. & C.4th 143 (Checchio v. Frankford Hospital) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Checchio v. Frankford Hospital, 35 Pa. D. & C.4th 143 (Pa. Super. Ct. 1998).

Opinion

BONAVITACOLA, P.J.,

This medical malpractice action is on appeal by plaintiffs, Daniel Checchio, by and through his parents and natural guardians, J. Michael Checchio and Patricia Checchio, who claim that this court erred when, on July 31, 1997, it granted Frankford Hospital — Torresdale Division, Edwin R. Concors M.D. and Michael Malen M.D., defendants, joint motion for summary judgment.

PROCEDURAL HISTORY

The underlying cause of action was commenced on June 2, 1989, by writ of summons. A complaint in civil action was thereafter filed by plaintiffs on October 12, 1989 wherein they averred, inter alia, that on or about February 17, 1984, minor plaintiff, Daniel Checchio, suffered severe and permanent brain damage as a result of negligent neonatal medical care and treatment rendered to him by defendants, Frankford Hospital— Torresdale Division, Children’s Hospital of Philadelphia, Marvin Kalafer M.D., Carl H. Kennedy Jr. M.D., Edwin R. Concors M.D., Michael Malen M.D., and Andrew Eisen M.D.

As a result of preliminary objections filed by defendant, Edwin R. Concors M.D., the plaintiffs on December 8, 1989 filed an amended complaint pursuant to Pa.R.C.P. 1028(c)(1).

The defendants thereafter denied plaintiffs’ averments and interposed defenses. In addition, various cross-claims were filed by defendants pursuant to Pa.R.C.P. 2252.

[145]*145The parties engaged in extensive discovery and on March 9, 1994, a stipulation was entered into between plaintiffs and all of the defendants voluntarily dismissing Children’s Hospital of Philadelphia, Dr. Andrew Eisen M.D. and Philip Roth M.D., an additional defendant, from this cause of action. The parties also entered into a separate stipulation and agreement on March 25,1994 dismissing defendants, Marvin Kalafer Jr. M.D. and Carl H. Kennedy M.D., from the underlying action.

Subsequently, this case was assigned with the consent of all parties for trial to Charles B. Burr II, Esquire, as a judge pro tempore in accordance with the court’s inventory delay reduction program.

Thereafter, the remaining defendants, in anticipation of trial, filed a joint motion in limine for judicial determination of the admissibility of scientific/medical testimony.

Judge Pro Tempore Burr, after consideration of the motion in limine, and in an attempt to minimize delay at the time of trial, directed defendants to depose plaintiffs’ expert witnesses regarding the foundation and substance of their proffered expert testimony as set forth in their expert reports and/or answers to expert interrogatories.

Following the depositions of plaintiffs’ expert witnesses and the completion of pretrial discovery, defendants filed a joint motion for summary judgment asserting, inter alia, that plaintiffs failed to proffer expert testimony on the issue of causation which would meet the standard of admissibility of scientific expert testimony as set forth in Frye v. United States, 54 App.D.C. 46, 293 F. 1013, 1014 (1923): “general acceptance of reliability in the relevant scientific community,” as adopted by the Pennsylvania Supreme Court in Commonwealth v. Topa, 471 Pa. 223, 231, 369 A.2d 1277, [146]*1461281 (1977). Plaintiffs in turn filed a timely response thereto asserting that since their experts are deemed qualified in their respective medical fields, their testimony at the time of trial on the issue of causation requires a determination of credibility by the jury and thus summary judgment is barred under the doctrine set forth in Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932) and its progeny. On July 23,1997, oral argument on the motion for summary judgment was held jointly before President Judge Bonavitacola and Judge Pro Tempore Burr. The court on July 31, 1997, granted summary judgment in favor of the remaining defendants. It is this order which forms the genesis of the within appeal.

STANDARD OF REVIEW

Pennsylvania Rule of Civil Procedure 1035.2 governs the standard of review in determining a motion granting summary judgment and states, in pertinent part: “[ajfter the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law

“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

In resolving a motion for summary judgment, the court must examine the record in the light most favorable [147]*147to the non-moving party and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 615 A.2d 303 (1992); Washington Federal Savings and Loan Association v. Stein, 357 Pa. Super. 286, 515 A.2d 980 (1986). Summary judgment will be granted only in those cases which are free and clear from doubt. State Farm Mutual Automobile Insurance Co. v. Universal Underwriters Insurance Co., 441 Pa. Super. 446, 657 A.2d 1252 (1995), appeal granted, 544 Pa. 613, 674 A.2d 1075 (1996).

DISCUSSION

Considering this case in light of the foregoing principles, the record discloses the following facts: The minor plaintiff was bom on February 17,1984 at Frank-ford Hospital — Torresdale Division by way of caesarian section at approximately 36 weeks gestation. Shortly after birth it was discovered that the minor plaintiff suffered from hyaline membrane disease otherwise called respiratory distress syndrome (RDS). His short post-natal care at Frankford Hospital — Torresdale Division was marked by respiratory difficulties resulting from RDS which required supplemental oxygen to be provided by oxygenhood. In the early hours of February 18, 1984, minor plaintiff was required to be intubated to assist in breathing and was then transferred to Children’s Hospital of Philadelphia (CHOP) where he was eventually placed on a ventilator. The minor plaintiff was discharged from CHOP on March 2, 1984, with a discharge diagnosis of preemie grower status, post-respiratory distress syndrome.

Subsequently, two years after birth, the minor plaintiff was diagnosed with pervasive developmental disorder, autism, and mental retardation. The minor plaintiff has [148]*148asserted that defendants negligently managed his RDS and that this mismanagement resulted in his developing neonatal hypoxia which is the proximate cause of his permanent neurological dysfunction.

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Bluebook (online)
35 Pa. D. & C.4th 143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/checchio-v-frankford-hospital-pactcomplphilad-1998.