Corbett v. Weisband

380 Pa. Super. 292, 551 A.2d 1059 (1988)



Under the doctrine known as the "discovery rule," the statute of limitations does not begin to run until the plaintiff has discovered his injury, or, in the exercise of reasonable diligence, should have discovered his injury. An injury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable. The jury must determine at what point a patient, using reasonable diligence, should have become aware that an injury had been inflicted upon her, and measure two years from then to determine whether a claim is time-barred.


These are five consolidated appeals and cross-appeals from judgments entered in two medical malpractice actions filed by Lucille Corbett against two doctors, a hospital, and an orthopedic association. It started when Plaintiff patient filed two actions against defendant doctors and clinics based on medical malpractice for post-surgical infection that resulted in the amputation of her leg. The court found no error when the trial court failed to charge the jury on plaintiff's possible contributory negligence in voluntarily leaving the hospital as she was discharged by defendants. The court found that defendants waived their right to object to damages assessed under Pa. R. Civ. P. 238. The court held that plaintiff should have been allowed to show that the first treating physician was responsible for all consequential damages caused by his malpractice, including the subsequent unsuccessful treatment that plaintiff received by another provider. The court remanded for a trial on the issue of damages only.


Was the intervening act of a third person so extraordinary as to constitute a superseding cause?




First, Dr. Weisband and ROPA contend that Dr. Greene's subsequent conduct in treating Ms. Corbett was so highly extraordinary that his intervening act constituted a superseding cause which insulates Dr. Weisband and ROPA from liability for the consequences of Dr. Greene's conduct. In the alternative, Dr. Weisband and ROPA argue that the injury caused by Dr. Greene is clearly apportionable and therefore liability for those injuries may not be imposed upon them. The trial court agreed with the arguments of Dr. Weisband and ROPA and refused to submit to the jury the plaintiff's claim for the damages and injury that were the proximate result of Dr. Greene's negligent conduct. The trial court erred in this regard for the reason that the issue of a superseding cause on the record is a jury question. As to the issue concerning apportionment, the record does not provide a reasonable basis for apportionment by either the Court or the jury and therefore a new trial must be held.

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