Fabian v. Matzko

Dissenting Opinion by

Jacobs, J.:

I must dissent.

A summary judgment is to be entered only in the clearest of cases where there is not the slightest doubt as to the absence of a genuine issue of material fact. Granthum v. Textile Machine Works, 230 Pa. Superior Ct. 199, 326 A.2d 449 (1974); Prince v. Pavoni, 225 Pa. Superior Ct. 286, 302 A.2d 452 (1973). The court in determining whether an issue of material fact exists must “accept as true all well pleaded facts in the non-moving parties’ pleadings, as well as the admissions on file, giving to them the benefit of all reasonable inferences to be drawn therefrom; the record must be examined in the light most favorable to them; and in passing upon a motion for summary judgment, it is no part of [the court’s] function to decide issues of fact but solely to determine whether there is an issue of fact to be tried ...” Ritmanich v. Jonnel Enterprises, Inc., 219 Pa. Superior Ct. 198, 203, 280 A.2d 570, 573 (1971). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Schacter v. Albert, 212 Pa. Superior Ct. 58, 239 A.2d 841 (1968).

Keeping these principles in mind, I believe that the lower court acted prematurely in granting summary judgment and that this Court acts unwisely in sustaining that action.

*278The appellants have attempted to base their medical malpractice claim upon two theories of liability, one well established, the other as yet without precedent in this Commonwealth. As I read the record material issues of fact exist relevant to each liability theory. The first theory, based upon Restatement (Second) of Torts, §323 (1965) quoted in the majority opinion, ante at 270, suggests that Dr. Cahill undertook either gratuitously or for consideration to render medical services to the plaintiff-appellant, Mrs. Fabian. The majority, distinguishing Hamil v. Bashline, 224 Pa. Superior Ct. 407, 307 A.2d 57 (1973) which adopted Restatement §323, states that “no such undertaking occurred in this case, and no physician-patient relationship ever arose.” Ante at 271. Although I am far from convinced to the contrary, I cannot conclude “beyond the slightest doubt” that Dr. Cahill did not undertake to render medical services.

The appellant, Mr. Fabian, related the details of his conversation with Dr. Cahill in a deposition. He stated:

“[Dr. Cahill] identified himself on the telephone, and he asked me what my problem was, and I told him the symptoms, that my wife had a sudden, severe headache, that she was vomiting and complaining about a stiffness in the back of her neck and there was a soreness in her leg. I noticed when she walked that she was just dragging that leg .. .1 told Dr. Cahill that she had this sudden severe headache and the symptoms I just mentioned. He asked me if I had a family doctor, and I said that I did, and he asked me who my family doctor was, and I said ‘Dr. Matzko’.
BY MR. ROSS:
Q. And you say this was Dr. Cahill ?
A. Yes. He said, ‘Well, what did Dr. Matzko say?’ I said, ‘Well, Dr. Matzko said it was the virus.’ Dr. Cahill, he said to me, ‘Well, you are not a doctor to make a diagnosis; if your doctor said it is a virus, it is a virus.’ ” Record at 24a-25a.

*279Viewed in the light most favorable to the appellant, Ritmanich v. Jonnel Enterprises, Inc., supra,1 Dr. Cahill did something with.regard to Mr. Fabian’s concerns for his wife’s health. If the appellant interpreted Dr. Cahill’s statement as a confirming medical diagnosis based upon an evaluation of the recited symptoms, it could have acted to abate his fears and delay further affirmative action on his part. Improperly diagnosing a serious condition requiring immediate care as a slight ailment requiring no immediate attention could be, of course, actionable negligence. Donaldson v. Maffucci, 397 Pa. 548, 156 A.2d 835 (1959). I reiterate that I am not convinced that Dr. Cahill undertook a diagnosis; however, I am not convinced beyond the slightest doubt that he did not. I would hold, therefore, that an issue was raised for the trier of fact and that summary judgment was improper.

The appellant’s second theory of liability which they propose be adopted in this Commonwealth can be stated as follows:

A hospital which maintains an emergency room is under a duty to recognize and respond to a genuine medical emergency.

The appellants assert that the symptoms recited to Dr. Cahill indicated the existence of a medical emergency and that when confronted with such an emergency the appellees failed to- respond in a reasonable manner.

The majority in disposing of this contention determines that no medical emergency existed. The majority states that “[t]his case does not come within the emergency exception,” ante at 273, “this was not an unmistakable emergency. In fact, there were no facts which would have indicated to Dr. Cahill that this was an emergency situation.” Ante at 273. I must confess that I have neither the training nor the experience to evaluate *280a given set of symptoms and render a medical judgment as to its meaning. I cannot agree with the maj ority’s presumption that it possesses such wisdom.

Moreover, even if each member of this Court were competent to evaluate the facts as medical experts, we could not do so. Our function is to determine solely whether an issue of fact exists, not to decide that issue of fact. Ritmanich v. Jonnel Enterprises, Inc., supra.

I would reverse the judgment below as prematurely granted.

Watkins, P.J., joins in this dissenting opinion.

. Dr. Cahill stated in deposition that he had no recollection of the phone conversation. Record at 57a-58a.