Plaintiff-husband was injured when he was struck by a truck. He received medical treatment for his injuries. These injuries were aggravated by this treatment.
In this lawsuit, plaintiffs have sued only those persons whose negligence allegedly caused the accident (original tort-feasors). Plaintiffs’ claim against the original tort-feasors includes damages for those injuries attributable to the negligent medical care
Plaintiffs have instituted a second lawsuit at G.D. 88-11804 against the physician who treated plaintiff-husband for his injuries and the hospital at which he was treated (medical defendants). In this medical malpractice action, plaintiffs seek only the damages sustained from the additional harm attributable to the negligence of the medical defendants. Plaintiffs do not seek to recover from these defendants any damages for injuries that plaintiff-husband would have sustained from the accident if he had received proper medical care.
One of the original tort-feasors seeks to join the medical defendants as additional defendants in the present action. Plaintiffs oppose on the ground that the proposed joinder is outside the scope of Pa.R.C.P. 2252(a). This rule permits a defendant to join the following persons as additional defendants:
“[A]ny person whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff’s cause of action is based.”
In order to decide whether the joinder of the medical defendants is within the scope of rule 2252(a), we must first determine what claims, if any, the law permits the original tort-feasors to raise against the medical defendants.
Plaintiffs suggest that there is no relationship between the original tort-feasors and the medical
While the original tort-feasor’s liability to the injured party extends to the additional harm caused by the negligent medical treatment necessitated by the original negligent conduct, the law permits the original tort-feasor who assumes responsibility for payment of all damages that the injured party sustained to recover those damages attributable to improper medical care from the negligent medical providers. See Boggavarapu v. Ponist, supra.
The issue of the relationship between the original tort-feasors and the medical defendants was first considered in Embrey v. Borough of West Mifflin, supra. In that case, plaintiffs separate lawsuits' against the original tort-feasors and the medical defendants were consolidated for trial. The jury
In Smialek v. Chrysler Motors Corp:, supra, plaintiff sued the manufacturer whose defective product allegedly caused the accident and the physician and hospital that failed to provide proper treatment. The jury entered an award against the hospital. On appeal, the hospital contended that the lower court erred in instructing the jury that damages could be apportioned between the other defendants and the hospital. The Superior Court rejected this contention. It reaffirmed the holding in Embrey v. Borough of West Mifflin that “ ‘to the extent that the acts of the original tort-feasor and those of the physician are capable of separation, the damages should be apportioned accordingly.’ ” Smialek at 507, 434 A.2d at 1259, quoting Lasprogata v. Qualls, 263 Pa. Super. 174, 397 A.2d 803 (1979).
Since plaintiffs’ claim against the original tortfeasors in the present case includes the damages attributable to the additional harm- caused by the negligent medical treatment, the original tortfeasors are entitled to raise a claim against the medical defendants for the portion of any damage award against the original tort-feasors that is attributable to the additional harm caused by the negli
Plaintiffs have cited a series of cases which hold that original tort-feasors who have settled their claims with the injured party may not be joined as additional defendants in a lawsuit by the injured party against the medical defendants for the additional harm caused by the negligent treatment of the injuries which the original tort-feasors caused. See Harka v. Nabati, 337 Pa. Super. 617, 487 A.2d 432 (1985); Voyles v. Corwin, 295 Pa. Super. 126, 441 A.2d 381 (1982); and Lasprogata v. Qualls, supra. The basis for this case law is that since the plaintiffs did not release the medical defendants from liability in their settlement agreement with the original tort-feasors, the settlement agreement covered only the harm which the original tort-feasors caused.* Consequently, the medical defendants are
This case law is not inconsistent with the holdings of the Superior Court in Embrey v. Borough of West Mifflin, supra, and Smialek v. Chrysler Motors Corp., supra, that damages between the original tort-feasor and the medical defendants shall be apportioned on the. basis of the harm that each caused the plaintiff. In fact, it was the Embrey court’s characterization of the acts of negligence of the original tort-feasors and the negligent medical providers as separate acts causing separate injuries that served as the basis for the case law holding that the original tort-feasors who settled with the plaintiffs could not be joined by the medical defendants because they were separate tort-feasors liable for distinct injuries rather than joint, tort-feasors, responsible for a single injury. Also see, Corbett v. Weisband, 380 Pa. Super. 292, 551 A.2d 1059 (1988).
For these reasons, we enter the following
ORDER OF COURT
On this October 23, 1989, it is hereby ordered that defendant Charles Hicks’ motion to join additional defendants is granted.
*.
If the plaintiffs had released the medical defendants, the settlement amount would have included any additional harm that the negligent medical treatment caused. Consequently, the original