In a medical malpractice action recently reviewed by Pennsylvania's Superior Court, the appellate tribunal has reversed a trial court's Order (authored by the Honorable Mark I. Bernstein) which granted the plaintiffs' motion to discontinue, without prejudice, a claim on behalf of a minor daughter. Robinson v. Pennsylvania Hospital, No. 2612 Phila. 1998 (Pa.Super. Aug. 24,1999). The Superior Court's published Opinion, written by Senior Justice Frank Montemuro (sitting by designation from the Pennsylvania Supreme Court), now stands as the latest precedent on the controversial issue at bar. Notably, the case is being handled at the trial court level by Adrian King, Sr., Esquire, and Carol Cowhey, Esquire, of Post & Schell's Professional Malpractice Department. The appellate stage of the litigation was briefed and argued by Barbara Magen, Esquire, Chairperson of Post & Schell's Appellate Department.
In Robinson, the mother-plaintiff underwent an ineffective abortion procedure and then opted to carry the pregnancy to full term. The minor-plaintiff was later born completely normal, except for a deformity of the left hand. A lawsuit was then commenced on behalf of the minor-plaintiff, alleging negligence on the part of several healthcare providers in performing the abortion so as to cause the child's deformity. At the close of the discovery process, after expert reports were exchanged and interrogatories served, the mother-plaintiff filed a petition to discontinue the minor's action without prejudice. Although opposed by the defense, the trial court disagreed and allowed the discontinuance without prejudice, essentially permitting the minor-plaintiff to prosecute her case fifteen years after the fact, due to the provisions of Pennsylvania's Minority Tolling Statute, 42 P.S. §5533.
Upon review on appeal, the Superior Court reversed the trial court's Order and concluded that the Minority Tolling Statute should not be applied to cases already filed, where an impediment to the progress of litigation is the minor-plaintiff's failure to provide discovery. Further, based on the medical evidence, the Superior Court rejected the plaintiff's claim, used in support of the petition to discontinue, that the minor should be entitled to the benefit of the Minority Tolling Statute based on the alleged uncertain nature of the injuries. As the appellate panel concluded, there was nothing in the record to suggest that the minor is at risk for future injury stemming from her deformed hand. The argument that there might be compensable injuries at some point in the future cannot be used to suspend litigation for currently ascertainable injuries.