Murray v. University of Pennsylvania Hospital

CAVANAUGH, Judge,

dissenting:

I agree with the majority that the claim for personal injuries whether premised upon medical malpractice or breach of warranty is subject to the two year statute of limitations. I disagree, however, with the conclusion that appellants have waived any objection to the assertion of this claim by failing to object to the court’s instructions or asserting it as a reason in support of motions for a new trial.

Appellees have pressed a cause of action, the essential component of which is a claim for personal injuries. They successfully persuaded the trial court to submit this claim to the jury. As the majority concedes, appellants have preserved the argument that the entire action is barred by the statute of limitations. It seems to me that this is enough. Appellants, having duly resisted the flawed cause of action, should not be imposed with the additional burden of second guessing the trial judge by thereafter being obliged to enter objections to the charge which, if granted, would carve out a permissible claim. Since I believe that the majority opinion improperly awards appellees an undeserved windfall, I would agree with the trial court’s award of a new trial. However, since appellees have already successfully won the day on the liability issue, I would limit the new trial to damages only.