No. 428 March Term, 1977, Appeal from the Order and Judgment in the Court of Common Pleas of Dauphin County, Civil Action - Law, No. 902 March Term, 1974.
James W. Evans, Harrisburg, for appellant.
Edward B. McDaid, Philadelphia, for appellees Jones.
Edward E. Knauss, III, and Lee C. Swartz, Harrisburg, did not submit briefs on behalf of appellees Harrisburg Polyclinic Hospital and P. McAloose, respectively.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Cercone, President Judge, Hoffman and Spaeth, JJ., file dissenting opinions. Jacobs, former President Judge, did not participate in the consideration or decision of this case.
[ 269 Pa. Super. Page 375]
This case involves a cause of action in trespass for medical malpractice. Appellant Dr. Charles R. Beittel, Jr. appeals from the July 25, 1977 order of the en banc lower court which denied his motions for judgment non obstante veredicto, new trial, and for shaping of the verdict.
The following facts were adduced at trial. On May 14, 1972, appellee Mary Belle Jones*fn1 underwent surgery at the Harrisburg Polyclinic Hospital to correct gynecological and suspected abdominal problems which she was experiencing. Appellant Dr. Charles R. Beittel, Jr. was her physician, and the other named defendant, Patricia McAloose, was the nurse anesthetist present during the surgical procedures
[ 269 Pa. Super. Page 376]
performed on appellee.*fn2 Three surgical procedures were performed: 1) a procedure called dilation and curettage*fn3 (D. & C.) was performed by appellant; 2) a laparoscopy*fn4 was performed by a Dr. Rohrabaugh, assisted by appellant; and 3) a laparotomy*fn5 was performed by appellant, assisted by Dr. Milan Chepko. Appellee was given a general anesthetic by nurse McAloose prior to surgery. Nurse McAloose initially positioned appellee to facilitate access to the operative site, i. e., the vaginal area. An intravenous apparatus was set to run into appellee's left arm, and accordingly, her arm was extended on an armboard out from the side of the operating table in order to facilitate this process. Upon awakening in the recovery room following surgery, appellee experienced severe pain in her neck, left shoulder, and left arm. This pain was diagnosed as resulting from a suprascapular nerve palsy allegedly caused by the malpositioning of the patient.
As a result of her injury, appellee and her husband brought suit against appellant, nurse McAloose, and Polyclinic Hospital. The theories of liability asserted against appellant were those of informed consent and negligence, through the doctrine of res ipsa loquitur. Res ipsa loquitur was also the basis upon which appellee sought to recover against nurse McAloose, while the case against the hospital was based solely on respondeat superior.
Expert testimony presented at trial indicated that the injury appellee suffered was of the type that does not usually occur absent negligence on someone's part. In addition, in all likelihood, the injury occurred while appellee's
[ 269 Pa. Super. Page 377]
body was in a state in which it was paralyzed and insensible to pain, i. e., while she was in the operating room. Appellant testified on cross-examination that it was his duty to preserve his patient's neurology during the course of surgery and to personally observe and check the positioning of the patient. The jury found all of the defendants liable, and returned a verdict in appellees' favor in the amount of $56,000.
Prior to the commencement of trial, defendants McAloose and Polyclinic Hospital entered into a joint tortfeasor release with appellees for $25,000.*fn6 Appellant filed post-trial motions asking for judgment N.O.V., new trial, and for molding of the verdict so as to mark it "satisfied in full," or in the alternative, to reduce it, as applied to him, by two-thirds. All of appellant's motions were denied by the en banc panel of the Dauphin County Court of Common Pleas, and the verdict as applied to him was reduced by half, i. e., to $28,000, with $25,000 apportioned to appellee Mary Belle Jones and $3,000 apportioned to her husband Barry L. Jones.
On appeal, appellant raises numerous contentions. The first issue which we will address is appellant's contention that the doctrine of res ipsa loquitur under Pennsylvania law does not apply to medical malpractice cases. We disagree.
The Restatement (Second) of Torts section on res ipsa loquitur, § 328D, as specifically adopted by the Pennsylvania Supreme Court in the case of Gilbert v. Korvette's Inc., 457 Pa. 602, 327 A.2d 94 (1974) provides that:
"(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
[ 269 Pa. Super. Page 378]
(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant's duty to the plaintiff.
(2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.
(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different ...