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decided: December 15, 1981.


No. 80-2-261, 262, Appeal from the Order of the Superior Court of Pennsylvania No. 428, March Term, 1977 dated August 23, 1979.


Donald J. Farage, David M. Jakobi, Thaddeus J. Bartkowski, Philadelphia, James W. Evans, Harrisburg, for appellants.

Edward E. Knauss, III, Harrisburg, for Harrisburg Polyclinic Hosp.

Lee C. Swartz, Harrisburg, for P. McAloose.

James W. Evans, Harrisburg, for Charles R. Beittel, Jr.

Edward B. McDaid, Thaddeus J. Bartkowski, Philadelphia, for Barry L. & Mary Belle Jones.

Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Roberts, J., filed a concurring opinion in which Wilkinson, J., joined. O'Brien, J., did not participate in the consideration or decision in this case.

Author: Nix

[ 496 Pa. Page 467]


This is an appeal from the order of the Superior Court*fn1 remanding the instant medical malpractice action for a new trial. A divided Superior Court*fn2 found that Mary Belle Jones and Barry L. Jones, plaintiffs below (appellants herein) failed to satisfy the requirements for the application of res ipsa loquitur and thus the trial court erred in allowing the jury to reach a verdict on that basis. We disagree.

On May 19, 1972, Mary Belle Jones underwent surgery at the Harrisburg Polyclinic Hospital to correct suspected gynecological problems on the advice of Dr. Charles R. Beittel, Jr. (appellee herein), Mrs. Jones' attending physician.

[ 496 Pa. Page 468]

The surgery consisted of three procedures: 1) a D & C;*fn3 2) a laparoscopy;*fn4 and 3) a laparotomy.*fn5

The D&C and laparotomy were performed by Dr. Beittel. The laparoscopy was performed by a Dr. Rohrabaugh,*fn6 although both doctors consulted during this procedure and, in fact, Dr. Beittel participated in the visual examination conducted through the laparoscope. A resident physician, Dr. Milan Chepko,*fn7 was present during part of the surgery and assisted Dr. Beittel. Patricia McAloose, a nurse-anesthetist, administered a general anesthetic and remained in the operating room during the course of the surgery. The three procedures employed required different positioning of the patient on the operating table. The D&C was performed with the patient in a flat (modified lithotomy) position with the operating table parallel to the floor and the patient's legs in stirrups. For the laparoscopy, the patient was placed in a Trendelenberg position in which the angle of the operating table is changed in order to have the body at an angle, with the head lowered. Subsequent to the laparoscopy, the patient's legs were removed from the stirrups and the table returned to a supine position parallel to the floor. After the initial incision for the laparotomy was made, the patient was again placed in a Trendelenberg position for further examination. At the end of the operation, prior to the closing of the incision, the patient was returned to a flat or supine position.

Throughout the entire surgical procedure Mrs. Jones' arm was placed on a board out from the operating table. The

[ 496 Pa. Page 469]

    arm was placed in this position to facilitate the intravenous procedure.

After the surgical procedures were completed, Mrs. Jones was taken to the recovery room and then to her room. Upon regaining consciousness, Mrs. Jones experienced intense pain in her neck, left shoulder and left arm. Mrs. Jones was diagnosed as having suprascapular nerve palsy which was allegedly caused by the malpositioning of her arm on the arm board and the changes in the angle of the operating table during the course of the surgery. The record discloses that prior to the surgery, Mrs. Jones had no history of any problems with her back, neck or arm.

Mary Belle Jones and Barry L. Jones instituted a suit in trespass for medical malpractice against Dr. Beittel, the surgeon; Patricia McAloose, the nurse-anesthetist and Harrisburg Polyclinic Hospital. The jury returned a verdict against all three defendants in the amount of Fifty-six Thousand ($56,000) Dollars. Prior to taking testimony, plaintiffs settled with Nurse McAloose, Dr. Milan Chepko and Harrisburg Polyclinic Hospital for Twenty-five Thousand ($25,000) dollars and entered into a joint tortfeasor release.

The case against Harrisburg Polyclinic Hospital was predicated solely on respondeat superior, while the jury was instructed, inter alia, that the surgeon, Dr. Beittel, and the nurse-anesthetist, Patricia McAloose, could be responsible for their own respective negligence.

The theories of liability asserted against Dr. Beittel were those of lack of informed consent and negligence, through the application of the rule of res ipsa loquitur. The jury rejected the lack of informed consent theory in reaching its verdict against Dr. Beittel. Dr. Beittel filed post-verdict motions seeking a new trial, judgment n. o. v. and a molding of the verdict based on the joint tortfeasor release. These motions were denied by the lower court. On appeal, the Superior Court reversed granting Dr. Beittel a new trial. Cross-appeals were filed by both Beittel and the Joneses. By agreement, the Joneses were designated appellants and Beittel, appellee.

[ 496 Pa. Page 470]

The issues presented on appeal are: 1) whether res ipsa loquitur is applicable in medical malpractice cases; 2) if issue no. 1 is answered in the affirmative, whether the evidence was sufficient as a matter of law to support a verdict for appellants on the basis of res ipsa loquitur ; and finally 3) whether pursuant to the joint tortfeasor's release, the verdict against Dr. Beittel was properly reduced by one half.

In Gilbert v. Korvette's, 457 Pa. 602, 327 A.2d 94 (1975), this Court adopted the Restatement (Second) of Torts ยง 328D formulation of res ...

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