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August 15, 1983


The opinion of the court was delivered by: HUYETT


 This tort action was brought by plaintiff Carol Levy against defendants Thomas Jefferson University (University), Thomas Jefferson University Hospital (Hospital) and Lucas J. Martinez, M.D., a neurosurgeon who performed the medical procedure at issue in this case. Jurisdiction is based upon diversity of citizenship. Before me is defendant Martinez's motion for summary judgment joined in by defendants University and Hospital. For the reasons stated below, I will grant the motion.

 In the spring of 1977, plaintiff began experiencing severe pain in the upper left portion of her face. In November, 1977, the plaintiff underwent cranial surgery for relief of the facial pain. The surgery did not relieve plaintiff's pain, nor did the various other methods of treatment she underwent following the 1977 operation.

 On January 10, 1979, plaintiff was admitted to the Thomas Jefferson University Hospital, for the purpose of undergoing surgery to sever her fifth cranial nerve to relieve her facial pain. After discussions among the plaintiff, defendant Martinez and his associate Dr. Jewell Osterholm, it was decided that instead the plaintiff would undergo a neurosurgical procedure called a transcutaneous thermocoagulation of the left gasserian ganglion or a gasserian ganglion or a gasserian ganglion rhizotomy (retrogasserian rhizotomy). This procedure involves inserting a needle through the skin, placing it in the gasserian ganglion, raising the temperature of the needle, and thereby destroying nerve fibers. The procedure was performed by Dr. Martinez on January 18, 1979.

 The parties agreed that the intended purpose of this operation was to destroy nerve fibers of the first and second branches of the fifth cranial nerve, in order to anesthesize the upper left portion of the plaintiff's face. However, the parties disagree 1) whether the procedure caused plaintiff to suffer harm, and 2) whether the plaintiff was informed of all the material risks of the procedure.

 In response to the defendants' summary judgment motion plaintiff offers her own deposition testimony, allegedly showing that she suffered an "immediate loss of taste" following the rhizotomy procedure, and portions of the deposition of Dr. Norman J. Schatz, the physician who had referred the plaintiff to defendant Martinez, allegedly showing that taste is a seventh nerve function. Plaintiff also presents deposition testimony by Dr. Peter Janetta which the plaintiff contends shows that Janetta found seventh nerve damage on March 12, 1979, just prior to the Pittsburgh operation. Plaintiff contends that the combination of this testimony and the doctrine of res ipsa loquitur creates "a genuine issue as to the material fact of seventh nerve damage" which must be resolved at trial.

 Pennsylvania has adopted the formulation of res ipsa loquitur in Restatement (Second) Torts § 328D. Under the Pennsylvania Supreme Court's interpretation of § 328D, res ipsa loquitur is not a rule of procedure nor of substantive law, but only a rule of evidence for circumstantial proof of negligence. Gilbert v. Korvette, 457 Pa. 602, 611, 327 A.2d 94, 99 (1975). Recently, the Pennsylvania Supreme Court reversed its long-standing position and for the first time allowed the application of res ipsa loquitur in a medical malpractice case. Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 437 A.2d 1134 (1981). Previously, the rule in Pennsylvania had been that medical negligence would not be presumed or inferred merely from an accident or an unfortunate result. Nixon v. Pfahler, 279 Pa. 377, 124 A. 130 (1924). The plaintiff was required to prove the physician's negligence by expert medical testimony. In holding in the Jones case that the application of res ipsa loquitur is proper in medical malpractice actions, the Pennsylvania Supreme Court stated:

We are satisfied that expert testimony should no longer be a per se requirement in proof of negligence in all cases of alleged medical malpractice. Expert medical testimony only becomes necessary when there is no fund of common knowledge from which laymen can reasonably draw the inference or conclusion of negligence. Even where there is no fund of common knowledge, the inference of negligence should be permitted where it can be established from expert medical testimony that such an event would not ordinarily occur absent negligence.

 Jones v. Harrisburg Polyclinic Hospital, 437 A.2d at 1138.

 Turning to the present case, it is clear and plaintiff readily admits that there is no existing fund of common knowledge regarding the retrogasserian rhizotomy procedure from which the average layman could draw inferences or conclusions of negligence. Therefore, to succeed at trial plaintiff has two alternatives. First, she can introduce expert medical testimony that Dr. Martinez negligently performed the procedure and caused plaintiff's alleged injury. Plaintiff admits that she has no expert other than Dr. Martinez. Dr. Martinez will not give the opinion plaintiff's case requires. See Martinez Affidavit, Ex. M. Second, to carry her burden, plaintiff can introduce expert medical testimony that the injuries plaintiff allegedly suffered as a result of the rhizotomy would not ordinarily occur unless the procedure has been performed negligently. Again plaintiff relies on Dr. Martinez to supply this opinion at trial. In his affidavit in support of this motion, Dr. Martinez has stated the opposite.

 It is well-established that the party moving for summary judgment has the burden of demonstrating that there is "no genuine issue as to any material fact" and therefore he is entitled to summary judgment as a matter of law. The movant is held to a stringent standard. Adickes v. S. H. Kress & Co., 398 U.S. 144, 151, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 848 (3d Cir. 1974); United States ex rel. Jones v. Rundle, 453 F.2d 147, 150 (3d Cir. 1971). When the facts are unclear, any doubt as to the existence of a genuine issue of material fact will be resolved against the movant. Smith v. Pittsburgh Gage & Supply, 464 F.2d 870 (3d Cir. 1972). Moreover, because the burden is placed on the moving party, any evidence presented to the court will always be construed in favor of the party opposing the motion and that party is given the benefit of all favorable inferences that can be reasonably drawn from it. Harold Friedman, Inc. v. Thorofare Markets, Inc., 587 F.2d 127, 131 n.7 (3d Cir. 1978). In addition, any facts asserted by the party opposing the motion, if supported by affidavits or other evidentiary material, are regarded as being true. Scott v. Plante, 532 F.2d 939 (3d Cir. 1976). However, notwithstanding the above considerations, "if the movant makes out a prima facie case that would entitle him to a directed verdict if uncontroverted at trial, summary judgment will be granted unless the party opposing the motion offers some competent evidence that could be presented at trial showing that there is a genuine issue as to a material fact." See C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2727, at 536 (1973).

 In this case, plaintiff has failed to set forth a response to defendant Martinez's sworn affidavit that he was not negligent in performing the procedure and that he would not testify that the plaintiff's alleged injuries would not ordinarily occur in the absence of negligence. Presumably plaintiff's theory is that summary judgment is improper because she must be given the opportunity at trial to prove the facts on which her negligence claim is based. Plaintiff apparently would attempt to do this by cross-examining ...

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