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JEFFREY A. GALLEGOR v. HERMAN FELDER (06/15/84)

filed: June 15, 1984.

JEFFREY A. GALLEGOR, A MINOR, BY HIS PARENTS AND NATURAL GUARDIANS, JOSEPH R. GALLEGOR AND CLARA J. GALLEGOR, HIS WIFE, IN THEIR OWN RIGHT, APPELLANTS,
v.
HERMAN FELDER, M.D. AND CHILDREN'S HOSPITAL OF PITTSBURGH



No. 576 Pittsburgh, 1982, Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Allegheny County, at No. GD 81-984

COUNSEL

Michael J. Seymour, Pittsburgh, for appellants.

John W. Jordan, IV, Pittsburgh, for Felder, M.D., appellee.

George M. Weis, Pittsburgh, for Children's, appellee.

Brosky, Del Sole and Montgomery, JJ.

Author: Montgomery

[ 329 Pa. Super. Page 207]

Plaintiff-Appellants file the instant appeal following the lower court's grant of a compulsory non-suit, and the denial by the lower court en banc of a motion for the removal of the non-suit. The Appellants instituted this medical malpractice action to seek damages for the injuries sustained by the minor Plaintiff, Jeffrey A. Gallegor, during an ear operation, called a mastoidectomy, performed at the Defendant-Appellee, Children's Hospital of Pittsburgh, by Defendant-Appellee, Herman Felder, M.D. The injuries, to the boy's facial nerve, caused disfigurement, speech, eye and other problems and difficulties. The record shows that the compulsory non-suit was entered at trial, upon the motion of the Appellees, after the Appellants rested their case on the issue of liability. Several contentions of error are raised on this appeal by the Appellants.

[ 329 Pa. Super. Page 208]

First, it is argued that the trial court erred in entering a non-suit, as the available evidence allegedly made such an order improper. Initially, we must recognize the applicable and well-established rule that a compulsory non-suit may be entered only when the plaintiff cannot recover under any view of the evidence, with every doubt resolved against its entry and all inferences drawn most favorably to the plaintiff. Scott v. Purcell, 490 Pa. 109, 415 A.2d 56 (1980). Moreover, all conflicts in evidence must be resolved in the plaintiff's favor in the consideration of a defense motion for non-suit. A.J. Aberman, Inc. v. Funk Building Page 208} Corp., 278 Pa. Super. 385, 420 A.2d 594 (1980). The Appellants maintain that sufficient evidence was presented to support causes of action under theories of res ipsa locquitur and lack of informed consent. We shall examine each of these contentions.

In Gilbert v. Korvette, 457 Pa. 602, 327 A.2d 94 (1975), the Pennsylvania Supreme Court adopted the Restatement (Second) of Torts, Section 328D formulation of res ipsa locquitur. That Section provides:

(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when

(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 ...


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