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CARL NACCARATI AND MARION NACCARATI v. WILLIAM S. GARRETT (03/14/86)

filed: March 14, 1986.

CARL NACCARATI AND MARION NACCARATI, HIS WIFE, APPELLANTS,
v.
WILLIAM S. GARRETT, JR., APPELLEE



Appeal from the judgment entered on January 7, 1985, in the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 80-24624.

COUNSEL

David M. Moran, Pittsburgh, for appellants.

John W. Jordan, IV, Pittsburgh, for appellee.

Beck, Johnson and Montgomery, JJ.

Author: Beck

[ 351 Pa. Super. Page 439]

This is an action in medical malpractice that arose out of breast augmentation surgery performed by the defendant-appellee, Dr. William S. Garrett, Jr., on plaintiff-appellant, Marian Naccarati, in April of 1979. Mrs. Naccarati claims that subsequent to insertion of the breast implants she developed extreme drooping of the breasts, hardness of the breasts, and bruises due to post-operative procedures designed

[ 351 Pa. Super. Page 440]

    to reduce the hardness. The Naccaratis brought the action on two theories: negligence in that Mrs. Naccarati's prior condition did not warrant breast augmentation surgery and lack of informed consent in that Mrs. Naccarati was not fully informed of the risks of this kind of surgery. After trial, the jury returned a verdict in favor of the defendant, Dr. Garrett. The trial judge denied plaintiffs' motion for a new trial, and this appeal followed.

On appeal, appellants raise two issues: (1) whether the trial court erred in denying appellants' motion to withdraw a juror on the basis that an answer given by the defendant on direct examination was hearsay and unfairly prejudiced the jury against the plaintiff; and (2) whether the trial court erred in instructing the jury on the issue of professional negligence.

Appellants' first issue requires us to consider a portion of the trial record. On direct examination, Dr. Garrett, the defendant-appellee, had testified that he had regarded as "acceptable" the result of the cosmetic surgery he had performed on Mrs. Naccarati. He testified that he believed Mrs. Naccarati did not need a mastopexy (breast lift surgery) to correct sagging breasts. There followed this exchange:

Q. Could the implants be removed?

A. Oh, yes, this operation is completely reversible. It's rather easy to take the implants out. It's much easier to take them out than to put them in. You can just put a little Novocaine in the incision and reopen the incision and express the implant and take it out very easily. It's interesting that that's an operation that is very infrequently done. I have had one patient who asked if I would remove her implants, and maybe without being too anecdotic, it might help you to understand some background if I told you --

MR. MORAN: Your honor, excuse me. I would object to any statements about what other patients said ...


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