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filed: May 2, 1986.


Appeal from the Order Dated April 11, 1985 of the Court of Common Pleas of Philadelphia County, Civil Division, No. 1250 December, 1980


Allan H. Star, Philadelphia, for appellant.

Robert J. Spiegel, Philadelphia, for appellee.

Cirillo, Tamilia and Montgomery, JJ.

Author: Montgomery

[ 352 Pa. Super. Page 494]

The Plaintiff-Appellee, Earl Trent, instituted the instant medical malpractice action against Defendant-Appellant Bruce Trotman, M.D., seeking damages for various problems experienced by the Appellee subsequent to surgical care by the Appellant. The case was tried before a jury, which rendered a verdict for Mr. Trent in the amount of $230,053.30. Timely motions for a judgment n.o.v. and for a new trial were filed by the Appellant, and were thereafter denied by order of the lower court, and judgment was entered for the Appellee on the verdict. The instant appeal followed.

The record shows that in December, 1977, the Plaintiff experienced pain in his lower abdomen. After various diagnostic tests and an examination, Dr. Trotman advised him that two polyps had been found in his colon. The Defendant advised the Plaintiff that a surgical procedure known as a polypectomy would have to be performed. In this procedure, a surgical instrument known as a colonoscope is inserted through the rectum of the patient and to the sigmoid colon. A wire snare device is used in connection with the colonoscope, and the snare is looped around the polyp and mechanically tightened while electrical energy is applied to coagulate the tissue.

The operation was scheduled and performed in the endoscopy suite attached to the Appellant's office at the Hospital

[ 352 Pa. Super. Page 495]

    of the University of Pennsylvania on January 19, 1978. During the course of the surgery, the snare broke, and a substitute snare had to be obtained from another nearby hospital. During the time that the substitute snare was being obtained, the colonoscope was retained in place inside the Plaintiff. After the second snare was obtained, the surgical procedure was completed.

The Plaintiff returned home after the surgery, but experienced several problems. Following a number of conversations between the Plaintiff and the Defendant that day, and the next morning, the Plaintiff was readmitted to the Hospital of the University of Pennsylvania on January 20, 1977, and was diagnosed as having a perforated sigmoid colon, and other related medical problems. Following five days of intravenous treatment with antibiotics, the Plaintiff was again subjected to surgery and the perforation in his colon was repaired. As a result of the surgery, a colostomy was required.

The Plaintiff was discharged from the hospital over one month later, but had a readmission nine days thereafter, when his intestine began protruding from the colostomy hole. That problem was remedied by further care at the time of that subsequent admission.

At trial, there was no dispute that the perforation in the Plaintiff's sigmoid colon was thermal in origin, and had been caused by heat produced from the snare. The Plaintiff produced expert testimony, discussed in relevant detail below, in an attempt to establish that in several regards, the procedure followed by the Defendant physician departed from accepted reasonable medical standards and practices. As would be expected, the Defendant, and another physician produced as an expert, testified that the procedures employed were proper, did not contribute to the Plaintiff's problems, and did not involve any negligence. As noted above, the jury returned a verdict in favor of the Plaintiff-Appellee in the amount of $230,053.30. The Defendant-Appellant has raised several claims of error on appeal.

[ 352 Pa. Super. Page 496]

In this case we are requested to reverse the lower court's denials of motions for judgment notwithstanding the verdict, and/or for a new trial. In such an appeal, we must be mindful of the standard of review applicable with regard to the lower court's denial of such motions. In reviewing the denial of a motion for judgment n.o.v., the sole duty of the appellate court is to decide whether there was sufficient competent evidence to sustain the verdict, viewing all of the evidence in the light most favorable to the verdict-winner, including all reasonable inferences arising from the evidence, and any conflicts in evidence must be resolved in favor of the verdict winner. See McDevitt v. Terminal Warehouse Co., 304 Pa. Super. 438, 450 A.2d 991 (1982). Where the denial of a motion for new trial is challenged on appeal, we must examine the evidence and determine whether or not the trial court manifestly or capriciously abused its discretion or committed an error of law. Lokay v. Lehigh Valley Cooperative Farmers, Inc., 342 Pa. Super. 89, 492 A.2d 405 (1985). With these concepts in mind, we shall examine the Appellant's contentions of error.

The Appellant first asserts that the trial judge erred in several regards in his charge to the jury. Inter alia, the Appellant claims that the trial judge improperly advised the jurors regarding the so-called "two schools of thought doctrine". This doctrine has been discussed in Furey v. Thomas Jefferson University Hospital, 325 Pa. Super. 212, 472 A.2d 1083 (1984) and Remley v. Plummer, 79 Pa. Super. 117 (1922), cases which were cited in the briefs filed by both parties to the instant appeal. The two schools of thought doctrine basically provides that it is improper for a jury to be assigned to decide which of two schools of thought as to proper surgical or other medical procedure should have been followed in any particular case, when both schools have their respective and respected advocates and followers in the medical profession. In essence, a lay jury is not to be put in a position of choosing one respected body of medical opinion over another, when each has a reasonable following among the members of the medical community. Under this

[ 352 Pa. Super. Page 497]

    doctrine, a physician will not be held liable merely for exercising his judgment in applying a course of treatment supported by a reputable and respected body of medical experts, even if another body of expert ...

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