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JOSEPHINE J. JOZSA AND EDWARD A. JOZSA v. JONATHAN E. HOTTENSTEIN (05/14/87)

filed: May 14, 1987.

JOSEPHINE J. JOZSA AND EDWARD A. JOZSA, HER HUSBAND, APPELLANTS,
v.
JONATHAN E. HOTTENSTEIN, M.D., APPELLEE



Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Allegheny County at No. G.D. 81-16460.

COUNSEL

Richard J. Catalano, North Versailles, for appellants.

Louis C. Long, Pittsburgh, for appellee.

Del Sole, Kelly and Popovich, JJ. Popovich, J., files a dissenting opinion.

Author: Del Sole

[ 364 Pa. Super. Page 471]

The instant appeal stems from a medical malpractice action in which judgment was entered against Appellants, Josephine and Edward Jozsa. The primary theory advanced by Appellants was lack of informed consent. At the conclusion of the testimony, the trial judge directed a verdict in favor of Appellee, Jonathan Hottenstein, M.D. Post-trial motions were denied, and Appellants raise a single issue before this Court: did the trial court err in directing the verdict.

We begin our discussion with our appellate scope of review. "On a motion for a directed verdict, the trial court must accept as true all facts and inferences tending to support the contentions of the party against whom the motion has been made, rejecting all testimony and references to the contrary." Bucchianeri v. Equitable Gas Co., 341 Pa. Super. 319, 328, 491 A.2d 835, 840 (1985) (citations omitted). Our review of such decisions rendered at the trial court level centers on whether there exists 'an abuse of discretion or error of law which controlled the outcome of the case'. Ibid., citing McDevitt v. Terminal Warehouse Co., 304 Pa. Super. 438, 442, 450 A.2d 991, 993 (1982).

The facts viewed in this light are as follows. In April, 1979, Josephine Jozsa was involved in an automobile accident where she suffered various injuries, including an injury to her cervical spine. Mrs. Jozsa was treated by Dr. Hottenstein for her injuries. As part of her treatment, the Doctor placed Mrs. Jozsa under a program of conservative treatment and therapy for her cervical injury which included outpatient and inpatient physical therapy at Sewickley Valley Hospital. On or about July 26, 1979, Dr. Hottenstein performed a right carpal tunnel release operation on Mrs. Jozsa as an outpatient at Sewickley Valley Hospital.

Both Appellants testified that Dr. Hottenstein did not advise them of any risks or possible complications prior to the surgery. They also testified that they were advised by

[ 364 Pa. Super. Page 472]

Dr. Hottenstein that the surgical procedure, i.e., the carpal tunnel operation, could be done in an attempt to alleviate the wife's neck pain which had bothered her since her accident. The Appellants' account of what was told to them by Dr. Hottenstein concerning the benefit Mrs. Jozsa might expect as to relief of her neck pain was supported by Appellee's own testimony. Based solely on the Appellee-doctor's explanation that the surgery could alleviate her neck pain, Mrs. Jozsa agreed to have the operation. However, Dr. Hottenstein admitted that a carpal tunnel syndrome cannot cause cervical neck pain, and Dr. Imbriglia, Mrs. Jozsa's subsequent treating physician, testified that a carpal tunnel syndrome release should not be performed to treat a cervical strain. Dr. Imbriglia also testified that he did not think carpal tunnel syndrome causes neck pain.

As a result of the surgery, Mrs. Jozsa experienced extensive post operative complications including severe pain, swelling and impairment of motion and strength in her right hand which lasted seven months. Mrs. Jozsa also developed scar tissue formation of the median nerve, a complication which ultimately necessitated corrective surgery, which was performed by Dr. Imbriglia in February of 1980. Appellee, in his own case, admitted that the scar tissue formation was a complication. Dr. Imbriglia testified that the percentage of recurrence for carpal tunnel was 4-5%. Mrs. Jozsa, her husband, and Dr. Hottenstein all testified that she had no problem with her hand (prior to the carpal tunnel surgery) for which she was seeking medical help. At trial Mrs. Jozsa testified that she still has problems with pain and swelling of her right wrist when she attempts certain activities.

Appellants do not dispute Appellee's diagnosis of carpal tunnel syndrome, nor do they argue that Appellee was negligent. Rather, they contend Appellee performed the surgery without having secured informed consent from his patient.

In Pennsylvania, a patient's consent to a medical ...


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