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REBECCA NEAL v. MILTON LU (08/13/87)

filed: August 13, 1987.

REBECCA NEAL, A MINOR, BY HER PARENTS AND NATURAL GUARDIANS, DAVID C. NEAL AND CAROL W. NEAL; DAVID C. NEAL AND CAROL W. NEAL, IN THEIR OWN RIGHTS, APPELLANTS,
v.
MILTON LU, M.D., AND MILTON LU, D.D.S., M.S., F.A.C.S., LTD., APPELLEE



Appeal from the Judgment of the Court of Common Pleas of Lancaster County, Civil at No. 39, January, 1983.

COUNSEL

Theodore A. Schwartz, Philadelphia, for appellants.

Peter J. Curry, Harrisburg, for appellee.

Cavanaugh, Olszewski and Montemuro, JJ.

Author: Montemuro

[ 365 Pa. Super. Page 467]

Appellants in this medical malpractice action challenge the denial of their motions for a new trial and for judgment n.o.v. In the absence of any error that would justify a retrial, and because the evidence of record adequately supports the jury's verdict, we affirm the judgment of the Lancaster County Court of Common Pleas in favor of appellee Milton Lu, M.D.

Appellants allege in their complaint that Dr. Lu performed surgery on appellant Rebecca Neal negligently and without the informed consent of either Rebecca or her parents, appellants David and Carol Neal. The testimony and other evidence at trial revealed the following facts. In July of 1969, Rebecca, who was then three years old, amputated the tip of the ring finger on her right hand while playing on a swing in her back yard. She was treated at a nearby hospital by John W. Pratt, M.D., and was released apparently without further incident. In the years following this mishap, however, the finger developed a bulbous deformity on either side of the nail, and the nail itself curved at an odd angle over the end of the finger. The deformity embarrassed Rebecca and impeded her pursuit of musical and athletic activities at school. Rebecca and her mother therefore consulted Dr. Lu in January of 1981 about the possibility of corrective surgery. Dr. Lu advised the Neals that surgery could eliminate the bulbous deformity and straighten the nail. The Neals sought the "second opinion" of at least one other physician, who advised against a surgical solution to Rebecca's problem. Neither Rebecca nor her mother could recall the reasons for this advice. The Neals nevertheless decided that Rebecca would undergo the proposed surgery, and Dr. Lu operated on March 6, 1981.

The surgery, according to appellants, has worsened rather than corrected the condition of Rebecca's finger. Appellants offered evidence that the finger is shorter now than it was before surgery and that Rebecca has lost completely the use of the joint closest to the fingertip. In support of the negligence claim, the evidence offered by appellants

[ 365 Pa. Super. Page 468]

    suggests that Dr. Lu removed or "trimmed" bone from Rebecca's finger unnecessarily. Appellants' medical expert, moreover, testified that the "ill-conceived" failure to employ a skin graft in this case caused the death or "necrosis" of additional bone and tissue in the afflicted digit. In support of the informed consent claim, the parties agree that Dr. Lu decided during surgery to insert a "pin" into Rebecca's finger to ensure the straightness of the nail even though the doctor had informed neither Rebecca nor her parents of the possibility that he would have to do so. The parties also agree that Dr. Lu never informed the Neals of the possibility that he would "trim" bone from the finger.

Dr. Lu testified on his own behalf as the sole witness for the defense. He indicated that during surgery he had removed tissue and other matter from the affected area as planned. He repeatedly denied, however, that he had "trimmed" any bone other than the nail. The doctor also testified that although he had noticed some necrosis of the skin in the weeks following surgery, he never noticed any necrosis of the bone. He suggested that the surgery only appeared to shorten Rebecca's finger. In response to the testimony of appellants' medical expert, Dr. Lu offered his own "opinion" that the "traumatic amputation" of Rebecca's finger in 1969 was "clearly" a "possible" cause of the condition about which appellants now complain. The doctor further opined that if the 1969 accident itself did not sever bone from the fingertip, the treating physician at the time, Dr. Pratt, could not possibly have closed the wound without removing or trimming some portion of the bone itself. Counsel for appellants objected to this portion of Dr. Lu's testimony on two grounds. First, counsel maintained that Dr. Lu was attempting to testify as a medical expert even though he had neither listed himself as a prospective expert witness nor furnished appellants with a synopsis of his proposed testimony pursuant to general and local rules of discovery. Second, counsel observed that Dr. Lu had failed to render his opinion to "a reasonable medical certainty." The trial court nevertheless overruled these objections and allowed the testimony.

[ 365 Pa. Super. Page 469]

On February 22, 1985, the jury returned a verdict in favor of Dr. Lu. Appellants filed timely motions for post-trial relief, which the court denied. This appeal followed. Appellants now present three issues for our consideration:

I. Whether the trial court erred when it allowed the defendant physician in a medical malpractice case to render an expert opinion even though the defendant failed to list himself as a prospective expert witness and failed to furnish a synopsis of his proposed expert testimony as required by Pa.R.C.P. 4003.5 and Lancaster County Local Rule 212.

II. Whether the trial court erred when it allowed the defendant physician in a medical malpractice case to render an expert opinion on the issue of causation with less than "a reasonable medical certainty."

III. Whether the evidence on the issue of informed consent was so conclusive that it entitles appellants to judgment n.o.v.

We will address each of these questions in turn.

I.

In support of their request for a new trial, appellants point out that Dr. Lu failed during discovery to list himself as one of the experts the defense expected to call at trial. Appellants also point out that the doctor failed to disclose "the substance of the facts and opinions" about which he expected to testify. For these reasons, appellants contend that the trial court should have excluded Dr. Lu's "surprise" expert testimony. Their argument relies primarily upon Pa.R.C.P. 4003.5(a), which provides in relevant part as follows:

(a) Discovery of facts known and opinions held by an expert, otherwise discoverable under the provisions of Rule 4003.1 and acquired or developed in anticipation of ...


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