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ANTHONY MALISZEWSKI AND JOSEPHINE MALISZEWSKI v. DR. ROBERTO RENDON (06/06/88)

filed: June 6, 1988.

ANTHONY MALISZEWSKI AND JOSEPHINE MALISZEWSKI, H/W, APPELLANTS,
v.
DR. ROBERTO RENDON, DR. GORDON VAN DEN NOORT, DR. ALBERT WAGMAN



Appeal from the Order of the Court of Common Pleas, Montgomery County, Civil Division, at No. 81-00223.

COUNSEL

Arnold J. Wolf, Philadelphia, for appellants.

Mary C. Driscoll, Norristown, for appellees.

Brosky, Beck and Cercone, JJ. Beck, J., concurs in the result.

Author: Brosky

[ 374 Pa. Super. Page 110]

This is an appeal from an order denying appellants' motion for a new trial. Appellees were granted summary judgment at the close of appellants' case, the trial court finding that appellants had failed to prove an essential element of their case.*fn1

Appellants present six issues for our consideration: (1) whether their informed consent case was properly dismissed for failure to provide expert testimony asserting appellants had suffered injury additional to the back surgery itself; (2) whether a non-surgeon physician was properly dismissed where he provided inaccurate information regarding the probability of success of the proposed back surgery; (3) whether the lower court erred in excluding portions of medical records because they contained medical opinions; (4) whether the trial court erred in preventing cross-examination of the defendants by reference to an authoritative text; (5) whether the trial court erred in limiting cross-examination as to the cause of appellants' post-surgical back pain; and (6) whether the trial court erred in denying a requested continuance. Upon consideration of arguments advanced by both parties, we affirm the order appealed from.

In the last week of April of 1977, appellant, Mr. Maliszewski, injured his head and back at work. In the first week of

[ 374 Pa. Super. Page 111]

May he experienced a foot drop evidenced by loss of sensation and control. At the recommendation of his family physician he consulted Dr. Wagman, a neurologist, on June 21, who recommended hospitalization. After further consultation with his family physician appellant was admitted to Abington Memorial Hospital on June 23, and placed under the care of Dr. van den Noort, a neurosurgeon. Following an examination Dr. van den Noort concurred with Dr. Wagman's earlier diagnosis of an intervertebral herniated disk at L4-5, and ordered a myelogram and nerve conduction studies to confirm his findings.

The myelogram results were abnormal indicating a small defect at L4-5 on the right; however, they did not confirm the diagnosis of a herniated disk. The electromyogram demonstrated electrical abnormality in the muscles supplied by a nerve root in the lumbar spine. No impairment was present in the peripheral nerves, ruling out peroneal nerve palsy.

Based on Mr. Maliszewski's clinical presentation, examination and the testing results, Dr. van den Noort determined that surgery was advisable to explore and remove any diseased disks, as any delay would decrease the chances of appellant obtaining a return of power to his right foot. However, Dr. van den Noort still perceived the probability of regaining use of the foot as remote. Appellant consented to surgery to prevent the worsening of his foot paralysis.

During surgery Dr. van den Noort excised an abnormal disk located at the fourth and fifth lumbar vertebrae. Thereafter, according to medical records, Mr. Maliszewski's foot drop steadily improved and ultimately ...


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