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filed: September 20, 1988.


Appeal from the Judgment in the Court of Common Pleas of Philadelphia County, Civil at No. 2174, June 1983


William Sullivan, Philadelphia, for appellant.

William P. Murphy, Philadelphia, for Mitzelfelt, appellees.

Michael Saltzburg, Philadelphia, for Kamrin, appellees.

Montemuro, Tamilia and Johnson, JJ. Tamilia, J., files a concurring and dissenting opinion.

Author: Montemuro

[ 379 Pa. Super. Page 123]

This is an appeal from an Order in the Court of Common Pleas of Philadelphia County dated May 14, 1986, denying Riddle Memorial Hospital's motion for a new trial and judgment n.o.v.

The lawsuit that is the basis of this appeal arose out of a medical malpractice claim commenced by Nancy F. Mitzelfelt and her husband. In her complaint, Mrs. Mitzelfelt alleged medical negligence in connection with a neurosurgical procedure performed by Dr. Robert Kamrin at appellant Riddle Memorial Hospital. Also named in her suit were Dr. Robert Andre, Dr. Kamrin's co-practitioner; Neurological Associates, a professional corporation composed of the two doctors; and Riddle Memorial Hospital, whose negligence allegedly flowed from the acts of its agents administering the anesthesia. Riddle, in turn, cross-claimed against Drs. Kamrin and Andre, alleging that Mrs. Mitzelfelt's injuries were the result of the negligence of its co-defendants and not the result of any negligence on the part of the hospital or its agents. As a result of her surgery, Mrs. Mitzelfelt now suffers from quadriparesis, a weakening of her extremities.

Pretrial discovery revealed two possible causes for Mrs. Mitzelfelt's injuries: an uncorrected drop in blood pressure during surgery which cut off the blood flow to the spinal cord; and the positioning of the head of the patient during surgery. The first theory implicated the conduct of those medical personnel providing the anesthesia. The second implicated the surgeons who performed the procedure.

[ 379 Pa. Super. Page 124]

On the first day of trial, Dr. Kamrin, the Estate of Dr. Andre and Neurological Associates settled with and obtained a joint tortfeasor release from the Mitzelfelts. Consequently, counsel for the Mitzelfelts presented no expert testimony to establish negligence on the part of the surgeons. The Mitzelfelts did, however, call as their sole liability expert Dr. Henry Shenkin, who they had not previously named as an expert in their pretrial memoranda, but who was the expert of the defendant surgeons. The testimony of Dr. Shenkin revolved around a small portion of a report he prepared prior to trial which referred to the issue of anesthesia and the potential liability of Riddle. At the close of Plaintiffs' case, all Defendants moved for a compulsory non-suit and were denied. At the close of all the evidence at trial, the court, on the motion of the defendant surgeons entered a directed verdict in their favor, finding that there was no evidence of negligence against them as a matter of law. As against Riddle, the jury returned a verdict in favor of the Mitzelfelts in the amount of $3,000,000.00 which was subsequently molded to include delay damages. Riddle then filed timely post-trial motions, which were denied. The trial court entered judgment on the verdict and this appeal by Riddle followed. We reverse.

The question presented in this case is whether the appellees presented the competent expert testimony required to establish a prima facie case of medical malpractice. Resolution of this question is dependent upon whether the plaintiff's expert, Dr. Shenkin, expressed an opinion with sufficient certainty with respect to the cause of Mrs. Mitzelfelt's condition to allow the case to go to the jury. Because our review of the record reveals that Dr. Shenkin's opinion as to causation did not rise to the level of certitude necessary to constitute legally competent evidence, we find that the appellees failed to present a prima facie case of medical malpractice and accordingly reverse the judgment of the trial court.*fn1

[ 379 Pa. Super. Page 125]

As a preliminary matter we address appellees' contention that Riddle has waived this issue for purposes of appeal. In its post-trial motions Riddle set forth this claim as follows:

The trial court erred in refusing to grant a non-suit at the conclusion of plaintiff's case, where the only expert testimony offered by the plaintiffs on the question of negligence and causation was from Dr. Henry Shenkin, and where Dr. Shenkin testified that he could not say, within a reasonable degree of medical certainty, that a drop in blood pressure caused Nancy Mitzelfelt's paralysis.

The Mitzelfelts claim that Riddle has waived its challenge to the trial court's failure to grant a compulsory non-suit when it elected to put on its defense. In support of this proposition the Mitzelfelts cite Burns v. City of Philadelphia, 350 Pa. Super. 615, 504 A.2d 1321 (1986). In Burns we stated:

A compulsory non-suit can be granted at the close of plaintiff's case and before the defense presents any evidence. If the defendant elects to proceed, the non-suit stage is over and the correctness of the court's ruling is moot.

Id., 350 Pa. Superior Ct. at 623, 504 A.2d at 1325.

Because the defendant in Burns elected to present its case after the plaintiff had rested, we refused to address the propriety "of the motion for compulsory non-suit as such." Id. However, we went on to address the underlying arguments in support of the motion for non-suit as arguments in support of the defendant's motion for judgment n.o.v. Id. Here too, as in Burns, we will treat Riddle's underlying claim of error as an argument in support of its motion for judgment n.o.v.

The standard of review that we employ in considering the propriety of an order granting or denying judgment n.o.v. is the same as the trial court's: the appellate court must determine whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every reasonable inference which can reasonably be drawn from the evidence and rejecting all unfavorable

[ 379 Pa. Super. Page 126]

    testimony and inferences. Judgment n.o.v. may be granted only in a clear case where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Ingrassia Construction Company, Inc. v. Walsh, 337 Pa. Super. 58, 61, 486 A.2d 478, 480 (1984).

Riddle contends that the verdict was improper because the plaintiffs failed to meet their burden of proof. More specifically, Riddle argues that there was insufficient competent expert testimony for the issue of causation to be submitted to the jury. The general rule in this Commonwealth is that in order to establish a cause of action for medical malpractice, the plaintiff must present expert testimony establishing variance from accepted medical practice and that this deviation from community standards caused the plaintiff's injuries. Brannan v. Lankenau Hospital, 490 Pa. 588, 417 A.2d 196 (1980); Hamil v. Bashline, 481 Pa. 256, 267, 392 A.2d 1280, 1285 (1978); Denardo v. Carneval, 297 Pa. Super. 484, 489, 444 A.2d 135, 137 (1982). The only exception to the general requirement that expert testimony must be produced is "where the matter under investigation is so simple, and the lack of skill or want of care so obvious, as to be within the range of ordinary experience and comprehension of even nonprofessional persons." Chandler v. Cook, 438 Pa. 447, 451, 265 A.2d 794, ...

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