Appeal from the Order of the Court of Common Pleas, Allegheny County, Civil Division, at No. GD 81-7689. Before WEKSELMAN, J.
Fred S. Longer, Philadelphia, for appellant.
Edmund L. Olszewski, Jr., Pittsburgh, for appellees.
Del Sole, Kelly and Brosky, JJ. Del Sole, J., notes his dissent.
[ 423 Pa. Super. Page 386]
This is an appeal from an order denying post-trial relief and affirming the grant of a non-suit in an informed consent case. Appellant raises one issue for our consideration, whether it was error to grant appellee's motion for non-suit where appellant introduced deposition testimony of the appellee/defendant physician that indicated that facial paralysis was a common complication associated with a microvascular decompression procedure, where she testified, and the doctor admitted, that he did not inform appellant of this risk and where appellant suffered a facial paralysis after the surgical procedure was completed? After considerable study of the various issues raised or implicated in this appeal we reverse the order denying post-trial motions and grant appellant a new trial.
On March 1, 1979, after suffering from a condition known as trigeminal neuralgia for many years, appellant sought medical evaluation from appellee Jannetta, a medical specialist in the field of cranial neurosurgery. Trigeminal neuralgia is a condition which results in the experiencing of severe pain in one or more facial areas associated with the fifth cranial nerve. Prior to meeting with Dr. Jannetta appellant had several surgical procedures performed in an effort to obtain relief from her facial pain. However, none of these provided any long term relief. Dr. Jannetta admitted appellant to Presbyterian University Hospital to consider performing a craniotomy and microvascular decompression of the fifth cranial nerve. Appellant ultimately had this surgery performed but afterwards experienced no relief from the facial pain. Furthermore, appellant experienced facial paralysis subsequent to the surgery.
Appellant filed suit against appellees and pursued a battery action on the theory of a lack of informed consent. Proceeding pro se appellant deposed Dr. Jannetta and others and ultimately proceeded to trial. Quite unusually appellant did not produce an expert witness retained by herself. Instead appellant called Dr. Jannetta in an apparent effort to establish the expert witness aspects of her case. During questioning Dr. Jannetta was asked if he told appellant of the risk of
[ 423 Pa. Super. Page 387]
suffering facial paralysis as a result of the surgery performed. Dr. Jannetta testified that he did not because at the time the surgery was performed he did not regard facial paralysis as a risk of the surgery appellant underwent. In response to Dr. Jannetta's answers, appellant produced a copy of Dr. Jannetta's deposition testimony after which the following exchanges, including reading from the deposition, took place:
Q. . . . I had asked you if you could tell me what you told me about the surgery and your answer was: I invariably talked about the operation and what we planned to do and possible and major complications.
Question: What would those be?
And your answer was: Bleeding, infection, paralysis, strokes, loss of hearing of the ear, loss of coordination, facial paralysis.
Q. Do you recall your answer was: I can't recall. I probably discussed microvascular decompression and the risks thereafter?
A. I'm sure that's what it would have been.
Q. And the following question: What risks were they? And your answer was: the risks that I invariably talked about are death, stroke, bleeding, infection, facial palsy, lack of hearing, loss of hearing on that side, and numbness.
After appellant had rested her case appellees moved for a non-suit arguing that appellant had failed to make a prima facie case. At the core of this argument was the contention that appellant had produced no expert testimony to establish that facial paralysis was a known risk of the surgery performed. Additionally, it was argued that the deposition testimony that seemingly acknowledged this risk, and upon which appellant was relying, could not be used by appellant to ...