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CORRIGAN v. METHODIST HOSP.

December 6, 1994

JUDY CORRIGAN
v.
METHODIST HOSPITAL, SANFORD H. DAVNE, MD. and DONALD MYERS, MD.



The opinion of the court was delivered by: J. CURTIS JOYNER

 JOYNER, J.

 Before this Court today is Defendant Davne's motion for partial summary judgment on claims against him relating to certain VSP Screws used in Judy Corrigan's surgery. The claims he identifies as ripe for summary judgment are those of negligence in implanting the VSP Screws, lack of informed consent in general and in particular regarding the VSP Screws, and all punitive damages claims against him.

 FACTUAL BACKGROUND

 Corrigan's Complaint alleges that on July 9, 1991, she first sought medical treatment for back pain from the defendant doctors, Davne and Myers. After several months of treatment for this condition, Davne and Myers purportedly represented to Corrigan that surgery was the only available option to improve her condition. On March 5, 1992, Corrigan underwent a lumbar foramenotomy, L4-5 discectomy and posterior lateral lumbar fusion at defendant Methodist Hospital.

 Following her discharge on March 14, 1992, Corrigan continued to be followed by Davne and Myers, who prescribed various narcotic medications to relieve the continued intractable pain in her back and legs, muscle spasms and cramping. These symptoms apparently failed to abate and, in fact, grew worse with time. As a result, in October, 1992, Corrigan consulted doctors Mark Kotopka, John Esterhai and M.D. Cheatal at the Hospital of the University of Pennsylvania. On November 11, 1992, after several clinical examinations and tests, including an MRI, she was diagnosed as suffering from a thoracic meningiomal tumor at the T6 level.

 Corrigan filed this lawsuit on March 4, 1994 alleging that the defendant doctors and Methodist had failed to obtain her informed consent for the lumbar fusion surgery in that 1) she was not advised that they planned to use the Acromed VSP plate and pedicle screw system *fn1" in the surgery; 2) there was a risk of screw failure which could lead to an increase in pain, suffering and disability; 3) the use of the VSP plate and pedicle screw system was still considered investigational for use in lumbar fusion procedures; or 4) that Davne and Myers had a financial interest in Acromed by virtue of the fact that they held stock options and served as members of Acromed's Medical Advisory Board. The complaint further alleges that all defendants were negligent in failing to appropriately diagnose and treat Corrigan's meningiomal tumor with the result that she was forced to suffer unnecessary surgery and pain. *fn2"

 SUMMARY JUDGMENT STANDARD

 In considering a motion for summary judgment, a court must consider whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The court must determine whether the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 In making this determination, all of the facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences must be drawn in favor of the non-moving party. Id. at 256. Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990), cert. denied, 499 U.S. 921, 113 L. Ed. 2d 246, 111 S. Ct. 1313 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)).

 DISCUSSION

 1. NEGLIGENCE

 To make out a prima facie case of medical malpractice, a plaintiff must present expert testimony to show, to a reasonable degree of medical certainty, that the "acts of the physician deviated from good and acceptable medical standards." Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 892 (1990). A "specialist acting within his or her specialty . . . 'is expected to exercise that degree of skill, learning and care normally possessed and exercised by the average physician who devotes special study and attention to the diagnosis and treatment' of diseases within the specialty." Maurer v. Trustees of University of Pennsylvania, 418 Pa. Super. 510, 517-18, 614 A.2d 754, 758 (1992), app. granted, 534 Pa. 640, 626 A.2d 1158 (1993) (quoting Pratt v. Stein, 298 Pa. Super. 92, 156, 444 A.2d 674, 708 (1982)).

 Davne asserts that "plaintiff's experts fail to establish that Dr. Davne departed from accepted standards of care by implanting the VSP Screws into the plaintiff's spine." Therefore, he argues, ...


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