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05/07/97 FRANK JOYCE AND KELLY ANNE JOYCE HUSBAND

May 7, 1997

FRANK JOYCE AND KELLY ANNE JOYCE, HUSBAND AND WIFE, APPELLANTS VS BOULEVARD PHYSICAL THERAPY & REHABILITATION CENTER, P.C., A/K/A BOULEVARD PHYSICAL THERAPY AND REHABILITATION CENTER, KAREN GENTRY, RPT, RANDALL N. SMITH, M.D., AND PALMACCIO-SMITH ASSOCIATES


Appeal from the Order dated August 8, 1996 docketed August 20, 1996 in the Court of Common Pleas of Philadelphia County, Civil No. 1360 May Term, 1989. Before SABO, J.

Before: Cirillo, P.j.e., and Johnson and Olszewski, JJ. Opinion BY Cirillo, P.j.e.

The opinion of the court was delivered by: Cirillo

OPINION BY CIRILLO, P.J.E.:

FILED MAY 07, 1997

Frank Joyce and Kelly Anne Joyce appeal from an order entered in the Court of Common Pleas of Philadelphia County granting appellees' motion for nonsuit. We reverse.

While working on the roof of the Franklin Mills Mall in Philadelphia, Frank Joyce slipped and injured his right knee. After experiencing frequent buckling of the knee, Joyce sought care at Franklin Hospital. At the hospital his knee was placed in an immobilizer and he was instructed to see Dr. Randall Smith, an orthopedic surgeon. Dr. Smith provided care to Joyce, but was unable to make a conclusive diagnosis. He did, however, instruct Joyce to continue to wear the immobilizer and prescribe a regimen of physical therapy treatment which he recommended should be undertaken at Boulevard Physical Therapy and Rehabilitation, P.C. ("Boulevard"). Although Dr. Smith noted in Mr. Joyce's medical file that he was not to remove the immobilizer, this file was not sent to Boulevard. Moreover, the prescription sheet neither mentioned a diagnosis, nor did it contain an instruction prohibiting a physical therapist from removing the knee immobilizer or an instruction to the physical therapists at Boulevard to contact him (Dr. Smith) prior to removing the immobilizer from Joyce's knee.

Approximately one week later, Joyce commenced his treatment at Boulevard under the supervision of physical therapist Karen Gentry. Unaware of any instructions to the contrary, Ms. Gentry removed the immobilizer during treatment and replaced it at its Conclusion. After his third treatment, Ms. Gentry instructed Joyce to refrain from wearing the immobilizer altogether, because she felt that his knee was improving. Upon arriving home from his third treatment, and eager to further the progress which he thought he was making, Joyce performed exercises without his immobilizer as directed by Ms. Gentry. During the exercises, however, his knee buckled, and he fell, striking his head and right knee upon the floor. Joyce was subsequently taken to the hospital where he was diagnosed with severe chondromalacia. *fn1

Joyce initiated a lawsuit against Dr. Smith and Boulevard alleging that Dr. Smith was negligent in failing to contact Boulevard either in writing or orally to explain that Joyce was required to wear the immobilizer until further notice. *fn2 At trial, Joyce offered testimony from Dr. Irving R. Ratner, a Board Certified orthopedic surgeon, that the standard of care that orthopedic surgeons must undertake in referring their patients to physical therapy treatment centers is to contact the center, either orally or in writing, to explain any specific instructions that the center must follow. Dr. Ratner opined that in failing to specifically discuss Mr. Joyce's case with the physical therapist, Dr. Smith had breached his duty to appellant. Following Dr. Ratner's testimony, counsel for appellees objected, contending that Dr. Ratner had merely presented his own personal opinion of the standard of care, rather than an objective standard of care as required by law. The trial court reserved its ruling until the Conclusion of the Joyces' case. After the plaintiffs rested, appellees renewed their objection. Upon hearing argument, the trial court sustained Boulevard's objection and struck Dr. Ratner's testimony. Immediately thereafter, appellees moved for a nonsuit, since Joyce had failed to elicit the standard of care much less a breach thereof. Agreeing with the appellees, the trial court granted their motion for nonsuit. Joyce filed a timely motion for removal of the nonsuit which was denied. This appeal followed. The Joyces present the following issues for our consideration:

1. Did the trial court not [sic] err in granting the motion for nonsuit after the defendants had marked and introduced exhibits raising elements of their defenses in the plaintiffs' case-in-chief, thereby eliminating the court's ability to consider only the plaintiffs' evidence for purposes of nonsuit?

2. Did the trial court not [sic] err when, after plaintiffs' expert orthopedic surgeon explicitly testified that, based on the standard of care in the community as known to him through his years of experience in the specialty, the defendant breached the standard of care, the court nonetheless struck all of the expert's testimony as being the expert's personal opinion, even after the expert expressly stated that his opinion was not mere personal opinion?

3. Did the trial court not [sic] err when it required that written medical literature must be relied on as a basis for a medical expert's opinion that a defendant surgeon breached the standard of care?

4. Did the trial court not [sic] err when it determined that the doctor-patient relationship between the defendant and the plaintiff was severed when the doctor ordered the plaintiff to be given physical therapy, when the doctor negligently omitted instructions to the therapist and the therapist was working under the doctor's orders?

5. Did the trial court not [sic] err in refusing to permit plaintiffs to present expert testimony on causation, although plaintiffs in pretrial expert discovery set forth the opinion that the negligence of defendants caused plaintiff's injuries?

Our standard of review in determining the propriety of an entry of nonsuit is that it is proper only if the factfinder, viewing all the evidence in favor of the plaintiff, could not reasonably conclude that the essential elements of a cause of action have been established. Biddle v. Johnsonbaugh, 444 Pa. Super. 450, 664 A.2d 159 (1995); Orner v. Mallick, 432 Pa. Super. 580, 584, 639 A.2d 491, 492 (1994). "When a nonsuit is entered, the lack of evidence to sustain the action must be so clear that it admits no room for fair and reasonable disagreement." Gregorio v. Zeluck, 451 Pa. Super. 154, 158, 678 A.2d 810, 813 (1996) (citing Dion v. Graduate Hospital of Univ. of Pennsylvania, 360 Pa. Super. 416, 520 A.2d 876 (1987)). A compulsory nonsuit can only be granted in cases where it is clear that a cause of action has not been established and the plaintiff must be given the benefit of all favorable evidence along with all reasonable inferences of fact arising from that evidence, resolving any conflict in the evidence in favor of the plaintiff. Coatesville Contractors ...


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