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07/23/97 NADINE HIGHTOWER-WARREN AND DESIREE

July 23, 1997

NADINE HIGHTOWER-WARREN AND DESIREE JONES-WRIGHT, GUARDIANS FOR THE ESTATE OF THEIR MOTHER, EUNICE EVANS, AN INCAPACITATED PERSON, APPELLANTS
v.
RAYMOND E. SILK, M.D. AND UNIVERSITY MEDICAL CENTER, APPELLEES



Appeal from the Superior Court Order at No. 3051 Phila 1995, affirming the Order of the Court of Common Pleas, Philadelphia County, Civil Division, entered August 9, 1995, May Term 1989, No. 3720. JUDGE(S) BELOW: CCP - Hon. Marvin R. Halbert / Superior - CAVANAUGH, TAMILIA, HOFFMAN, JJ.

Before: Flaherty, C.j., And Zappala, Cappy, Castille, Nigro And Newman, JJ.

The opinion of the court was delivered by: Nigro

JUSTICE NIGRO

DECIDED: July 23, 1997

This case presents the question of whether the Superior Court properly affirmed the entry of a non-suit in a medical malpractice action, finding that Appellants' claim could not proceed to the jury under a theory of res ipsa loquitur. We find that the Superior Court affirmance was improper as Appellants presented sufficient expert testimony and were entitled to proceed to the jury under a theory of res ipsa loquitur.

In May of 1987, Appellant Eunice Evans ("Evans") saw Appellee, Raymond E. Silk, M.D. ("Dr. Silk"), for treatment arising from an automobile accident which had occurred in February of that year. During a routine examination on June 13, 1987, Dr. Silk discovered an enlargement of Evans' left thyroid lobe. Dr. Silk determined that complete removal of Evans' thyroid, a thyroidectomy, was required in order to avoid recurrent problems and determine malignancy. During a thyroidectomy, the laryngeal nerve, one of two which make up the vocal cords, must be exposed and protected to prevent injury due to its close proximity to the thyroid.

Dr. Silk performed a thyroidectomy on Evans on June 23, 1987. After surgery Evans complained of hoarseness in her throat. Appellants, as guardians for Evans, brought a malpractice action against Dr. Silk alleging that he injured Evans' left laryngeal nerve during the removal of her thyroid. As a result, Evans suffered extreme hoarseness due to a paralyzed vocal cord.

At trial Appellants sought to introduce the videotaped deposition of their expert witness, John Bogdasarian, M.D. Appellees objected, claiming the expert testimony was too speculative as to the alleged breach of care and causation of the injury. After argument, the trial Judge ruled that Dr. Bogdasarian's testimony was inadmissible, finding it was too speculative to establish a causal connection between Dr. Silk's surgical treatment and Evans' vocal cord paralysis. Without another medical liability expert to present, a non-suit was entered against Appellants. Subsequently, Appellants filed Post-Trial Motions seeking removal of the non-suit and grant of a new trial, maintaining the proffered expert testimony was sufficient to proceed to the jury under a theory of res ipsa loquitur. The trial court denied Appellants' Post-Trial Motions, finding the deposition testimony failed to demonstrate that Dr. Silk's actions deviated from accepted medical standards. Further, the trial court determined that the case could not proceed under a theory of res ipsa loquitur because Dr. Bogdasarian's testimony failed to indicate that Evans' injury would not have occurred absent negligence or that other responsible causes had been eliminated. The Superior Court affirmed the denial of the Post-Trial Motions.

It is well-established that "a compulsory non-suit may be entered only when the plaintiff cannot recover under any view of the evidence, with every doubt resolved against its entry and all inferences drawn most favorably to the plaintiff." Scott v. Purcell, 490 Pa. 109, 113, 415 A.2d 56, 58 (1980)(citation omitted). Moreover, a plaintiff must be given the benefit of all favorable testimony and all reasonable inferences drawn therefrom. Id.

Under Pennsylvania law, to state a prima facie cause of action for a medical malpractice claim, a plaintiff must establish a duty owed by the physician to the patient, a breach of that duty by the physician, that the breach was the proximate cause of the harm suffered and the damages suffered were a direct result of the harm. Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 891 (1990). Further, the plaintiff must also provide a medical expert who will testify as to the elements of duty, breach and causation. *fn1 Id.

Appellants argue that Dr. Bogdasarian's expert testimony was sufficient to proceed to the jury under a theory of res ipsa loquitur. This Court first adopted the doctrine of res ipsa loquitur, as defined in the Restatement (Second) of Torts § 328(D), in Gilbert v. Korvette, Inc., 457 Pa. 602, 327 A.2d 94 (1974). Further, this Court has applied the doctrine in medical malpractice cases. Jones v. Harrisburg Polyclinic Hospital, (supra) . Under a res ipsa loquitur theory of liability, it may be inferred that the harm suffered is caused by the negligence of the defendant when:

(a)

the event is of the kind which ordinarily does not occur in the ...


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