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September 18, 1997


Appeal from Order of the Superior Court entered August 10, 1995, at Nos. 3360 and 3476 Philadelphia 1994, affirming the Order of the Court of Common Pleas of Wyoming County, entered June 17, 1994, at No. 92-474. Before: Flaherty, C.j., Zappala, Cappy, Castille, Nigro, Newman, JJ.

The opinion of the court was delivered by: Zappala



This is a medical malpractice case involving claims of negligence in the performance of surgery and in post-operative care. The trial court granted the defendants a new trial, holding that under Gentile v. DeVirgilis, 290 Pa. 50, 138 A. 540 (1927), the issue of negligent after-care should not have gone to the jury. The Superior Court affirmed, Ferguson, 445 Pa. Super. 23, 664 A.2d 989 (1995). We granted allocatur, 544 Pa. 609, 674 A.2d 1072 (1996), and now reverse.

The Appellant, Lee E. Ferguson, sustained a knee injury, a rupturing of the right quadriceps tendon, which connects the quadriceps muscle in the thigh to the patella or kneecap. He came under the care of Appellee, Dr. Marius H. Panzarella, an orthopedic surgeon employed by Appellee Geisinger Medical Group. Panzarella performed surgery on April 29, 1990, to repair the damage. Thereafter Ferguson saw Panzarella at intervals of two to three weeks. In early June of 1990, Panzarella replaced the cast Ferguson had been wearing with a Bledsoe brace to allow flexing of the leg within a controlled range. In mid-July, Ferguson began physical therapy, but due to his dissatisfaction with the provider he asked Panzarella to arrange for the therapy elsewhere. This was done, and Ferguson attended therapy five days a week through August and September, and then two to three days a week. According to Ferguson, throughout this period he complained to the physical therapist and to Panzarella that he was in pain and that his knee did not feel right. He received several anti-inflammatory medications and, in December of 1990, a steroid injection to reduce swelling in the knee.

By this point, Ferguson testified, he became "disgusted" with Panzarella because he was not receiving any relief from the pain, and so he began seeking another doctor. He saw Panzarella again on February 8, 1991, at which time he refused Panzarella's suggestion of another steroid injection because the procedure was very uncomfortable and the previous injection had been ineffectual. At about this same time, his physical therapy was suspended. Ferguson saw Panzarella once more on April 19, 1991. Again he rejected Panzarella's recommendation of a steroid injection. According to Ferguson, he asked about the possibility of arthroscopy and Panzarella replied that it was unnecessary.

Between December of 1990 and September of 1991, Ferguson consulted with several physicians. The last of these, Dr. Rex A. Herbert, examined Ferguson and diagnosed his problem as arthritis due to improper "tracking" of the kneecap. In other words, the underside of the kneecap was rubbing against the thigh bone because the kneecap, instead of aligning in a centered and even fashion, was being pulled to the side, where it was closer to the bone. In October of 1991, Herbert performed arthroscopic surgery during which he smoothed the surface of the joint. He also "released" the tissue that was pulling the kneecap to the outside, thus allowing the kneecap to center itself better. In addition, he discovered and repaired a torn meniscus, which he described as cartilage that permits the even distribution of forces in the knee joint.

Ferguson brought this action alleging that Panzarella had been negligent in (1) failing to diagnose and repair the torn meniscus, which caused Ferguson pain and discomfort until it was corrected, (2) failing to properly align the kneecap during the surgery to repair the quadriceps tendon, which resulted in a permanent, painful and disabling arthritic condition, and (3) failing to provide proper post-operative care. The jury was instructed as to the three separate claims of negligence, and was also instructed as to the defense of contributory negligence, which the court explained was applicable only to the third claim. The verdict fixed damages at approximately $240,000 and apportioned sixty percent of causal negligence to Panzarella and forty percent to Ferguson.

On post-verdict motions, the Appellees argued, among other things, for judgment n.o.v. or a new trial. They asserted that the court erred in denying their motion for directed verdict as to the claim of negligence in post-operative care, citing Gentile v. DeVirgilis, 290 Pa. 50, 138 A. 540 (1927). The court agreed. Since it could not be determined whether the jury had found Panzarella negligent as to all claims or only as to the third claim, the court ordered a new trial.

The Appellant argues that the court erred in applying Gentile to these facts. *fn1 In that case, a woman, eight months pregnant, suffering with pain in her lower jaw went to a dentist, who recommended an extraction. According to the complaint, in the course of the procedure a tooth broke. The dentist told the woman to go home, rinse with salt water, apply an ice bag to her face, and return the next day for further examination and treatment. However, she did not return until four days later, by which time "a serious condition had arisen in her jaw." 290 Pa. at 52, 138 A. at 540. The dentist immediately referred her to a specialist, who removed the root of a tooth, allegedly the tooth that had broken during the extraction. Eventually, the woman was treated for osteomyelitis of the lower jaw and suffered scarring, disfigurement, and difficulty in chewing. The woman and her husband sued the dentist. The trial court directed a defense verdict. On appeal, we affirmed.

Ferguson argued that the Comparative Negligence Act effectively overruled or at least modified the holding of Gentile, and that where it is asserted that a patient did not cooperate in post-surgical treatment it is for the jury to assess the parties' relative fault, as occurred here. The trial court rejected this argument, emphasizing the following language from Gentile :

we cannot see wherein it could be said that defendant was guilty of any negligence. "It is the duty of the patient to cooperate with his professional adviser,...... but if he will not, or under the pressure of pain cannot, his neglect is his own wrong or misfortune, for which he has no right to hold his surgeon responsible."

Id., quoting McCandless v. McWha, 22 Pa. 261, 268 (1853). The court observed that we did not state that the plaintiff was barred from recovery because of contributory negligence. Rather we stated that it could not be found that the dentist was negligent. Thus the court interpreted Gentile as holding that a doctor may ...

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