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Bells v. Willis

Superior Court of Pennsylvania

November 8, 2013

LILLIAN M. BELL, ADMINISTRATOR OF THE ESTATE OF LYNN CHRISTINE SEWAK, DECEASED, AND LILLIAN M. BELL AS REPRESENTATIVE OF THE ESTATE OF THE INTESTATE HEIRS, Appellants
v.
JOSEPH C. WILLIS, DC; BRAD TODARO, DC; THE CHIROPRACTIC CENTER, PC; AND ALLEGHENY ADVANCED CHIROPRACTIC, LLC.

Appeal from the Judgment Entered August 31, 2012, in the Court of Common Pleas of Washington County Civil Division at No. Case No. 2008-412

BEFORE: FORD ELLIOTT, P.J.E., OTT AND MUSMANNO, JJ.

OPINION

FORD ELLIOTT, P.J.E.

Lillian M. Bell, administratrix of the estate of Lynn Christine Sewak, deceased, and as representative of the estate of the intestate heirs, appeals from the judgment entered August 31, 2012, in this chiropractic malpractice case. Finding no error, we affirm.

In October 2006, Ms. Sewak treated with both Brad Todaro ("Todaro") and Joseph Willis ("Willis"), chiropractors. She presented with complaints of neck pain, headaches, and dizziness. Todaro and Willis performed cervical neck manipulations/mobilizations. On October 24, 2008, the morning after her last visit with Willis, Ms. Sewak suffered a vertebral artery dissection and massive stroke. The stroke resulted in Ms. Sewak being in a "locked-in" state, i.e., fully conscious and cognitively aware but unable to move except for her eyes. Ms. Sewak eventually died approximately 18 months later, on May 2, 2008, due to a massive infection.

A complaint was filed on January 15, 2008, alleging that appellees were negligent and that their negligence increased the risk of Ms. Sewak suffering a vertebral injury/stroke. Appellant retained expert witnesses to testify that the cervical manipulations/mobilizations were the cause of the vertebral artery dissection and stroke. Appellant also included claims for lack of informed consent for failure to inform Ms. Sewak of the dangers and potential side effects of the procedures.

Prior to trial, the trial court granted appellees' motions in limine to exclude appellant's lack of informed consent claims, as well as wrongful death and survival claims. Following a nine-day jury trial, a verdict was returned in favor of appellees. Post-trial motions were denied, and this timely appeal followed. Appellant complied with the trial court's order to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion.

Appellant presents the following issues for this court's review:

1. Whether the trial court abused its discretion and/or committed an error of law by dismissing [appellant]'s cause of action based on lack of informed consent against chiropractors[?]
2. Whether the trial court abused its discretion and/or committed and [sic] error of law by denying [appellant]'s motion to amend complaint to reflect a survival act cause of action[?]

Appellant's brief at 4.

Pennsylvania law is clear that a lack of informed consent claim cannot lie against a chiropractor for performing chiropractic manipulations, because they are non-surgical procedures. As this court stated in Matukonis v. Trainer, 657 A.2d 1314 (Pa.Super. 1995), appeal granted, 542 Pa. 648, 666 A.2d 1057 (1995):

[A] cause of action for failure to obtain informed consent has been steadfastly limited to surgical or operative medical procedures. Since chiropractors are statutorily proscribed from performing any surgical procedures, 63 P.S. ยง 625.102, and appellant does not allege that appellee performed a surgical or operative procedure, a cause of action against a chiropractor for failure to ...

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