80 A.3d 476
Pa. Super. Ct.2013Background
- Decedent Lynn Sewak received cervical neck manipulations from chiropractors Brad Todaro and Joseph Willis for neck pain, headaches, and dizziness.
- The day after her last chiropractic visit, Sewak suffered a vertebral artery dissection and massive stroke, rendering her "locked-in." She died about 18 months later from infection.
- Plaintiff (administratrix Lillian M. Bell) sued for chiropractic malpractice, alleging the manipulations caused the dissection/stroke and also asserted lack of informed consent claims.
- Trial court granted defendants’ motions in limine excluding the lack-of-informed-consent claims and rejected plaintiff’s attempt to plead a Survival Act cause of action late in the case.
- After a nine-day jury trial, the jury returned a defense verdict. Post-trial motions were denied and plaintiff appealed those two procedural rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether informed-consent claim against chiropractors was wrongly dismissed | Chiropractors should owe an informed-consent duty for manipulations; court should follow states like Wisconsin | Pennsylvania precedent limits informed-consent to surgical/operative procedures; chiropractors perform non-surgical care | Court affirmed dismissal: informed consent does not extend to non-surgical chiropractic procedures under PA law |
| Whether plaintiff should have been allowed to amend complaint to add a Survival Act claim | Estate should be permitted to add survival claim after decedent's death | Amendment was untimely because survival claim accrued at death and statute of limitations had expired | Court affirmed denial: amendment filed well after two-year limitations period, so amendment properly refused |
Key Cases Cited
- Matukonis v. Trainer, 657 A.2d 1314 (Pa. Super. 1995) (refuses informed-consent claims against chiropractors for non-surgical manipulations)
- Morgan v. MacPhail, 704 A.2d 617 (Pa. 1997) (supreme court reaffirming informed-consent limited to surgical/operative procedures)
- Pastierik v. Duquesne Light Co., 526 A.2d 323 (Pa. 1987) (survival action accrual occurs, at the latest, at decedent's death)
- Holt v. Lenko, 791 A.2d 1212 (Pa. Super. 2002) (survival action may be brought by administrator to recover losses to the estate)