*2 MONTEMURO, JOHNSON, Before TAMILIA and JJ. MONTEMURO, Judge: an from appeal
This is an Order Court Common 14, 1986, Pleas of Philadelphia County May dated denying Hospital’s Riddle Memorial motion for a new trial and judgment n.o.v.
The lawsuit that is the basis this appeal arose out of a claim malpractice commenced F. by Nancy Mitzel- *3 felt and her complaint, husband. her Mrs. Mitzelfelt alleged negligence in neurosurgi- connection awith procedure cal performed Dr. Robert appellant Kamrin at Riddle Memorial Hospital. Also named in her suit were Dr. Andre, co-practitioner; Robert Dr. Kamrin’s Neurological Associates, a professional of corporation composed the two doctors; and Hospital, Riddle Memorial whose negligence flowed the allegedly agents from acts of its administering Riddle, the turn, anesthesia. in against Drs. cross-claimed Andre, Kamrin and alleging Mrs. Mitzelfelt’s injuries were the result of the of negligence its co-defendants and not the result of negligence on the of any part the hospital or its As agents. a result of her Mrs. surgery, Mitzelfelt now suffers weakening from a of ex- quadriparesis, her tremities.
Pretrial discovery possible revealed two causes for Mrs. Mitzelfelt’s an injuries: uncorrected in blood during cut surgery which off the blood to the spinal flow cord; the positioning during of the head of patient the The surgery. theory first the of implicated conduct those medical personnel The providing anesthesia. second implicated the surgeons who performed procedure. trial, Kamrin, of Dr. Dr. the Estate day the first
On settled with and ob- Neurological Associates Andre the Mitzelfelts. Con- release from tortfeasor joint tained a expert no presented for the Mitzelfelts counsel sequently, the sur- part on the to establish did, however, call as their sole Mitzelfelts geons. Shenkin, previ- had not they Dr. who Henry liability expert memoranda, but pretrial an their expert named as ously surgeons. The testi- of the defendant who was of a portion revolved around a small Dr. Shenkin mony of the issue trial which referred to prior to prepared he report At of Riddle. potential liability of anesthesia and compul- Defendants moved for a all close of Plaintiffs’ all the denied. At the close of and were sory non-suit court, the defendant trial, on the motion of at evidence favor, finding a directed verdict their entered surgeons them as a negligence against no evidence that there was Riddle, jury returned against As matter law. $3,000,- in the amount of of the Mitzelfelts verdict favor delay to include subsequently molded 000.00 which was motions, timely post-trial filed Riddle then damages. on the judgment court entered denied. The trial were followed. We reverse. Riddle appeal by and this verdict appel- in this case is whether presented The question required competent expert testimony presented lees Resolu- malpractice. of medical facie case prima establish plain- whether the dependent upon tion of this suffi- an expressed expert, tiff’s *4 of Mrs. Mitzelfelt’s to the cause respect cient our to to the Because go jury. to allow the case condition as to that Dr. Shenkin’s of the record reveals review necessary of certitude rise to the level causation did not evidence, we find that competent legally constitute of medical case present prima failed to appellees facie judgment reverse the accordingly malpractice trial court.1 we need not address the other of this issue
1. Because of our resolution appellant’s brief. issues raised in As a matter we address preliminary appellees’ con tention that Riddle has waived this issue for purposes appeal. post-trial its motions Riddle set forth claim this as follows:
The trial court in refusing grant erred a non-suit at the plaintiff’s conclusion of the only expert where testi- offered mony plaintiffs on the of negli- gence and causation was from Dr. Henry where Dr. Shenkin testified that he could not within say, degree reasonable that a certainty, caused Mitzelfelt’s Nancy paralysis. The Mitzelfelts claim that Riddle has waived its challenge to the trial court’s failure to grant a non-suit compulsory when put it elected to on its In support defense. of this proposi- tion the Mitzelfelts cite Burns v. City Philadelphia, Pa.Super. In Burns we stated: A compulsory nonsuit can be granted at the close of plaintiff’s case and presents before defense any evi- dence. If the defendant elects to proceed, the non-suit stage is over and the correctness of the ruling court’s moot.
Id.,
350 Pa.Superior Ct. at
Because the defendant in present Burns elected to its case rested, plaintiff after the had we refused to address the “of propriety the motion for compulsory non-suit as such.” However, Id. we went on to address the underlying argu- ments in support of the motion for non-suit arguments support of the defendant’s motion judgment for n.o.v. Id. too, Burns, Here as in we will treat Riddle’s underlying claim of argument error as an in support of its motion for judgment n.o.v.
The standard of considering review that we employ propriety granting of an order or denying judgment n.o.v. is the same as the trial court’s: the appellate court must determine whether there was sufficient competent evidence verdict, to sustain the granting the verdict winner the benefit of every reasonable inference which reasonably can be drawn from the evidence and rejecting all unfavorable
126 testimony and inferences. Judgment n.o.v. may granted be only a clear case where the facts are such that no two reasonable minds could fail to agree that the verdict was Ingrassia Construction Company, improper. Inc. v. Walsh, 58, 61, 478, 337 Pa.Super. (1984). 486 A.2d 480
Riddle contends that
the verdict
improper
be
plaintiffs
cause the
failed meet their
proof.
burden of
More specifically, Riddle argues that there was insufficient
competent expert
for
testimony
the issue of causation to be
submitted to the
jury.
general rule in this Common
wealth is that in order to establish a cause of action for
malpractice,
medical
the plaintiff
present
must
expert testi
mony establishing variance from accepted
practice
medical
and that this deviation from community standards caused
the plaintiffs injuries. Brannan v. Lankenau Hospital,
588,
Bashline,
(1980);
490 Pa.
417
Hamil v.
A.2d 196
481
256, 267,
1280,
Pa.
(1978);
392 A.2d
Denardo v.
1285
Carneval,
484, 489,
Pa.Super.
135,
297
444
A.2d
The only exception to the general requirement
expert
testimony
produced
must be
is “where the matter under
investigation is so
simple,
the lack of skill or want of
obvious,
care so
as to be within the range of ordinary
experience
comprehension
of even nonprofessional per
Cook,
Chandler v.
sons.”
447, 451,
794,
438 Pa.
265 A.2d
Yohe,
(1970),
Smith v.
citing
412 Pa.
As in cases, other negligence plaintiff a medical malpractice case bears the burden of proving a causal 2. present We note readily distinguishable that the case is from Brannan Hospital, (1980), v . Lankenau 490 Pa. which has upon by Brannan, been relied supreme the dissent. our court held testimony necessary was not hospital to establish that notify attending physician staffs failure to patient’s of a deterio rating negligent Instantly, condition was conduct. whether Mrs. Mit present zelfelt’s medical condition was caused the conduct of the personnel provided medical during surgery who the anesthesia her complex requires quali of a expert. fied medical the wrongful nexus between conduct and the injury part case. The prima plaintiffs “burden of proof” facie *6 encompasses on this issue two separate and distinct bur- McCORMICK, dens. C. HANDBOOK OF THE LAW OF 336, (3d 1984). at 947 burden, EVIDENCE ed. The first § production, the burden of refers to the responsibility of the present evidence of plaintiff sufficient and quality weight intelligent reasonably that men could believe in the exist- link sought ence of the causal If be established. the burden, fails to this plaintiff satisfy initial it in- becomes upon judge cumbent the trial to remove the issue from the by jury, consideration since decision reached any by the jury based consideration of this evidence would involve an inordinate amount of speculation and conjecture. W. PROSSER, 37, HANDBOOK OF THE LAW OF TORTS § (4th 1971). If plaintiff at 205 ed. succeeds in presenting evidence of sufficient quality weight so that the evi- dence is allowed to reach the jury, he or she must then burden, the second satisfy persuasion. the burden of The persuasion burden of convincing involves jury preponderance of the evidence shows defendant’s conduct to have been substantial cause of the harm to the plain- Hamil, 265, tiff. 481 supra Pa. at 392 A.2d at 1284. yardstick
The
which it is
by
determined whether the
expert testimony presented by
plaintiff
is of a sufficient
quality
weight
so as to be proper
jury
evidence for
consideration is “reasonable medical certainty.”3
See
410,
Jones v.
494
Hospital,
Pa.
Montefiore
exception
general
requiring
3. There is a limited
to the
rule
that the
expert opinion
certainty
respect
demonstrate reasonable
to the
Bashline, supra,
supreme
issue of causation.
In Hamil v.
our
court
exception
general
applied
carved a narrow
to the
rule to be
in a
323(a)
limited
(second)
In
context.
cases to which Section
of the Restatement
cases”,
applies,
of Torts
the so called "lost chance
the issue of
may
jury upon
showing
causation
be submitted to the
a lesser
Id.,
269,
certainty.
(1981); express need not his Although standard, enunciate the legal that we use to language same in its must demonstrate reason- entirety, taken opinion, the result came from the able v. General Accident Insurance Pirches alleged. cause 308, 1349, 303, 511 A.2d 1352 Pa.Super. 354 Company, Glover, v. Pa.Super. 263 396 A.2d Kravinsky (1986); (1979). Perhaps expression the most authoritative it, rule, and the reasons behind was set forth policy Young, court McMahon v. our Pa. supreme McMahon, (1971). In testified that physician A.2d 534 a cause and effect “probably relationship there was be- injury” accident and the and that the automobile tween the “consistent with that sort of injury.” accident was *7 legally the did not constitute finding physician’s evidence, opined: the court competent has to not that the condition of expert testify, ... [T]he have, did, might the claimant or even come probably theory present is the the case that defendant’s act or omission duty protect against failed in a harm from another source. To only a claim a fact-finder must consider not what did resolve such occur, occurred, i.e., might but also what have whether the harm independent trom the source even if defendant would have resulted had non-negligent performed in a manner. Such a his service necessarily might happened requires determination as to what have weighing probabilities. of patterns Id. The court further reasoned that because fact which fall 323(a) "by very of Section their nature elude the within the confines degree ly certainty prefer upon of one would the law normal- liable", person may before a be held these cases will be insists showing permitted go jury upon to the that the defendant’s acts or plaintiff." have the risk of harm to the Id. In omissions finding "increased given proof appropriate of that a lower standard was the cases, peculiar nature of such the court in Hamil also noted its decision was not meant "to undermine the well-established standard of 'reasonable degree certainty’ accepted of medical as the norm for Thus, opinions exception the medical on causation.” Hamil to the degree required expert testimony applies only normal to of certitude for malpractice resulting medical in which "the harm from those cases improper distinguish the treatment or lack of treatment is difficult to given from the harm which could result even the best treatment.” See Note, Sufficiency Increased Risk of Harm: A New Standard for Cases, Malpractice Evidence of Causation in Medical 65 B.U.L.Rev. accident, opinion in his professional but that from A alleged. came from the cause result in falls below the re- expression opinion direct less legally and does not constitute proof standard quired competent evidence ... one semantics. There is a merely
The issue is not of a medical opinion reason for the rule. logical If to believe is evidence. the fact finder chooses expert it, gave opinion. as an expert he can find as fact what damages particular for a For a fact finder to award it must find as a fact that that plaintiff condition to a conduct. condition was caused the defendant’s legally Here, that it “proba- evidence offered was only caused, enough. Perhaps is not bly” nothing absolutely of medicine certain. Never- world theless, profes- in their own doctors must make decisions expert opinions. Phy- sion on their own every day based it is the intent of our law sicians must understand that if the cannot form an plaintiff’s so as to make a medical certainty with sufficient record with which the judgment, nothing there is so as to can make a decision with sufficient jury legal make a judgment.
Id,.,
In defendants were Dr. present “target” the Kamrin, Dr. surgeon performed operation, who Andre, his com- partner, professional corporation and the under which the posed theory of the two doctors. The that the were liable was that plaintiff’s surgeons asserted required express opinion plaintiffs expert an with 4. While the is causation, the defendant’s reasonable medical rebuttal issue certainty. expert express See Neal on the issue need not such Lu, Pa.Super. v. Dr. Kamrin negligently positioned Mrs. Mitzelfelt’s head during and neck which operation resulted in allegedly her quadriparesis. day On the that trial was scheduled to commence, Kamrin, Andre, the Estate of Dr. and Neu- Associates, rological settled with the Mitzelfelt’s and ob- tained a joint result, tortfeasor’s release. As a the plain- presented tiffs no expert respect to the Instead, surgeons. plaintiffs proceed- ed on theory that Riddle liable its because ostensi- agent, ble the anesthesiologist, negligently failed to main- tain Mrs. Mitzelfelt’s pressure blood at a level would facilitate spinal blood flow to the The plaintiffs cord. further drop claimed that the pressure blood to 80/55 during procedure caused Mrs. Mitzelfelt’s quadripare- contention, sis. support this plaintiffs called Dr. had who been the previously defen- dant surgeons. On direct examination by plaintiff’s coun- sel, Dr. Shenkin testified follows:
Q. your opinion, Was it I any opinion assume you express upon is based your reasonable evaluation as a physician, isn’t that true? Yes,
A. sir. Q. opinion And this your that is compromise sufficient to the blood to the supply spinal particular cord of this in the patient upright position and general under anesthesia. You said opinion this letter, did not? you Yes,
A. sir.
Q. And is is your opinion, it not? think,
A. I think that is what I yes.
Q. you That is what said there? A. my means, That opinion, yes. whatever that 29, 1984, N.T. August However, at 175. on cross examina- tion by defense counsel Dr. Shenkin equivocated on his earlier as to the cause of Mrs. Mitzelfelt’s condition: Q. is, The bottom line do know you within reasonable degree of medical can certainty, you tell the ladies and gentlemen of this jury within degree reasonable *9 medical that this drop that blood pressure, reading something that one to between 85 and 90 millime- mercury problem ters of caused the Mrs. Mitzelfelt has? have,
A. No. It is my opinion that it could I but wouldn’t put it as reasonable degree certainty.
Q. asking I am you question within a reasonable degree medical can this certainty, you say drop, you to, have testified caused Mrs. Mitzelfelt’s condition? No, A. I can’t. 29, 1984,
N.T. August
added).
at 223-224 (emphasis
We
totality
believe
of Dr. Shenkin’s testimo
ny reflects his belief that
drop
Mrs. Mitzelfelt’s blood
pressure during
operation
“could have” caused her
quadriparesis. A medical opinion that merely states that
alleged
cause
“could” lead to the condition in question
does not rise to the level of certainty required to constitute
competent evidence for jury consideration. See Kravinsky,
supra,
Pa.Super. at
Accordingly, reversed. J., TAMILIA, concurring files a and dissenting opinion.
TAMILIA, Judge, concurring dissenting: I agree While with the written, most what has majority I respectfully ruling dissent from the majority, the jury against overturns verdict Riddle Hospi- Memorial tal, the testimony given by because an upon appellee, relied did by express opinion not an with sufficient medical with respect to the cause of Mrs. Mitzelfelt’s condition to allow the to the go case to I have no jury. quarrel the on majority finding its request nonsuit, that failure to case, following appellees’ would not result a waiver when Riddle put went to defense, its when the motion for nonsuit can be construed abe motion for judgment n.o.v. posed issue as appellant and ruled on favor- ably by the majority was whether there was sufficient verdict, competent evidence to sustain the granting verdict winner the of every benefit reasonable inference which can reasonably be drawn from the evidence and rejecting all testimony unfavorable and inferences. As such no two reasonable minds agree could fail to verdict was improper. Ingrassia Co., Construction Inc. v. Walsh, 337 Pa.Super. 486 disagree A.2d 478 I with the majority that this test was met.
The majority correctly general states the rule for estab- lishing malpractice in this Commonwealth that plaintiff present expert must testimony from establishing variance accepted practice and that this deviation from com-
138 (citations in plaintiffs injuries standards caused the munity majority). I minimizes the majority impact
As view
McGrath,
in her
testimony
of Nurse
it
patient’s
to allow a
would be
of 80/55 without
corrective measures.
taking
fall to a level
in this case and the
of Nurse
The evidence
Bran
case
brings
parameters
within
McGrath
Hospital,
v. Lankenau
nan
Pa.
A.2d
(1980),
exception
regarding expert
to the rule
where
investigation
matter under
testimony applied when “[t]he
obvious,
so
and the lack of skill or want of care so
simple,
com
range
ordinary experience
as to
within the
be
Chan
citing
prehension
nonprofessional persons”,
of even
*11
Cook, 438 Pa.
v.
447,
(1970);
dler v.
Collins
testimony insignificant relying totally cross-examination, state, in drop of Dr. Shenkin to Mrs. Mitzelfelt’s condition within a pressure blood caused As to her degree certainty. qualifica- reasonable of medical tions, “If any the standard is a liberal one: a witness has sub- pretention specialized knowledge reasonable to on the investigation weight under he and the ject may testify, v. Con- jury.” Beary given be to his evidence is for the 74, 716, 533 A.2d Corp., tainer General Pa.Super. 368 County Rutter v. Northeastern Beaver (1987), quoting District, 496 Pa. 590, 598, School 437 A.2d Brannan, supra, (1981) in records hospital . As from the in resulting pa- there be a staff failure appeared standard, and receiving acceptable tient’s care below an from the testimony presented, evidence a could jury reasonably find that Riddle negligent. was things appear
Two in this case that are ignored by majority. First is that Nurse McGrath is a nurse anesthe- tist and as such she is sufficiently trained and skilled to be in present daily operations requiring anesthesia so that she has a knowledge of that field which would or should be only somewhat less than the doctor anesthetist. Her opinion as to the effect of permitting patient’s blood pressure to fall 80/55, to a level of taking measures, without corrective can ignored. not be The trial court treated her as an expert and, fact, in she is an expert. While she does not have the stature of Dr. her opinion that permitting this to happen carries weight, and despite Shenkin’s refusal to state that the in drop was the cause of injury, within a reasonable degree best, medical certainty, at the statement of Dr. Shenkin is conflicting and qualified relation prior statements, to his but if reality, even majority correct on aspect his that of Nurse McGrath as to the harm caused blood pressure cannot be ignored, first being negligence on the part the anes- thesiologist, and second as capable of causing serious harm. Put into perspective with the direct evidence from the hospital records as to the actual drop in blood pressure, failure to take action at that time and the well established opinion of all expert there testimony, was ample expert *12 testimony and evidence for by determination the jury as to causation and The liability. plaintiff need not exclude every possible explanation and the fact that some other cause concurs with of defendant in producing injury does not relieve defendant from liability unless he can show that such other cause produced would have injury independent of his negligence. Jones v. Montefiore Hospital, 494 Pa.
Judge Mirarchi’s Opinion clearly pointed out these mat- ters and properly determined this was a jury question, as follows: Henry neurosurgeon, a called by plain- qualified expert
tiff was an in his field. He outlined procedure to be taken when patient undergoing a laminectomy cervical sustains a in drop pressure. blood His procedure began with attempting to ascertain the preventive cause and initiate measures. He maintained that it was necessary prevent to “pooling of the blood in the lower extremeties in [sic], or the lower part of the body.” patient’s legs must wrapped, be the patient is placed g-suit then in a or g-blanket and/or administer drugs. The is responsibility with everyone concerned.
“But, that, in treating diagnoses the pressure dropping is in the hands the anesthesist who is [sic] recording treatment, the blood pressure and the there- in generally their hands because the surgeon is fore busy (N.T. surgeoning (emphasis supplied) 1.171) [sic].”
Dr. Shenkin further testified that a blood pres- sure as sustained plaintiff was “sufficient compromise the blood supply to the spinal cord of this particular patient upright position and under gener- (N.T. 1.73-1.75) al anesthesia.” Nurse MARLENE MC GRATH testified that it is the responsibility department anesthesia to monitor vital signs of the patient. She further testified that if the dropped too low she would take corrective measures to bring up. it Specifically, McGrath testified that she would take measures to bring up plaintiff’s blood pressure if (80) it had dropped eighty over fifty-five (55). (3.144). In the instant the record indicates such a drop pressure. The record indicates further that no corrective measures were taken during plain- surgery (emphasis added). tiffs Defendant’s medical witness in neuro-anesthe- cross-examination, siology, stated in report his plaintiff, Nancy Mitzelfelt had a intraoperative range [sic] of blood pressure between 100 However, and 80 systolic. when he examined the original chart he testified that it did not show an 80 systolic. This inconsistency between
his report properly question for jury determination. Mirarchi, J., 12/30/87,
Slip Op., pp. 16-17. majority While the would have us rule that absent the testimony of explicit a doctor medical expert, jury cannot to make a permitted be determination as this would speculation. amount to mere That rule only in applies competent situation when no other evidence is available upon which a decision can made. be Such is not the case here as the record is as to complete causation and liability for a find jury hospital sufficient that the is liable agency under an theory, due anesthesiologist. might While there be some conflict in the it has been held that conflict in testimony, testimony is fatal Philadelphia absolute. Menarde v. if Transportation only Co., 497, 376 Pa.
I would affirm verdict and all jury resolve other issues in as I plaintiff perceive favor no reversible error as to the remaining issues. A.2d 943 Pennsylvania
COMMONWEALTH v. HITCHON, Appellant. Arnold Superior Pennsylvania. Court 3,
Argued Feb. 1988. Sept. Filed 1988. Reargument Denied Nov. 1988.