Cacurak v. St. Francis Medical Center

823 A.2d 159
CourtSuperior Court of Pennsylvania
DecidedApril 2, 2003
StatusPublished
Cited by13 cases

This text of 823 A.2d 159 (Cacurak v. St. Francis Medical Center) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cacurak v. St. Francis Medical Center, 823 A.2d 159 (Pa. Ct. App. 2003).

Opinions

BOWES, J.

¶ 1 Appellants St. Francis Medical Center (“St. Francis”), Almar Radiology (“Al-mar”), and Dr. Mark Jacobson appeal from the judgment entered against them in the amount of $1,467,435.62 following a jury verdict in favor of John J. Cacurak, Appel-lee, in this medical malpractice action. Appellee has filed a cross-appeal challenging the trial court’s calculation of delay damages. After careful review, we reverse and remand for a new trial.

¶2 The relevant facts are as follows. On August 2, 1990, Appellee underwent surgery at St. Francis to have a neurofib-roma tumor removed from his spine. In order to extract the tumor, Dr. Francis T. Ferraro, the neurosurgeon who performed the operation, had to perform laminecto-mies, i.e., sever ligaments and remove bone, at the seventh and eighth thoracic vertebrae levels (“T-7 and T-8 levels”) of Appellee’s spine. As he had done on previous occasions, Dr. Ferraro asked the St. Francis radiology department to label the targeted vertebrae levels in advance so he could locate the tumor simply by looking at Appellee’s back. Pursuant to Dr. Ferraro’s request, Dr. Jacobson, an unsupervised second-year resident employed by St. Francis, attempted to mark vertebrae levels T-7 through T-9, but he erroneously marked levels T-5 through T-7. As a result, Dr. Ferraro made his incision in the wrong place and performed unnecessary laminectomies at the T-5 and T-6 levels before discovering the tumor and removing it.

¶ 3 Following the 1990 surgery, Appellee began to experience chest pain emanating from his thorax, the posterior chest region where the thoracic vertebrae are located. In April 1995, Appellee was referred to Dr. Alexis Shelokov, a surgeon who specializes in treating spinal deformities in adults and children. Dr. Shelokov physically examined Appellee and noted “an obvious curving or humping in his back.” N.T. Trial, 12/6/00, at 19. After studying an x-ray of Appellee’s spine, Dr. Shelokov determined that Appellee suffered from thoracic ky-phosis, a spinal deformity caused by a loss of structural support. According to Dr. Shelokov, the x-ray showed a “70-degree kyphosis, a forward curvature of the spine.” Id.

¶ 4 Dr. Shelokov attempted to alleviate Appellee’s thoracic pain syndrome without performing additional surgery, but noninvasive treatment methods proved ineffective. Thus, Dr. Shelokov performed spinal fusion surgery on Appellee in April 1998 to correct the curvature in his spine. The operation was a success, and Appellee subsequently instituted this action against St. Francis and Dr. Ferraro to recover damages for pain and suffering, lost wages from 1998 until December 2000, diminish[163]*163ed earning capacity, and medical expenses incurred in treating his kyphosis.

¶ 5 At Count I of his three-count complaint, Appellee alleged that St. Francis was vicariously liable for the radiology department’s negligence in failing to mark the appropriate vertebrae levels prior to surgery. At Count II, Appellee alleged that Dr. Ferraro was negligent for failing to diagnose the tumor in a timely manner, for failing to skillfully excise the tumor, and for performing unnecessary laminecto-mies at the T-5 and T-6 levels. Lastly, Appellee asserted a cause of action against Dr. Ferraro for assault and battery claiming that Dr. Ferraro performed the T-5 and T-6 laminectomies without Appellee’s consent. As a result of these acts and omissions, Appellee allegedly suffered incapacitating pain, back instability, impotence, restriction of physical activities, and severe emotional distress.

¶ 6 Approximately eight months after the complaint was filed, Dr. Ferraro joined Almar, a corporation that had contracted with St. Francis to operate the hospital’s radiology department, as an additional defendant claiming that Almar was negligent for failing to supervise Dr. Jacobson when he marked Appellee’s spine before the 1990 operation. Thereafter, Almar joined Dr. Jacobson as an additional defendant and denied responsibility for his actions on the basis that he was not an agent, servant, or employee of Almar.

117 Shortly before trial, Appellants and Dr. Ferraro moved for compulsory nonsuit claiming that Appellee had presented insufficient evidence to establish that their actions were the proximate cause of Appel-lee’s kyphosis. After reviewing Appellee’s evidence, the trial court granted the motions and subsequently denied Appellee’s motion to remove the nonsuit. On appeal, we determined that the trial court properly granted a nonsuit with respect to the negligence claims asserted against Dr. Ferraro at Count II of the complaint, but found that Appellee proffered sufficient evidence to sustain the causes of action asserted at Counts I and III; accordingly, we affirmed the judgment in part, vacated in part, and remanded for trial. Cacurak v. St. Francis, 738 A.2d 1045 (Pa.Super.1999) (unpublished memorandum), appeal denied, 560 Pa. 678, 742 A.2d 670 (1999).

¶ 8 On November 29, 2000, six days before trial, Appellee reached a settlement agreement with Dr. Ferraro, and Appellants requested that Dr. Ferraro be dismissed from the action. Appellee opposed the motion to dismiss because he feared that Appellants would attempt to blame Dr. Ferraro for Appellee’s injuries, but Appellants affirmatively represented that they would not present any evidence critical of Dr. Ferraro at trial. Consequently, Dr. Ferraro was dismissed from the case over Appellee’s objection.

¶ 9 At trial, Dr. Shelokov testified that Almar was negligent for failing to supervise Dr. Jacobson, stating that a second-year resident should not have been permitted to mark a patient’s spine for a thoracic laminectomy without an attending physician present. He explained that multilevel laminectomies such as the one performed on Appellee increase the likelihood that the patient will develop kyphosis and asserted that Almar and Dr. Jacobson were “specifically responsible” for Appel-lee’s kyphosis because the inaccurate marking of Appellee’s thoracic vertebrae prompted Dr. Ferraro to perform four laminectomies instead of two. N.T. Trial, 12/6/00, at 263. Based on his review of Appellee’s medical history, Dr. Shelokov concluded that the unnecessary laminecto-mies caused Appellee to develop kyphosis, as evidenced by x-rays which showed that the abnormal curvature in Appellee’s spine [164]*164spanned vertebrae levels T-5 through T-9, the same area where Dr. Ferraro removed bone and ligaments to gain access to the tumor.

¶ 10 St. Francis’s expert witness, Dr. William Welch, offered conflicting testimony regarding the cause of Appellee’s spinal deformity. Contrary to Dr. Shelokov, Dr. Welch opined that a surgeon operating on an adult patient’s spinal column can remove “significant quantities of posterior bone ... without creating [spinal] instability” and that Appellee did not develop kyphosis as a result of the unintended laminectomies since Dr. Ferraro did not remove the pedicle bones or facet joints that provide structural support at the T-5 and T-6 levels. N.T. Trial, 12/15/00, at 890. In addition, Dr. Welch testified that he has performed extensive multi-level laminectomies on several patients, none of whom has developed ky-phosis.

¶ 11 On December 19, 2000, at the conclusion of the eight-day trial, the jury found in favor of Appellee and awarded him $1,200,000 in damages. The jury apportioned liability as follows: St. Francis and Dr. Jacobson were found to be 35% negligent, and Almar was found to be 65% negligent.

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Cacurak v. St. Francis Medical Center
823 A.2d 159 (Superior Court of Pennsylvania, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
823 A.2d 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cacurak-v-st-francis-medical-center-pasuperct-2003.