DeMarco v. Robertson

65 Pa. D. & C.4th 439, 2003 Pa. Dist. & Cnty. Dec. LEXIS 103
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedMarch 21, 2003
Docketno. 2218
StatusPublished

This text of 65 Pa. D. & C.4th 439 (DeMarco v. Robertson) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeMarco v. Robertson, 65 Pa. D. & C.4th 439, 2003 Pa. Dist. & Cnty. Dec. LEXIS 103 (Pa. Super. Ct. 2003).

Opinion

GOODHEART, S.J.,

I. INTRODUCTION

In February of 1997, plaintiff Richard DeMarco was admitted to John F. Kennedy Memorial Hospital in Phila[441]*441delphia with lower abdominal pain. He underwent a complete abdominal work-up, including a colonoscopy and two CAT scans, which revealed the existence of a mass in his abdomen.

Defendant John Robertson III M.D., who saw Mr. DeMarco during his hospitalization, told Mr. DeMarco that he believed the mass “could be cancerous,” and recommended surgery to remove it.

In fact, the mass was not cancerous, and — according to Dr. Richard Goldstein, an expert witness called by the plaintiffs — Dr. Robertson should have realized that fact long before he performed the surgery. Dr. Goldstein stated that he formed that opinion because (a) biopsy results from the February colonoscopy came back negative for cancer, (b) by March 26,1997, as noted by Dr. Robertson, Mr. DeMarco’s symptoms had largely resolved, and (c) a follow-up CAT scan, performed on March 21, 1997 (which Dr. Robertson reviewed on April 4, 1997), had failed to show the presence of the mass at all.

According to Dr. Goldstein, the surgery was completely unnecessary, took far too long, and — because the physicians did not see to it that Mr. DeMarco’s body was properly supported throughout the procedure — resulted in Mr. DeMarco suffering brachial plexus injuries, which caused numbness in both of his hands and arms, and pain in his neck, shoulders, arms and hands, all of which continue to the present day.

Even the defense’s expert orthopedic surgeon, Dr. Karl Rosenfeld, stated that he believed that “the problem that evolved here was strictly from [the] positioning of [Mr. DeMarco’s] arms, and the length of the surgery.” (Rosenfeld deposition transcript, February 27, 2002, at [442]*442121-21). Though Dr. Rosenfeld declined to lay blame on any of the defendants specifically, it is clear that he, too, believed that improper monitoring of Mr. DeMarco’s position on the operating table was the primary — if not the sole — cause of his injuries.

This case was tried over several days in March 2002 before the Honorable Legróme Davis and a jury. During the charging conference, with Judge Davis, all parties agreed to dismiss defendants JFK Hospital and Elizabeth Pokropski from the case.

The evidence against the remaining defendants, Dr. Robertson, Harry Thomas M.D. (a surgeon who assisted Dr. Robertson with the surgery) and Zeenee David-Mian M.D. (the anesthesiologist during the operation) was submitted to the jury, which returned a defense verdict, finding no negligence on the part of those defendants.

The plaintiffs then moved for post-trial relief, and upon Judge Davis’ appointment to the federal bench, that motion was assigned to me for disposition.

By order dated February 3, 2003 (and docketed February 6, 2003), I granted the plaintiffs’ motion and awarded a new trial; Dr. Robertson, Dr. Thomas and Dr. David-Mian each filed a timely notice of appeal.

II. DISCUSSION

A. Res Ipsa Loquitur

Because medicine is not an exact science, and the human body is not susceptible to precise understanding, the mere occurrence of an injury does not ordinarily give rise to a presumption of negligence on the part of any[443]*443one, and an unfortunate outcome following medical treatment does not automatically bespeak malpractice. 82 A.L.R.2d 1262 at §2 (1962).

By the same token, however, the unusual character of a particular injury suffered while under a doctor’s care may permit an inference to be drawn that the injury could not have occurred unless the doctor was negligent, even though the precise nature of the negligence cannot be shown. This is the principle known as res ipsa loqui-tur — literally, “the thing speaks for itself.”

In Gilbert v. Korvette’s Inc., 457 Pa. 602, 327 A.2d 94 (1974), the Pennsylvania Supreme Court adopted the formulation of res ipsa loquitur found in Restatement (Second) of Torts §328D, as the law of the Commonwealth:

“(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when—

“(a) the event is of a kind which ordinarily does not occur in the absence of negligence;

“(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and

“(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.

“(2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.

“(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.” Restatement (Second) of Torts §328D (1965).

[444]*444“The doctrine of [res ipsa loquitur] allows an inference of negligence to arise from competent evidence, on the theory that in the ordinary course of events the injury complained of would not have occurred in the absence of negligence.” D’Ardenne by D’Ardenne v. Strawbridge & Clothier Inc., 712 A.2d 318, 321 (Pa. Super. 1998) (emphasis added), appeal denied, 557 Pa. 647, 734 A.2d 394 (1998), quoted in Grandelli v. Methodist Hospital, 777 A.2d 1138, 1147 (Pa. Super. 2001).

In its purest form, “[w]here there is no direct evidence to show cause of injury, and the circumstantial evidence indicates that the negligence of the defendant is the most plausible explanation for the injury, the doctrine applies.” D’Ardenne, supra at 321; see also, Prosser & Keeton on the Law of Torts §40, at 257 (quoting Roark v. St. Paul Fire & Marine Insurance Co., 415 So.2d 295 (La. App.1982)).

Though Korvette’s was an escalator-injury case, the Superior Court subsequently held that res ipsa loquitur may also be applied in malpractice cases. Jones v. Harrisburg Polyclinic Hospital, 269 Pa. Super. 373, 410 A.2d 303 (1979). Still, “res ipsa loquitur is not often applied in medical malpractice actions; except in the most clear-cut cases, res ipsa loquitur may not be used in a medical malpractice action to abrogate the need for expert testimony or to shortcut the requirement that causation be established within a reasonable degree of medical certainty.” Grandelli, supra at 1147. Res ipsa loquitur may best be described as a bridge over an unavoidable gap in proof of causation where the evidence otherwise points quite strongly to negligence on the part of the alleged tort-feasor; it is not a substitute for proof of negligence in its entirety.

[445]

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Related

Roark v. St. Paul Fire & Marine Ins. Co.
415 So. 2d 295 (Louisiana Court of Appeal, 1982)
Gilbert v. Korvette's Inc.
327 A.2d 94 (Supreme Court of Pennsylvania, 1974)
Toogood v. Rogal
764 A.2d 552 (Superior Court of Pennsylvania, 2000)
D'Ardenne Ex Rel. D'Ardenne v. Strawbridge & Clothier, Inc.
712 A.2d 318 (Superior Court of Pennsylvania, 1998)
Jones v. Harrisburg Polyclinic Hospital
410 A.2d 303 (Superior Court of Pennsylvania, 1980)
Leone v. Thomas
630 A.2d 900 (Superior Court of Pennsylvania, 1993)
Donaldson v. Maffucci
156 A.2d 835 (Supreme Court of Pennsylvania, 1959)
Grandelli v. Methodist Hospital
777 A.2d 1138 (Superior Court of Pennsylvania, 2001)

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Bluebook (online)
65 Pa. D. & C.4th 439, 2003 Pa. Dist. & Cnty. Dec. LEXIS 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/demarco-v-robertson-pactcomplphilad-2003.