Hoffman v. Mogil

665 A.2d 478, 445 Pa. Super. 252, 1995 Pa. Super. LEXIS 2537
CourtSuperior Court of Pennsylvania
DecidedAugust 18, 1995
Docket1714
StatusPublished
Cited by10 cases

This text of 665 A.2d 478 (Hoffman v. Mogil) 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
Hoffman v. Mogil, 665 A.2d 478, 445 Pa. Super. 252, 1995 Pa. Super. LEXIS 2537 (Pa. Ct. App. 1995).

Opinions

DEL SOLE, Judge.

This is an appeal from an Order denying Appellant’s request, contained in his post-trial motions, seeking removal of a non-suit.

In the fall of 1986, Appellee, Robert A. Mogil, M.D., diagnosed Appellant, I. Leonard Hoffman, as suffering from an enlarged prostate. After monitoring Appellant’s condition for a couple of months, Appellee recommended that Appellant undergo a trans-urethral prostatectomy, commonly referred to as a “TURP” procedure, and gave him a pamphlet describing what it entailed.1 Within a week of their discussion, Appellant called Appellee and told him that he was unable to urinate. Appellee met Appellant at the emergency room where he catheterized Appellant and once again recommended that Appellant undergo the TURP procedure.

Appellant was admitted to the hospital a few days later and signed a written consent form authorizing Appellee to perform the procedure. Appellant was taken into the operating room, anesthesia was administered and just as the procedure was to begin, Appellant developed an erection making the procedure impossible. Appellee then decided to perform an alternate form of treatment, a perineal urethrotomy, which required making incisions in Appellant’s scrotum and urethra. The procedure was completed and Appellant was catheterized. Approximately one week following the surgery, the catheter was removed and Appellant began to bleed profusely from his penis. Appellee informed Appellant that he was bleeding from the site of his incision and that he would have to undergo [255]*255a cauterization procedure the next morning to stop the bleeding. Following the cauterization, Appellant was once again catheterized and was released one week later from the hospital with the catheter still in place. The catheter was removed in Appellee’s office two days after Appellant’s release from the hospital but several days later, Appellant began to bleed again and he was catheterized for another week. The catheter was then removed and Appellant testified that he has not suffered any further bleeding.

Within a couple of months, Appellant began to experience problems with his urinary stream again and Appellee determined that the problems were caused by strictures, i.e. scarring, that had developed in Appellant’s urethra. This diagnosis was confirmed by another physician who performed a cystoscope procedure and a couple of dilations in an effort to alleviate Appellant’s problem. Appellant then sought treatment from his expert medical witness, Dr. Joseph Davis, who testified at trial and who performed two in-patient dilations on Appellant. Thereafter, Appellant was treated regularly by a Dr. Rosenthal who continued dilation therapy and performed another cystoscope.

In 1989, Appellant filed suit against Appellee claiming that Appellee’s action in performing the perineal urethrotomy and resulting cauterization caused Appellant to develop a stricture and that Appellee acted without Appellant’s informed consent in performing the procedures. The trial court granted a non-suit at the close of Appellant’s case, post-trial motions were denied and this appeal followed.

Appellant raises the following issues for our review:

1. Did the Court err in granting a non-suit against the Plaintiff based upon a finding that the Plaintiffs proof of the proximate cause of his injuries as a result of the negligent performance of two surgeries on Plaintiff and the performance of one of the surgeries without the Plaintiffs consent, failed to meet the legal standard of proof for submission of the case to a jury?
[256]*2562. Did the Court err in granting a non-suit against the Plaintiff, in view of the fact that the Defendant exceeded the proper bounds of cross-examination, and thereby waived his right to a non-suit by eliciting matters constituting a legal defense to the Plaintiffs case upon which the lower court relied in granting the non-suit against the Plaintiff?
3. Did the Court err in dismissing Plaintiffs claim that both of the surgeries performed by the Defendant were performed without Plaintiffs informed consent?

Appellant’s brief at page 3.

A nonsuit may only be granted where “the plaintiff has failed to establish a right to relief.” Pa.R.C.P. No. 230.1 See also Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983). In reviewing [a nonsuit] ... we must view “the evidence adduced on behalf of the plaintiff as true; reading it in the light most favorable to [plaintiff]; giving [plaintiff] the benefit of every reasonable inference that a jury might derive from the evidence and resolving all doubts, if any, in [plaintiff’s] favor.” Brannan v. Lankenau Hospital, 490 Pa. 588, 595, 417 A.2d 196, 199 (1980) (quoting Auel v. White, 389 Pa. 208, 210, 132 A.2d 350, 352 (1957)). [257]*257experience or comprehension of even non-professional persons.” Chandler v. Cook, 438 Pa. 447, 265 A.2d 794 (1970). Since plaintiffs claims are based upon complex medical procedures and treatment such an exception is not applicable in the case at bar.

[256]*256Sinclair by Sinclair v. Block, 534 Pa. 563, 568, 633 A.2d 1137, 1139 (1993).

In the present case, the trial court held as follows: In the case at bar, plaintiff failed to present expert testimony establishing any causal connection between the conduct of Dr. Mogil and plaintiffs injury. It is axiomatic that the plaintiff must prove that the defendant’s conduct was the proximate cause of the plaintiffs injuries.
‡ ‡ ‡ ‡
It is incumbent upon the expert to present testimony of sufficient quality and weight as to reflect reasonable medical certainty of the causal nexus. The only exception to the requirement of expert testimony is “where the matter and investigation is so simple and the lack of skill or want of care is so obvious as to be within the range of ordinary
[257]*257Plaintiff contends in his Complaint that defendant was careless and negligent in his care and treatment and failed to provide plaintiff with medical care in accordance with accepted medical standards for physicians and specialists in the area of urologic surgery, but expert testimony is necessary to prove that a physician’s care is substandard because, absent guidance of an expert, jurors are unable to make a decision with sufficient certainty so as to enable them to make legal judgments. While it is true that plaintiff has developed strictures, it is also true that strictures can develop from a urinary tract infection as Mr. Hoffman had prior to the surgery or they can develop from Foley catheters or simple endoscopic assessment.

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Hoffman v. Mogil
665 A.2d 478 (Superior Court of Pennsylvania, 1995)

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Bluebook (online)
665 A.2d 478, 445 Pa. Super. 252, 1995 Pa. Super. LEXIS 2537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoffman-v-mogil-pasuperct-1995.