Jones v. Harrisburg Polyclinic Hospital

410 A.2d 303, 269 Pa. Super. 373

• Court: Superior Court of Pennsylvania
• Decided: February 11, 1980
• Docket: 428
• Status: Published

Opinions

PRICE, Judge:

This case involves a cause of action in trespass for medical malpractice. Appellant Dr. Charles R. Beittel, Jr. appeals from the July 25, 1977 order of the en banc lower court which denied his motions for judgment non obstante veredicto, new trial, and for shaping of the verdict.

The following facts were adduced at trial. On May 14, 1972, appellee Mary Belle Jones¹ underwent surgery at the Harrisburg Polyclinic Hospital to correct gynecological and suspected abdominal problems which she was experiencing. Appellant Dr. Charles R. Beittel, Jr. was her physician, and the other named defendant, Patricia McAloose, was the nurse anesthetist present during the surgical procedures performed on appellee.² Three surgical procedures were performed: 1) a procedure called dilation and curettage³ (D. & C.) was performed by appellant; 2) a laparoscopy⁴ was performed by a Dr. Rohrabaugh, assisted by appellant; and 3) a laparotomy⁵ was performed by appellant, assisted by Dr. Milan Chepko. Appellee was given a general anesthetic by nurse McAloose prior to surgery. Nurse McAloose initially positioned appellee to facilitate access to the operative site, i. e., the vaginal area. An intravenous apparatus was set to run into appellee’s left arm, and accordingly, her arm was extended on an armboard out from the side of the operating table in order to facilitate this process. Upon awakening in the recovery room following surgery, appellee experienced severe pain in her neck, left shoulder, and left arm. This pain was diagnosed as resulting from a suprascapular nerve palsy allegedly caused by the malpositioning of the patient.

As a result of her injury, appellee and her husband brought suit against appellant, nurse McAloose, and Polyclinic Hospital. The theories of liability asserted against appellant were those of informed consent and negligence, through the doctrine of res ipsa loquitur. Res ipsa loquitur was also the basis upon which appellee sought to recover against nurse McAloose, while the case against the hospital was based solely on respondeat superior.

Expert testimony presented at trial indicated that the injury appellee suffered was of the type that does not usually occur absent negligence on someone’s part. In addition, in all likelihood, the injury occurred while appellee’s body was in a state in which it was paralyzed and insensible to pain, i. e., while she was in the operating room. Appellant testified on cross-examination that it was his duty to preserve his patient’s neurology during the course of surgery and to personally observe and check the positioning of the patient. The jury found all of the defendants liable, and returned a verdict in appellees’ favor in the amount of $56,000.

Prior to the commencement of trial, defendants McAloose and Polyclinic Hospital entered into a joint tortfeasor release with appellees for $25,000.⁶ Appellant filed post-trial motions asking for judgment N.O.V., new trial, and for molding of the verdict so as to mark it “satisfied in full,” or in the alternative, to reduce it, as applied to him, by two-thirds. All of appellant’s motions were denied by the en banc panel of the Dauphin County Court of Common Pleas, and the verdict as applied to him was reduced by half, i. e., to $28,000, with $25,000 apportioned to appellee Mary Belle Jones and $3,000 apportioned to her husband Barry L. Jones.

On appeal, appellant raises numerous contentions. The first issue which we will address is appellant’s contention that the doctrine of res ipsa loquitur under Pennsylvania law does not apply to medical malpractice cases. We disagree.

The Restatement (Second) of Torts section on res ipsa loquitur, § 328D, as specifically adopted by the Pennsylvania Supreme Court in the case of Gilbert v. Korvette’s Inc., 457 Pa. 602, 327 A.2d 94 (1974) provides that:

“(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.”

In asserting that the doctrine of res ipsa loquitur does not apply to medical malpractice cases, appellant cites preGilbert cases for the proposition that no presumption or inference of negligence arises merely because the medical care terminates in an unfortunate result which might have occurred even though proper care and skill had been exercised, and that the common knowledge or experience of laymen is not sufficient to warrant their passing judgment on the issue. (Appellant’s brief at 22-23). We find that the doctrine of res ipsa loquitur does apply to medical malpractice cases. In adopting § 328D. of the Restatement (Second) of Torts, the supreme court enumerated no exceptions to the doctrine. The court explicitly stated that its reason for adopting the rule was to clarify the confusion which developed in this Commonwealth concerning the availability and effect of the doctrine. “The virtue of the Restatement rule is that when dealing with problems of proof, it abjures distinctions based on procedural questions or issues of substantive tort duty and focuses instead on purely evidentiary concerns.” Gilbert v. Korvette’s Inc., supra, 457 Pa. at 612 n. 26, 327 A.2d 100 n. 26. The drafters of § 328D obviously intended it to apply to medical malpractice cases because the Comments to § 328D specifically use medical malpractice as an example to which § 328D may be employed. See Restatement (Second) of Torts, Comment (d), and Illustration 9 (1965). Although no appellate court of this Commonwealth has yet addressed this issue,⁷ we hold that if the intent of our supreme court “to simplify, clarify, and improve the law in light of modern conditions” is to be carried out, this court should not read an unspecified exception into the doctrine. Indeed, the facts of the instant case particularly lend themselves to the application of the doctrine. Appellee was injured while under the care of the defendants named in her complaint. She alleged an injury to a part of her body unrelated to the area for which she sought treatment. She could not aver the precise conduct of the named defendants because she was unconscious during treatment, although the circumstantial evidence points toward the negligence of one or more of the parties sued.

Notwithstanding the applicability of the doctrine of res ipsa loquitur to medical malpractice cases, we conclude that the court below was in error in instructing the jury as to res ipsa loquitur with regard to the specific facts of this case because appellees failed to sustain their burden of proving by a preponderance of the evidence that the negligence pointed to appellant.

Under § 328D(l)(b), the plaintiff has the burden of proving, by a preponderance of the evidence, that other responsible causes, including the conduct of plaintiff and third persons, are sufficiently eliminated by the evidence. The failure to eliminate “other responsible causes” precludes the lower court from instructing the jury on the doctrine of res ipsa loquitur.

“[I]n any case where there is no doubt that it is at least equally probable that the negligence was that of a third person, the court must direct the jury that the plaintiff has not proved his case.” Restatement (Second) of Torts § 328D, Comment (f). Even though, exclusive control by appellant of the injury-causing instrumentality or of all reasonable probable causes need not be proven in order to find liability under § 328D, nevertheless, “the critical inquiry is . whether a particular defendant is the responsible cause of the injury.” Gilbert v. Korvette’s Inc., supra, 457 Pa. at 614, 327 A.2d at 101.

Appellee’s position on the operating table changed during the course of the operative procedures performed on her. During the D. & C., she was placed in a modified dorsal lithotomy or supine position which entailed her laying on her back in a flat position with her feet in stirrups. To facilitate the laparoscopy, appellee was placed in the Trendelenberg position. In this position, the patient’s abdomen and legs are raised, and her head and shoulders are lowered. Appellee’s position was again altered for the laparotomy procedure. For that procedure, the Trendelenberg position again was employed, but the degree of slant of the table was more severe than that used for the laparoscopy procedure.

Dr. Charles Rohrabaugh was the operating surgeon during the laparoscopy procedure, and thus was responsible for the positioning of appellee during that time.⁸ The malpositioning of appellee which caused her injury certainly may have occurred while her position was being changed for the various procedures performed. Specifically, the malpositioning which caused appellee’s injury may have occurred in preparation for the laparoscopy procedure, and thus, according to Dr. Rohrabaugh’s testimony, would have been his direct responsibility. Indeed, he might have been the cause of the malpositioning. Our review of the record fails to disclose sufficient evidence, as a matter of law, to eliminate Dr. Rohrabaugh as an “other responsible cause.” In this light, we must conclude § 328D(l)(b) was not satisfied and that as a result, the court below was in error in instructing the jury on the doctrine of res ipsa loquitur as applied to the specific facts of this case. Accordingly, we vacate the judgment of the court below, and remand the case for a new trial.

Although we have concluded that a new trial is necessary, appellant raises another issue which must be discussed in order to insure that any subsequent judgment in appellees’ favor, if any, will be apportioned properly in light of the joint tortfeasor release. In this regard, appellant contends that the verdict, as applied to him, should be reduced by two-thirds. We hold that the court below properly molded the verdict.

An employer found to be vicariously liable for the negligence of his employee assumes a liability identical to that of his employee, i. e., their liability is one and the same, and the plaintiff may collect all or part of the judgment or settlement from either party. See Nationwide Mutual Insurance Co. v. Philadelphia Electric Co., 443 F.Supp. 1140 (E.D.Pa.1977); Russell v. United States, 113 F.Supp. 353 (M.D.Pa.1953); Parker v. Rodgers, 125 Pa.Super. 48, 189 A. 693 (1937). In the instant situation, when multiple parties are found to be liable, the important consideration in determining the pro rata amount of the judgment for which the remaining negligent party is liable, is the number of primarily liable parties. As applied to the instant case, since there were only two parties found to be primarily liable, i. e., appellant and nurse McAloose, appellant was entitled to have the entire verdict reduced by only one-half.

In reaching this conclusion, we rely on this court’s decision in Parker v. Rodgers, supra, and its progeny. The Parker, Nationwide, and Russell cases all involved suits for contribution among joint tortfeasors. Parker, a pre-UCATA case, involved a two-car automobile accident in which three defendants, Marion Rodgers (driver of car A), Robert Glen-zinger (driver of car B) and Margaret Paugh (owner of car B and employer of defendant Glenzinger), were all found to be negligent. Mrs. Paugh was held negligent on the doctrine of respondeat superior. Defendant Rodgers’ insurance company, which paid half of the judgment, sued Glenzinger and Paugh and attempted to obtain contribution from each, on the theory that each of the three defendants was liable for one-third of the judgment. In affirming the lower court and holding that the insurance company was not entitled to contribution, this court stated:

“Rodgers and Glenzinger were the persons who committed the actual tort or wrong as distinguished from a legal tort. Mrs. Paugh was not present when the accident occurred, but was only liable as the master of her servant and driver, Glenzinger. It was not alleged nor shown that she was personally and directly guilty of any trespass or was responsible by reason of anything which she personally did or omitted to do. Her responsibility even to the plaintiff did not arise from any act which was on her part morally wrong, but her liability was based on a legal principle that has become a part of the positive law of the Commonwealth that the negligence of a servant acting within the scope of his employment is imputed to the master. We agree with the learned judge of the court below that Mrs. Paugh’s liability being purely derivative and because she and the driver are responsible to the plaintiff for one and the same act of negligence committed by the servant alone, both reason and justice require it to be held that Rodgers is not entitled to contribution since he has paid but one-half of the judgment. .

That our conclusion may not be misinterpreted we call attention to the fact that we do not adopt as a basis for the measure of contribution the number of automobiles involved in the accident, but rather the number of persons primarily and directly concerned in the tort committed.” Parker v. Rodgers, supra, 125 Pa.Super. at 52, 53, 189 A. at 696.

Similarly, in Nationwide and Russell, both post-UCATA contribution cases applying Pennsylvania law, the federal district court held that in molding the verdict, the employer’s share was identical to the employee’s in that the employer had not committed the tort but was liable solely on the basis of respondeat superior.

“[I]t is not the total number of defendants involved who could have been liable to the deceased’s estate but the number of directly and primarily liable parties which determines the number of pro-rata shares. Only two parties were directly and primarily liable, Carr & Duff and Hinkle [employee of the third defendant, Bellmont]. Therefore liability for contribution is divisible in only two parts, one part being based upon the negligence of Carr & Duff and the other part being based upon the negligence of Hinkle . . . ” Nationwide Mutual Insurance Co. v. Philadelphia Electric Co., supra at 1146-1147.

In the instant case, Polyclinic Hospital’s liability was based solely on the theory of respondeat superior. Under these circumstances, we hold that the court below was correct in molding its verdict to reflect the fact that there were only two primary tortfeasors, to-wit, appellant and nurse McAloose. Therefore, the verdict, as applied to appellant, is correctly apportioned at one-half of the judgment, rather than two-thirds.

Accordingly, we vacate the judgment of the court below, and remand the case for a new trial and further proceedings consistent with this opinion.

CERCONE, President Judge, HOFFMAN and SPAETH, JJ., file dissenting opinions. JACOBS, former President Judge, did not participate in the consideration or decision of this case.

1 . Although there are two appellees in this case, Mary Belle Jones and her husband Barry L. Jones, all further reference to appellee will pertain to Mary Belle Jones unless otherwise specified.

2 . A resident physician present during part of the operation, Dr. Milan Chepko, was initially named as a defendant in appellees’ complaint, but was subsequently dropped from the suit by consent of appellees.

3 . A D. & C. involves the scraping of the womb.

4 . A laparoscopy is a visual observation of the patient’s pubic area achieved by means of a lighted tube inserted through a small incision in the umbilicus.

5 . A laparotomy is an exploratory surgery, in this case, of the patient’s internal reproductive organs.

6 . This release was entered in accordance with the Uniform Contribution Among Tortfeasors Act [UCATA], Act of July 19, 1951, P.L. 1130 § 4 (12 P.S. § 2085) which provides that:

“A release by the injured person of one joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides, but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release or in any amount or proportion by which the release provides that the total claim shall be reduced if greater than the consideration paid.”

7 . Although no appellate court in the Commonwealth has heretofore addressed this issue, it has been addressed by some of our state trial courts. E. g. Anderson v. Zernich Clinic, 2 D. & C.3d 65 (1977), a case factually similar to the instant case, in which the Court of Common Pleas of Beaver County held that § 328D was applicable to medical malpractice cases.

8 . The dissenting opinion takes issue with this evaluation of the record. Dr. Rohrabaugh on direct examination testified as follows:

“In each patient when I am going to do a laparoscopy, I specifically look at the positioning of the patient, particularly as it relates to the semi-lithotomy and the position of the legs, knees, thighs in relation to the patient’s abdomen. If there had been anything unusual about that position in any patient that I do, I would ask the circulating nurse to take corrective action to change that position.” (N.T. 272a).

This answer directly reveals duty, control and responsibility.