Moore v. Moore

56 Pa. D. & C.4th 54, 2002 Pa. Dist. & Cnty. Dec. LEXIS 232
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedJanuary 22, 2002
Docketno. 731
StatusPublished

This text of 56 Pa. D. & C.4th 54 (Moore v. Moore) 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
Moore v. Moore, 56 Pa. D. & C.4th 54, 2002 Pa. Dist. & Cnty. Dec. LEXIS 232 (Pa. Super. Ct. 2002).

Opinion

ABRAMSON, J.,

I. FACTS AND PROCEDURAL HISTORY

Plaintiff-appellant, Marian Moore, brought an action for battery against her cosmetic surgeon defendant-appellee, John H. Moore Jr. M.D., for failure to obtain her informed consent to liposuction of fat from her cheek.1 Plaintiff testified to the following: (1) she presented to defendant for “chin augmentation or any corrective procedure” for the purpose of correcting asymmetry to her face as a result of a previous cosmetic surgery (N.T. May 30, 2001, pp. 74-75) (see attached copy of photograph of plaintiff marked as exhibit “M-16”) [not published here], (2) after consulting with defendant, she signed a consent form to undergo both an anterior face lift and liposuction, (3) in conversations with defendant regarding the liposuction, she limited her consent to liposuction only in the “chin-jowl” region, (4) in addition to performing liposuction in the chin-jowl region, defendant also performed liposuction above the chin-jowl region, that is in the cheek, without consent, (see attached copy of photograph of plaintiff marked as exhibit “M-17”) [not published here], (5) as a result of the battery, she consulted with seven cosmetic surgeons to determine if the injury could be fixed, and underwent a fat grafting process one year after surgery.

[56]*56Trial commenced on May 29, 2001. Plaintiff did not present expert testimony during her case in chief. At the close of plaintiff’s case, defendant moved for a nonsuit. This court granted a nonsuit on June 1,2001. The entering of the nonsuit was the subject of plaintiff’s post-trial motion. That motion was denied. Plaintiff then took this appeal. Plaintiff claims that the court erred in (1) granting the nonsuit, and (2) granting the nonsuit in contradiction to three of the court’s previous rulings: (i) granting plaintiff’s motion in limine to preclude expert testimony, (ii) denying defendant’s motion for summary judgment, (iii) dismissing as moot plaintiff’s motion to strike defendant’s motion for summary judgment as untimely, and (3) denying plaintiff’s oral and untranscribed motion to continue the case to allow plaintiff to depose her expert for trial, and to permit plaintiff’s expert to testify.

n. STANDARD OF REVIEW

Motion for Nonsuit

The standard for deciding whether to grant a nonsuit is well-established in this Commonwealth. Compulsory nonsuit is properly granted where plaintiff has “failed to establish a right to relief.” Pa.R.C.P §230.1. A nonsuit is proper “only if the fact-finder, viewing all of the evidence in favor of the plaintiff, could not reasonably conclude that the essential elements of a cause of action have been established.... A compulsory nonsuit can only be granted in cases where it is clear that a cause of action has not been established and the plaintiff must be given [57]*57the benefit of all favorable evidence along with all reasonable inferences of fact arising from that evidence, resolving any conflict in favor of the plaintiff.” Shannon v. McNulty, 718 A.2d 828, 829 (Pa. Super. 1998).

m. PRIMA FACIE CASE FOR MEDICAL BATTERY

The court entered a nonsuit because it concluded that plaintiff presented insufficient evidence, and expert testimony was necessary for the jury to conclude that the cheek is anatomically distinct from the jowl and chin regions of the face, or that liposuction to the cheek was not substantially the procedure consented to, in light of the symmetry plaintiff desired.

The issue was whether the jury could have reasonably concluded that defendant was not permitted, within the terms of the consent given, and in light of the result desired, to perform liposuction to the cheek. To establish a prima facie case of medical battery, a plaintiff must prove “that the operation performed, or substantially that operation, was not authorized” by her. Dicenzo v. Berg, 340 Pa. 305, 307, 16 A.2d 15, 16 (1940) (holding that the evidence was not sufficient to justify a finding that plaintiff had not consented to an incision in the neck during upper shoulder surgery in light of the necessity of the surgery to alleviate the condition plaintiff was suffering). While generally, expert testimony is required in medical malpractice actions, expert testimony is not required where the matter alleged is so simple that the lack of skill or want of care is so obvious as to be within the range of the ordinary experience and comprehension of [58]*58even nonprofessional persons. Grabowski v. Quigley, 454 Pa. Super. 27, 34, 684 A.2d 610, 615 (1996) (holding that expert testimony is not necessary to prove a battery where a different surgeon performed the surgery than the surgeon plaintiff consented to). In battery cases, for example, expert testimony is not required where the touching of the area which was not consented to is obvious. Montgomery v. Bazaz-Sehgal, 742 A.2d 1125 (Pa. Super. 1999) (holding that expert testimony is not required to prove a battery where the patient consented to surgery for the clearing of a plaque blockage inside his penis and did not consent to the implantation of permanent inflatable prosthesis in his penis).

The above cases, where no expert was required to prove a battery, are distinguishable from this case because they involve touchings that clearly deviated from the touchings consented to, such as the permanent prosthesis versus no prosthesis and one surgeon versus another surgeon. The differences between jowl, chin-jowl, cheek, and chin are more subtle, if at all. A plain reading of the ordinary definitions of jowl, cheek, and chin make clear that there is an overlap between these three areas of the face. Webster’s Encyclopedic Dictionary of the English Language defines cheek as “from Swedish: kek the jaw, and kak, the cheek; the side of the face, below the eyes on each side.” Jowl is defined from the same source as “from Anglo-Saxon ceafl, the jaw; the hanging of the flesh of the jaw, as in a fat person.” Chin is defined from the same source as “from the Latin gena, the cheek; Greek, genys, the jaw; Sanskrit, hania, the jaw; Gothic, kinnus, the cheek, the lower extremity of the face below the mouth.” Hence, the jowl is a loose-fitting cheek. [59]*59Plaintiff’s proffered definitions are substantially the same and, once considered, led the court to the same conclusion.

In light of the above-referenced definitions, and in the absence of contrary expert testimony, the jury could not reasonably have concluded that liposuction to the cheek was not substantially the same operation as liposuction to the chin and jowl region.2 Just as in Dicenzo where the court found that an incision in the neck was substantially the same operation as surgery to the upper shoulder, we found that liposuction to the chin and jowl region was substantially similar to liposuction to the cheek, and no reasonable jury could have concluded otherwise. Dicenzo, 340 Pa. at 309-310, 16 A.2d at 17. The defendant was retained to sculpt an area of a face, not remove a mole. Liposuction is an internal surgery to the face with all the inexactitude attendant to non-cosmetic internal surgery to the body. See generally, Gray v.

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Related

Shannon v. McNulty
718 A.2d 828 (Superior Court of Pennsylvania, 1998)
Montgomery v. Bazaz-Sehgal
742 A.2d 1125 (Superior Court of Pennsylvania, 1999)
Grabowski v. Quigley
684 A.2d 610 (Superior Court of Pennsylvania, 1996)
St. John's Greek Catholic Church v. Fedak
233 A.2d 663 (New Jersey Superior Court App Division, 1967)
Gray v. Grunnagle
223 A.2d 663 (Supreme Court of Pennsylvania, 1966)
Dicenzo v. Berg
16 A.2d 15 (Supreme Court of Pennsylvania, 1940)

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Bluebook (online)
56 Pa. D. & C.4th 54, 2002 Pa. Dist. & Cnty. Dec. LEXIS 232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-moore-pactcomplphilad-2002.