Mosakowski v. Presque Isle Clinical Group Inc.

7 Pa. D. & C.4th 165, 1990 Pa. Dist. & Cnty. Dec. LEXIS 192
CourtPennsylvania Court of Common Pleas, Erie County
DecidedJuly 30, 1990
Docketno. 2267-A-1981
StatusPublished

This text of 7 Pa. D. & C.4th 165 (Mosakowski v. Presque Isle Clinical Group Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Erie County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mosakowski v. Presque Isle Clinical Group Inc., 7 Pa. D. & C.4th 165, 1990 Pa. Dist. & Cnty. Dec. LEXIS 192 (Pa. Super. Ct. 1990).

Opinion

JIULIANTE, J.,

This matter is before the court on plaintiffs’ motion for post-trial [166]*166relief and defendants’ motions for the denial of plaintiffs’ motion for post-trial relief.

The trial judge entered a nonsuit in favor of defendant Metro Health Center, on October 28, 1987, at the close of plaintiffs’ evidence. The jury returned a verdict in favor of the remaining defendants on October 29, 1987.

Defendants state that on November 6, 1987, plaintiffs filed a motion for post-trial relief and an ex .parte motion for post-trial relief on November 13, 1987. On October 27, 1988, an order was entered compelling plaintiffs to file their brief in support of their motion on or before December 1, 1988. As of June 1989, plaintiffs had not filed a brief. Consequently, defendants requested entry of judgment in favor of defendants on the jury’s verdict arguing that the court has sufficient information before it to rule on the post-trial motions without briefs.

After argument held on December 1, 1989, the parties agreed to a new briefing schedule rendering defendants’ motions moot. However, the court will grant defendants’ motions for denial of plaintiffs’ motion for post-trial relief and deny plaintiffs’ motion on the basis of the substantive arguments.

In their motion for post-trial relief, plaintiffs request judgment n.o.v. or, in the alternative, a new trial.

The issues presented by the post-trial motion are as follows:

(A) Whether the trial court erred in granting a compulsory nonsuit in favor of defendant Metro Health Center.

(B) Whether the trial court erred with regard to informed consent by:

(1) Excluding plaintiff’s testimony as to whether he would have consented to either operation had he [167]*167been informed of the risks and alternate methods of treatment; and

(2) Not adequately charging on informed consent.

(C) Whether the trial court erred in refusing plaintiff’s requested Pa.SSJI (Civ.) 10.07 on irrelevant considerations, and in precluding plaintiff’s counsel from commenting thereon during closing arguments.

(D) Whether the trial court erred in refusing plaintiffs’ requested point for charge no. 12. Proposed point for charge no. 12 reads as follows: “Where negligent conduct concurs with an act of nature, the defendant is liable unless he can show that the other cause would have produced the injury independent of defendant’s negligence.”

STATEMENT OF THE CASE

On May 22, 1980, plaintiff Mr. Mosakowski, age 64, left his place of employment with the Erie School District and was on his way home when he hit rough pavement and was thrown off of his Honda moped. This occurred at approximately 4:30 p.m. He was taken by ambulance to defendant Metro Health Center and the next morning came under the care and treatment of defendant Dr. DiCola. Plaintiff suffered a compound, comminuted fracture of the right tibia and fibula. Later he came under the care and treatment of Dr. Carneval who performed surgical grafting of the leg in July 1980.

Plaintiff’s fracture did not heal and his leg became severely infected. He subsequently required surgical care and treatment at the Cleveland Clinic under the auspices of Dr. Francis Boumphrey, a board-certified orthopedic surgeon.

Plaintiffs began this action to recover damages for the defendants’ alleged negligence in treating Mr. Mosakowski’s fracture. They alleged that Metro [168]*168Health Center was negligent in not promptly providing a qualified orthopedic surgeon to diagnose and treat plaintiff. Further Metro permitted a staff physician, Dr. DiCola, to perform an open reduction surgery with infernal fixation, a procedure for which he allegedly did not have credentials or staff privileges.

Plaintiffs also allege that both physicians were negligent in the performance of their respective surgeries and in failing to obtain Mr. Mosakowski’s informed consent for those surgeries. They further allege that Metro failed to obtain informed consents.

The court’s rationale for granting the compulsory nonsuit was essentially based on the issue of causation. However, there was extensive discussion on the record relative to the issue of ostensible agency and the court, in referring to page 7 of defendant Metro’s brief in support of nonsuit, determined that the lack of causation prevented the case against the hospital from going to the jury.

Defendants take issue with certain portions of the plaintiffs’ statement of the case as set forth in their motion for post-trial relief. There will be reference to those disputed facts throughout this opinion.

DISCUSSION

(I) Compulsory Nonsuit, Ostensible Agency and Informed Consent Issues with Respect to Defendant Metro Health Center

Plaintiffs argue that the compulsory nonsuit was improper because there existed issues which the jury should have been allowed to determine. This, however, is not the standard. Our Supreme Court has held in the past:

“It has long been settled that a compulsory non-suit can only be granted in cases where it is clear that a cause of action has not been established. The [169]*169plaintiff must be given the benefit of all favorable evidence, along with all reasonable inferences of fact arising from that evidence. Any conflict in the evidence must be resolved in favor of the plaintiff. We must, therefore, review the evidence to determine whether the order entering the judgment of compulsory nonsuit was proper.” Coatesville Contractors v. Borough of Ridley, 509 Pa. 553, 559-60, 506 A.2d 862, 865 (1986). (citations omitted)

In performing its duty to review the evidence presented, our Supreme Court has also stated that the court should grant a nonsuit “at the close of plaintiff’s case only when it is clear that the plaintiff has not presented sufficient evidence to maintain the action.” Estate of Dunlap, 471 Pa. 303, 370 A.2d 314 (1977).

Plaintiffs allege they presented sufficient evidence by which the jury could have determined liability on the part of the hospital on theories of ostensible agency, corporate liability and failure to obtain informed consent. For the following reasons, plaintiffs have simply failed to provide evidence of a causal connection between any of the alleged theories of recovery and plaintiffs’ harm, thereby failing to state a cause of action against defendant Metro.

Plaintiffs are correct in their assertion that Thompson v. Nason Hospital, 370 Pa. Super. 115, 535 A.2d 1177 (1988), is the most recent appellate case on the theory of-ostensible agency. Thompson relied on earlier cases, most notable Simmons v. St. Clair Memorial Hospital, 332 Pa. Super. 444, 481 A.2d 870 (1984).

In Simmons, the court pointed out that the ostensible agency theory in Pennsylvania is based on section 429 of the Restatement (Second), of Torts and binds a principal for the acts of an independent contractor under certain circumstances. Id.

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Bluebook (online)
7 Pa. D. & C.4th 165, 1990 Pa. Dist. & Cnty. Dec. LEXIS 192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mosakowski-v-presque-isle-clinical-group-inc-pactcomplerie-1990.