Murphree v. Barakat

5 Pa. D. & C.4th 277, 1990 Pa. Dist. & Cnty. Dec. LEXIS 342
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedFebruary 28, 1990
Docketno. 88 Civil 4193
StatusPublished

This text of 5 Pa. D. & C.4th 277 (Murphree v. Barakat) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Murphree v. Barakat, 5 Pa. D. & C.4th 277, 1990 Pa. Dist. & Cnty. Dec. LEXIS 342 (Pa. Super. Ct. 1990).

Opinion

MUNLEY,

We have for consideration and disposition defendants’, Adel R. Barakat, M.D. and Cesare, Barakat and Metzger, P.C, motion for summary judgment in this medical malpractice action.

The present action was instituted as a result of the medical care and treatment provided to plaintiff, Ellen Murphree, by defendants from February 1986 through September 1986 and specifically, an arthroscopic knee procedure performed at Moses Taylor Hospital in May 1986. Plaintiff maintains that the defendant was treating her for a knee injury she incurred in January 1986, which defendants diagnosed as “pulled muscles” and prescribed physical [278]*278therapy. Plaintiff contends that the defendant’s diagnosis was incorrect and the prescribed treatment did not improve her condition but further complicated her injury.

During the course of discovery, counsel for defendant served on plaintiff expert witness interrogatories which requested, inter alia, the identities and reports of all expert witnesses on behalf of plaintiff. See Pa.R.C.P. 4003.5. No expert witnesses were identified, nor expert reports provided to defendant. As a consequence, Judge O’Malley entered an order, dated October 10, 1989, requiring that “plaintiff shall provide to defendant’s counsel within 60 days the identity and reports of all expert witnesses or shall be precluded from presenting any expert witness testimony at the time of trial.” See order no. 88 Civil 4193. As a practical matter, litigants in most instances encounter little difficulty in obtaining expert witnesses. Counsel did not comply with the order and offered no extenuating circumstances for failure to comply with said order. Thus, this sanction was appropriate and plaintiff is now precluded from offering any expert witness testimony at the time of trial. McSloy v. Jeanes Hospital, 376 Pa. Super. 595, 546 A.2d 684 (1988).

Defendant posits that plaintiff must present expert testimony to meet the burden of proving that defendant’s alleged committed negligence was the cause of her condition worsening. Defendants argue that expert testimony is required to establish the standard of reasonable medical care. Lira v. Albert Einstein Medical Center, 384 Pa. Super. 503, 559 A.2d 550 (1989). It is defendant’s contention that plaintiff’s deposition and/or subsequent testimony at trial alone fails to support plaintiffs claim of medical negligence. Therefore, plaintiffs lack of [279]*279expert testimony to sufficiently establish negligence and causation results in no genuine issue of material fact.

In opposition to this motion, plaintiff argues that her deposition and subsequent testimony at trial establishes that plaintiffs condition was further aggravated by defendant’s negligence and when these statements are considered in a light most favorable to plaintiff, it must be considered that there are existent issues of material fact. It is her contention that “she does not need anyone else to testify to know that it should not have happened.”

According to Pa.R.C.P. 1035(b), a motion for summary judgment may properly be. granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The well settled purpose of the summary judgment procedure is to dispense with an unnecessary trial where no genuine issue of triable material fact exists. Esbrandt v. Provident Life and Accident Insurance Company, 559 F.Supp. 23 (E.D. Pa. 1983). Based on the record before us, we must determine whether there are any issues of material fact regarding the liability of the defendants. The parties seeking to avoid the entry of summary judgment may not rest upon the averments contained in their pleadings. They are required to show by deposition, answer to interrogatories, admissions or affidavits, that there is a genuine issue for trial. Washington Federal Savings and Loan v. Stein, 357 Pa. Super. 286, 515 A.2d 980 (1986). An entry of summary judgment may be granted only in cases where the right is free and clear from doubt. Consumer Party of Pennsylvania v. Commonwealth of Pennsylvania, 510 Pa. 158, [280]*280507 A.2d 326 (1986). But, it is also clear that in resisting a motion for summary judgment, a party cannot successfully rely upon mere assertions, con-clusory allegations or suspicions. See Pa.R.C.P. 1035(b).

. Negligence law in general presupposes some uniform. standard of behavior by which a defendant’s conduct is to be evaluated. W. Prosser and P. Keeton, Law of Torts 173 (5th ed. 1984). The fundamental rule of law in negligence cases is that plaintiff must prove by a preponderance of the evidence that defendants were negligent and that their negligence was the proximate cause of plaintiff’s injury. Harvilla v. Delcamp, 521 Pa. 21, 555 A.2d 763 (1989). In medical malpractice litigation, negligence has been defined as “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.” Restatement (Second) of Torts §282 (1965). As members of a learned profession, physicians have been expected to possess and exercise skill and knowledge in the practice of their professions beyond that of ordinary individuals. As to matters involving professional skills and knowledge, the conduct of such defendants has been largely evaluated in terms of professional standards determined by the profession. Lira, supra.

The burden of proof in a malpractice action is upon plaintiff to prove either (1) that the physician or surgeon did not possess and employ the required skill and knowledge or (2) that he did not exercise the care and judgment of a reasonable man in like circumstances; and that the injury complained of either (1) resulted from the failure on the part of the physician or surgeon to possess and employ the required amount of skill and knowledge or (2) resulted from his failure to exercise care and judg[281]*281ment of a reasonable man in like circumstances. Donaldson v. Maffucci, 397 Pa. 548, 156 A.2d 835 (1959); Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971); Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966). In the landmark case Robinson v. Wirts, 387 Pa. 291, 127 A.2d 706 (1956), Chief Justice Stem stated:

“[N]o presumption or inference of negligence arises merely because the medical care or surgical operation terminated in an unfortunate result which might have occurred even through proper care and skill had been exercised and where the common knowledge or experience of laymen is not sufficient to warrant their passing of judgment. In such cases, the doctrine of res ipsa loquitur or exclusive control may not be invoked and expert testimony in support of plaintiffs claim is an indispensable requisite to establish a right of action.”

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Bluebook (online)
5 Pa. D. & C.4th 277, 1990 Pa. Dist. & Cnty. Dec. LEXIS 342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murphree-v-barakat-pactcompllackaw-1990.