Neilson v. Ruoti

45 Pa. D. & C.4th 518, 1999 Pa. Dist. & Cnty. Dec. LEXIS 41
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedSeptember 30, 1999
Docketno. 96-06047-13-1
StatusPublished

This text of 45 Pa. D. & C.4th 518 (Neilson v. Ruoti) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Neilson v. Ruoti, 45 Pa. D. & C.4th 518, 1999 Pa. Dist. & Cnty. Dec. LEXIS 41 (Pa. Super. Ct. 1999).

Opinion

LAWLER, J.,

Plaintiffs, John and Nancy Neilson, appeal the order of this court dated August 5, 1999, denying their motion for post-trial relief. Pursuant to Pa.R.A.P. 1925(b), plaintiffs have submitted a concise statement of matters complained of .on appeal. This opinion is filed in accordance with Pa.R.A.P. 1925(a).

BACKGROUND

During the summer of 1994, plaintiff Nancy Neilson developed severe pain in her right shoulder resulting from a large rotator cuff tear. When cortisone injections, physical therapy and other treatments failed to alleviate her symptoms, she elected to have surgery. On March 31, 1995, Dr. Robert E. Mannherz performed surgery to repair the tear. Unfortunately, surgical repairs of large tears like Mrs. Neilson’s have a failure rate of up to 50 per[520]*520cent, meaning as many as half never heal properly or are subsequently re-torn.

Following surgery, Dr. Mannherz prescribed physical therapy for the rehabilitation of Mrs. Neilson’s injured shoulder. The prescription was accompanied by a protocol. A protocol is a written outline of generally agreed concepts given by the treating physician to a physical therapist, as a set of guidelines for the patient’s therapy. The protocol followed in Mrs. Neilson’s case was Dr. Mannherz’ Type III Rotator Cuff Repair Rehabilitation protocol, which is used for large or complete tears. See plaintiffs’ exhibit P-5. Initially, Mrs. Neilson performed all of her therapy at home, assisted by her husband. Beginning on April 11, 1995, she also treated with defendant Bux-Mont Physical Therapy three times per week, in accordance with Dr. Mannherz’ prescription. During the early stages of her therapy Mrs. Neilson was permitted to perform only passive range of motion exercises.

On April 28,1995, in accordance with Dr. Mannherz’ protocol, her physical therapy regime was expanded to include “active assisted” exercises. “Active assisted” exercise means that the injured limb performs the exercise with assistance from an external force, whether it be another person, another limb, or a mechanical device. To complete one of these new exercises, Mrs. Neilson was instructed by therapist George Logue of Bux-Mont to lie flat on an exam table and lift an exercise wand towards the ceiling using both arms. While performing this exercise for the first time, Mrs. Neilson experienced considerable pain. Afterward, the pain continued, so she consulted Dr. Mannherz. It became apparent that the March 31 surgical repair had failed. In late June of 1995 she underwent a second surgery to repair her rotator cuff. [521]*521Mrs. Neilson never regained full mobility of her shoulder following the second surgery, and her shoulder provides consistent discomfort.

In August 1996, plaintiffs John and Nancy Neilson filed a complaint against defendant Bux-Mont and its owner, Richard Ruoti Ph.D., P.T., alleging that improper physical therapy administered by defendants caused the re-tear of Nancy Neilson’s rotator cuff. A jury trial began on April 12,1999. The factual issue presented to the jury was whether the defendant properly administered the therapy in accordance with Dr. Mannherz’ protocol. At trial, this court overruled plaintiffs’ objection to the use of Pa.SSJI (Civ.) 10.04, regarding the “differing schools of thought doctrine.” The jury returned a verdict in favor of defendants.

ISSUES ON APPEAL

Plaintiffs appeal the jury verdict rendered in favor of defendants, and have filed a concise statement of matters complained of on appeal listing seven points of error. However, these seven points are more appropriately summarized in the following two issues: First, plaintiffs argue that the court erred by instructing the jury on the “differing schools of thought doctrine,” because that doctrine does not apply to physical therapists. Second, plaintiffs contend that even if the doctrine is applicable, the court’s instruction was erroneous because the defendants failed to establish the existence of a second school of thought relating to the plaintiff’s treatment.

[522]*522DISCUSSION

1. The Differing Schools of Thought Doctrine Applies to Physical Therapists

Under the differing schools of thought doctrine, “a medical practitioner has an absolute defense to a claim of negligence when it is determined that the prescribed treatment or procedure has been approved by one group of medical experts even though an alternate school of thought recommends another approach.” Jones v. Chidester, 531 Pa. 31, 33, 610 A.2d 964, 965 (1992). The plaintiffs argue that physical therapists are not medical practitioners entitled to use the defense. However, they cite no authority in support of their position. Instead, plaintiffs contend that physical therapists are neither permitted nor required to exercise their judgement in the treatment of patients to the degree that a physician or surgeon would. Plaintiffs view this supposed lack of discretion as negating physical therapists’ need for the doctrine’s protection. The better view is that the decisions made by physical therapists regarding the treatment of their patients fall squarely within the class of judgements the doctrine is meant to protect.

The purpose underlying the doctrine is “to remove from the jury’s discretion those matters requiring medical expertise, and on which medical experts disagree among themselves.” D’Angelis v. Zakuto, 383 Pa. Super. 65, 70, 556 A.2d 431, 433 (1989). It is based on the premise that a jury should not be forced to choose one body of medical opinion over another, where both are respected and each gamers a following within the medical community. Havasy v. Resnick, 415 Pa. Super. 480, [523]*523502, 609 A.2d 1326, 1336 (1992); D’Angelis, 383 Pa. Super. at 69, 556 A.2d at 432; Trent v. Trotman, 352 Pa. Super. 490, 496, 508 A.2d 580, 584 (1986). Although physical therapists are not usually medical doctors, they are members of a learned profession. Physical therapists are specially trained practitioners of the healing arts, and must be licensed in order to practice in Pennsylvania. See 63 P.S. §1301 et seq. Like a doctor’s, the physical therapist’s practice is governed by medical and scientific principles. Furthermore, as in medicine, differences of professional or medical opinion sometimes arise in the physical therapy field regarding the proper procedure for remedying a given injury. In deciding whether a physical therapist acted negligently, a jury should not be forced to choose one body of medical opinion over another when both views are respected and adhered to by a segment of the profession. A conflict among experts in the physical therapy field regarding the appropriate procedure to employ is essentially a matter requiring medical expertise, which should not be left to the jury’s discretion.

The case at bar aptly demonstrates the propriety of applying the doctrine to physical therapists. This case was filed as a professional malpractice action. It was filed against a defendant who was providing treatment of a medical nature to the plaintiff. Both parties submitted proposed jury instructions derived from standard medical malpractice jury instructions.

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Related

Jones v. Chidester
610 A.2d 964 (Supreme Court of Pennsylvania, 1992)
Trent v. Trotman
508 A.2d 580 (Supreme Court of Pennsylvania, 1986)
D'ANGELIS v. Zakuto
556 A.2d 431 (Supreme Court of Pennsylvania, 1989)
Gala v. Hamilton
715 A.2d 1108 (Supreme Court of Pennsylvania, 1998)
Havasy v. Resnick
609 A.2d 1326 (Superior Court of Pennsylvania, 1992)

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Bluebook (online)
45 Pa. D. & C.4th 518, 1999 Pa. Dist. & Cnty. Dec. LEXIS 41, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neilson-v-ruoti-pactcomplbucks-1999.