Pollak v. Holencik

48 Pa. D. & C.4th 57, 2000 Pa. Dist. & Cnty. Dec. LEXIS 233
CourtPennsylvania Court of Common Pleas, Dauphin County
DecidedAugust 9, 2000
Docketno. 4557 S 1997
StatusPublished

This text of 48 Pa. D. & C.4th 57 (Pollak v. Holencik) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Dauphin County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pollak v. Holencik, 48 Pa. D. & C.4th 57, 2000 Pa. Dist. & Cnty. Dec. LEXIS 233 (Pa. Super. Ct. 2000).

Opinion

KLEINFELTER, P.J.,

Before the court is the defendant, Mark R Holencik D.O.’s, motion for post-trial relief. The motion follows a jury trial conducted January 24-27, 2000, and a verdict of $511,443 in favor of plaintiff, Corrina B. Poliak.

Prior to trial, Poliak’s claims against Dr. Holencik were distilled to three counts: (1) professional negligence; (2) battery (lack of informed consent); and (3) negligent misrepresentation. Also prior to trial, Poliak agreed to dismiss Dickinson College as a party.

The verdict form (with special interrogatories) separately addressed the three counts. On Count 1, the jury concluded that Dr. Holencik was negligent and that his negligence was a substantial factor in bringing about Poliak’s harm. On Count 2, the jury found that Dr. Holencik failed to obtain the informed consent of Poliak prior to surgery and that her lack of informed consent was a substantial factor in her decision to undergo surgery. On Count 3, the jury found that Dr. Holencik negligently misrepresented the period of Poliak’s recovery and her ability to play lacrosse in the spring of 1996. The jury concluded that such misrepresentation was a substantial factor in inducing Poliak to undergo surgery in October of 1995.

As far as damages, the jury was given a general instruction that, if liability were established on Counts 1 or 2, they could award: past medical expenses, pain and suffering, loss of life’s pleasures and disfigurement. If liability were found as to Count 3 only, the jury was limited to the category of loss of life’s pleasures only.

As noted, the jury found liability on all counts and apportioned damages as follows:

[59]*59Past medical expenses: $ 11,443
Pain and suffering: 150,000
Loss of life’s pleasures: 75,000
Disfigurement:_275,000
Total: $511,443

Dr. Holencik’s motion for post-trial relief contains a motion for new trial and a motion for remittitur. The motion for new trial raises five issues: (1) the court erred in failing to charge the jury on the alleged contributory negligence of Poliak; (2) the court erred in allowing the jury to consider the count of informed consent; (3) the court erred in charging the jury on the issue of a medical battery; (4) the court erred in allowing the count of negligent misrepresentation to go to the jury; and (5) the verdict on all counts was against the weight of the evidence. The motion for remittitur claims that the total sum awarded was excessive, but is not specific as to any category of damages.

Before reaching the issues, a summary of the facts is in order. Poliak’s difficulties began with a knee injury suffered while playing high school lacrosse in 1993 at the Albany Academy in Albany, New York. After evaluation by a physician, Poliak was advised of alternative methods of treating her injury: surgery or application of a leg brace while participating in lacrosse. Poliak chose the latter.

Poliak’s proficiency in lacrosse prompted her to try out for a position on the women’s lacrosse team at Dickinson College in the fall of 1995. As a prerequisite, college policy required Poliak to undergo a physical examination by the team physician, Dr. Holencik. During the examination, Poliak advised Dr. Holencik of her pre[60]*60existing injury. Upon further evaluation, Dr. Holencik determined that her knee was extremely unstable and denied her authorization to play lacrosse until the instability was corrected. Dr. Holencik recommended surgery, which he offered to perform.

Prior to surgery, Poliak and her father consulted Dr. Holencik to discuss the benefits of the procedure as well as its inherent risks. Both Poliak and her father testified at trial that during these discussions, Dr. Holencik made certain representations. According to Poliak: “I was told that if I got the surgery done in October,... I would, in fact, be able to play lacrosse in the spring, which was my number one concern.” (N.T. vol. I, pp. 51,14-17.) Poliak was also questioned about any pre-surgical discussions with Dr. Holencik.

“Mr. DeVere: During any of these face-to-face meetings or telephone calls, did Dr. Holencik ever discuss with you the nature of the surgery he was going to perform, that it would not be a widely used procedure called an extra-articular?

“Ms. Poliak: No.

“Mr. DeVere: Did he ever discuss with you prior to surgery that there was an alternative procedure called the intra-articular?

“Ms. Poliak: Never.

“Mr. DeVere: Did he ever mention to you anything about placing screws or hardware into your knee during the surgery?

“Mr. DeVere: Did he talk to you about the scar[r]ing?

“Ms. Poliak: No.” (N.T. vol. I, p. 52, 8-20.)

[61]*61Steven Poliak, plaintiff’s father, also recalled a conversation with Dr. Holencik during which the prospect of a delayed surgery was discussed: “Dr. Holencik impressed upon us that if you have this surgery done now, she can play [lacrosse] in the spring.” (N.T. vol. II, p. 15, 20-21.)

On October 17, 1995, Dr. Holencik performed an extra-articular reconstruction of Poliak’s injured knee, which included the insertion of certain screws and washers to support the joint. Poliak testified that she attended three post-operation visits per Dr. Holencik’s instructions as well as undergoing rehabilitation sessions with physical trainers at Dickinson College. However, instead of fully recovering and playing lacrosse, Poliak experienced pain, swelling and a large scar. Had she known of the extent of the potential scarring, Poliak testified that she would not have subjected herself to the surgery.

Poliak explained that the pain and swelling of her knee was continuous over the balance of the school year. This condition prompted Poliak to consult Dr. Craig Westin of Utah,1 another orthopedist. Dr. Westin performed additional surgery by opening the scar, removing the screws and washers, and rebuilding certain critical ligaments. This operation was more successful than the first, but Poliak was still left with the unattractive scar on her right leg. Since Poliak experienced pain and swelling, was unable to play lacrosse, and was left with a large scar on her right leg, she filed suit with this court on October 7, 1997.

[62]*62Poliak presented Dr. Westin as an expert witness. Dr. Westin testified that the procedure performed by Dr. Holencik, an extra-articular repair, was outdated, “not an operation done in young athletic individuals” (N.T. vol. I, p. 188, 1-4), and should not have included the installation of screws and washers. According to Dr. Westin, had Dr. Holencik performed an intra-articular repair, the correct procedure, Poliak’s scarring would not have been as severe. Dr. Westin concluded his testimony by stating, within a reasonable degree of medical certainty, that Dr. Holencik deviated from the accepted standard of medical care by doing an extra-articular repair rather than an intra-articular repair and that this deviation caused Poliak’s injuries.

Dr. Holencik presented his own testimony. Although he agreed that Poliak was present at each of the three post-surgery appointments, Dr. Holencik testified that Poliak made no complaints about swelling or pain in her knee. After the initial three appointments, Dr.

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Bluebook (online)
48 Pa. D. & C.4th 57, 2000 Pa. Dist. & Cnty. Dec. LEXIS 233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pollak-v-holencik-pactcompldauphi-2000.