Sedlitsky v. Pareso

582 A.2d 1314, 400 Pa. Super. 1, 1990 Pa. Super. LEXIS 1365
CourtSupreme Court of Pennsylvania
DecidedJune 29, 1990
Docket1383
StatusPublished
Cited by22 cases

This text of 582 A.2d 1314 (Sedlitsky v. Pareso) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sedlitsky v. Pareso, 582 A.2d 1314, 400 Pa. Super. 1, 1990 Pa. Super. LEXIS 1365 (Pa. 1990).

Opinions

JOHNSON, Judge:

In a medical malpractice action, Marlene L. Sedlitsky appeals from the judgment entered on the jury verdict in favor of defendant James D. Pareso, M.D. On this appeal, we determine that once the plaintiff produces sufficient evidence to raise an inference of res ipsa loquitur, the plaintiff is entitled to have the jury instructed on this evidentiary rule even though the defendant has produced a quantity of contrary evidence. We also determine that where the plaintiff has provided the court with a written proposed point for charge which, although partially erroneous, sufficiently alerts the court that an important issue needs to be addressed in its jury charge, omission of an instruction on the important issue is grounds for reversal where the issue is not otherwise covered in the charge and the objecting party has been prejudiced. We reverse and remand for a new trial.

On July 16, 1985 Sedlitsky underwent surgery, performed by Pareso, a general surgeon, to remove one-half of her thyroid gland. After the surgery, Sedlitsky experienced hoarseness. Sedlitsky was examined by Dr. Eugene F. Paluso, who concluded that the hoarseness was a result of permanent vocal cord paralysis. On October 22, 1987, Sedlitsky commenced a negligence action against Pareso, alleg[4]*4ing medical malpractice. After a jury trial, a verdict was returned in favor of Pareso. Sedlitsky filed a Motion for Post-Trial Relief which was denied by a trial court en banc panel.

On appeal Sedlitsky raises the following issue for our consideration: whether the trial court committed error by failing to instruct the jury as to res ipsa loquitur ? We agree and reverse on this basis.1

Res ipsa loquitur is a short-hand expression for a rule of evidence which allows a jury to infer the existence of negligence and causation where the injury at issue is one that does not ordinarily occur in the absence of negligence. Gilbert v. Korvette, Inc., 457 Pa. 602, 327 A.2d 94 (1974). A plaintiff is entitled to a jury instruction on res ipsa loquitur where she has satisfied the requirements of the Restatement (Second) of Torts § 328 D. The Pennsylvania Supreme Court adopted this section of the restatement in Gilbert v. Korvette, Inc., supra. The restatement (Second) of Torts § 328 D states in relevant part:

[5]*5(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.

The Restatement (Second) of Torts, Comment e on Clause (a) of Subsection (1) elaborates upon the plaintiff’s burden to show the above elements. It provides in relevant part:

The plaintiff’s burden of proof ... requires him to produce evidence which will permit the conclusion that it is more likely than not that his injuries were caused by the defendant’s negligence. Where the probabilities are at best evenly divided between negligence and its absence, it becomes the duty of the court to direct the jury that there is no sufficient proof. The plaintiff need not, however, conclusively exclude all other possible explanations, and so prove his case beyond a reasonable doubt.... It is enough that the facts proved reasonably permit the conclusion that negligence is the more probable explanation. This conclusion is not for the court to draw, or to refuse to draw, in any case where either conclusion is reasonable; and even though the court would not itself find negligence, it must still leave the question to the jury if reasonable men might do so.

Restatement (Second) of Torts, Comment e on Clause (a) of Subsection (1), emphasis added; See also Hollywood Shop, Inc. v. Pennsylvania Gas and Water Co., 270 Pa.Super. 245, 249, 411 A.2d 509, 511 (1979). Where the plaintiff sustains his or her burden, the court must give an instruction on res ipsa loquitur, even if the defendant has produced a quantity of contrary evidence. See Halsband v. Union National Bank of Pittsburgh, 318 Pa.Super. 597, 465 A.2d 1014 (1983). An inference of res ipsa loquitur does not [6]*6disappear in the face of contrary evidence. Packel and Poulin, Pennsylvania Evidence, § 306.6 at 95 (1987).

The trial court inappropriately cites Brophy v. Brizuela, 358 Pa.Super. 400, 517 A.2d 1293 (1986) for the proposition that a charge on res ipsa loquitur is not required where the plaintiffs evidence of res ipsa loquitur is contradicted by the defendant’s evidence. In Brophy, this court simply held that in a case alleging res ipsa loquitur, summary judgment is properly granted in favor of the defendant where the plaintiff has adduced no expert testimony to show that her injury is not one which commonly occurs in the absence of negligence and the uncontradicted evidence of record demonstrates that the injury could have occurred in the absence of negligence. Unlike Brophy, Sedlitsky did produce expert testimony to the effect that her injury does not commonly occur in the absence of negligence. Expert testimony is sufficient to establish the elements of section 328 D such that a res ipsa loquitur instruction is warranted even when contrary evidence has been produced by the defendant. See Hollywood Shop, Inc. v. Pennsylvania Gas and Water Co., 270 Pa.Super. at 250, 411 A.2d at 512.

On Sedlitsky’s behalf, Dr. Richard Bassin testified that Sedlitsky’s vocal cord paralysis occurred during the operation performed by Pareso and that during the operation Pareso must have somehow stretched the cord. He further testified that the injury suffered by Sedlitsky is not an injury which can occur in the absence of negligence unless unusual circumstances are present, that Sedlitsky’s operation did not evidence any unusual circumstances and that therefore Pareso must have acted negligently and breached the standard of care required of a doctor by failing to protect the vocal cords while operating.

Sedlitsky's evidence that this was an injury which will, in the normal case, occur only because of negligence was sufficient to satisfy the first prong of section 328 D. The inference that this injury does not commonly occur without negligence was not directly rebutted. Pareso’s expert, Dr. Charles Gray Wasting, only testified that this injury can [7]*7occur without negligence. In Watson’s opinion, Sedlitsky’s injury was not the result of negligence but an unavoidable result of the surgery. He testified that Sedlitsky’s thyroid gland may have been temporarily attached to her vocal cord and therefore the cord may have suffered a stretch injury as the thyroid gland was properly rotated out of Sedlitsky’s neck. He stated that when the cord and gland are attached, a stretch injury is unavoidable.

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Bluebook (online)
582 A.2d 1314, 400 Pa. Super. 1, 1990 Pa. Super. LEXIS 1365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sedlitsky-v-pareso-pa-1990.