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HomeMy WebLinkAbout2002-3935 Civil PATRICIA RICHWINE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW 02-3935 CIVIL JEFFREY D. SEDLACK, M.D., Defendants JURY TRIAL DEMANDED IN RE: OPINION PURSUANT TO RULE 1925 BEFORE HESS, 1. In this case, the defendant, Jeffrey D. Sedlack, M.D., has appealed from our order sustaining post-trial motions of the plaintiff and granting a new trial. The plaintiff had alleged that Dr. Sedlack negligently performed a laparoscopic gall bladder removal by cutting and clipping Ms. Richwine's hepatic duct and common bile duct. As a result, there was a stoppage of the flow of bile to her intestine and subsequent surgical procedures were required. The defendant essentially admitted that there was no excuse or explanation for what he had done and that he must have simply made a mistake. The plaintiff s expert testified that injury to the plaintiff occurred when Dr. Sedlack negligently failed to properly visualize appropriate anatomical structures and that cutting and clipping the wrong structures was substandard. The position taken by the defense expert was correctly described in the plaintiff s brief in support of new trial. "Defendant presented the report of Dr. Herbert Ruben who contended that the injuries to Ms. Richwine were most likely not negligence since 0.6 percent of the operations similar to that performed by Dr. Sedlack result in common bile duct injuries. Defendant's expert, Dr. Ruben, hypothesized that since the percentage has remained relatively stable over the years, that these injuries are not the result of negligence. Dr. Ruben admitted, however, that there was no scientific study or scientific basis for his conclusion. He further admitted that he could not say how many of the 0.6 percent were caused by negligence. Dr. Ruben's second NO. 3935 CIVIL 2002 assertion in defense of Dr. Sedlack was that Dr. Sedlack's operative report as written did not show a substandard operation. In short, Dr. Sedlack and Dr. Ruben defended Dr. Sedlack's action on the basis that Dr. Sedlack thought he was doing the right thing and wrote down in his operative report that he did the operation correctly." The plaintiff filed a motion in limine to prevent Dr. Ruben's testimony. This motion was overruled by the undersigned. We went on to charge the jury that Dr. Sedlack could not be liable for a mere mistake. Our charge was specifically that a "physician is not a warrantor of a cure, nor a guarantor of a result. Moreover, if the most that the case discloses is a mistake without sufficient evidence that the error was a result of negligence, then there is no liability." After some deliberation, the jury notified the court with a question regarding the legal interpretation of negligence. The jury was brought into the courtroom for further instructions which were as follows: A physician is neither a warrantor nor a guarantor of a result. Moreover, if the most that this case discloses is a mistake, and there being not sufficient evidence that the error was the result of negligence, then there is no liability. On the other hand, and to expand on that somewhat, if you find that there was a mistake that occurred, but it was because the doctor was being negligent, then the doctor would be negligent in that instance. After some further deliberation, the jury returned a verdict in favor of the defendant, finding that Dr. Sedlack's care of Ms. Richwine was not negligent. Post-trial motions were filed. Following argument, we entered an order granting the post-trial motions because the verdict was against the weight of the evidence and our charge to the jury with regard to "mistake" was misleading. The defendant has since appealed. 2 NO. 3935 CIVIL 2002 Weare satisfied that the issues regarding the weight of the evidence and our charge on "mistake" go hand-in-hand. The plaintiffs testimony was to the effect that Dr. Sedlack's failure to properly recognize certain anatomical structures and to cut the wrong structures was negligence. Dr. Sedlack's defense was, in essence, that he must have made a mistake, that mistakes happen in some of these operations, and that he did not know how the mistake happened. Viewed in this light, the clear weight of the testimony was in favor of the plaintiff. In fact, the jury's verdict is so contrary to the evidence as to shock one's sense of justice and to "make the award of a new trial imperative, so that right may be given another opportunity to prevail." Com. v. Taylor, 471 A.2d 1228, 1230 (Pa.Super. 1984). Importantly, it was our charge to the jury which not only legitimized but lent credence to the suggestion by the defendant that there could have been a mistake in the absence of negligence. Pennsylvania courts are split as to whether it is error to include instructions as to "mistake" when presenting jury instructions for medical malpractice cases. See Soda v. Baird, 600 A.2d 1274 (Pa. Super. 1991) (holding that it was not reversible error to distinguish in the jury instructions between negligence and "error in judgment"); Havasy v. Resnick, 609 A.2d 1326 (Pa. Super. 1992) (holding that trial court did not err by instructing that "if a physician exercises the skill, knowledge and care customarily exercised in his profession, he is not liable for a mere mistake ofjudgment."); contra Gunn v. Grossman, 748 A.2d 1235 (Pa. Super. 2000) (holding that trial court did not err by failing to instruct on "error in judgment" and appellant's claim for a new trial was "utterly devoid of merit."); D'Orazio v. Parlee & Tatem Radiologic Assocs., Ltd, 850 A.2d 726 (Pa. Super. 2004) (holding that it was proper not to instruct on error in judgment when judgment was not a factor in the case). 3 NO. 3935 CIVIL 2002 The difficulties presented by a jury charge on a mere "mistake in judgment" have been amplified in a subcommittee note to jury instruction 10.03 A relating to the standard of care of physicians. The subcommittee confirms that there is no reference to a physician's "judgment" in the instruction. The committee notes, inter alia, that "it would be anomalous to hold that liability will not be imposed for a mistake under the professional standard, whereas liability would follow for a mistake in judgment under a reasonable person's standard." The subcommittee discusses the potential for confusion in charging on mistake in judgment and notes, in any event, that the question of a mistake in judgment is most relevant when the defendant's liability is based on an incorrect diagnosis. In the case sub judice, we are not dealing with an incorrect diagnosis. Instead, the allegations here involve a negligently performed procedure. Notwithstanding, our courts have found a charge on "mere error in judgment" to be inappropriate even in a case involving negligence in a diagnosis. The case of Vallone v. Creech, 820 A.2d 760 (Pa.Super. 2003) is particularly instructive. In that case, the plaintiff, while under the care of the defendant, underwent a lumpectomy for the removal of a carcinoma in her right breast. Five years later, the plaintiff began to notice significant changes in her breast. Eventually, she appeared with a red rash on the right breast. A biopsy disclosed the recurrence of cancer. The plaintiff alleged, and her expert witnesses so testified, that the defendant's failure to order a simple biopsy, "causing a 14-15 month delay in diagnosing appellee's cancer recurrence, caused her chance of survival to plummet from 90% to zero." Id at 763. The defendant physician, in his testimony, admitted that he believed that there was a 20% chance that the cancer had recurred but "did nothing to confirm that suspicion until approximately 14 months later." This testimony notwithstanding, the jury found in favor of the defendant. The trial court also believed that it had committed error when it charged that the failure to order appropriate 4 NO. 3935 CIVIL 2002 diagnostic testing would be negligence, but a "mere error in judgment" in failing to order the appropriate tests would not. In that case as in this one, the jury sent out a question seeking a clarification. Shortly after the "clarification" the jury returned with a defense verdict. The Superior Court noted: Under the instructions given, the jury was required to conclude it was at least permitted to choose error in judgment or negligence in failing to order appropriate diagnostic testing. In this circumstance, where the trial court's initial charge on "mere error in judgment" had confused the jury, repeating the same instruction in complete isolation from the rest of the charge provided more confusion than clarity. The Superior Court concluded by reiterating certain basic concepts which have application to this case. It is hornbook law in this Commonwealth that a trial court should not charge the jury on a concept that is not supported by the evidence. Oxford Presbyterian Church v. Wed-McLain Co., 815 A.2d 1094 (Pa.Super. 2003). Where a court orders a new trial for a specific reason, we examine that reason and determine whether the court abused its discretion in ordering the new trial. Kovach v. Solomon, 732 A.2d 1 (Pa.Super. 1999). "Error in a jury charge may provide the basis for a new trial if it is shown that the instruction may have been responsible for the verdict. A charge to the jury which is not warranted by the evidence is ground for a new trial." Id at 6 (citations omitted). We conclude the "mere error in judgment" charge had no application in this case because it was not supported by the evidence. Given appellant's acknowledgment that he thought recurrence was a twenty percent possibility, his failure to order diagnostic testing was not a mere error in judgment. We conclude, therefore, that the post- trial motion court did not abuse its discretion when 5 NO. 3935 CIVIL 2002 it concluded the confusing jury instructions also warranted the grant of a new trial. Id, at 765-66. In this case, the defendant admitted that he cut the wrong structures while performing surgery. He admits, in the end, that he must have made a mistake but proffers no explanation as to how the mistake could have occurred in the absence of negligence. By charging that a "mistake in judgment" could be a viable defense in this case, we steered the jury to a clearly erroneous result. February ,2005 Kevin A. Hess, 1. Neil 1. Rovner, Esquire F or the Plaintiff Michael M. Badowski, Esquire F or the Defendant :rlm 6