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HomeMy WebLinkAbout87-1635 CivilDENNIS THEODORATOS and IN THE COURT OF COMMON PLEAS OF ZOE THEODORATOS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CIVIL ACTION - LAW MARVIN BERGER, D.D.S., Defendant NO. 1635 CIVIL 1987 MARVIN BERGER, D.D.S, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW DENNIS THEODORATOS and ZOE THEODORATOS, Defendants NO. 52 CIVIL 1987 IN RE: POST -TRIAL MOTIONS BEFORE SHEELY, P.J., and OLER J ORDER OF COURT AND NOW, this" day of September, 1993, upon consideration of the Post -Trial Motion filed by Dennis and Zoe Theodoratos at No. 1635 CIVIL 1987, the motion for a new trial is DENIED. Upon consideration of the Post -Trial Motion filed by Marvin Berger at 52 CIVIL 1987, the motion for a molded verdict is GRANTED, and interest in the amount of $721.37 is added to the award in favor of Dr. Berger. BY THE COURT, J Wesley Oler, J . J. Francis E. Marshall, Jr., Esq. 1323 North Front Street Harrisburg, PA 17102 Counsel for Marvin Berger, D.D.S. Michael Roman, Esq. 3207 North Front Street Harrisburg, PA 17110 Counsel for Dennis and Zoe Theodoratos :rc DENNIS THEODORATOS and IN THE COURT OF COMMON PLEAS OF ZOE THEODORATOS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CIVIL ACTION - LAW MARVIN BERGER, D.D.S., Defendant NO. 1635 CIVIL 1987 MARVIN BERGER, D.D.S, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW DENNIS THEODORATOS and ZOE THEODORATOS, Defendants NO. 52 CIVIL 1987 IN RE: POST -TRIAL MOTIONS BEFORE SHEELY, P.J., and OLER J OPINION AND ORDER OF COURT Oler, J. At issue in the present consolidated dental malpractice and breach of contract cases are motions for post -trial relief filed by both parties. More specifically, in their dental malpractice case Dennis and Zoe Theodoratos have filed a motion for a new trial No. 1635 Civil 1987 No. 52 Civil 1987 following a jury verdict in favor of Dr. Marvin Berger;' in his breach of contract case, Dr. Berger has filed a motion requesting that the Court mold the award in his favor of $1,891.00, by the addition of six percent interest. For the reasons stated in this Opinion, the Theodoratoses' motion will be denied, and Dr. Berger's motion will be granted. Statement of facts. The facts of this case, as developed during the trial, may be summarized in the following manner. In early 1986, Zoe Theodoratos (Plaintiff -Wife) was experiencing dental problems for which she went to see a certain dentist.' This dentist referred Plaintiff -Wife to Marvin Berger, D.D.S. (Defendant), a periodontist. ' The Theodoratoses' Motion for Post -Trial Relief also refers to a motion for judgment notwithstanding the verdict. However, this form of relief is not requested in the Theodoratoses' brief and the issue may be addressed here in summary fashion. See C.C.R.P. 210-7 (waiver of issues not briefed). In ruling on a motion for judgment notwithstanding the verdict, the court may consider only the evidence supporting the verdict and must give the benefit of the doubt as to every fact to the verdict winner. See Lilley v. Johns -Manville Corp., 408 Pa. Super. 83, 596 A.2d 203 (1991), allocatur denied, _ Pa. _, 607 A.2d 254 (1992). The motion may be granted only in cases where, upon reviewing the evidence, it is clear that no two reasonable minds would disagree that the verdict was improper. See Golibart v. Reamer, 415 Pa. Super. 623, 610 A.2d 56, allocatur denied, 532 Pa. 664, 616 A.2d 985 (1992). In the present case, as may be gleaned from the factual recitation contained in the text, the Court would not conclude that a review of the evidence supporting the verdict would warrant a holding that it was insufficient as a matter of law. ' Theodoratos v. Berger, 1635 CIVIL 1987, Transcript of Trial Testimony, September 10, 1992, N.T. 95-96 (hereinafter N.T. ). 3 N.T. 96. 2 No. 1635 Civil 1987 No. 52 Civil 1987 An employee of Defendant, by the name of Dr. Cole, initially saw Plaintiff -Wife and prepared a treatment plan for her; this plan included dental implants' in the lower left and lower right sides of Plaintiff -Wife's mouth.' During her initial visits to Defendant's office, Plaintiff -Wife was seen exclusively by Dr. Cole,' and he was scheduled to perform the implant procedure on her.' However, when the time planned for the procedure arrived, Dr. Cole had taken a leave of absence.' Consequently, Plaintiff -Wife was given the option of rescheduling the procedure for a later date with Dr. Cole or having it performed by Defendant; she chose the latter option.' Before the procedure, Plaintiff -Wife declined to sign a consent form offered to her, without giving an explanation for her conduct.10 However, Defendant testified that the important aspects contained in the form, such as the possible complications ' A dental implant is a replacement for a tooth root made out of titanium. It is a cylinder, seated into a hole prepared in the bone, to which may be attached a crown to replace a missing tooth. N.T. 133, Plaintiffs' Exhibit 6, Deposition of David B. Rosen, M.D., September 4, 1992, N.T. 17 (hereinafter Rosen Deposition, �. 5 N.T. 51. 6 N.T. 17. ' N.T. 18. 8 N. T. 18. 9 N. T. 19. to N.T. 66. 3 No. 1635 Civil 1987 No. 52 Civil 1987 of numbness of the lip, tongue, chin, cheek or teeth, were explained to her." Defendant performed the procedure on Plaintiff -Wife on April 29, 1986, placing one implant in the lower left side and one in the lower right side of her jaw.12 Following the procedure, Plaintiff -Wife complained of being "very, very sick" and returned to the office in less than a week, at which time she was seen by Dr. Cole." At this time, Plaintiff -Wife complained to Dr. Cole of numbness from the middle of her lower lip reaching around the right side to the corner of her mouth.14 According to her testimony, this numbness was a condition continuing to the present time." Plaintiff -Wife also complained of a jabbing sensation on the lower right side of her mouth.1e On February 26, 1987, Defendant instituted suit against Plaintiffs to recover the unpaid amount of his bill for dental services, which included the installation of the aforementioned implants. 17 Plaintiffs countered by bringing a separate action against 11 N.T. 66-69. 12 N.T. 76. 13 N.T. 105. 14 N.T. 110-11. 15 N.T. 112. 16 Rosen Deposition, 28. 17 Defendant's Complaint, paragraphs 5-6. 4 No. 1635 Civil 1987 No. 52 Civil 1987 him, contending that he was negligent in the following respects: a. failing to perform the Corevent Implant procedure in accordance with medically and dentistry accepted standards; b. failing to take proper care and caution in performing the procedure as to prevent unfavorable results; c. carelessly inserting an implant in Plaintiff ZOE THEODORATOS' jaw bone which was too long, thereby damaging a nerve; d. failing to warn Plaintiff that such a procedure could result in adverse results; e. failing to inform Plaintiff of alternative procedures available which were less likely to result in injury; f. after completion of the procedure, failing to heed Plaintiff's complaints following the treatment given, further carelessly and negligently failing and omitting to observe the condition of Plaintiff, or to take the proper precautions or apply the proper remedies to relieve Plaintiff from the results of his improper insertion of the implant; g. generally failing to exercise professional competence and use standards of care consistent with the standards of the dentistry profession within the community, and failing to exercise due care under the circumstances. 18 Following a jury trial that resulted in a verdict in favor of Defendant on all points,1' Plaintiffs filed a post -trial motion contending that the verdict was against 18 Plaintiffs' Amended Complaint, paragraph 8. is N.T. 257-59. 5 No. 1635 Civil 1987 No. 52 Civil 1987 the weight of the evidence and requesting a new trial.20 Defendant filed a post -trial motion requesting the Court to mold the verdict to add six percent interest to the award of $1,891.00 in his favor .2' During oral argument, Plaintiffs' counsel agreed that, if Plaintiffs' motion for post -trial relief were not meritorious, the molding of the verdict as requested by Defendant would be proper. Statement of law. It is well settled in Pennsylvania that, "[i]n dealing with issues involving the weight of the evidence, Pennsylvania courts will not grant a new trial unless the verdict is so contrary to the evidence as to shock the court's sense of justice." Giovanetti v. Johns -Manville Corp., 372 Pa. Super. 431, 440, 539 A.2d 871, 875 (1988). When considering a motion for a new trial based upon the contention that the jury's verdict was against the weight of the evidence, a court must review all of the evidence presented at trial. Farelli v. Marko, 349 Pa. Super. 102, 502 A.2d 1293 (1985). "[A] new trial should not be granted on a mere conflict in the testimony, 1122 for "it is [the] duty [of the jury] to resolve the issue against one party and in favor of 20 Plaintiffs' Motion for Post -Trial Relief, paragraphs 1-3. In their motion, Plaintiffs also raised the issues of whether the Court erred in deciding that Defendant's expert was qualified to render an expert opinion at trial, and whether the Court erred in refusing to give Plaintiffs' requested jury charge. Plaintiffs also requested judgment notwithstanding the verdict. See Plaintiffs' Motion for Post Trial Relief, paragraphs 4-5. However, these issues have not been addressed in Plaintiffs' brief. See C.C.R.P. 210-7. 21 Defendant's Post -Trial Motion. 22 Baldino v. Castagna, 505 Pa. 239, 249, 478 A.2d 807, 812 (1984). 9 No. 1635 Civil 1987 No. 52 Civil 1987 another." Giovanetti v. Johns -Manville Corp., 372 Pa. Super. 431, 441, 539 A.2d 8711 876 (1988). With respect to a doctor's liability for failure to obtain informed consent prior to performing surgery on a patient, it has been held by the Pennsylvania Supreme Court that "where a patient is mentally and physically able to consult about his condition, in the absence of an emergency, the consent of the patient is a'prerequisite to a surgical operation by his physician' and an operation without the patient's consent is a technical assault." Smith v. Yohe, 412 Pa. 94, 106, 194 A.2d 167, 174 (1963). Moreover, in order for a patient's "consent to be effective it must be informed and knowledgeable." Moure v. Raeuchle, 529 Pa. 394, 404, 604 A.2d 1003, 1008 (1992). In this regard, a patient's consent will be considered informed only if it is given after "the physician [has] disclosed those risks which a reasonable man would have considered material to his decision whether or not to undergo treatment." Festa v. Greenberg, 354 Pa. Super. 346, 353, 511 A.2d 1371, 1375 (1986), allocatur denied, 515 Pa. 580, 527 A.2d 541 (1987). Furthermore, "[t]he determination of what is material is a jury question." Moure v. Raeuchle, 529 Pa. 394, 405, 604 A.2d 1003, 1008 (1992). After being presented with expert information regarding the harm associated with a given procedure and the probability of that harm occurring, "the jury must determine whether the type of harm and the probability of its occurrence is information which 7 No. 1635 Civil 1987 No. 52 Civil 1987 a reasonable patient would consider in deciding whether to undergo the medical procedure." Id. With respect to establishing that a doctor negligently performed surgery on a patient, "the burden of proof is upon the plaintiff to prove either (1) that the physician did not possess and employ the required skill or knowledge or (2) that he did not exercise the care and judgment of a reasonable man in like circumstances." Smith v. Yohe, 412 Pa. 94, 99, 194 A.2d 167, 170 (1963). In this regard, the physician need only possess and employ the "'skill and knowledge usually possessed by physicians [of good standing] in the same or a similar locality giving due regard to the advanced state of the profession at the time of the treatment."' Id. at 98-99, 194 A.2d at 170, quoting Donaldson v. Maffucci, 397 Pa. 553, 554, 156 A.2d 835, 838 (1959). Moreover, in general a "physician is not liable for an error of judgment." Id. at 99, 194 A.2d at 170. So long as the physician "employs the required judgment and care in arriving at his diagnosis, the mere fact that he erred in his diagnosis will not render him liable, even though his treatment is not proper for the condition that actually exists." Id. at 100, 194 A.2d at 170.23 Application of law to facts With respect to Plaintiffs' contention that Defendant 23 But see Soda v. Baird, 411 Pa. Super. 80, 600 A.2d 1274 (1991), allocatur denied, 532 Pa. 665, 616 A.2d 986 (1992) (holding that physician is not excused for an error of judgment when it is negligent, gross or reckless). No. 1635 Civil 1987 No. 52 Civil 1987 failed to obtain Plaintiff -Wife's informed consent prior to performing surgery upon her, our examination of the record indicates that there was conflicting testimony presented on this issue. Both parties agree that Plaintiff -Wife refused to sign the consent form. However, Plaintiff -Wife contends that no part of this form was ever explained to her, while Defendant contends that he did explain to Plaintiff -Wife prior to the surgery all pertinent parts of the form, including the section relating to the complications which may develop from the procedure. Moreover, Defendant testified as to his standard office practice of showing to implant patients a videotape and a model of how the implants are placed in the jaw. With respect to Plaintiffs' contention that the jury verdict in favor of Defendant as it related to due care was against the weight of the evidence, our review of the record indicates that there was also conflicting testimony at trial regarding Defendant's conduct both before and during the surgery. As to whether Defendant was aware of Plaintiff -Wife's condition before surgery, Defendant conceded that he had never read Plaintiff -Wife's chart prior to performing the surgery.2' However, Defendant also stated that he was familiar with Plaintiff -Wife's case through discussions with Dr. Cole and by looking at her x-ray.25 As to whether the implant 24 N.T. 18. 25 N.T. 17-18. 4 No. 1635 Civil 1987 No. 52 Civil 1987 used by Defendant was too long, Plaintiffs' expert, David B. Rosen, D.M.D., stated that it was his opinion that the implant placed by Defendant was too long for the available bone, thus causing the. symptoms to which Plaintiff -Wife alluded." However, Stephen E. Irwin, D.M.D., testified on behalf of Defendant indicating that the implant was the correct size and that Defendant had used the proper standard of care for an implantologist in central Pennsylvania in 1986.27 Taking into consideration the testimony offered on the issues raised by Plaintiffs in their post -trial motion, we cannot say that the jury's verdict was against the weight of the evidence so as to shock this Court's sense of justice. Although conflicting testimony was presented at trial, the jury permissibly resolved the conflicts in favor of Defendant. For these reasons, Plaintiffs' post -trial motion will be denied. Given our disposition of Plaintiffs' motion, and in light of the fact that Plaintiffs' counsel agreed that a molded verdict would be appropriate if Plaintiffs' motion were not meritorious, Defendant's request for the addition of six percent interest on the jury verdict in his favor will be granted. The following Order will therefore be entered:- 26 ntered 26 Rosen Deposition, 29-30. 27 N.T. 220, Deposition of Stephen E. Irwin, M.D., September 9, 1992, N.T. 17, 26. 10 No. 1635 Civil 1987 No. 52 Civil 1987 ORDER OF COURT AND NOW, this,�?/)dday of September, 1993, upon consideration of the Post - Trial Motion filed by Dennis and Zoe Theodoratos at No. 1635 CIVIL 1987, the motion for a new trial is DENIED. Upon consideration of the Post -Trial Motion filed by Marvin Berger at 52 CIVIL 1987, the motion for a molded verdict is GRANTED, and interest in the amount of $721.37 is added to the award in favor of Dr. Berger. Francis E. Marshall, Jr., Esq. 1323 North Front Street Harrisburg, PA 17102 Counsel for Marvin Berger, D.D.S. Michael Rozman, Esq. 3207 North Front Street Harrisburg, PA 17110 Counsel for Dennis and Zoe Theodoratos :rc BY THE COURT, J. esley Oler, Jr. J. Francis . 11