Grabowski v. Quigley

• Decision Date: 18 October 1996
• Citation: 684 A.2d 610,454 Pa.Super. 27
• Parties: Edward J. GRABOWSKI, an individual, Appellant, v. Matthew R. QUIGLEY, M.D., Julian E. Bailes, M.D., Joseph C. Maroon, M.D., and Allegheny General Hospital, Appellees.
• Court: Pennsylvania Superior Court

Page 610

684 A.2d 610

454 Pa.Super. 27

Edward J. GRABOWSKI, an individual, Appellant, v. Matthew R. QUIGLEY, M.D., Julian E. Bailes, M.D., Joseph C.

Maroon, M.D., and Allegheny General Hospital, Appellees.

Superior Court of Pennsylvania.

Argued April 17, 1996.

Filed Oct. 18, 1996.

Laurel B. Diznoff, Pittsburgh, for appellant.

Michael A. Sosnowski, Pittsburgh, for Quigley, Bailes, and Maroon, appellees.

Before HUDOCK, FORD ELLIOTT and BROSKY, JJ.

HUDOCK, Judge.

Edward Grabowski (Appellant) appeals from the order of the trial court granting the summary judgment motions of the several Appellee doctors and dismissing them from this personal injury action. We affirm in part and reverse in part.

The facts and procedural history may be summarized as follows: Appellant was injured on January 4, 1989, when he slipped and fell on ice, injuring his lower back. Because his symptoms became progressively worse, Appellant sought treatment from Appellee Matthew R. Quigley, M.D. (Quigley). At the time that Appellant sought treatment, he had complaints of low back pain radiating into his left leg with numbness and tingling of his left foot, particularly between two toes. Appellant at this time did not have, however, a drop foot and was not dragging his foot when he walked.

Quigley recommended to Appellant that he undergo corrective surgery. Quigley told Appellant that he would perform the necessary surgery and that he would schedule it. He also informed Appellant that there were risks associated with anesthesia and that, after the surgery, he might have continued back pain and/or paralysis. Appellant was not informed about the risk that he might have a drop foot or that all portions of his herniated disc might not be removed. Appellant agreed to undergo the surgery and to have Quigley perform it. Quigley's secretary then scheduled the surgery for April 17, 1989.

The night before the scheduled surgery Appellant received a phone call rescheduling the surgery for April 18, 1989. Although not given a surgical time, Appellant was told to report to Allegheny General Hospital (AGH) at 6:00 a.m. Appellant went to AGH as directed. After his arrival, he was taken to a room, changed his clothes and was placed on a gurney. An anesthesiologist then came to meet with him. After the anesthesiologist left, a nurse came in and handed Appellant a form entitled "Consent to Operation, Anesthetics, and Special Procedures." Appellant was told to sign the form so that Quigley could perform the surgery. The nurse stood by while Appellant signed the form. No other explanation was given. Appellant was then taken to the operating room and placed under anesthesia.

Following surgery, Appellant had continuing back pain. He also noticed a problem with his left foot--he noticed that it would "drag" whenever he walked. When Appellant asked Quigley about the problem, Quigley told him that he had developed a drop foot which was a result of the surgery. Quigley ordered physical therapy, but there was no real improvement in Appellant's condition. Thus, Quigley ordered additional diagnostic tests and discussed the results with Appellant and told him that additional surgery was required. Appellant decided to get a second opinion and, therefore, requested his medical records.

After obtaining the records, Appellant reviewed them. Included within the records was a letter from Quigley to David Torpey, Chief, Division of Anesthesia, dated April 19, 1989. From this letter, Appellant learned for the first time that Quigley was in Somerset County at the time that he was placed under anesthesia and that Appellee Julian E. Bailes, M.D. (Bailes), rather than Quigley, had performed a major portion of his surgery. A review of the anesthesia records revealed that Appellant was placed under anesthesia at 8:15 a.m. Quigley was then paged at 8:35 a.m. and then several times over the next twenty minutes. Quigley's office was then called at 8:50 a.m. and 9:15 a.m. Appellee Joseph C. Maroon, M.D. (Maroon) was made aware of Quigley's absence, and at approximately 9:15 p.m. the anesthesiologist spoke with Maroon. The anesthesia record further revealed that Bailes began the surgical procedure, at the request of Maroon, at 10:20 a.m. Finally, the anesthesia record stated that Quigley arrived in the operating room at 11:25 a.m. and surgery was completed at 12:30 p.m.

Appellant was extremely upset to learn physicians that he did not know and had not authorized performed surgery on him and/or directed a physician to perform surgery on him. Appellant was also upset to learn that Quigley did not perform his surgery. According to Appellant, he would not have undergone the surgery had he known Quigley would not be performing the procedure in its entirety. Appellant sought a second opinion from Frances T. Ferraro, M.D. (Ferraro), who performed surgery on him in April of 1990 for excision of disc fragments at the site of the April, 1989, surgery. According to Appellant, he was informed by Ferraro that the fragments that were removed were lying on a nerve and that this fact caused his continued back pain and drop foot.

Appellant commenced the instant action by writ of summons filed in April, 1991. The various counts within Appellant's amended complaint may be summarized as follows:

Count I--Appellant did not consent to the commencement and performance of the surgery by Bailes and did not consent to Quigley performing only a portion of the surgery; "[b]y reason of the foregoing, [Appellant] was operated upon without his consent and was bruised and battered in and about his person."

Count II--Quigley and/or Bailes performed the surgery in a negligent manner.

Count III--Quigley was negligent in scheduling the surgery and in not being present to perform the surgery in its entirety.

Count IV--Quigley breached an oral agreement with Appellant to perform the surgery in its entirety and in a non-negligent manner; Quigley also breached the agreement by directing and/or permitting Bailes to commence the surgery and perform a portion of the surgery in his absence.

Count V--Appellant, at no time, granted authority or consent to Maroon to direct Bailes to commence and perform the surgery.

Count VI--Maroon, by assuming control and directing that the surgery be commenced by Bailes in Quigley's absence, became vicariously liable for their acts.

See Plaintiff's First Amended Complaint, 4/5/96. ¹

The Appellee doctors filed preliminary objections to Appellant's complaint in the nature of demurrers, motions to strike, and motions for more specific pleading. After argument, these preliminary objections were denied. The Appellee doctors then filed their answer and new matter. Discovery then followed and Appellant's deposition was taken on February 3, 1993. Thereafter, counsel for Appellee doctors filed a motion to dismiss and/or preclude expert testimony. On November 18, 1994, an order was entered preventing Appellant from utilizing expert testimony at trial. The Appellee doctors then filed motions for summary judgment alleging that Appellant could not support a claim of negligence or lack of consent against them and further could not support a claim for breach of contract against Quigley. Appellant filed a response to the motions for summary judgment as well as a supporting affidavit. Following oral argument, the trial court granted summary judgment to the Appellee doctors on Counts I through VI, inclusive, and dismissed them from the underlying action. By order dated October 10, 1995, the trial court amended its order certifying the case for appeal as a final order. See Pa.R.A.P., Rule 341(c), 42 Pa.C.S.A. This appeal followed.

Appellant claims on appeal that the trial court improperly granted summary judgment because there are genuine issues of material fact concerning the Appellee doctors' liability. When determining if a trial court properly entered summary judgment, this Court's scope of review is plenary. Schriver v. Mazziotti, 432 Pa.Super. 276, 278, 638 A.2d 224, 225, alloc. den., 539 Pa. 638, 650 A.2d 52 (1994). We must examine the entire record in the light most favorable to the non-moving party and resolve all doubts against the moving party when determining if there is a genuine issue of material fact. Id. We will reverse the trial court's decision only if there has been an error of law or a clear abuse of discretion. MacCain v. Montgomery Hospital, 396 Pa.Super. 415, 417, 578 A.2d 970, 972, alloc. den., 527 Pa. 624, 592 A.2d 45 (1990). Summary judgment is granted when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there exists no genuine issue of material fact. See generally, Pa.R.C.P., Rule 1035, 42 Pa.C.S.A. The moving party has the burden of proving the non-existence of any genuine issue of fact. Accu-Weather, Inc. v. Prospect Communications, Inc., 435 Pa.Super. 93, 98, 644 A.2d 1251, 1254 (1994). The non-moving party must demonstrate that there is a genuine issue for trial and may not rest on the averments in its pleadings. Id.

Appellant argues that genuine issues of material fact exist with respect to all counts of the complaint dismissed by the trial court. We will address each count in the order presented by Appellant.

In Count I, Appellant alleges that he did not consent to the manner in which he was operated upon by Bailes and/or Quigley and argues that the record evinces a genuine issue of material fact as to the doctors' liability under a theory of battery. The facts asserted by Appellant on the issue of consent are largely set out above. Generally, Appellant has asserted facts which demonstrate that he consented to an operation to be performed in its entirety by Quigley, not by Bailes, or a combination of Bailes and Quigley. Appellee doctors counter by noting that the consent form which Appellant signed stated that the surgery would be "performed under the direction of Dr. Quigley, et al". Appellan...