Toogood v. Rogal

• Decision Date: 15 November 2000
• Citation: 2000 PA Super. 344,764 A.2d 552
• Parties: Kevin TOOGOOD v. OWEN J. ROGAL, D.D.S., P.C., and Owen J. Rogal, D.D.S., Individually and both d/b/a The Pain Center and Hrant Stone; Appeal of Owen J. Rogal, D.D.S., and Owen J. Rogal, D.D.S., P.C. Kevin Toogood v. Owen J. Rogal, D.D.S., P.C., and Owen J. Rogal, D.D.S., Individually and both d/b/a Owen J. Rogal, D.D.S., Ltd.P. and d/b/a The Pain Center, and Hrant Stone, M.D., by Thomas Stone, Executor of the Estate of Hrant Stone, M.D. Appeal of Hrant Stone, M.D., by Thomas Stone, Executor.
• Court: Pennsylvania Superior Court

764 A.2d 552

2000 PA Super. 344

Kevin TOOGOOD v. OWEN J. ROGAL, D.D.S., P.C., and Owen J. Rogal, D.D.S., Individually and both d/b/a The Pain Center and Hrant Stone;

Appeal of Owen J. Rogal, D.D.S., and Owen J. Rogal, D.D.S., P.C.

Kevin Toogood v. Owen J. Rogal, D.D.S., P.C., and Owen J. Rogal, D.D.S., Individually and both d/b/a Owen J. Rogal, D.D.S., Ltd.P. and d/b/a The Pain Center, and Hrant Stone, M.D., by Thomas Stone, Executor of the Estate of Hrant Stone, M.D.

Appeal of Hrant Stone, M.D., by Thomas Stone, Executor.

Superior Court of Pennsylvania.

Submitted April 4, 2000.

Filed November 15, 2000.

Reargument Denied January 18, 2001.

Janis L. Wilson, Philadelphia, for Rogal.

Frank A. Gerolamo, Philadelphia, for Stone.

Joseph P. Green, West Chester, for Toogood, appellee.

Before McEWEN, President Judge, JOYCE and TAMILIA, JJ. McEWEN, President Judge:

¶ 1 These consolidated appeals have been taken from the judgment entered, in this medical malpractice action, following the dismissal of the post-verdict motions filed by appellants, Owen J. Rogal, D.D.S., and Owen J. Rogal, D.D.S., P.C. (hereinafter "the Rogal appellants") and Thomas Stone, as executor of the estate of Hrant Stone (hereinafter "appellant Stone"). As we find that the trial court properly rejected the arguments of appellants, we affirm the judgment in the amount of $465,000 entered in favor of appellee, Kevin Toogood, and against the Rogal appellants.

¶ 2 The relevant facts have been summarized in the brief of the Rogal appellants as follows:

Kevin Toogood was involved in automobile accidents in 1989 and 1992. The latter of these accidents caused serious injuries to Toogood's head, jaw, back, and shoulder, and resulted in ringing in his ears and migraine headaches. By August of 1993, the pain was so severe that Toogood "wanted to die". Although he was treated by several physicians and prescribed powerful medication, the pain continued. In August of 1993, upon referral by one of his physicians, Toogood began to visit Dr. Rogal, a dentist, for treatment of jaw pain. The visits occurred at The Pain Center, a multi-disciplinary medical center providing various forms of care. While at The Pain Center for treatment of his jaw pain, Toogood also received nerve injections for treatment of severe back pain.

On December 13, 1993, Toogood received a paravertebral nerve block injection from Dr. Stone, an anesthesiologist at The Pain Center. Dr. Rogal did not administer the injection and he was not present when it was given. After receiving the injection, Toogood felt pain and sat in a recliner for some time before driving himself home in rush hour traffic. From home, he proceeded to the Chester County Hospital complaining of breathing difficulties. At the hospital, he was treated by William Dellevigne, M.D. Dr. Dellevigne diagnosed and repaired a pneumothorax¹, or collapsed lung. The hospital charges for the treatment totaled $15,333. Toogood recovered from the injury so fully that, as Dr. Dellevigne recalled, he never returned for a follow-up visit. Additionally, since he had not been working because of the 1992 car accident, the injury did not cause Toogood to miss any work. Indeed, his lawsuit claimed no economic loss at all.

Despite his recovery and lack of economic damages, Toogood filed a complaint against Dr. Rogal and Dr. Stone on February 21, 1996. The complaint alleged claims of negligence, battery, and failure to obtain informed consent against Dr. Stone. The complaint also asserted claims against Dr. Rogal on the basis of both direct and vicarious liability. However, prior to trial, Toogood withdrew the claims of direct liability and proceeded solely on the basis of vicarious liability.

Before he could be deposed, Dr. Stone died. Appellant Thomas Stone, the executor of Dr. Stone's estate, was substituted as defendant. The only other person in the room at the time of the injection was Dr. Stone's son, a nurse anesthetist, but he also died before his deposition could be taken. As a result of the deaths, Dr. Stone's estate filed a motion for summary judgment asserting that, under the Dead Man's Act, 42 Pa. C.S. § 5930, no adverse testimony could be offered against Dr. Stone. By order dated September 2, 1997, the Honorable Arnold L. New of the Philadelphia County Court of Common Pleas granted the motion and dismissed all claims against Dr. Stone except Dr. Rogal's cross-claim. Although the court's order premised on the Dead Man's Act precluded any adverse testimony against Dr. Stone, his estate acknowledged that it could not contradict Toogood's claim that Dr. Stone gave the injection which led to this litigation.

I. APPEAL NO. 1561 EDA 1999

¶ 3 The Rogal appellants present the following four issues for our review²:

Whether Toogood failed to present a prima facie case of medical malpractice where the doctrine of res ipsa loquitur was inapplicable and where the testimony of his treating physician was both improper and insufficient as a matter of law.

Whether the trial court erred in failing to rule that the dismissal of the ostensible agent, Dr. Stone, extinguished any claim of vicarious liability against the ostensible principal, Dr. Rogal.

Whether the verdict of $465,000 was shockingly excessive such that a new trial or substantial remittitur is required where Toogood recovered from his injuries, suffered no work loss or other economic harm, and incurred medical expenses of only $15,333, or barely three percent of the jury's verdict.

Whether the trial court erred in failing to mold the verdict to reflect Dr. Rogal's right to indemnification where the verdict against him was premised solely on vicarious liability.

¶ 4 Appellants Rogal initially argue that they are entitled to judgment n.o.v. as a result of the failure of appellee Toogood to present a prima facie case of medical malpractice. Appellants argue that the doctrine of res ipsa loquitur was improperly employed under the facts of the instant case and contend that the expert testimony presented on behalf of appellee was both improperly admitted and insufficient as a matter of law. We disagree.

¶ 5 In order to set forth a prima facie case of medical malpractice, a plaintiff "must establish (1) a duty owed by the physician to the patient (2) a breach of duty from the physician to the patient (3) that the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient, and (4) damages suffered by the patient that were a direct result of that harm." Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 891 (1990). Accord: Hightower-Warren v. Silk, 548 Pa. 459, 463, 698 A.2d 52, 54 (1997); Poleri v. Salkind, 453 Pa.Super. 159, 683 A.2d 649, 653 (1996),appeal denied, 548 Pa. 672, 698 A.2d 595 (1997). Generally, in order to prove medical negligence, a plaintiff must introduce expert testimony to prove that the conduct at issue deviated from accepted standards of medical practice, and that that deviation caused injury to the plaintiff. Brannan v. Lankenau Hospital, 490 Pa. 588, 595, 417 A.2d 196, 199 (1980). In Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 437 A.2d 1134 (1981), the Pennsylvania Supreme Court held that the requirement of expert testimony was applicable only to those instances where "there is no fund of common knowledge from which laymen can reasonably draw the inference or conclusion of negligence." Id. at 472, 437 A.2d at 1138. The Supreme Court has interpreted this exception to the general requirement of expert testimony to be applicable "where the matter is so simple or the lack of skill or care is so obvious as to be within the range of experience and comprehension of even non-professional persons." Hightower-Warren v. Silk, supra at 463 n. 1, 698 A.2d at 54 n. 1.

¶ 6 The doctrine of res ipsa loquitur "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." Sedlitsky v. Pareso, 400 Pa.Super. 1, 582 A.2d 1314, 1315 (1990), appeal denied, 527 Pa. 673, 594 A.2d 659 (1991). Under the Restatement (Second) of Torts § 328D(1), three elements are required to establish the applicability of the doctrine: "(a) the event is of a kind which usually 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." If a plaintiff has established all three elements and "reasonable persons may reach different conclusion[s] regarding the negligence of the defendant, then it is for the jury to determine if the inference of negligence should be drawn." Leone v. Thomas, 428 Pa.Super. 217, 630 A.2d 900, 901 (1993), appeal denied, 537 Pa. 664, 644 A.2d 1201 (1994).

¶ 7 The Supreme Court, in Hightower-Warren v. Silk, supra, reversed and remanded for trial after concluding that this Court had erred in affirming the entry of a compulsory non-suit against the plaintiff. The Supreme Court found that the plaintiff had presented sufficient evidence to establish "all three elements of res ipsa loquitur", id. at 465, 698 A.2d at 55, where the evidence produced at trial by the plaintiff indicated that: (1) the injury to the left recurrent laryngeal nerve was the kind of event that does not occur in the absence of negligence under the operative conditions described by the defendant, (2) the plaintiff's treating physician was able to rule out all other causes of the injury, and (3) the indicated negligence was within the defendant's duty to the plaintiff.³

¶ 8 In the instant case, the trial court properly permitted appellee to proceed on a theory of res ipsa loquitur where the evidence produced by appellee indicated that he went to the Pain Center for a cortisone injection for muscle pain in his back and, upon injection by...