`
`
`
`
`
`Appellee
`
`
`
`v.
`
`
`
`Appellants
`
`Nos. 11 & 12 EAP 2002
`
`Appeal from the Order of Superior Court
`entered at No. 1561 EDA 1999 on
`November 15, 2000 (reargument denied
`on January 18, 2001) affirming the
`Judgment of the Court of Common Pleas,
`Civil Division, of Philadelphia County,
`entered June 10, 1999 at No. 1776
`November Term 1995.
`
`
`
`ARGUED: October 22, 2002
`
`
`
`[J-156-2002]
`IN THE SUPREME COURT OF PENNSYLVANIA
`EASTERN DISTRICT
`
`
`:
`KEVIN TOOGOOD,
`:
`
`:
`
`:
`
`:
`
`:
`
`:
`
`:
`
`:
`OWEN J. ROGAL, D.D.S., P.C., AND
` :
`OWEN J. ROGAL, D.D.S., INDIVIDUALLY
`:
`AND D/B/A THE PAIN CENTER AND
`:
`HRANT STONE, M.D., BY THOMAS
`:
`STONE, EXECUTOR OF THE ESTATE
`:
`OF HRANT STONE, M.D.,
`:
`
`:
`
`
`
`
`OPINION ANNOUNCING THE JUDGMENT OF THE COURT
`
`
`DECIDED: May 29, 2003
`
`
`
`MADAME JUSTICE NEWMAN
`
`In a medical malpractice action, a jury awarded Kevin Toogood (Appellee or Mr.
`
`Toogood) the sum of $465,000.00. This Court granted allowance of appeal to decide
`
`whether the Court of Common Pleas of Philadelphia County (trial court) erred in failing
`to grant the Motions of Appellants1 for nonsuit and/or directed verdict based upon the
`
`absence of expert liability evidence to establish medical malpractice.
`
`
`
`1 Appellants in this case are Owen J. Rogal, D.D.S. (Dr. Rogal), individually and doing
`business as The Pain Center, and Hrant Stone, M.D. (Dr. Stone), by Thomas Stone,
`Executor of the Estate of Hrant Stone, M.D. Dr. Rogal and The Pain Center are identified
`individually and collectively referred to as the "Rogal Defendants."
`
`
`

`

`FACTS AND PROCEDURAL HISTORY
`
`
`
`Mr. Toogood was involved in two automobile accidents. The first occurred in 1989
`
`and the second in 1992. In the 1992 accident, he sustained injuries to his head, jaw, back,
`
`and shoulder. By August of 1993, the residual pain from his injuries was so severe he said
`
`that he "wanted to die." Despite the fact that he was treated by several physicians and
`
`prescribed strong medication, the pain continued. In August of 1993, upon referral by one
`
`of his physicians, Mr. Toogood began to visit Dr. Rogal, a dentist, for treatment of jaw pain.
`
`These visits occurred at The Pain Center, a multi-disciplinary medical center that is owned
`
`primarily by Dr. Rogal. While at The Pain Center for treatment of his jaw pain, Mr. Toogood
`also received paravertebral nerve block2 injections from Dr. Stone, a consulting
`anesthesiologist at The Pain Center, for treatment of severe back, shoulder, and neck pain.
`
`On December 13, 1993, Mr. Toogood received four paravertebral nerve block
`
`injections from Dr. Stone. After receiving the final injection, Mr. Toogood felt pain,
`
`experienced difficulty breathing, and remained at The Pain Center for a short time before
`
`driving himself home. While at home, he collapsed and was taken to The Chester County
`
`Hospital complaining of breathing difficulties. At the hospital, he was treated by William
`Dellevigne, M.D. (Dr. Dellevigne), who diagnosed and repaired a pneumothorax.3 Mr.
`
`Toogood fully recovered from the injury and, as Dr. Dellevigne recalled, he never returned
`
`for a follow-up visit. The hospital charges for his treatment totaled $15,333.00, and,
`
`
`2 A paravertebral nerve block is an injection of a substance into a nerve along the vertebral
`column to arrest the passage of the nervous impulse. See Stedman’s Medical Dictionary,
`178, 1031 (26th ed. 1995).
`
` A pneumothorax, commonly called a collapsed lung, involves the "presence of air or gas
`in the pleural cavity," which can impair respiratory function. Id. at 1111.
`
` 3
`
`[J-156-2002] - 2
`
`

`

`because Appellee had not worked since the 1992 car accident, the pneumothorax and his
`
`resulting hospitalization did not cause him to incur lost wages.
`
`Mr. Toogood filed a complaint against Dr. Stone and the Rogal Defendants on
`
`February 21, 1996. The complaint alleged claims of negligence and battery against Dr.
`
`Stone and asserted direct and vicarious liability claims against the Rogal Defendants. Prior
`
`to trial, Mr. Toogood withdrew the claims of direct liability and proceeded against the Rogal
`
`Defendants solely on the basis of vicarious liability.
`
`On February 23, 1996, two days after the filing of the instant action and before he
`
`could be deposed, Dr. Stone died and Appellant, Thomas Stone, the executor of Dr.
`
`Stone's estate, was substituted as a defendant. The only other person in the room at the
`
`time of the nerve block injection was Dr. Stone's son, Richard Stone, a nurse anesthetist.
`
`He also died before his deposition could be taken.
`
`The trial judge precluded Appellee from presenting expert medical testimony at trial
`
`because he failed to submit the report of his medical expert in a timely manner. Appellants
`
`then verbally requested a grant of summary judgment due to the absence of expert medical
`
`testimony. However, because Appellee asserted that he could establish a prima facie case
`
`by application of the doctrine of res ipsa loquitur, he was allowed to proceed to trial only on
`
`that basis.
`
`Further, as a result of the deaths of Dr. Stone and his son, Dr. Stone's estate filed a
`
`motion for summary judgment asserting that, pursuant to the Dead Man's Act, 42 Pa.C.S. §
`
`5930, no adverse testimony could be offered against Dr. Stone and that, because Appellee
`
`failed to provide expert testimony necessary to establish a prima facie case of medical
`
`negligence, Appellee would be unable to succeed. This motion was uncontested and, by
`
`Order dated September 2, 1997, the trial judge granted the motion and dismissed all claims
`
`against Dr. Stone, except the cross-claim of the Rogal Defendants against Dr. Stone for
`
`contribution.
`
`[J-156-2002] - 3
`
`

`

`At trial, testimony was received from Appellee and Dr. Rogal, and video deposition
`
`testimony from Dr. Dellevigne was presented. The trial court then allowed the case to go to
`
`the jury with a res ipsa loquitur instruction without expert testimony as to the standard of
`
`care, over the objection of the Rogal Defendants.
`
`On October 23, 1998, the jury rendered a verdict in favor of Mr. Toogood and
`
`against the Rogal Defendants in the amount of $465,000.00. Appellants filed timely post
`
`trial motions for a new trial, remittitur, and judgment non obstante veredicto, which the trial
`
`judge denied.
`
`The Superior Court affirmed the decision of the trial court in a published opinion.
`
`Toogood v. Rogal, 764 A.2d 552 (Pa. Super. 2000), petition for allowance of appeal granted in
`
`part, 791 A.2d 1154 (Pa. 2002). The Rogal Defendants asserted on appeal to the Superior
`
`Court that Appellee's case of medical malpractice should not have been permitted to proceed
`
`to the jury without expert testimony on negligence, particularly the standard of care. They also
`
`argued that, because Dr. Stone had been dismissed from the case, they should have been
`
`granted a dismissal, remittitur, or a new trial.
`
`The Superior Court found that the trial judge properly granted summary judgment in
`
`favor of Dr. Stone based on the Dead Man's Act. The court outlined the elements of a prima
`
`facie case of medical malpractice, but concluded that the doctrine of res ipsa loquitur permits
`
`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. Citing to this Court’s recent decision
`in Hightower-Warren v. Silk, 698 A.2d 52 (Pa. 1997),4 as well as decisions from other
`jurisdictions that the panel considered to be analogous,5 the Superior Court determined that
`
`4 In Hightower-Warren, a plaintiff who suffered injury to his vocal cords during thyroid
`surgery was deemed to have properly invoked the doctrine of res ipsa loquitur.
`
` See Bardessono v. Michels, 478 P.2d 480, 487 (Cal. 1970) (observing that “the giving and
`receiving of injections and the lack of nerve injury therefrom ordinarily has become a matter
`(continued…)
`
` 5
`
`[J-156-2002] - 4
`
`

`

`Appellee met the elements essential to his burden of proof. The court also cited the opinion
`
`in Hightower-Warren to support its determination that, when a patient receives an injection, it
`
`is within the common knowledge of laypersons to know that a collapsed lung happens only
`
`because of negligence.
`
`Finally, the Superior Court rejected the claim of the Rogal Defendants that they should
`
`have been dismissed from the case upon Dr. Stone's dismissal and concluded that the Rogal
`
`Defendants had confused a valid defense of immunity with the defense of release and
`
`satisfaction and "evidence[d] a profound misapprehension of the nature of the vicarious
`
`liability of a principal for the tortious acts of his agent." Toogood, 764 A.2d at 559.
`
`
`(…continued)
`of common knowledge”); Killingsworth v. Poon, 307 S.E.2d 123, 126 (Ga. Ct. App. 1983)
`("it is widely known . . . that subcutaneous injections ostensibly given only for the relief of
`muscular pain should not, if administered correctly, result in the puncture of internal
`organs"); Baker v. Chastain, 389 So.2d 932, 934 (Ala. 1980) (a scintilla of evidence to
`support a theory of negligence can get a case to the jury); Stumph v. Foster, 524 N.E.2d
`812, 815 (Ind. Ct. App. 1988) (concluding that expert testimony is not required to establish
`the requisite standard of care to survive summary judgment because laypersons are
`competent to infer a doctor's negligence where he broke the patient's rib in rendering
`chiropractic care). But see Cherokee County Hosp. Auth. v. Beaver, 345 S.E.2d 904, 906
`(Ga. Ct. App. 1986) (holding that evidence that the patient developed pain radiating down
`her leg following an injection was insufficient, without expert medical testimony, to find that
`the injection was negligently given); 45 A.L.R. 731, 739 (1972) (noting that "in situations
`where a patient sustained an injury after an injection[,] the courts have usually refused to
`apply the doctrine of res ipsa loquitur [because] the full spectrum of possible consequences
`from the giving of a shot were not within the layman's common knowledge . . . the courts
`thus holding that at least a minimum showing by expert testimony was generally required
`that there had been some variance from recognized standards of care . . . .").
`
`[J-156-2002] - 5
`
`

`

`DISCUSSION
`
`Medical Malpractice
`
`
`
`"Two traditional cornerstones of tort law -- liability based on fault and trial by jury --
`
`have been incorporated into the law of medical negligence." Malpractice and Medical
`
`Testimony, 77 HARV. L. REV. 333, 334 (1963). Suits by patients against their doctors have
`been brought in this Commonwealth for over a century6 and when a plaintiff's medical
`malpractice claim sounds in negligence, the elements of the plaintiff's case are the same as
`
`those in ordinary negligence actions. As such, medical malpractice can be broadly defined
`
`as the unwarranted departure from generally accepted standards of medical practice
`
`resulting in injury to a patient, including all liability-producing conduct arising from the
`
`rendition of professional medical services. See, e.g., Hodgson v. Bigelow, 7 A.2d 338 (Pa.
`
`1939). Thus, to prevail in a medical malpractice action, a plaintiff must "establish a duty
`
`owed by the physician to the patient, a breach of that duty by the physician, that the breach
`
`was the proximate cause of the harm suffered, and the damages suffered were a direct
`
`result of the harm." Hightower-Warren, 698 A.2d at 54. Because the negligence of a
`
`physician encompasses matters not within the ordinary knowledge and experience of
`
`laypersons a medical malpractice plaintiff must present expert testimony to establish the
`
`applicable standard of care, the deviation from that standard, causation and the extent of
`
`the injury. Id.
`
`
`
`The expert testimony requirement in a medical malpractice action means that a
`
`plaintiff must present medical expert testimony to establish that the care and treatment of
`
`the plaintiff by the defendant fell short of the required standard of care and that the breach
`
`proximately caused the plaintiff's injury. Hence, causation is also a matter generally
`
`
`6 See, e.g., Bemus v. Howard, 3 Watts 255 (Pa. 1834).
`
`[J-156-2002] - 6
`
`

`

`requiring expert testimony. A very narrow exception to the requirement of expert testimony
`
`in medical malpractice actions applies "where the matter is so simple or the lack of skill or
`
`care so obvious as to be within the range of experience and comprehension of even non-
`
`professional persons," Hightower-Warren, 698 A.2d at 54 n.1, also conceptualized as the
`
`doctrine of res ipsa loquitur.
`
`
`
`
`
`Res Ipsa Loquitur
`
`
`
`The res ipsa loquitur doctrine originated in English courts in the nineteenth century.
`
`The now infamous 1863 case of Byrne v. Boadle, 159 Eng. Rep. 299 (Ex. 1863), involved
`
`an injury to a passerby when a barrel of flour rolled from the defendant's shop window
`
`above and struck the plaintiff in the head. The issue at trial involved the necessity that
`
`plaintiff prove that the defendant was, in fact, negligent. In determining that the falling
`
`barrel was prima facie evidence of negligence, Chief Baron Pollock casually stated that the
`
`occurrence of the accident spoke for itself, coining the phrase "res ipsa loquitur." Two
`
`years later, in Scott v. The London & St. Catherine Docks Co., 159 Eng. Rep. 665, 667 (Ex.
`
`1865), Chief Justice Erle presented the first clear statement of the doctrine:
`There must be reasonable evidence of negligence. But where the thing is
`shewn to be under the management of the defendant or his servants, and the
`accident is such as in the ordinary course of things does not happen if those
`who have the management use proper care, it affords reasonable evidence,
`in the absence of explanation by the defendant that the accident arose from
`want of care.
`
`D'Ardenne by D'Ardenne v. Strawbridge & Clothier, Inc., 712 A.2d 318, 320-21 (Pa. Super.
`
`1998) (quoting Scott).
`
`
`
`Res ipsa loquitur reflects a common sense understanding that an inference of
`
`negligence may be raised without direct evidence of the negligent act if three conditions
`
`exist: (1) the injury must be of a type not ordinarily occurring absent negligence; (2) the
`
`[J-156-2002] - 7
`
`

`

`defendant must have had exclusive control of the instrumentality effecting the injury; and
`
`(3) the plaintiff must not have contributed to the injury. See, e.g., Greathouse v. Horowitz,
`
`264 A.2d 665 (Pa. 1970); Loch v. Confair, 93 A.2d 451 (Pa. 1953). Until recently, it was
`
`generally understood that res ipsa loquitur was not applicable in medical malpractice
`cases.7
`
`
`
`Res ipsa loquitur is neither a doctrine of substantive law nor a theory of recovery;
`
`rather, it is a rule of circumstantial evidence. Nor is this doctrine to be employed simply
`
`because the treatment caused injury or failed to yield the expected result. Courts have
`
`continually stated that an injury alone is insufficient to prove negligence in medical
`malpractice cases.8
`The doctrine of res ipsa loquitur allows plaintiffs, without direct evidence of the
`
`elements of negligence, to present their case to the jury based on an inference of
`
`negligence. The key to the doctrine is that a sufficient fund of common knowledge exists
`
`within a jury of laypersons to justify raising the inference. Instead of directly proving the
`
`elements of ordinary negligence, the plaintiff provides evidence of facts and circumstances
`
`surrounding his injury that make the inference of the defendant's negligence reasonable.
`
`"The gist of res ipsa loquitur . . . is the inference, or process of reasoning by which the
`
`conclusion is reached. This must be based upon the evidence given, together with a
`
`sufficient background of human experience to justify the conclusion. It is not enough that
`
`plaintiff's counsel can suggest a possibility of negligence." Prosser & Keeton, The Law of
`
`
`7 See, e.g., Shaw v. Irvin, 210 A.2d 285 (Pa. 1965); Austin v. Kaufman, 417 S.E.2d 660
`(Ga. Ct. App. 1992); Lane v. Calvert, 138 A.2d 902 (Md. 1958); McDermott v. St. Mary's
`Hosp. Corp., 133 A.2d 608 (Conn. 1957); Rosson v. Hylton, 22 P.2d 195 (Wyo. 1933).
`
` See, e.g., Miller v. Delaware Co. Mem'l Hosp., 239 A.2d 340 (Pa. 1968); Engle v. Spino,
`228 A.2d 745 (Pa. 1967). See also, Jones v. Porretta, 405 N.W.2d 863 (Mich. 1987);
`Thomas v. St. Francis Hosp., 447 A.2d 435 (Del. 1982).
`
` 8
`
`[J-156-2002] - 8
`
`

`

`Torts § 39, p. 243 (5th ed. 1995). This theory relieves the plaintiff of having to prove
`
`causation directly.
`
`
`
`
`
`Res ipsa loquitur in Medical Malpractice Actions
`
`
`
`Historically, res ipsa loquitur has had a limited role in medical malpractice cases and
`
`the application of the doctrine to those cases is a comparatively recent development.
`
`Previously, the fact that medicine is not an exact science, that the human body is not
`
`susceptible to precise understanding, that the care required of a medical professional is the
`
`degree of learning and skill common in his profession, and that, even with the greatest of
`
`care, untoward results do occur in medical and surgical procedures, were of elevated
`
`importance in determining whether the medical professional had been negligent. Salgo v.
`
`Stanford Univ. Bd. of Trustees, 317 P.2d 170 (Cal. Ct. App. 1957). Originally, a plaintiff
`
`could not employ a res ipsa loquitur instruction if the plaintiff had evidence regarding the
`
`cause of the accident. Thus, res ipsa loquitur was reserved for obvious cases in which lay
`
`jurors could apply their own knowledge and common sense to establish the cause of the
`
`injury and deduce an inference of negligence. These were typically the "sponge left in the
`
`patient" cases.
`
`
`
`An unfortunate result such as death or infection could not, by itself, establish liability
`
`and, when an injurious result was a common side effect of the treatment that could occur
`without negligence, courts refused to allow patients to use res ipsa loquitur.9 Further, when
`
`
`9 See, e.g., Chism v. Campbell, 553 N.W.2d 741 (Neb. 1996) (doctrine inapplicable where
`fixed percentage of patients would suffer this same injury even in the absence of
`negligence); Tappe v. Iowa Methodist Med. Ctr., 477 N.W.2d 396 (Iowa 1991) (stroke
`occurs in fixed percentage of all by-pass surgeries even in absence of negligence); Sousa
`v. Chaset, 519 A.2d 1132 (R.I. 1987) (because side effects from surgery could occur in
`absence of negligence, res ipsa loquitur is inapplicable).
`
`[J-156-2002] - 9
`
`

`

`the treatment employed was generally accepted, the mere fact that a patient experienced
`an unfavorable reaction did not invoke res ipsa loquitur.10
`
`
`
`Prior to the decision of this Court in Jones v. Harrisburg Polyclinic Hosp., 437 A.2d
`
`1134 (Pa. 1981), Pennsylvania medical malpractice case law conflicted fundamentally with
`
`res ipsa loquitur case law and a res ipsa loquitur theory could not support a medical
`
`malpractice claim.
`
` Customarily,
`
`in medical malpractice cases, courts of
`
`this
`
`Commonwealth demanded that plaintiffs meet rigorous evidentiary requirements or suffer
`
`summary judgment. The doctrine of res ipsa loquitur, in contrast, offers plaintiffs a
`procedural bypass to at least an inference, if not a direct proof, of negligence.
`
`
`
`
`
`Restatement (Second) Torts § 328D
`
`In Gilbert v. Korvette, Inc., 327 A.2d 94 (Pa. 1975),11 this Court adopted the
`
`Restatement (Second) of Torts § 328D formulation of res ipsa loquitur.12 Six years later,
`
`
`10 Hodgson v. Bigelow, supra; Duckworth v. Bennett, 181 A. 558 (Pa. 1935). See also
`Sisson by and through Allen v. Elkins, 801 P.2d 722 (Okla. 1990) (the fact that surgeon
`employed methods accepted by the profession would not invoke res ipsa loquitur even
`though expert witness testified that patient should have been placed on heart by-pass
`before surgery).
`
`11 Gilbert involved liability of a storeowner and escalator manufacturer for injuries
`sustained by a toddler whose foot became caught in one of the escalator steps. The
`child suffered the loss of part of his left great toe and general disfiguration and deformity
`of his foot.
`
`12 Section 328D states:
`
`
`(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;
`(continued…)
`
`[J-156-2002] - 10
`
`

`

`the Court reversed its long-standing position against the use of res ipsa loquitur in medical
`
`malpractice cases and allowed its application to permit recovery via Section 328D. Jones.
`
`We concluded that "Section 328D is fashioned to reach all instances where negligence may
`
`properly be inferred . . . ." Jones, 437 A.2d at 1138 (discussing Gilbert). In so doing, we
`
`rejected the three theories of circumstantial evidence that had previously populated our law
`in this area.13
`
`In Jones, the patient emerged from gynecological surgery with permanent damage
`
`to her ulna nerve. Both parties presented expert medical testimony as to the standard of
`
`care, but expert testimony was deficient as to causation. Thus, in Jones we said:
`We are satisfied that expert testimony should no longer be a per se
`requirement in proof of negligence in all cases of alleged medical
`malpractice. Expert medical testimony only becomes necessary when there
`is no fund of common knowledge from which laymen can reasonably draw
`the inference or conclusion of negligence. Even where there is no fund of
`common knowledge, the inference of negligence should be permitted where
`it can be established from expert medical testimony that such an event would
`not ordinarily occur absent negligence. Restated, section 328D provides two
`avenues to avoid the production of direct medical evidence of the facts
`establishing liability: one being the reliance upon common lay knowledge that
`the event would not have occurred without negligence, and the second, the
`reliance upon [expert] medical knowledge that the event would not have
`occurred without negligence.
`
`
`(…continued)
`(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.
`(2) It is the function of the court to determine whether the inference may
`reasonably be drawn by the jury, or whether it must necessarily be drawn.
`(3) It is the function of the jury to determine whether the inference is to be
`drawn in any case where different conclusions may reasonably be reached.
`
`
`13 Those theories comprised "one entitled 'res ipsa loquitur,' the second entitled 'exclusive
`control,' and the third was an untitled simple circumstantial evidence theory." Jones, 437
`A.2d at 1137 n.8.
`
`[J-156-2002] - 11
`
`

`

`Jones, 437 A.2d 1138 (internal footnote omitted) (emphasis added). In arriving at this
`
`determination, we specifically relied upon comment d to Section 328D, which states:
`
`d. Basis of conclusion. In the usual case the basis of past experience from
`which this conclusion may be drawn is common to the community, and is a
`matter of general knowledge, which the court recognizes on much the same
`basis as when it takes judicial notice of facts [that] everyone knows. It may,
`however, be supplied by the evidence of the parties; and expert testimony
`that such an event usually does not occur without negligence may be
`essential to the plaintiff's case where, as for example in some actions
`for medical malpractice, there is no fund of common knowledge which
`may permit laymen reasonably to draw the conclusion. On the other
`hand there are other kinds of medical malpractice, as where a sponge is left
`in the plaintiff's abdomen after an operation, where no expert is needed to tell
`the jury that such events do not usually occur in the absence of negligence.
`
`Restatement (Second) of Torts § 328D, cmt. d (1965) (emphasis added). We concluded
`
`that "[t]he need for an inference of negligence is especially obvious in the situation where a
`
`patient submits himself or herself to the care and custody of doctors and nurses, is
`
`rendered unconscious, and receives some injury from instrumentalities used or procedures
`
`employed in his or her treatment." Jones, 437 A.2d at 1139. Thus, the Jones Court
`
`reasoned that res ipsa loquitur, as expressed in Section 328D, may be applicable to allow
`
`an inference as to whether a defendant is responsible for causing the injury. Notably, the
`
`application of the common knowledge facet of the doctrine in Jones was applied to a set of
`
`facts involving an unconscious patient; also in Jones, expert testimony was produced
`
`relative to the standard of care. It was the element of causation to which the res ipsa
`
`loquitur doctrine was applied.
`
`
`
`Courts sitting in medical malpractice cases require detailed expert testimony
`
`because a jury of laypersons generally lacks the knowledge to determine the factual issues
`
`of medical causation; the degree of skill, knowledge, and experience required of the
`
`physician; and the breach of the medical standard of care. In contrast, plaintiffs in res ipsa
`
`loquitur cases rely on the jury to fill in the missing pieces of causation and negligence,
`
`[J-156-2002] - 12
`
`

`

`inherent in their cases, with the jury's common experience. Determining whether there was
`
`a breach of duty, however, involves a two-step process: the court must first determine the
`
`standard of care; it then must examine whether the defendant's conduct measured up to
`
`that standard. Not only does the plaintiff have the burden of proving that the defendant did
`
`not possess and employ the required skill and knowledge, or did not exercise the care and
`
`judgment of a reasonable professional, he or she must also prove that the injury was
`
`caused by the failure to employ that requisite skill and knowledge. We have previously
`
`concluded that this must be accomplished with expert medical testimony presented at trial
`by doctors testifying as expert witnesses.14
`
`
`
`Res ipsa loquitur must be carefully limited, for to say whether a particular error on
`
`the part of a physician reflects negligence demands a complete understanding of the
`
`procedure the doctor is performing and the responsibilities upon him at the moment of
`
`injury. Thus, in evaluating a doctor's decision to administer a nerve block injection in a
`
`particular location, an intelligent jury analysis requires some understanding of the results of
`
`giving the injection in various places; the skill required in pinpointing a specific location; and
`
`the likelihood of giving the injection in an unintended site. We reaffirm our earlier
`conclusion, set forth in numerous decisions of this Court15 that, medicine being an applied
`
`
`14 In Chandler v. Cook, 265 A.2d 794, 796, 796 n.* (Pa. 1970), this Court opined that, "in
`malpractice cases . . . a jury will not be permitted to find negligence without expert
`testimony to establish variance from accepted medical practice" and that "the only
`exception to the requirement that expert testimony must be produced is where the matter
`under investigation is so simple, and the lack of skill or want of care so obvious, as to be
`within the range of the ordinary experience and comprehension of even nonprofessional
`persons." (quoting Smith v. Yohe, 194 A.2d 167 (Pa. 1963)). See also Collins v. Hand, 246
`A.2d 398 (Pa. 1968). We note that the adoption of the language of Section 328D by this
`Commonwealth does not undermine the precedential value of the foregoing cases because
`the language of Section 328D(1)(a) essentially adopts this strict preliminary requirement for
`application of the doctrine.
`
`15 See note 14, supra.
`
`[J-156-2002] - 13
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`

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`science, the realm of reasonable choice is best defined by those engaged in the practice,
`
`and expert medical testimony on this issue is required. As aptly noted by the Justices of
`
`the Supreme Court of New Mexico, "The cause and effect of a physical condition lies in a
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`field of knowledge in which only a medical expert can give a competent opinion . . . .
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`[Without experts] we feel that the jury could have no basis other than conjecture, surmise or
`
`speculation upon which to consider causation." Woods v. Brumlop, 377 P.2d 520, 523
`
`(N.M. 1962).
`
`
`
`It follows that, pursuant to Section 328D, three conditions must be met before the
`
`doctrine of res ipsa loquitur may be invoked: (a) either a lay person is able to determine as
`
`a matter of common knowledge, or an expert testifies, that the result which has occurred
`
`does not ordinarily occur in the absence of negligence; (b) the agent or instrumentality
`
`causing the harm was within the exclusive control of the defendant; and (c) the evidence
`
`offered is sufficient to remove the causation question from the realm of conjecture, but not
`
`so substantial that it provides a full and complete explanation of the event. It is only when
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`each of the three conditions is satisfied that an inference of negligence can be drawn from
`
`the occurrence of an injurious event. As dictated by Section 328D, the applicability of the
`
`doctrine depends, in the first instance, upon whether the damaging event ordinarily does
`
`not occur in the absence of negligence.
`
`
`
`Appellee, in the instant action, sought to recast his cause of action as something
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`other than a medical malpractice claim to avoid the requirement of expert medical
`
`testimony. His theory was that, in the absence of negligence, a punctured lung ordinarily
`
`would not result from an injection of cortisone. We conclude that his theory was too
`
`simplistic and not an accurate reflection of the procedure in this case. A more appropriate
`
`characterization is whether, in the absence of negligence, the injection of a paravertebral
`
`nerve block results in a pneumothorax.
`
`[J-156-2002] - 14
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`

`

`
`
`A physician owes his patient a duty to employ that degree of knowledge, skill, and
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`care ordinarily possessed by members of the medical profession. Hodgson. There is no
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`requirement that he be infallible, and making a mistake is not negligence as a matter of law.
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`In order to hold a physician liable, the burden is upon the plaintiff to show that the physician
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`failed to employ the requisite degree of care and skill. Brannan v. Lankenau Hosp., 417
`
`A.2d 196 (Pa. 1980); Bierstein v. Whitman, 62 A.2d 843 (Pa. 1949). We reiterate that the
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`degree of care and skill can only be proven by the testimony of experts. Chandler. The
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`injection of a paravertebral nerve block involved professional treatment at a professional
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`level. While some jurisdictions have held that adverse results of administering injections
`subcutaneously are within the common knowledge of laypersons,16 the performance of a
`paravertebral nerve block involves complex issues of anatomy, medical science, invasive
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`procedures, and precision performance. Therefore, it was essential to Mr. Toogood's claim
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`to introduce expert testimony. This testimony was needed to establish first, the standard of
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`care required for the procedure and, second, that the physician breached that standard of
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`care. These are essential elements for a medical malpractice action that do not evaporate
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`when the doctrine of res ipsa loquitur is applied. Accordingly, Mr. Toogood failed to
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`establish his prima facie case of medical malpractice and the trial court committed errors of
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`law in permitting this matter to go to the jury without expert testimony as to the standard of
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`care and in subsequently denying Appellants' motion for judgment non obstante veredicto.
`
`
`
`
`
`CONCLUSION
`
`
`
`The art of healing frequently calls for a balancing of risks and dangers to a patient.
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`Consequently, if injury results from the course adopted, where no negligence or fault is
`
`
`16 See note 3, infra, and accompanying text.
`
`[J-156-2002] - 15
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`

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`present, liability should not be imposed upon the institu