Joyce v. Boulevard Physical Therapy & Rehabilitation Center, P.C.

Page 648

694 A.2d 648

Frank JOYCE and Kelly Anne Joyce, husband and wife, Appellants, v. BOULEVARD PHYSICAL THERAPY & REHABILITATION CENTER, P.C. a/k/a Boulevard Physical Therapy: and Rehabilitation Center, Karen Gentry RPT, Randall N. Smith, M.D. and Palmaccio-Smith Associates.

Superior Court of Pennsylvania.

Argued Feb. 11, 1997.

Filed May 7, 1997.

Reargument Denied July 2, 1997.

Thomas J. Wehner, Philadelphia, for appellants.

Francis J. McGovern, Blue Bell, for Gentry, appellee.

Before CIRILLO, President Judge Emeritus, and JOHNSON and OLSZEWSKI, JJ.

CIRILLO, President Judge Emeritus.

Frank Joyce and Kelly Anne Joyce appeal from an order entered in the Court of Common Pleas of Philadelphia County granting appellees' motion for nonsuit. We reverse.

While working on the roof of the Franklin Mills Mall in Philadelphia, Frank Joyce slipped and injured his right knee. After experiencing frequent buckling of the knee, Joyce sought care at Franklin Hospital. At the hospital his knee was placed in an immobilizer and he was instructed to see Dr. Randall Smith, an orthopedic surgeon. Dr. Smith provided care to Joyce, but was unable to make a conclusive diagnosis. He did, however, instruct Joyce to continue to wear the immobilizer and prescribe a regimen of physical therapy treatment which he recommended should be undertaken at Boulevard Physical Therapy and Rehabilitation, P.C. ("Boulevard"). Although Dr. Smith noted in Mr. Joyce's medical file that he was not to remove the immobilizer, this file was not sent to Boulevard. Moreover, the prescription sheet neither mentioned a diagnosis, nor did it contain an instruction prohibiting a physical therapist from removing the knee immobilizer or an instruction to the physical therapists at Boulevard to contact him (Dr. Smith) prior to removing the immobilizer from Joyce's knee.

Approximately one week later, Joyce commenced his treatment at Boulevard under the supervision of physical therapist Karen Gentry. Unaware of any instructions to the contrary, Ms. Gentry removed the immobilizer during treatment and replaced it at its conclusion. After his third treatment, Ms. Gentry instructed Joyce to refrain from wearing the immobilizer altogether, because she felt that his knee was improving. Upon arriving home from his third treatment, and eager to further the progress which he thought he was making, Joyce performed exercises without his immobilizer as directed by Ms. Gentry. During the exercises, however, his knee buckled, and he fell, striking his head and right knee upon the floor. Joyce was subsequently taken to the hospital where he was diagnosed with severe chondromalacia. ¹

Joyce initiated a lawsuit against Dr. Smith and Boulevard alleging that Dr. Smith was negligent in failing to contact Boulevard either in writing or orally to explain that Joyce was required to wear the immobilizer until further notice. ² At trial, Joyce offered testimony from Dr. Irving R. Ratner, a Board Certified orthopedic surgeon, that the standard of care that orthopedic surgeons must undertake in referring their patients to physical therapy treatment centers is to contact the center, either orally or in writing, to explain any specific instructions that the center must follow. Dr. Ratner opined that in failing to specifically discuss Mr. Joyce's case with the physical therapist, Dr. Smith had breached his duty to appellant. Following Dr. Ratner's testimony, counsel for appellees objected, contending that Dr. Ratner had merely presented his own personal opinion of the standard of care, rather than an objective standard of care as required by law. The trial court reserved its ruling until the conclusion of the Joyces' case. After the plaintiffs rested, appellees renewed their objection. Upon hearing argument, the trial court sustained Boulevard's objection and struck Dr. Ratner's testimony. Immediately thereafter, appellees moved for a nonsuit, since Joyce had failed to elicit the standard of care much less a breach thereof. Agreeing with the appellees, the trial court granted their motion for nonsuit. Joyce filed a timely motion for removal of the nonsuit which was denied. This appeal followed. The Joyces present the following issues for our consideration:

1. Did the trial court not [sic] err in granting the motion for nonsuit after the defendants had marked and introduced exhibits raising elements of their defenses in the plaintiffs' case-in-chief, thereby eliminating the court's ability to consider only the plaintiffs' evidence for purposes of nonsuit?

2. Did the trial court not [sic] err when, after plaintiffs' expert orthopedic surgeon explicitly testified that, based on the standard of care in the community as known to him through his years of experience in the specialty, the defendant breached the standard of care, the court nonetheless struck all of the expert's testimony as being the expert's personal opinion, even after the expert expressly stated that his opinion was not mere personal opinion?

3. Did the trial court not [sic] err when it required that written medical literature must be relied on as a basis for a medical expert's opinion that a defendant surgeon breached the standard of care?

4. Did the trial court not [sic] err when it determined that the doctor-patient relationship between the defendant and the plaintiff was severed when the doctor ordered the plaintiff to be given physical therapy, when the doctor negligently omitted instructions to the therapist and the therapist was working under the doctor's orders?

5. Did the trial court not [sic] err in refusing to permit plaintiffs to present expert testimony on causation, although plaintiffs in pretrial expert discovery set forth the opinion that the negligence of defendants caused plaintiff's injuries?

Our standard of review in determining the propriety of an entry of nonsuit is that it is proper only if the factfinder, viewing all the evidence in favor of the plaintiff, could not reasonably conclude that the essential elements of a cause of action have been established. Biddle v. Johnsonbaugh, 444 Pa.Super. 450, 664 A.2d 159 (1995); Orner v. Mallick, 432 Pa.Super. 580, 584, 639 A.2d 491, 492 (1994). "When a nonsuit is entered, the lack of evidence to sustain the action must be so clear that it admits no room for fair and reasonable disagreement." Gregorio v. Zeluck, 451 Pa.Super. 154, 158, 678 A.2d 810, 813 (1996) (citing Dion v. Graduate Hospital of Univ. of Pennsylvania, 360 Pa.Super. 416, 520 A.2d 876 (1987)). A compulsory nonsuit can only be granted in cases where it is clear that a cause of action has not been established and the plaintiff must be given the benefit of all favorable evidence along with all reasonable inferences of fact arising from that evidence, resolving any conflict in the evidence in favor of the plaintiff. Coatesville Contractors v. Borough of Ridley, 509 Pa. 553, 506 A.2d 862 (1986); Poleri v. Salkind, 453 Pa.Super. 159, 683 A.2d 649 (1996). The fact-finder, however, cannot be permitted to reach a decision on the basis of speculation or conjecture. Biddle, 444 Pa.Super. at 455, 664 A.2d at 161.

The Joyces first contend that the trial court could not properly enter a nonsuit, because the appellees had already entered evidence before the motion for nonsuit was brought. Specifically, the Joyces point to the appellees' entrance into evidence of their affirmative defense, as well as certain exhibits during the cross-examinations of Dr. Ratner and Dr. Hume, as preclusive on the trial court from entering a nonsuit.

Pennsylvania Rule of Civil Procedure 230.1 governs compulsory nonsuits at trial. The Rule states, "In a case involving only one defendant, at the close of plaintiff's case on liability and before any evidence on behalf of the defendant has been introduced ... the court ... may enter a nonsuit." Pa.R.C.P. 230.1, 42 Pa.C.S.A. (emphasis added). Courts have applied Rule 230.1 strictly, and have held that they are without power to grant nonsuits where a defendant has offered evidence either during or immediately after plaintiff's case. See Atlantic Richfield Co. v. Razumic, 480 Pa. 366, 390 A.2d 736 (1978). See also Robinson v. City of Philadelphia, 149 Pa.Commw. 263, 612 A.2d 630 (1992) (defendant's presentation of evidence during plaintiff's case rendering the entry of compulsory nonsuit untenable). Additionally, we note that the power to grant a non-suit may dissipate where a defendant exceeds proper bounds of cross-examination so as to elicit matters constituting a defense to the cause of action. Atlantic Richfield, 480 Pa. at 383, 390 A.2d at 744. These rules are to be strictly applied. Storm v. Golden, 371 Pa.Super. 368, 538 A.2d 61 (1988).

Here, appellees offered defense exhibits during appellant's case and the trial court had the exhibits before it when it evaluated the motion for compulsory nonsuit. The express language of Rule 230.1 and the above-cited authorities compel us to conclude that the trial court was not empowered to enter a nonsuit because appellee had offered evidence. Where, however, a court enters a nonsuit in violation of these rules, reversal is not mandated if the admission of some defense evidence is harmless error. See Bowser v. Lee Hospital, 399 Pa.Super. 332, 582 A.2d 369 (1990); Storm v. Golden, 371 Pa.Super. 368, 538 A.2d 61 (1988). See also Kratt v. Horrow, 455 Pa.Super. 140, 687 A.2d 830 (1996) (recognizing harmless error in entering non-suit where plaintiff fails to meets his burden of proof).

In Storm, supra, a case procedurally identical to the present case, our court found that although the trial court had erred in entering a nonsuit, since the defense had entered exhibits during the plaintiff's case, that such an error was harmless in light of the fact that plaintiffs had failed to offer the proper standard of care. Storm, 371 Pa.Super. at 374, 538 A.2d at 63. Accordingly, if we conclude that the plaintiff in the present case has...