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A Bucks County trial judge should have instructed a jury on res ipsa loquitur in a medical malpractice case where a quadriplegic’s fall off an operating table allegedly caused injuries leading to his death, a Superior Court panel has ruled.

In so holding, the three-judge panel in Quinby v. Burmeister also reversed the jury’s verdict in favor of the defendants, directing a liability judgment against them and ordering a new trial for damages.

Attorneys involved in the case said that decisions from Pennsylvania appellate courts directing a trial court to grant j.n.o.v. to plaintiffs are rare.

“This is an unusual case in which the weight of the evidence supports the plaintiffs’ version of what happened and refutes the defendants’ testimony,” Judge Richard B. Klein wrote. He added later, “Everyone conceded that the decedent’s disability prevented any voluntary movement that could have caused his fall.”

Klein was joined by Judge Seamus P. McCaffery and Senior Judge Peter Paul Olszewski.

According to the opinion, plaintiff John Quinby was treated in November 1996 by his longtime physician, Charles Burmeister, for the routine excision of a mole on his head. Nurse Millie Welsh, also a defendant, was present during the operation. Burmeister is a member of the Plumsteadville Family Practice, also named a defendant in Quinby’s action.

Prior to the procedure, the opinion states, Quinby was moved from his wheelchair to an operating table that lacked siderails and restraints. After the successful excision, Burmeister and Welsh left the operating room.

Quinby later testified that they had left him lying on his right side; the defendants said that he had been on his back when they exited.

Shortly after Burmeister and Welsh left the room, the opinion says, Quinby fell off the table. Hearing a thud, Burmeister and Welsh rushed back to the room.

Quinby alleged in his complaint that due to the fall, he had suffered cervical injuries separate from those that had originally caused his quadriplegia. The post-operating room fall injuries, his estate asserted, led to the progressive pulmonary failure that ultimately caused his death.

Quinby’s attorney, Eric Zajac of Eisenberg Rothweiler Schleifer Weinstein & Winkler in Philadelphia, said that his client’s disability resulted from a fall off a cliff during a hunting trip when he was 20. The excision and subsequent operating room fall occurred when Quinby, an Upper Black Eddy resident, was 40; he died roughly three years later, before the trial in his case began.

Klein wrote that while a defense expert had testified about the possibility of quadriplegics’ having muscle spasms, “no one testified that the spasms would be of such magnitude to cause a patient lying flat on his back in the center of an exam table to be thrown from the table.”

Because of the lack of explanation available for Quinby’s fall under the circumstances described by the defense, the panel concluded, the jury should have been permitted to draw its own conclusions as to the defendants’ negligence.

“The res ipsa loquitur charge would have been appropriate to make the inference and respective burdens of proof clear to the jury so it could weigh that inference against defendants’ testimony,” Klein wrote. “It was [an] error for the trial court to refuse the charge.”

The panel further found that the trial court had abused its discretion in precluding the presentation to the jury of two tapes made of Quinby. One was a video deposition taken the day before he died; the other was an audio portion of a videotape made roughly two years before Quinby’s operating room fall.

Klein wrote that the jury was entitled to analyze the plaintiff’s credibility by watching him recount his version of the events.

“Certainly, if the decedent had not died before trial, the trial judge would not have had the authority to preclude him from testifying and require him instead to be deposed and have the transcript read to the jury,” Klein wrote. He added later, “There should be no difference if the plaintiff’s testimony is on videotape. It is still his case, even if he has died. The jury had the right to see the decedent to assess his credibility, even if this may have produced some sympathy for him.”

The audio portion of a videotape made of a speech Quinby had prepared for local high school students 22 months before his operating room accident should have been played for the jury, the judges ruled, because Quinby had claimed that his 1996 injuries had affected the quality of his voice.

Zajac said that Quinby had been as independent as a quadriplegic can be prior to the operating room fall; he was able to go fishing and camping, tutor children and put his typing skills to use handling paperwork for his family’s business.

But after falling from the operating table, Zajac said, Quinby’s breathing became more labored, his voice weakened and he began to lose control of his wrists and fingertips. Eventually, he became ventilator-dependent.

“I think that this decision from the Superior Court represents a tremendous victory for disabled people generally, and the late John Quinby especially,” Zajac said.

Burmeister’s attorney, James Kilcoyne of Kilcoyne & Associates in Plymouth Meeting, said that his client plans to pursue all available appellate options.

“Twelve jurors in Bucks County listened to two weeks of trial testimony and found in favor of my client,” Kilcoyne said.

Both Zajac and Kilcoyne said that the trial was presided over by Bucks County Common Pleas Judge Robert J. Mellon. Both also said that they had never been a party to nor heard of an appellate decision in which a jury’s not-liable verdict for the defense was reversed on appeal.

“If I hadn’t had an expert, I could understand it,” Kilcoyne said.

Plumsteadville Family Practice was represented by Michael Munger of Kane Pugh Knoell & Driscoll in Norristown. Welsh’s attorney in the matter was J. Michael Doyle of Post & Schell in Philadelphia. Neither immediately responded to calls seeking comment.

(Copies of the seven-page opinion in Quinby v. Burmeister , PICS No. 04-0642, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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