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Pennsylvania Court Revives Surgery Patient’s Nerve Damage Suit


A Pennsylvania Appeals Court revived a suit by a patient, Veronica Joyner, blaming two doctorsfor causing nerve damage during surgery.

A three-judge Superior Court panel dismissed the suit against Thomas Jefferson University Hospital, Drs. Karen A. Chojnacki and Elia S. Elia. The lawsuit claimed that the healthcare providers negligently placed Joyner’s legs in restraints during a gallbladder removal surgery. The surgery caused severe nerve damage that resulted in “foot drop” or an inability to control foot muscles.

A Philadelphia County judge tossed Joyner’s suit, however, commenting that the plaintiff failed to timely file a valid certificate of merit by a medical expert. The Court also agreed that Joyner’s health care expert argument, Dr. Jeffrey H. Oppenheimer, was not qualified to testify as he was a neurosurgeon. At the same time, the defendant doctors are a general surgeon and an anesthesiologist.

Joyner filed an appeal and argued that the case was improperly tossed as the trial court enteredan order that was impossible to comply with since it set a submission deadline date that had already passed.

The Court commented, “As to the reasonable explanation prong, we agree with Joyner’s argument that she couldn’t file a certificate of merit that complied with the trial court’s extended deadline where the date had already passed by the time the order was filed. Therefore, we conclude that Joyner had a reasonable explanation for not complying with the Court’s order.”

Also, addressing the qualifications of Joyner’s expert, Dr. Oppenheimer, the panel commented, “While Dr. Oppenheimer does not practice in the same subspecialties as the defendant physicians, i.e., general surgery and anesthesiology, the care at issue was the proper restraining of a patient during surgery, something with which Dr. Oppenheimer is experienced and knowledgeable.”

In a footnote, the panel commented that the judge’s explanation of why he had set a deadline that had already expired was because Joyner’s proposed order was filed a month earlier. The panel, however, considered the lower Court’s decision as unpersuasive.

The Court went on to comment, “Not only did the court have the discretion to impose a deadlineup to 60 days after the motion’s filing, once Joyner pointed out that the court had entered an order that, on its face, was impossible to perform, but it is also beyond this court’s understanding why the trial court would not have merely fixed the obvious error.”

The panel concluded that the trial court had abused its discretion when denying Joyner’s petition. It reversed the order with strict instructions that the trial court shall provide Joyner with an extended deadline of at least 20 days from the date of the Court’s order to file merit certificates and support physician statements, according to Pa R.C.P 1042.3.