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Blakesley v. Wolford

April 30, 1986

BLAKESLEY, TERRI, APPELLEE,
v.
WOLFORD, D.D.S., LARRY M. AND BRUCE M. EPKER, PH.D., D.D.S. AND LARRY M. WOLFORD, D.D.S., INC. ORAL & MAXILLOFACIAL SURGERY, INC. LARRY M. WOLFORD, D.D.S., AND LARRY M. WOLFORD, D.D.S. AND BRUCE M. EPKER, PH.D., D.D.S., INC., APPELLANTS



On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 82-5820)

Before: Garth and Stapleton, Circuit Judges and Bissell, District Judge*fn*

Author: Garth

Opinion OF THE COURT

GARTH, Circuit Judge:

In this appeal from a jury verdict in a medical malpractice action in favor the plaintiff Blakesley, we are asked to review the district court's choice of law applicable to the substantive issues involved in the trial of this case.

For the reasons expressed below, we hold that the district court erred in its choice of law, and accordingly we reverse and remand the case to the district court for a new trial.*fn1

I.

In 1975, Terri Blakesley, a resident of Lancaster, Pennsylvania, had her wisdom teeth removed by a dentist not a party to this action. During that procedure, Blakesley's right lingual nerve was damaged, causing Blakesley to regularly experience numbness and "electric shock-like" sensations on the right side of her tongue.

In 1981, Blakesley, seeking relief for her discomfort, was referred to two Lancaster, Pennsylvania surgeons, Drs. Aldo Jacobus and Frederick Chairsell. Although they were unable to help Blakesley, Dr. Chairsell suggested that the defendant, Dr. Larry M. Wolford, a Texas oral surgeon expert in the repair of nerve damage, examine Blakesley during his next scheduled visit to and speaking engagement in the Lancaster area. An appointment was arranged for Dr. Wolford to examine Blakesley in Pennsylvania.

On July 21, 1982, Wolford examined Blakesley at the Lancaster Cleft Palate Clinic. At that meeting, Wolford advised Blakesley that nerve graft surgery might alleviate her distress. Specifically, Wolford suggested the removal of the neuroma on her lingual nerve and the grafting of a section of the greater auricular nerve located in her neck below her left ear to replace the damaged nerve. According to Blakesley's trial testimony, Wolford informed her that removal of the portion of the greater auricular nerve would leave "a small area of numbness in [her] ear," but that other patients who had undergone similar surgery "had not had any problems with that." App. 17(t).

At the Pennsylvania consultation, Blakesley asked Wolford whether the surgery could be performed in Lancaster, Pennsylvania. Wolford specifically informed Blakesley that the operation "would have to be done in Texas." App 19(a). At the conclusion of the examination, Blakesley told Wolford that after she had considered whether to undergo the operation, she would "let him know if [she] was going to have it done or not." App. 19(c). Wolford gave Blakesley his card, on the back of which he wrote a description of the proposed surgical procedure.*fn2

After Blakesley decided to proceed with the operation, she scheduled an appointment with Wolford for the operation to be performed in Texas on October 13, 1982. On October 12, 1982, Blakesley and her fiance met with Wolford in his office at the John Peter Smith Hospital in Dallas, Texas. During that 45-minute meeting, Wolford explained the proposed surgical procedure, essentially repeating what he previously had told Blakesley at the Lancaster, Pennsylvania consultation. Following that discussion, Blakesley signed the hospital's standard operative consent form for the surgery.

The next day, October 13, 1982, Wolford performed the operation on Blakesley. However, instead of using Blakesley's greater auricular nerve as the donor nerve for the nerve graft, as Blakesley had been informed, Wolford instead grafted an alternate never from her neck onto her damaged lingual nerve in her tongue.

The operation proved to be unsuccessful. In the days following the surgery, Blakesley continued to experience numbness and electric shock-like sensations in her tongue. More seriously, the removal of the alternate donor nerve left Blakesley with the highly unpleasant sensations of strangulation and choking upon the slightest touch to the area of her neck form which the donor nerve had been removed. Additionally, Blakesley experienced pain and discomfort in her ear and jaw joint, purportedly caused by her jaws being propped open too long during the operation.*fn3

On December 1, 1982, Blakesley filed a diversity action in the District Court for the Eastern District of Pennsylvania against Dr. Wolford, Dr. Bruce M. Epker, and Larry M. Wolford, D.D.S., Inc. alleging, inter alia, that Wolford, both individually and in his capacity as an officer of the professional corporation, performed an operation on Blakesley without her informed consent. In her complaint, Blakesley claimed she was not informed of the possible use of an alternative donor nerve and the attendant risk of injury which could result therefrom. Additionally, she alleged she was not informed of the risk of jaw joint dysfunction resulting from the operation. Blakesley contended that had she been adequately informed of these risks, she would not have proceeded with the operation. App. 21(a)-22.

On January 30, 1984, Blakesley moved in limine that the district court apply Pennsylvania law to the substantive issues involved in the instant action. In his response to that motion, Wolford argued that Texas law should apply. On March 5, 1984 the district court, agreeing with Blakesley, ruled that Pennsylvania law would govern all issues in the case.

On April 27, 1984, the jury returned a verdict in Blakesley's favor in the amount of $800,000.00.*fn4 The district court denied Wolford's post trial motion for a new trial, and this appeal followed.

II.

In this appeal, Wolford contends that the district court erred in applying Pennsylvania substantive law to the issues of informed consent and damages in this action. We agree.

A federal court exercising diversity jurisdiction must apply the choice of law rules of the forum state in determining which state's law to apply to the substantive issues before it. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941); Mellon Bank, N.A. v. Aetna Business Credit, Inc. 619 F.2d 1001, 1005 (3d Cir. 1980). As this action was brought in the district court in Pennsylvania, Pennsylvania's choice of law principles determine which state's law applies to this medical malpractice action.*fn5

In Griffith v. United Airlines, 416 Pa. 1, 203 A.2d 796 (1964), the Pennsylvania Supreme Court abandoned the strict lex loci delicti choice of law rule. That rule had provided that the law of the place of injury would govern in all tort actions brought in Pennsylvania courts for injuries sustained in other states. In its place, Pennsylvania's highest court adopted "a more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court." 203 A.2d at 805. According to the Pennsylvania Supreme Court,

"The merit of such a rule is that 'it gives to the place "having the most interest in the problem" paramount control over the legal issues arising out of a particular factual context' and thereby allows the forum to apply 'the policy of the jurisdiction "most intimately concerned with the outcome of [the] ...


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