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Bohus v. Beloff

argued: July 30, 1991.

DENISE BOHUS, APPELLANT
v.
STANLEY A. BELOFF



On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil Action No. 86-07591)

Before: Becker, Scirica and Roth, Circuit Judges

Author: Scirica

Opinion OF THE COURT

SCIRICA, Circuit Judge.

In this medical malpractice action, plaintiff appeals the district court's order granting defendant's motion for judgment n.o.v. and new trial. The central issue on appeal is the proper application of the statute of limitations. We will reverse.

I.

In July, 1982, plaintiff Denise Bohus was employed as a "bunny" in the Playboy Club in Atlantic City, New Jersey. This job required her to wear shoes with four- to five-inch heels and remain on her feet for five to seven hours each work shift. In October, 1983, Bohus met defendant Stanley Beloff, D.P.M., a podiatrist, and informed him that she was experiencing foot pain at the end of her work shifts. At Dr. Beloff's suggestion, she made an appointment for an office visit on November 8, 1983.

Dr. Beloff diagnosed her condition as bilateral hallux abductus valgus, bunion deformity, and bilateral Morton's syndrome (bunions), and advised her that surgery was necessary to correct the disorder. According to Bohus, Dr. Beloff assured her that within a "couple of months" after surgery she would be able to return to work in high-heeled shoes. On January 3 and 24, 1984, Dr. Beloff performed a modified McBride bunionectomy on Bohus's feet.

After surgery, Bohus visited Dr. Beloff several times for follow-up treatment. She returned to work on April 4, 1984, but complained that she was still experiencing foot pain. Dr. Beloff assured her that the pain would eventually subside. Bohus next saw Dr. Beloff in July, 1984, when she again complained of foot pain. Dr. Beloff told her that her feet "would take six months to a year to heal," and that her feet would feel "much better" if she got her shoes re-soled. When Bohus later informed Dr. Beloff that her feet still caused her discomfort, he told her that it "couldn't be" and refused to give her further medical releases from work.

Shortly after her July, 1984, visit to Dr. Beloff, Bohus began consulting other physicians. Bohus first visited David Zuckerman, D.P.M., a podiatrist, on August 2, 1984.*fn1 Bohus asked Dr. Zuckerman to examine Dr. Beloff's pre- and post-operative foot x-rays. She informed Dr. Zuckerman that, although her surgery had been performed seven months earlier, the condition of her feet had "troubled her" for five months. After examining Bohus and the x-rays of her feet, Dr. Zuckerman told her that the surgery performed by Dr. Beloff was "reasonable," and gave her a two-month medical excuse from work.

Still experiencing pain, Bohus next consulted Edward Theiler, III, M.D., on August 31, 1984, seeking another work excuse. According to Bohus, although she brought Dr. Beloff's x-rays with her, she never described to Dr. Theiler the details of the surgery or post-operative treatment performed by Dr. Beloff. Dr. Theiler said that he did not remember Bohus mentioning Dr. Beloff during the visit. Dr. Theiler diagnosed Bohus's pain as the result of normal healing after surgery, and told her it would subside with time and exercise.*fn2 Dr. Theiler gave Bohus a four-month medical excuse.

Rather than subsiding, Bohus's pain worsened to the point where she was unable to wear any type of footwear and experienced constant discomfort, even when not placing weight on her feet. Bohus then contacted Mark Cerciello, M.D., an orthopedic surgeon, in November, 1984. At the same time, Bohus called Dr. Beloff's office to request that her medical records be forwarded to Dr. Cerciello. These records were sent on December 26, 1984, but were not received by Dr. Cerciello until after Bohus's first visit.

Dr. Cerciello first examined Bohus on January 9, 1985. During that visit, or the following visit two weeks later, Dr. Cerciello suggested that Dr. Beloff had done something wrong and asked Bohus whether she had a lawyer. Dr. Cerciello told Bohus that she had a metatarus primus varus deformity, which caused her bunions to recur. He performed surgery on Bohus's feet on February 21, 1986, and December 12, 1986, to correct the deformity.

On December 31, 1986, more than two years after Dr. Beloff's surgery and post-operative treatment but less than two years after she was first examined by Dr. Cerciello, Bohus filed a medical malpractice action against Dr. Beloff. At trial Bohus contended that she did not discover she was injured as a result of Dr. Beloff's surgery until her first or second visit to Dr. Cerciello in January, 1985, and, therefore, her action was timely filed. Both at the close of Bohus's case and the close of all the evidence, Dr. Beloff moved for a directed verdict contending that Bohus's action was barred by the two-year statute of limitations. The district court denied both motions, and the jury returned a verdict for Bohus in the amount of $125,000. *fn3

Dr. Beloff filed post-trial motions for judgment n.o.v. (Fed. R. Civ. P. 50(b)); and new trial (Fed. R. Civ. P. 60(b)), based on newly discovered evidence. The district court granted Dr. Beloff's motion for judgment n.o.v. on the ground that the statute-of-limitations issue should not have been submitted to the jury. Bohus v. Beloff, No. 86-7591, slip op. at 11 (E.D. Pa. Feb. 13, 1991). The court also granted in the alternative, under Fed. R. Civ. P. 50(c), Dr. Beloff's motion for new trial on the ground that newly discovered evidence of Bohus's visit to Dr. Zuckerman could have altered the jury's verdict. Id. at 10, 21. This appeal followed.

II.

We have jurisdiction under 28 U.S.C. ยง 1291. In reviewing the district court's order granting judgment n.o.v., we apply the same standard as the district court. General Elec. Credit Corp. v. Ger-Beck Mach. Co., 806 F.2d 1207, 1209 (3d Cir. 1986). We must "'view all the evidence and inferences reasonably drawn therefrom in the light most favorable to the party with the verdict," Aloe Coal Co. v. Clark Equip. Co., 816 F.2d 110, 113 (3d Cir.), cert. denied, 484 U.S. 853 (1987) (quoting Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1273 (3d Cir. 1979)), and we will affirm the district court's grant of judgment n.o.v. only if the record is "critically deficient of that minimum quantum of evidence from which the jury might reasonably afford relief." Honeywell, Inc. v. American Standards Testing Bureau, Inc., 851 F.2d 652, 654 (3d Cir. ...


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