Montgomery v. Bazaz-Sehgal

POPOVICH, J.,

dissenting opinion:

¶ 1 Upon review, I generally agree with the Majority’s statement of the applicable law. I also agree with the Majority’s conclusion that expert testimony was necessary in this case to establish the causal nexus between the operation performed by Dr. Kuldeep Sehgal and any injury involving physical sensation to John Montgomery’s penis and scrotum. However, I respectfully disagree with the Majority’s determination that “the causal connection between the battery and [John Montgomery’s] psychological injuries is clear and direct....” Rather, I am" not convinced that the evidence of causation of appellants’ psychological injuries is sufficiently simple, obvious, clear and direct to allow recovery in the absence of expert testimony.

¶ 2 In the present case, I believe that the causal connection between the tortious conduct and appellants’ psychological injuries is far from obvious, and it is for this reason that expert testimony was necessary to establish causation. As noted in their brief, appellants’ testimony regarding damages centered upon the negative effect the device had upon their relationship and the fact that John Montgomery “felt more like a machine and less like a man” once Dr. Sehgal implanted the device. In addition, John Montgomery testified that because of the implant, he is unable to derive feeling or satisfaction from sexual intercourse and will never be able to achieve an erection without the penile prosthesis or a similar device. Other than their own unsubstantiated averments as to the possible *1135cause of their psychological injuries, appellants presented no evidence of causation.7

¶ 3 The record reveals that John Montgomery suffered from premature ejaculation and the inability to maintain an erection before Dr. Sehgal treated him. Also, prior to the surgery, appellant attempted an alternative course of treatment for his impotence problem. Specifically, he received two injections of Papaverine and Regitine, which were injected directly into his penis. Appellants failed to eliminate John Montgomery’s pre-existing impotence or the injections that he received as possible causes of his physical injuries. I agree with the Majority that it is difficult — if not impossible — to determine, based on appellants’ testimony, whether their injuries were caused by the implantation of the penile prosthesis, John Montgomery’s pre-existing impotence problem or the injections of Papaverine and Regi-tine. For example, John Montgomery testified that it is now impossible to maintain an erection without the device once it was implanted. Meanwhile, it is evident from the record that John Montgomery could *1136not maintain an erection before the prosthetic device was implanted.

¶ 4 However, unlike the Majority, I am unable to conclude from the record whether the mental distress appellants complain of was the direct, obvious and foreseeable result of the implantation of the prosthesis or the continuation of the emotional distress caused by John Montgomery’s preexisting impotence problem. While expert testimony may not have been necessary to establish that a battery occurred, I am convinced that it was necessary for appellants to prove by that the battery directly, obviously and foreseeably caused appellants’ physical and emotional damages. See Maliszewski v. Rendon, 374 Pa.Super. 109, 542 A.2d 170, 172 (1988), appeal denied, 520 Pa. 617, 554 A.2d 510 (1989); cf., Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988 (1987); Corcoran v. McNeal, 400 Pa. 14, 23-25, 161 A.2d 367, 373 (1960); Long v. Yingling, 700 A.2d 508, 516 (Pa.Super.1997).

¶ 5 I do not believe that appellants’ testimony regarding their mental anguish met the quantum of proof necessary to survive Dr. Sehgal’s motion for a directed verdict because it failed to demonstrate that their mental anguish was a direct and necessary consequence of the allegedly unauthorized surgery. Accordingly, I would affirm the judgment of the trial court.

. Although he continued to have sexual relations with his wife at the onset of his impotence problem, John Montgomery's ability to maintain an erection steadily deteriorated for at least a year and a half before consulting Dr. Sehgal, and as it did, he grew increasingly reluctant to engage in sexual activity. For instance, Marsha Montgomery testified as follows:

Q: ... Now, his problem with premature ejaculation, that was beginning to occur in '88 and into '89, did that affect your sexual relationship with your marriage at ah?
A: It was a little bit frustrating but we loved each other and we tried and we did it and we did it but he started to back away a little bit because it was more frustrating to him, you know, he ejaculated so fast.

N.T., 1/12/98, at 82.

Q: How often during this first three month period before surgery would you have your sexual relations?
A: Well like I say, he shied away from me quite a bit sometimes and he was frustrated and we’d start all over again and he couldn’t understand why it was releasing. But we did have an idea why, because of the blood clot.

N.T., 1/12/98, at 91.

Q: ... Did ... you or your husband tell Dr. Sehgal at [the initial] visit, that he came in with problems of impotence for the last year and a half, is that accurate?
A: We told him he came in with pre-ejaculation. That he could get an erection but he would ejaculate. If that is called impotency. I didn't consider my husband impotent.
Q: Did your husband tell Dr. Sehgal in the last six months that he had poor erections, was able to penetrate but was getting frustrated about it, is that accurate?
A: Because of the ejaculations, yes.
Q: [Were] there words stated to Dr. Sehgal to the effect that he, meaning your husband, had always had a strong desire in the past but since he is unable to get any decent erection, his desire has also started to go down and he has started to shy away from sexual activity?
A: Part of that statement is correct. It was that he shied away from, started to shy away because of his ejaculation problems.
Q: Did you report to Dr. Sehgal that this erection problem, by you I mean you and your husband, that this erection problem had come up slowly and has gotten worse, gradually?
A: Yes, it was causing some emotional problems for us.

N.T., 1/12/98, at 135-136.

Similarly, John Montgomery testified:

Q: ... When you started experiencing this premature ejaculation condition, did that affect your sexual relationship with your wife?
A: No, I was getting frustrated because I didn’t know what was happening but it didn’t stop us from having love sessions on weekends whenever I was home.

N.T., 1/12/98, at 160.

Q: ... It states here your wife is getting frustrated and angiy about it, is that an accurate statement?
A: No, I was the one getting frustrated and aggravated because I couldn’t keep an erection long enough to get her satisfied.

N.T. at 163-164.

Parenthetically, I note that although appellants testified that the physical and mental injuries allegedly suffered were experienced subsequent to the time the surgery in question was performed, they never testified that such injuries were actually caused by the implant surgery. Further, Dr. Sehgal, the only medical expert to testify, opined that many of the injuries complained of, such as the decreased pleasure John Montgomery felt upon ejaculation, could not have been caused by the implantation of the prosthesis.