Gallagher v. Marguglio

¶1dissenting.

¶2I respectfully dissent. The jury determined that appellee was negligent in failing to diagnose appellant’s rectal cancer for a period of eighteen months.1 The evidence indicates that as a result of that failure, appellant experienced significant pain and discomfort during that period. Once the jury determined that appellee’s negligence caused appellant injury, appellant was entitled legally to be compensated for all her damages, which include pain, suffering, and inconvenience. Todd v. Bercini, 371 Pa. 605, 92 A.2d 538 (1952).

¶3I do not believe that the pain suffered by appellant herein is equivalent to the pain at issue in Boggavarapu v. Ponist, 518 Pa. 162, 542 A.2d 516 (1988). There, the plaintiff suffered a dog bite and was awarded his medical costs but no amount for pain and suffering. The trial court granted a new trial, based on case law providing that once a jury determines that the plaintiff suffered an injury and the defendant was liable for *459the injury, the plaintiff is entitled to be compensated for pain and suffering.

¶4Our Supreme Court reversed and held that in appropriate circumstances, as in the case before it, a jury may determine that no compensable pain had been suffered by the plaintiff. The Court reasoned that the factfinder is permitted to believe that certain pain is part of living and that some types of momentary or transient pain do not warrant a monetary award. The Court noted that certain injuries, such as a broken bone, stretched muscle, twist of the skeletal system, injury to a nerve, organ or their function, are the types of injuries that will have such an accompanying amount of pain that the jury’s failure to award pain and suffering will require grant of a new trial. It concluded that the injury before it, a dog bite, was not necessarily that type of injury.

¶5In the present case, the evidence established that appellant did not experience transient or momentary pain. She suffered eighteen months due to undiagnosed cancer, which involves injury to an organ. This pain is not part of ordinary, everyday living. The majority’s application of Boggavarapuherein is an unwarranted expansion of its holding, which was not intended to abrogate our longstanding precedent that a plaintiff is entitled to be compensated for all damages resulting from injuries caused by a negligent tortfeasor. Since the amount of damages awarded herein bears no reasonable resemblance to appellant’s damages, she is entitled to a new trial. See Todd v. Bercini, supra; Bortner v. Gladfelter, 302 Pa.Super. 492, 448 A.2d 1386 (1982); Mueller v. Brandon, 282 Pa.Super. 37, 422 A.2d 664 (1980); Little v. Jarvis, 219 Pa.Super. 156, 280 A.2d 617 (1971).