Robert v. Chodoff
Robert v. Chodoff
Opinion of the Court
Appellant hospital seeks to overturn a jury verdict in appellee’s favor in a medical malpractice action. In order to accomplish this purpose, appellant raises the following broad contentions for our consideration: (1) appellee did not introduce sufficient evidence to support the submission of alternative theories of negligence to the jury, (2) the lower court’s charge misstated the law of proximate cause and burden of proof, distorted the evidence, and confused the jury, (3) the lower court thwarted appellant’s presentation of its primary defense, and (4) the $800,000 jury verdict was excessive. We find these contentions unpersuasive.
On June 18, 1965, appellee filed a complaint in trespass against appellant hospital and Dr. Richard J. Chodoff in the Philadelphia County Court of Common Pleas. Put simply, the complaint alleged that the defendants’ negligence in performing a trans-thoracic vagatomy operation on appellee on November 4, 1963, and in rendering inadequate post-operative care resulted in serious brain damage to appellee. Over the next ten years, the parties engaged in an unremitting pleading and discovery battle. On May 21, 1975, a jury trial finally commenced before Judge CARSON, in the Philadelphia County Court of Common Pleas.
The following facts emerged at trial. On November 17, 1962, beset by a bleeding ulcer, appellee entered appellant hospital. Dr. Chodoff performed a partial gastrectomy in order to correct appellee’s problem, and appellee left the hospital on December 22, 1962. However, massive bleeding from a marginal ulcer developed during the next year. Consequently, appellee reentered Jefferson Hospital on October 25, 1963. On the morning of November 4, 1963, Dr. Chodoff performed a trans-thoracic vagatomy; this elective operation entails cutting through the patient’s chest and side in order to sever a vagus nerve, thus decreasing the acidity contained in the stomach. After removing the ulcer, Dr. Chodoff closed and sutured the incision.
Appellee’s graphic record indicates that his temperature was 102.2 at noon on November 5th. At 4:00 p. m., his temperature was 101.4. However, the graphic record does not contain entries of appellee’s temperature at 8:00 p. m., on November 5th, midnight, or 4:00 a. m., on November 6th. At 8:00 a. m., on November 6th, a nurse registered appellee’s temperature at 105.2 on the graphic record. During the 16 hour hiatus between 4:00 p. m., on November 5th, and 8:00 a. m., on November 6th, someone made multiple entries of appellee’s pulse, respiration rate, and blood pressure in the
Dr. Chodoff and Margaret Summers, for 20 years a head nurse at Jefferson and at the time of trial a supervisor of the hospital’s staff development, testified that hospital procedure required that a nurse at Jefferson would take a patient’s temperature and vital signs and then immediately record this information as well as any other pertinent observations in a nurse’s notebook. According to Ms. Summers, immediate recording in this notebook protected against a memory lapse before the nurse transferred the information to the graphic record kept outside the nurse’s station. According to Dr. Chodoff, transfer of the information contained in the nurse’s notes to the central graphic record was essential because a doctor visiting a patient at Jefferson would first consult the centrally located chart to ascertain the patient’s progress and current condition. At trial, neither appellant nor appellee could produce any nurse’s notes containing a recording of appellee’s temperature between 4:00 p. m., on November 5th, and 8:00 a. m., on November 6th. Furthermore, neither party produced a witness who could testify that appellee’s temperature either was or was not taken during this time period.
At 8:00 a. m., on November 6th, a nurse took appellee’s temperature and recorded it at 105.2 degrees in the graphic record. At 10:45 a. m., after the administration of aspirin, appellee’s temperature registered 106 degrees. At this time,
Appellee suffered through a turbulent recovery period after the emergency operation. He received antitoxins for gasgangrene, massive doses of penicillin to combat the fever and infection, and L’neosynephrine to maintain his blood pressure. On the fifth day after Dr. Chodoff’s emergency surgery, appellee began to hallucinate,
After his discharge, appellee’s personality and behavior underwent a gradual, but complete change. He became an introvert and an undependable employee in his job as a number one pumper at a Gulf Oil Company refinery in Philadelphia. When a company doctor attempted to induce appellee to return to work after a period of sickness, appel-lee concluded that his doctor was conspiring against him, and the doctor concluded that appellee was psychoneurotic. In June, 1965, appellee sought the assistance of the psychiatric service of the Veterans Administration Hospital; doctors at this institution concluded that appellee was schizophrenic. On June 21, 1965, appellee, only 47 years old at the time,
While the parties at trial did not seriously dispute the severity of appellee’s structural brain disease, they did vigorously contest the issues of the hospital’s alleged negligence and the cause of appellee’s present disability. Both sides presented several expert witnesses who offered the following opinion testimony.
Dr. Elliot Mancall, Chief of Neurology at Hahnemann Hospital in Philadelphia, opined that appellee’s “. neurological problem dates initially to damage to the brain as a result of extremely high body temperature, coupled with a very low blood pressure, with, perhaps, in all likelihood, some intensification of his neurological problem as a result of a combination of later factors, including alcohol, possible Doriden, and some of the more recent tranquilizers which have been used.” Specifically, Dr. Mancall testified that appellee’s body temperature of 105 degrees or over on November 6, in conjunction with his perilously low blood pressure readings,
Appellant also presented an imposing array of expert witnesses who proffered a different explanation of appel-lee’s brain disease. Dr. Joseph Slap, a clinical professor at Hahnemann Medical College and an expert in clinical pharmacology and psychosomatic diseases, testified that appel-lee’s brain damage resulted from “. . . Wernicke-Kor-sakoff’s Syndrome, ... a disease which is seen almost exclusively in alcoholics.”
Dr. Herbert S. Heineman, Director of the Infectious Diseases Division of Hahnemann Medical College and Chief of the Clinical Microbiology Laboratory at Philadelphia General Hospital, also provided expert testimony for the defense. According to Dr. Heineman, even if a nurse did thrust a kleenex between appellee’s wound and his bandage on the afternoon of November 4, 1963, this action could not have possibly caused appellee’s clostridial cellulitis infection. Dr. Heineman emphasized that appellee’s wound had been closed immediately after surgery and that a film of coagulated serum developing two to six hours later further sealed off the wound to outside sources of infection. Because clostridial cellulitis could not occur unless organisms were implanted deep into the tissue, Dr. Heineman surmised, without ascribing any fault to Dr. Chodoff, that the infection probably occurred in the operating room.
On June 6, 1975, after more than two weeks of trial and 1200 pages of testimony, the lower court submitted the case to the jury, and the jury returned a verdict in appellee’s favor in the amount of $800,000. Appellant thereupon filed extensive written post-verdict motions and developed its arguments in a brief filed of record. After hearing oral argument, the lower court, sitting en banc, denied appellant’s motions on July 27, 1976. This appeal followed.
I
Appellant first contends that the lower court erred in submitting alternative theories of negligence to the jury. In its charge to the jury, the lower court submitted two alternative theories of negligence underpinning potential liability for the jury's consideration: (1) the negligence of the hospital nurse in allegedly stuffing a kleenex under the bandage covering the incision, thus allegedly causing appellee's clostridial cellulitis infection and leading to his subsequent fever and brain damage, and (2) even if the jury disbelieved the testimony concerning the alleged kleenex incident, the jury could still impose liability if the jury found that the hospital's agents
In the case at bar, we have no trouble determining that a jury had sufficient evidence before it to find that hospital agents violated the appropriate standard of care and that this violation proximately caused appellee’s extensive brain damage. In reaching this conclusion, we focus on the time period between 8:00 a. m., and sometime before 2:00 p. m., on November 6, 1963. In particular, we emphasize the failure of the hospital nurse and the hospital resident to take the action required by the appropriate standard of medical care to ameliorate appellee’s critical condition.
At 8:00 a. m. on November 6, a nurse took appellee’s temperature and recorded it at the precariously high level of 105.2 degrees. According to Dr. Chodoff, a nurse upon discovering such a high temperature had a duty to call immediately the resident or intern on duty; the resident or intern would then evaluate the patient’s condition and decide whether to alert the attending physician. According to Margaret Summers, head medical surgery nurse at Jefferson
The hospital confronts a similar dilemma with respect to the testimony concerning the resident’s examination of ap-pellee at 10:45 a. m. Although the status of this resident is unclear, the record permits a finding that he violated the standard of care owed appellee. According to Dr. Chodoff, appellee’s precarious situation was just as critical at 10:45 a. m., as it was when Dr. Chodoff arrived at appellee’s hospital room between 1:00 p. m., and 2:00 p. m., that afternoon. If Dr. Chodoff had seen appellee at 10:45 a. m., he would have operated instantly. Moreover, Dr. Chodoff testified that sound medical practice would have dictated that either a surgeon or a senior resident operate immediately once he viewed appellee’s condition at 10:45 a. m. Thus, if the examining resident enjoyed senior status, then he had a duty to operate on appellee without further delay. Dr. Chodoff also testified that if the resident examining appellee at 10:45 a. m. was not a senior resident and could not perform the indicated surgery, he had a duty to notify immediately either a senior resident or a surgeon who, in turn, would operate.
On the basis of the facts presented at trial, we know that the resident who examined appellee at 10:45 a. m. failed to operate immediately. Indeed, the record is silent as to exactly what steps — beyond the temporizing precaution of ordering a gram stain analysis — the resident took between 10:45 a. m., and 1:00 p. m. If the resident failed to notify
Appellant also complains that appellee did not introduce sufficient evidence to demonstrate that appellee’s failure to render adequate post-operative care proximately caused appellee’s conceded serious brain damage. To the contrary, Dr. Mancall testified without equivocation that appellee’s brain damage directly resulted from his exposure to high blood temperature and low blood pressure over a sustained period of time, and Dr. Ober testified that brain damage could occur in as little as two hours. Dr. Kool also unhesitatingly asserted that appellee’s hyperthermia and low blood pressure on November 6, 1963, caused his brain
II
Appellant’s next general contention is that the lower court’s charge misstated the law of proximate cause and burden of proof, distorted the evidence, and confused the jury. In a related contention, appellant asserts that the lower court’s procedure in delivering the charge to the jury deprived appellant of its procedural due process rights and prevented it from making the timely and specific objection required to preserve the particular arguments now pressed on appeal. Because the latter contention of necessity determines our scope of review of appellee’s particular objections to the charge, we will treat it first.
We do not address the merits of appellant's procedural due process challenge because appellant has waived this argument. Appellant neither raised an objection to the trial court's procedure at trial nor included the issue in its written post-verdict motions or in its brief in support of these motions. Under the circumstances, appellant has waived it general attack on the procedural validity of the court's charge. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974) (hereinafter Dilliplaine); Schneider v. Albert Einstein Medical Center, 257 Pa.Super. 348, 390 A.2d 1271 (1978). Once we decide that appellant has waived its procedural attack on the court's charge, it ineluctably follows that appellant has waived any objection to the court's charge which it failed to raise in a specific and timely fashion below or in written points for charge.
Appellant next contends that the lower court contravened the requirements of Hamil v. Bashline II, supra and Gradel v. Inouye, 252 Pa.Super. 392, 381 A.2d 975 (1977), when it charged the jury that proximate causation entails a finding that the hospital's negligence was ". . . a substantial factor in causing [appellee's] organic brain damage."
At trial, appellant submitted the following point for charge on the issue of proximate causation: “8 . The proximate cause of an event is that which, in a natural and continuous sequence, unbroken by any new, independent cause, produces the event, and without which the event would not have occurred. The real test is not whether the injury was the natural and probable result of that negligence. . . . ” (“not” emphasized in original; our Court supplies the remaining emphasis.) After the lower court completed reading its charge, it asked counsel for their specific exceptions. When the court expressed its belief that the “substantial factor” charge covered the gist of appellant’s point for charge no. 8, counsel responded only that the court had failed to emphasize sufficiently the concept of independent intervening cause. Counsel at no point object
Appellant further argues that the lower court erred in rejecting several of its properly submitted points for charge. We will briefly discuss and reject each of its arguments.
First, appellant maintains that the lower court erred in failing to read appellant’s proposed charge on credibility. However, our review of the trial court’s charge demonstrates that the court related the matter of credibility comprehensively and accurately; indeed, the court stressed the very factors — demeanor, interest, bias, means of observation, corroborating testimony, and surrounding circumstances — stressed by appellant in its point for charge.
Second, appellant argues that the trial court should have instructed the jury that an unexpected, unfortunate or even disastrous result is not, in and of itself, proof of negligence. While we agree with this proposition, see Donaldson v. Maffuci, 397 Pa. 548, 156 A.2d 835 (1959); Ragan v. Steen, supra, we do not believe that the omission of this charge in the instant case amounts to reversible error. The lower court's charge repeatedly emphasized that appellee had the burden of proving appellant's specific acts of negli
Third, appellant challenges the lower court’s alleged refusal to specify the different standards of care which nurses, doctors, and residents must observe. Insofar as appellant argues that the lower court failed to specify the standard of care applicable to a resident, appellant waived this contention by failing to incorporate the purported distinction in a point for charge or to object to the wording of the court’s charge after its delivery. Sec Dilliplaine, supra. Insofar as appellant claims that the lower court failed to particularize the appropriate standards of care for nurses and doctors, we disagree with appellant on the merits. The court specifically charged the jury that a nurse has a duty to follow a doctor’s instructions, including the taking and recording of vital signs and reporting of a rise in temperature. Under the facts of this case, this articulation of a nurse’s duty is the appropriate standard of care against which to measure a nurse’s allegedly negligent conduct. We also note that appellant raises no objection to that portion of the charge stating the appropriate standard of care for a doctor.
Fourth, appellant asserts that the lower court erred in failing to charge the jury that if it believed that appellee’s injuries stemmed from causes beyond appellant’s control, then it should enter a verdict in appellant’s favor. This proposed charge also would have admonished the jury not to speculate or conjecture as to the precise cause of appellee’s injuries. Again, we believe that the lower court’s charge adequately covered the substance of this proposed instruction when it stated appellee’s burden of proof on the causation issue. Appellant’s proffered charge would have accomplished no more than to recast the court’s charge on burden of proof into its converse proposition: if the jury affirmatively finds that the hospital’s negligence did not cause
Finally, according to appellant, the lower court should have charged the jury that it should not find in plaintiff’s favor if it determines that plaintiff suffered from an unfortunate condition in existence prior to his treatment at Jefferson. No discernible evidence in the instant case suggests that appellee suffered from organic brain damage prior to the 1963 operation; the requested point for charge would have only confused, not aided, the jury. Moreover, the lower court thoroughly and repeatedly instructed the jury that appellee had the burden of proving that appellant’s negligence during the 1963 hospitalization caused appellee’s subsequent brain damage. There is no merit to this last contention.
We have now reviewed all of appellant’s attacks on the trial court’s charge and found them wanting. We turn next to appellant’s equally pervasive, but ultimately futile challenge to the lower court’s evidentiary rulings.
Ill
Appellant next presents a number of contentions which allegedly demonstrate that the lower court effectively thwarted the presentation of its primary defense. More specifically, appellant contends that the lower court defeated its attempt to prove that appellant suffered from Wernicke-Korsakoff’s Syndrome — a brain disease caused by excessive use of alcohol — through a series of erroneous and prejudicial evidentiary rulings and through overt manifestations of hostility towards defense counsel and a defense witness. At the outset, we state our belief that the record reveals that the trial court acted fairly and evenhandedly throughout the more than two weeks of trial. With this observation firmly
Appellant first directs our attention to the lower court’s purported failure to allow Dr. Slap, appellant’s chief witness on the nature and consequences of Wernicke-Korsakoff’s Syndrome, to testify that he disagreed with the conclusions of Dr. Mancall, appellee’s main proponent of the hyperther-mia and low blood pressure theory of causation. Putting this contention into its specific context, we note that the alleged error occurred when appellant’s counsel asked Dr. Slap whether he agreed with the conclusions Dr. Mancall had expressed in an article entitled “Some Unusual Neurological Diseases Complicating Chronic Alcoholism.” The lower court sustained an objection because appellant’s counsel had not cross-examined Dr. Mancall on the basis of this article when Dr. Mancall was on the stand; thus, Dr. Man-call never had an opportunity to explain his conclusions or to clarify any discrepancies between his written conclusions and his trial testimony. According to appellant, the lower court’s ruling impermissibly deprived it of an opportunity to impeach and contradict the fundamental basis of appellee’s case: Dr. Mancall’s expert conclusions. We disagree.
McCormick on Evidence, § 37 at p. 72 (McCleary Ed. 1972) states the general rule proscribing the impeachment of a witness by a prior inconsistent statement without affording the declarant an opportunity on cross-examination to deny or explain the statement:
"In 1820 in the answers of the judges in Queen Caroline's Case, it was announced: `If it be intended to bring the credit of a witness into question by proof of anything he may have said or declared touching the cause, the witness is first asked, upon cross-examination, whether or not he has said or declared that which is intended to be proved.' [2 Brod. & Bing. 284, 313, 129 Eng.Rep. 976 (1820)]. Thus was crystallized a practice which was previously occasional and discretionary. Only later and gradually was it almost universally accepted in this country. The purposes of the requirement are (1) to avoid unfair surprise to the adversary, (2) to save
In the instant case, we perceive no abuse of discretion in the lower court's ruling. This case involved complicated, indeed esoteric, questions of medical science; it would be grossly unfair to allow one expert witness — Dr. Slap — to summarize and criticize the conclusions of another expert witness — Dr. Mancall — without first affording the latter an opportunity to place his article's conclusions into context or to explain why the article's conclusions do not necessarily apply to the facts at hand.
“Q. [1] Is there anything in here that you don’t agree with in this book of principles of internal medicine?
“MR. LEVANT [Appellee’s counsel]: Objection, Your Honor.
“THE COURT: Sustained.
“Q. Doctor, if in this book that I just mentioned, they list under ‘cerebral atrophy’ one of the causes as alcoholism or alcohol, would you agree with that?
“A. I think in terms of cerebral cortical atrophy, yes, alcohol is among the causes.
“Q. [2] Now, if, Doctor, in the index under ‘cerebral atrophy,’ there are other entries in this book and hyperther-mia does not appear as one of these entries, would you agree with that?
“MR. LEVANT: Objection, Your Honor.
“THE COURT: Sustained.
*363 “BY MR. ROSSITER [Appellant’s counsel]:
“Q. Doctor, would you take this book and look at the index for me.
“A. (The witness complies.)
“Q. Do you have the index open, Doctor?
“A. I have it open, yes.
“Q. [3] What is the first entry under ‘cerebral atrophy’?
“MR. LEVANT: Objection.
“THE COURT: Sustained.
“Q. [4] Doctor, is hyperthermia listed in the index as a cause for cerebral atrophy?
“MR. LEVANT: Objection.
“THE COURT: Sustained.
“Q. [5] Doctor, if you were confronted with any authoritative book wherein there was information that reports of cerebral atrophy and large ventricles tends to confirm or at least is consistent with Korsakoff’s psychosis, would you agree with that?
“MR. LEVANT: Objection.
“THE COURT: Sustained.”
Questions one and five are so patently overbroad as to be meaningless; in question one, counsel neglected his obligation to narrow his question to a specific portion or passage of the text while in question five, counsel failed to specify any book at all. Question two is in fact a non-question and does not deserve a response. Questions three and four attempt to establish that the text’s index omitted mention of hyperthermia under the heading “cerebral atrophy”; according to appellant, this omission signifies the author’s belief that hyperthermia could not have caused appellee’s cerebral atrophy.
Appellant next contends that the trial court erred in preventing Dr. Heineman, a defense expert, from answering the following question on direct examination:
“Q. Dr. Mancall, in his report, seemed to, if I read it correctly — I don’t have it in front of me here — seemed to believe that the combination of high — or excuse me, the low blood pressure which the chart reflects and the fever which the temperature chart and the progress note reflects, seem to have a bearing on the hyperthermic episode, and it’s combination with the hypotensive episode, seemed to have a bearing on the case, in that this in effect caused death of brain cells.
“Do you agree with his analysis?
“MR. LEVANT: Objection.
“THE COURT: Sustained.”
(emphasis supplied).
This question unfairly mischaracterizes Dr. Mancall’s testimony; by constant repetition of the word “seemed”, counsel imputed a lack of certainty to Dr. Mancall’s testimony which it did not contain. The lower court properly sustained appellee’s objection.
We now examine two allegations that the lower court manifested hostility towards the defense when it reprimanded without justification defense counsel and a defense witness. The first incident of alleged hostility arose when appellant’s counsel attempted to cross-examine Dr. Mancall
The second incident of alleged intemperance occurred when the trial court sustained an objection to a rambling response by a defense witness, Dr. Slap.
“MR. LEVANT: Objection, Your Honor.
“THE COURT: Sustained.
“THE WITNESS: Your Honor, could you explain to me—
“THE COURT: I don’t have to explain anything to you in this court. I’m running this court, not you.
“MR. ROSSITER: Doctor, please.”
The record, of course, does not indicate the tone of the comments made by either Dr. Slap or the trial judge. However, it is relevant to note that appellant’s counsel believed that his witness, rather than the trial judge, needed restraint. Moreover, the absence of an objection by counsel to
Our review and rejection of each specific evidentiary objection raised by appellant reinforce our impression that the lower court conducted this complicated and protracted trial in an impartial and fair manner and did not deprive appellant of a meaningful opportunity to present its defense based on Wernicke-Korsakoff’s Syndrome. In fact, appellant introduced extensive expert testimony on how appellee’s alleged past drinking problems caused his present plight. Having rejected appellant’s contentions concerning particular evidentiary rulings, we now turn to appellant’s last contention: the alleged excessiveness of the jury verdict.
IV
Appellant finally contends that it should be awarded a new trial because the jury verdict of $800,000 in appellee’s favor was excessive.
"Appellate courts are properly reluctant to interfere with jury verdicts in personal injury cases, which verdicts are supported by the opinion and approval of the trial judge and the court en banc. Roadman v. Bellone, 379 Pa. 483, 108 A.2d 754 (1954). The granting or refusal of a new trial because of excessiveness is peculiarly within the discretion of the court below and we will not interfere, absent a clear abuse of discretion. Hall v. George, 403 Pa. 563, 170 A.2d 367 (1961). We will not hold that a verdict is excessive unless it is `"so grossly excessive as to shock our sense of
In the instant case, the lower court instructed the jury it could consider several items in determining the proper amount of damages: (1) appellee’s past loss of earnings and earning capacity, (2) appellee’s future loss of earnings and earning capacity, (3) appellee’s past medical expenses, (4) appellee’s future medical expenses, (5) appellee’s past pain and suffering, (6) appellee’s future pain and suffering, and (7) appellee’s loss of enjoyment of life.
In connection with items (1) and (2), appellant contends that appellee failed to adduce definitive medical testimony connecting the hospital’s negligence in 1963 to appellee’s subsequent inability to continue gainful employment. In particular, appellant emphasized that appellee “voluntarily quit” his job at Gulf Oil Company in 1965, and that no evidence supported the existence of appellee’s brain damage and psychiatric problems at that time. However, Dr. Kool, psychiatrist, testified that appellee sustained his brain damage as a result of his experience at Jefferson Hospital in 1963. After his discharge, appellee began to show personality changes, and his mental condition began to regress. By 1965, appellee, as a result of his brain damage, had become acutely psychotic and delusional; this mental instability caused appellee to quit work in June, 1965, and precluded his gainful employment thereafter. To buttress Dr. Kool’s testimony, appellee presented the testimony of the Director of Personnel Administration of the Gulf Oil Company refinery in Philadelphia. He testified that on the day appellee terminated his employment, he was quite unstable and extremely anxious, and his actions had no apparent rational basis, especially in light of his forfeiture of all accrued pension benefits. Moreover, the plant physician who examined ap-pellee in 1965 testified that he diagnosed appellee as psycho-neurotic shortly before he terminated his employment, and that the report of a Veterans Administration Hospital psychiatrist had confirmed his impression. Finally, appellee’s wife testified that her husband’s constant delusions and fragile nervous condition prevented him from performing two part-time jobs with employment agencies in 1971 and 1972. Given the above testimony, we find ample evidence that appellee’s brain damage had manifested itself by 1965 and that it caused appellee’s inability to continued employ
Once we conclude that appellee is entitled to lost wages dating back to 1965, then the parties agree that he lost a little more than $100,000 in compensation between 1965 and the start of the trial.
In determining whether appellee received excessive compensation for past and future pain and suffering and loss of enjoyment of life, we begin with the observation that ". . . in any effort to translate such catastrophic human loss . . . into money damages . . ., systematic logic is not helpful and precision is not achievable." Frankel v. Heym, 466 F.2d 1226 (3rd Cir. 1972).
Order affirmed.
. Under each general contention, appellant raises a host of more specific contentions. We also reject each of these contentions.
. Appellee’s expert witnesses all agreed that Dr. Chodoff performed a competent and sterile operation. Because appellee failed to introduce any evidence of Dr. Chodoffs negligence, the lower court granted the doctor’s motion for a non-suit at the conclusion of appellee’s case.
. According to Dr. Chodoff, the purpose of administering an aspirin suppository is to relieve a patient’s discomfort; awakening a sleeping patient would defeat this purpose.
. A progress note entered in the hospital record at 5:30 p. m. on November 5 is the only other recorded medical observation during the 16 hour period. This note stated that appellee’s bowels were not making any noise and that his abdomen was distended. Dr. Chodoff was notified, and he ordered that appellee not receive any further medication with food by mouth. At trial, Dr. Chodoff denied that this progress note constituted evidence of an incipient infection or fever.
. The nurse on duty the night of November 5, and the early morning of November 6, died sometime before trial.
. Gosin did not testify, and no one could identify his status at the hospital in November, 1963, in any more descriptive fashion than “resident.”
. Again, appellee failed to present any evidence of Dr. Chodoffs alleged negligence. See note 1, supra. Consequently, the lower court granted a non-suit as to Dr. Chodoff. Indeed, all the evidence in the record clearly demonstrates that Dr. Chodoff performed admirably in a stress situation of the highest magnitude.
. For example, appellee imagined conversations with his long deceased father; he accused doctors of plotting to kill him; and he believed that a basket in his room had been placed there for the purpose of storing his body.
. Barring complications, a patient would ordinarily leave a hospital seven to ten days after a trans-thoracic vagatomy operation; appel-lee’s stay exceeded this period by three to four weeks.
. By quitting, appellee forfeited all his rights under the company pension plan. If he had continued his employment for only three more years, appellee’s pension plan rights would have vested.
. More specifically, the CAT brain scan test disclosed that appellee suffered from moderate dilatation of the ventricular system as well as the sulci and fissures; this finding is compatible with the presence of moderate brain atrophy. The electroencephalogram suggested bilateral structural abnormalities, especially prominent over the left hemispherical lobe.
. Dr. Ober and Dr. Chodoff both testified that they had never encountered a single case of a clostridial infection complicating a trans-thoracic vagatomy operation.
. Dr. Mancall noted that at 8:00 a. m., on November 6, 1963, appellee’s blood pressure was recorded at 90 over 60; by noon on that day, appellee’s blood pressure had dropped to the level of 60 over O.
. More specifically, Weraicke-Korsakoffs Syndrome, according to Dr. Slap, is a nutritional disease caused by the absence or deficiency of Vitamin B.
. The record contains the following evidence suggesting a past drinking problem: (1) appellee’s admission report to Jefferson Hospital in 1963 related that appellee was a “heavy drinker,” (2) a Jefferson doctor who examined appellee prior to his 1963 operation noted that appellee had recovered well since the 1962 operation, “except for drinking,” (3) appellee’s discharge summary from the Philadelphia Psychiatric Center in 1973, mentioned a past history of drinking, (4) appellee’s discharge summary at Lankenau Hospital in 1973, indicated a long history of psychiatric problems, including a paranoid state, as well as a problem of drug and alcohol abuse, (5) appellee told Dr. Mancall in 1975 that he had a history of drinking prior to 1963 and that he resumed drinking in 1972, and (6) appellee’s wife testified that appellee drank socially and only in moderate amounts prior to 1963; from 1963 until 1972, he abstained completely. We also note that appellant erroneously finds evidence of past alcohol abuse in a psychiatrist’s notes dated October.1, 1970. According to these notes, appellee suffered from Doriden withdrawal; this condition raised problems, including delirium tremens similar to alcoholism. This note furnishes no basis for a finding of alcoholism; it only substantiates appellee’s condition of Doriden addiction.
. When confronted with his original diagnosis, Dr. Mancall explained that he revised this diagnosis after he received the results of appellee’s neurological tests and learned that appellee’s brain disorder was more widespread than he imagined and after he learned about appellee’s dramatically low blood pressure readings on the morning of November 6, 1963. According to Dr. Mancall, Wemicke-Korsakoff s Syndrome could not account for such a widespread brain disorder.
. In his first report after his retention, Dr. Heineman stated that: “It is theoretically possible that kleenex tissues taken from an extremely dusty window sill . could have carried bacterial spores to the wound.” At trial, Dr. Heineman asserted that this statement in no way contradicted his testimony; he emphasized that he wrote only “to the wound” rather than “into the wound.”
. Dr. Chodoffs testimony corroborated this depiction of temperature patterns, and no evidence in the record contradicted it.
. No one disputes that the nurses and residents involved in this case acted as Jefferson's agents at all relevant times; thus, Jefferson may be held liable for their negligent acts. Tonsic v. Wagner, 458 Pa. 246, 329 A.2d 497 (1974); McConnell v. Williams, 361 Pa. 355, 65 A.2d 243 (1949).
. Specifically, the relevant portion of the trial court’s charge reads: “If, members of the jury, you are persuaded by a fair preponderance of this evidence, that the kleenex was used in the manner in which the plaintiff contends, then you may well find that the Jefferson Hospital was negligent. On the other hand, if you are not so persuaded, then, members of jury, you must consider whether reasonable care was exercised by the hospital rendering medical services in its post-operative care.” Actually, appellant argues that the
We further note that the lower court at two later points in its charge instructed the jury that it could not find the hospital liable unless it found that the negligence of appellant’s agents caused appellee’s infection. However, appellee’s attempt to prove that the agents’ alleged negligence produced his infection depended entirely on the jury crediting the testimony of his mother-in-law and wife concerning the kleenex incident. Thus, the lower court’s subsequent comments contradicted its earlier instruction that the jury could still find the hospital liable even if it rejected the testimony concerning the kleenex incident. Appellant did not object at trial that this ostensible contradiction confused the jury; indeed, any confusion caused could only have benefitted appellant.
. Given this analysis and conclusion, we need not determine whether appellee’s testimony concerning the nurse’s alleged failure to take his temperature between 4:00 p. m., on November 5, and 8:00 a. m., on November 6, would suffice, standing alone, to support a finding of liability against the hospital. We do note, however, that under Stack v. Wapner, supra, a jury could properly infer that absence of the mandated temperature entries in the hospital records meant that the temperatures were not in fact taken. Appellant argues that even if a nurse violated the duty to take appellee’s temperature during the 16 hour period, there is no evidence, in light of the tendency of a person’s temperature to “spike”, that the nurse would have discovered an elevated temperature. Put another way, the very failure of appellant’s agents to take and record a patient’s temperature precludes that patient from proving causation. While we refrain from deciding whether a jury could impose liability solely on the basis of the 16 hour time gap and subsequent brain damage, we believe that the testimony concerning this period was supportive of a finding that the hospital rendered inadequate post-operative care over the period commencing after the November 4th operation and concluding with Dr. Chodoff s beside operation.
. In Hamil v. Bashline II, supra, members of our Court expressed profound disagreement over the proper standard for determining when a plaintiff in a medical malpractice action has met his burden of proving proximate causation. Judge PRICE wrote the lead opinion, joined by two other judges, in which he argued that in order to prove proximate causation, plaintiff's expert must testify with certainty that the injury came from the asserted negligence. Judge HOFFMAN authored a Concurring Opinion in which he argued that a plaintiff would meet his burden of proof on proximate causation if an expert testified that the alleged deviation from accepted standards of medical practice constituted a substantial factor in the advent of the complained-of injury. Judge CERCONE filed a Dissenting Opinion, joined by Judge SPAETH, in which he also argued for a "substantial factor" test. In the instant case, plaintiff's experts testified with certainty that appellee's brain damage was caused by his exposure to high temperatures and low blood pressure over a sustained period of time on November 6, 1963. This testimony comported with the demanding standards of the lead opinion in Hamil v. Bashline II, supra, as well as the "substantial factor" test favored by the concurring and dissenting opinions.
. It is significant to note that the jury did not retire for deliberations until after the court’s session with counsel in chambers.
. Included in this category of waived objections are allegations that: (1) the charge on appellee’s burden of proof unfairly lumped all elements of his cause of action together instead of stating specifically that appellee bore the burden of proof on each issue, (2) the charge impermissibly allowed the jury to mix two separate theories of liability together and impose liability without finding proof of each element of that theory of negligence, (3) the court distorted Dr. Heineman’s testimony and impugned his credibility, (4) the court failed to canvas defense testimony concerning appellee’s alleged history of alcohol abuse, and (5) the court failed to comment on defense testimony that high temperatures could not cause brain
. See discussion of Hamil v. Bashline II, supra, note 22, supra.
. Before us, appellant makes no attempt, other than his attack on the procedural validity of the charge, to explain his failure to object to the “substantial factor” portion of the charge in a timely and specific manner. Appellant has also dropped its contention, raised at trial, that the lower court’s charge unfairly slighted the concept of independent intervening cause.
. In an almost identical contention, appellant argues that the lower court erred in failing to instruct the jury that when two or more possible causes exist for an injury, the plaintiff must prove that the injury was the result of the particular cause involving the defendant’s alleged negligence. At the post-charge conference, counsel expressly informed the court that the court’s charge had satisfactorily covered this particular point.
. Appellant’s counsel recognized as much at the post-charge conference in the trial court’s chambers. At this time, counsel stated that his only objection was to the court’s failure to caution against speculation.
. Appellant cites only one case in support of its argument: Logue v. Potts Mfg. Co., 381 Pa. 144, 146, 112 A.2d 370, 371 (1955) in which the Supreme Court stated: "When counsel agrees to excuse a witness and the witness retires, no rule of law exists, or should be promulgated, whereby the other side is foreclosed from producing testimony which may contradict prior testimony. Unless counsel is willing to assume this risk the witness should be required to remain in court and not be discharged." Logue, however, is inapposite because it did not involve a prior inconsistent statement by the excused witness; it involved only contradiction by independent evidence. In such a case, a witness need not be allowed an opportunity to rebut such evidence.
. Appellant made no effort to recall Dr. Mancall for the purpose of laying the proper foundation.
. Even were we to conclude that the lower court abused its discretion on this point, we doubt that the alleged error was sufficiently prejudicial to mandate reversal. First, appellant’s counsel never
. In a related contention, appellant contends that the following interchange between court and counsel contained prejudicial error:
*362 “In your experience in treating alcoholics would you tell me whether these alcoholics that you have treated almost invariably understate the amount that they drink?
“THE COURT: Gentlemen—
“MR. LEVANT: Objection.
“THE COURT: I don’t see what alcoholics have to do with this. We have not established that anybody in this case was an alcoholic.
“MR. ROSSITER: I withdraw the questions, Your Honor.'’ First, we note that the lower court quite properly sustained an objection to such a highly irrelevant question; appellant’s counsel conceded as much when he withdrew the question. Second, insofar as appellant argues that the court’s interjection constituted impermissible speculation and usurpation of the jury’s province, we note once more that counsel failed to enter any objection below and thus denied the lower court an opportunity to cure any prejudice it may have caused. Dilliplaine, supra.
. We will number the questions which the trial court disallowed for purposes of easy reference in our discussion of each trial court ruling.
. Appellant concedes that the body of the text does not expressly repudiate hyperthermia as a cause of cerebral atrophy.
. Two other observations on this question are not amiss. First, appellant’s counsel continued to question Dr. Heineman about the connection between high temperatures and brain damage, and Dr. Heineman expressed his opinion that high temperatures alone could not cause brain damage. Second, Dr. Heineman was an infectious disease expert who primarily testified as to the source of the infection; his opinion outside of his area of special expertise would not carry as much weight as his opinion concerning appellee’s case of colstridial cellulitis.
. Appellant does not argue before us that the lower court committed prejudicial error in sustaining this objection.
. Appellant does not now contend that the court committed prejudicial error in sustaining this objection.
. In the alternative, appellant asks for a remittitur in the amount of $200,000.
. The record does not contain the original complaint. In any event, the amount of damages claimed in the 1965 complaint would be of limited relevance to our inquiry since the substantial bulk of appellee's alleged damages accrued after the filing of the complaint. As to the other factors suggested in Kemp v. Philadelphia Transp. Co., supra, our detailed discussion infra will show that appellee has satisfied each test.
. Appellant now contends that the lower court erred in failing to instruct the jury that in assessing appellee’s loss of enjoyment of life, it should not consider appellee’s pain and suffering. Appellee fears the spectre of double recovery. However, appellant neither filed a point for charge raising this specific problem nor excepted to the lower court’s charge. Accordingly, he was waived this contention. Dilliplaine, supra.
. In an affidavit attached to his brief, appellant's counsel alleges that shortly after the trial, a person who worked with appellee at an employment agency in 1972 informed counsel that appellee had suffered two head injuries during his employment. After these injuries, appellee's mental condition allegedly began to deteriorate rapidly. Appellant now asks that we take into account these unproven allegations in assessing the purported excessiveness of the jury verdict. This we refuse to do; these allegations are not a part of the record and are therefore outside the bounds of appropriate appellate review. Commonwealth ex rel. Valentine v. Strongel, 246 Pa.Super. 466, 371 A.2d 931 (1977). If appellant wishes to pursue these allegations, his remedy is to file a motion for a new trial on the basis of after-discovered evidence.
. This figure assumes a 40 hour working week at the base pay rate for a number one pumper; it does not take into consideration such factors as overtime and shift differential.
. Appellee also claims that he is entitled to recover for lost pension benefits which would have vested in 1968 had appellee’s brain damage not caused the premature severance of his connection with the Gulf Oil refinery. However, appellee does not attach a specific figure to this asserted loss.
. In Frankel, supra, a Third Circuit panel, applying Pennsylvania law, upheld a $650,000 award for loss of enjoyment of life, pain and suffering, inconvenience, disfigurement, and permanent injuries, when, as a result of a car crash, the plaintiff sustained brain damage which made her psychotic and left her with the mentality of a five year old child.
Concurring Opinion
concurring:
I join the majority opinion in all of its conclusions, but file this opinion only to express my conviction that the charge of the court below contravened the requirements of Hamil v. Bashline (Bashline II), 243 Pa.Super. 227, 364 A.2d 1366 (1976) and Gradel v. Inouye, 252 Pa.Super. 392, 381 A.2d 975 (1977) when it charged the jury that proximate causation entails a finding that the appellant's negligence was ". . . a substantial factor . . ." in causing appellee's damage. Further I wish to state that I do not agree in toto with the comments contained in footnote 22 (Slip Opinion P. 18) of the majority opinion as they relate to the expert testimony of appellee's witnesses.
I do, however, agree that appellant has waived the argument.
I join in affirming the judgment.
Reference
- Full Case Name
- Robert J. ROBERT, Appellee, v. Richard J. CHODOFF, M.D., Jefferson Medical College Hospital. Appeal of JEFFERSON MEDICAL COLLEGE HOSPITAL
- Cited By
- 30 cases
- Status
- Published