Ayoub v. Spencer

• Decision Date: 18 February 1977
• Docket Number: No. 76-1408,76-1408
• Citation: 550 F.2d 164
• Parties: Hanna M. AYOUB and Margaret Ayoub, his wife, Appellants, v. Dr. H. N. SPENCER, M. D., Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 164

550 F.2d 164

Hanna M. AYOUB and Margaret Ayoub, his wife, Appellants, v. Dr. H. N. SPENCER, M. D., Appellee.

No. 76-1408.

United States Court of Appeals, Third Circuit.

Argued Dec. 3, 1976.

Decided Feb. 18, 1977.

Aaron D. Blumberg, Charles G. Young, III, Litvin, Blumberg, Matusow & Young, Philadelphia, Pa., for appellants.

Barton L. Post, William F. Sullivan, Jr., Post & Schell, P. A., Philadelphia, Pa., for appellee.

Before ROSENN, FORMAN and GARTH, Circuit Judges.

OPINION OF THE COURT

FORMAN, Circuit Judge.

This is an appeal from a denial of a motion for new trial of a medical malpractice action brought by Hanna Ayoub and his wife, Margaret, to recover damages for permanent paraplegia allegedly sustained by Mr. Ayoub as a result of the negligence of Dr. H. N. Spencer, the defendant physician. The complaint of the Ayoubs alleged that they were subjects of a foreign nation ¹ and Dr. Spencer was a citizen of Philadelphia, Pennsylvania, thus furnishing diversity jurisdiction. The case went to trial in the United States District Court for the Eastern District of Pennsylvania to a jury, which returned a verdict for Dr. Spencer. The Trial Judge subsequently entered a final judgment, after denying the Ayoubs' motion for a new trial.

Mr. Ayoub was employed by his brother, Naim Ayoub, as a furniture refinisher, and had fallen on November 5, 1971, while handling a dresser at work. He allegedly injured his back, for later that day he began experiencing pain between his shoulders that radiated bilaterally from his back around to the front of his chest. Mr. Ayoub was unable to return to work and saw three doctors before being referred by an agent of the workmen's compensation carrier to the appellee, Dr. H. N. Spencer, an orthopedic specialist. Dr. Spencer saw Mr. Ayoub and his wife ² on December 14, 1971, at which time he conducted a short examination, took X-rays and prescribed a back brace, pain medication and muscle relaxants. Additionally, Dr. Spencer scheduled another appointment for December 27, 1971, during which he performed no examination other than ascertaining if the brace fitted properly. There was sharply conflicting testimony concerning whether Dr. Spencer scheduled another appointment for January 10, 1972 for Mr. Ayoub, and whether he told Mr. Ayoub that he would be able to return to light work on January 15, 1972. It is agreed, however, that Mr. Ayoub never returned to see Dr. Spencer and did go back to work on approximately January 15.

In early August 1972, Mr. Ayoub saw a general practitioner who referred him to a neurosurgeon, Dr. Haft. On August 10, 1972, while driving to see Dr. Haft, Mr. Ayoub became permanently paralyzed.

Appellants, the Ayoubs, raise three issues. First, they contend that the District Judge failed to instruct the jury properly on contributory negligence. Second, they argue that the District Judge erred in his charge on the issue of proper diagnostic testing. Third, they urge that the District Judge erred in permitting defense counsel to attack plaintiffs' credibility on the basis of a document not received in evidence.

At the close of evidence, the trial judge instructed the jury on the issue of contributory negligence as follows:

"Let me read that again: An injury may be said to be proximately caused by an act or a failure to act whenever it appears from the evidence in the case that the act or the omission played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the act or omission.

"In that respect in a case such as this, because of what I have mentioned to you, the testimony we have heard about this kind of condition and its consequences generally, you should consider the following: In determining whether the acts of the defendant were the proximate cause of the injury of which the plaintiffs complain you may also consider whether the husband-plaintiff, that is, Mr. Ayoub's failure to take subsequent medical care and treatment was a substantial factor in bringing about those injuries. The defendant in this case has raised the issue of what we call contributory negligence. That is, if you should find that what was a cause of this was the plaintiff's own conduct, failure to go get other medical treatment, then you may conclude that he is barred from recovery because his own conduct was a substantial factor in bringing about the injury, and in Pennsylvania a person who is what we say contributorily negligent is barred from recovery if their conduct was a substantial factor in bringing about the injury." (Tr. 8-22 to 8-23).

"The second factor if you conclude that is so and Dr. Spencer was negligent is the item I mentioned about contributory negligence. Even though Dr. Spencer was negligent, and even though what he did was a proximate cause of Mr. Ayoub's injury, you may now take up the question as to whether or not Mr. Ayoub himself was contributorily negligent. If you conclude that he contributed to his own injury by the same standard that was a proximate cause, that is a substantial factor, as I defined it to you, then the plaintiff is not entitled to recover and the verdict should be in favor of Dr. Spencer." (Tr. 8-23 to 8-24).

"The plaintiff will be entitled to recover if you believe under the rules that I have given you he has made out his case in the standards that I have mentioned showing that Dr. Spencer was negligent and that was a proximate cause and also that he has not been contributorily negligent." (Tr. 8-35 to 8-36).

Appellants' attorney took exception on the ground that the charge to the jury inextricably intertwined the issue of contributory negligence with that of proximate cause.

Diversity of citizenship being the sole basis for federal jurisdiction here, Pennsylvania substantive law is applicable. McNello v. John B. Kelly, Inc., 283 F.2d 96, 99 (3d Cir. 1960). Under Pennsylvania law, Dr. Spencer had presented sufficient evidence to warrant submission of the issue of contributory negligence to the jury. ³

In examining an alleged erroneous instruction to the jury, it is necessary to view the charge as a whole. Ely v. Reading Company, 424 F.2d 758, 760 (3d Cir. 1970). Our function is to determine whether the charge, taken as a whole and viewed in the light of the evidence, fairly and adequately submits the issues in the case to the jury. James v. Continental Insurance Co., 424 F.2d 1064, 1065 (3d Cir. 1970). Applying this standard here, it is obvious that the charge as a whole inadequately put in issue the alleged contributory negligence of Mr. Ayoub.

In charging the jury that

"if you should find that what was a cause of this was plaintiff's own conduct, failure to go get other medical treatment, then you may conclude that he is barred from recovery because his own conduct was a substantial factor in bringing about the injury, . . . ." (Tr. 8-22) the trial court intertwined the issues of contributory negligence and proximate cause. "It is plain then that this test of 'substantial factor' is a test of proximate causation and only becomes relevant, if at all, after (the) negligence (of Mr. Ayoub) has been shown." McNello v. John B Kelly, Inc., supra, at 101; Dickerson v. American Sugar Refining Co., 211 F.2d 200, 202 (3d Cir. 1954). See 2 Harper & James, Torts § 18.8 at pp. 1158-1161; Prosser, Torts § 42, p. 244 (4th ed., 1971). See also the explanation in Simon v. Hudson Coal Co., 350 Pa. 82, 38 A.2d 259 (1944). In the present case the issue of whether or not Mr. Ayoub's conduct was reasonable was a crucial one. In the charge, the District Judge emphasized and made numerous references to the issue of proximate cause, i. e. whether "Mr. Ayoub's failure to take subsequent medical care and treatment was a substantial factor in bringing about those injuries." ⁴ But the unreasonableness of Mr. Ayoub's conduct was a prerequisite to any finding of contributory negligence. This should have been made perfectly clear to the jury. We are convinced that this issue was not properly clarified for the jury and that confusion may have resulted to appellants' prejudice.

It is true that the court subsequently charged

"you will then come to the key question, whether or not the plaintiff has met his burden of persuasion, proving by a preponderance of the evidence that Dr. Spencer failed to exercise the care of an orthopedic specialist or a reasonable man as I have described it. Similarly you will have to make the same judgment in respect to the defendant's contentions of contributory negligence." (Tr. 8-33 to 8-34).

However, a reading of the charge as a whole, ⁵ and considering its general effect leads to the conclusion that the jury may have been misled into believing that if Mr. Ayoub's failure to seek further medical treatment contributed to his injury, then he was barred from recovery without regard for the reasonableness of his conduct. The Supreme Court of Pennsylvania has warned that "(c)ourts must be careful not to confuse or equate contributory negligence with proximate cause." Crane v. Neal, 389 Pa. 329, 332, 132 A.2d 675 (1957), overruled on other grounds, McCay v. Phila. Elec. Co., 447 Pa. 490, 291 A.2d 759 (1972). ⁶ Here, these issues were so intertwined in the instructions that a proper understanding of the separate questions for determination was highly unlikely. ⁷ See Smith v. Clark, 411 Pa. 142, 190 A.2d 441 (1963).

Moreover, the court failed to explain adequately to the jury the application of principles of the law of contributory negligence to various possible factual conclusions at which they might arrive. Although the trial judge instructed the jury that it was to find whether Dr. Spencer "failed to exercise the care of an orthopedic specialist or a reasonable man as I have described it. Similarly you will have to make the same judgment in respect to the defendant's contentions of contributory negligence," he did not make...