Alexander v. Univ. of Pittsburgh Med. Ctr. Sys.
| Decision Date | 23 July 1999 |
| Docket Number | Nos. 98-3402 and 98-3501,No. 98-3402,No. 98-3501,98-3402,98-3501,s. 98-3402 and 98-3501 |
| Citation | 185 F.3d 141 |
| Parties | (3rd Cir. 1999) MARY JO ALEXANDER, as personal representative of the Estate of Alyssa J. Alexander; MARY JO ALEXANDER; JOHN F. ALEXANDER, individually and as legal heirs of Alyssa J. Alexander v. UNIVERSITY OF PITTSBURGH MEDICAL CENTER SYSTEM, a corporation; CHILDREN'S HOSPITAL OF PITTSBURGH, a corporation; SUSAN ORENSTEIN, M.D.; DEBORAH NEIGUT, M.D.; PHILIP E. PUTNAM, M.D. Susan Orenstein, M.D.; Deborah Neigut, M.D.; Philip Putnam, M.D., Appellants in MARY JO ALEXANDER, as personal representative of the Estate of Alyssa J. Alexander; MARY JO ALEXANDER; JOHN F. ALEXANDER, individually and as legal heirs of Alyssa J. Alexander v. UNIVERSITY OF PITTSBURGH MEDICAL CENTER SYSTEM, a corporation; CHILDREN'S HOSPITAL OF PITTSBURGH, a corporation; SUSAN ORENSTEIN, M.D.; DEBORAH NEIGUT, M.D.; PHILIP E. PUTNAM, M.D. John F. Alexander; Mary Jo Alexander, Appellants in |
| Court | U.S. Court of Appeals — Third Circuit |
On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civ. No. 94-00089) District Judge: Honorable Maurice B. Cohill, Jr. Patrick S. Casey (argued), Thomas E. Johnston, Flaherty, Sensabaugh & Bonasso, 1031 National Road, Echo Manor, Suite 200, P.O. Box 6545, Wheeling, WV 26003, Attorneys for Appellants in No. 98-3501
Larry A. Silverman (argued), Marcelle M. Theis, Dickie, McCamey & Chilcote, Two PPG Place, Suite 400, Pittsburgh, PA 15222-5402, Attorneys for Appellants in No. 98-3402
BEFORE: GREENBERG and ALITO, Circuit Judges, and DOWD,* District Judge
This matter is before the court on the defendants' appeal and the plaintiffs' cross-appeal in this medical malpractice case. Ordinarily, following a jury verdict we set forth the facts from the perspective most favorable to the verdict winner. In this case, however, to the extent that the appeal challenges the verdict, we are affirming and thus we need not follow that practice. On the other hand, we are reversing with respect to the district court's refusal to charge contributory negligence and thus we set forth the facts in a neutral manner, as the defendants were entitled to that charge if there was any evidence to support it.
In February 1992, 17-year old Alyssa Alexander became seriously ill, and her father took her to Wetzel County Hospital in New Martinsville, West Virginia. After only a few hours, Alyssa was transferred to Ohio Valley Medical Center in Wheeling, West Virginia. On February 16, 1992, after four days and no diagnosis, Alyssa's parents insisted that she be transferred to Children's Hospital of Pittsburgh.
Shortly after Alyssa was admitted to Children's Hospital, Dr. Susan Orenstein diagnosed her as having Wilson's Disease, a rare disorder of the liver that allows excessive amounts of copper to accumulate in various organs. Dr. Orenstein immediately consulted with Dr. Jorge Reyes, head of the liver transplant team at Children's Hospital. Dr. Reyes opined that a liver transplant was probably the only way to save Alyssa. Dr. Orenstein also consulted with Dr. Israel Scheinberg, a New York expert in Wilson's Disease. Dr. Scheinberg opined that Alyssa first could receive an alternate treatment to remove copper from the body (chelation), but that her chances of survival on this therapy were only about 25%. Dr. Scheinberg also stated that if Alyssa's liver function continued to deteriorate on chelation therapy in the first few days, her chances of survival without a transplant were very slim. According to Dr. Orenstein, she relayed all this information to the Alexanders. Dr. Reyes also relayed to the Alexanders his belief that a transplant was necessary. In the meantime, Dr. Orenstein initiated the chelation therapy, and Alyssa's condition stabilized.
On February 27, 1992, Dr. Reyes offered Alyssa a liver for transplant and discussed his opinion with her and her parents. Dr. Orenstein testified that she discussed with the family the possibility that another liver might not become available before Alyssa's condition deteriorated, as well as the option of continuing chelation therapy. Alyssa and her parents decided not to accept the liver for transplant.
On March 2, 1992, Dr. Deborah Neigut assumed the primary care of Alyssa. Dr. Neigut saw Mrs. Alexander daily, and often discussed with her and Alyssa the risks and complications of their options. At one point, Mrs. Alexander told Dr. Neigut that she did not want Alyssa on the waiting list for a liver, but Dr. Neigut convinced her that it would not be a good idea to take Alyssa off the waiting list. While Alyssa was under Dr. Neigut's care, Dr. Reyes offered her a second liver on March 17, 1992. At that time, Alyssa's condition was stable. Dr. Neigut again discussed with the family the two options available, along with the risks and complications of each. The family refused the second liver.
Dr. Neigut then consulted with Dr. James Malatack, a pediatrician with experience in treating children with Wilson's Disease. Dr. Malatack testified that he told Mr. Alexander that the chelation therapy might work but probably would not, and that the family should accept the next available liver for a transplant. Mr. and Mrs. Alexander, however, testified that they did not learn of Dr. Malatack's recommendation until after Alyssa's death.
From March 25 to March 29 or 30, Dr. Philip Putnam assumed primary care of Alyssa. During those five days, he made no recommendations regarding transplantation, nor did he discuss with the family Alyssa's chances of survival with or without transplantation.
On April 1, Dr. Neigut again resumed primary care of Alyssa. On that date, Dr. Reyes offered a third liver to Alyssa. Dr. Reyes reiterated to the family his opinion that Alyssa should receive a liver transplant. Mrs. Alexander testified that Dr. Neigut recommended that the family turn down the third liver. The family did so.
On April 6, Dr. Putnam resumed primary care of Alyssa. The next day, Alyssa had a reaction to a blood transfusion which caused lung injury and sudden systemic deterioration. At Dr. Putnam's recommendation, Alyssa underwent an emergency liver transplant on April 9. She developed respiratory distress syndrome and died on April 21, 1992.
On January 18, 1994, Mr. and Mrs. Alexander, on their own behalf and on behalf of Alyssa's estate, filed in the district court a complaint setting forth a wrongful death and survival action against the University of Pittsburgh Medical Center System ("UPMCS"), Children's Hospital, Dr. Orenstein, Dr. Neigut, and Dr. Putnam. The Alexanders alleged that the three doctors: (1) lacked the knowledge to treat and advise Alyssa; (2) failed to evaluate and interpret the diagnostic information; (3) failed to report information to the family to permit them to make informed choices; (4) misled the family as to Alyssa's true condition and prognosis; (5) failed to recommend appropriate treatment (transplant); and (6) failed to follow the recommendations of the liver transplant experts. The Alexanders sued Children's Hospital and the UPMCS as principals of the three doctors.
On December 21, 1995, the district court granted the UPMCS's motion for summary judgment. On April 20, 1998, upon stipulation of the parties, the district court dismissed Children's Hospital. The case proceeded to a jury trial as to the claims against the doctors. The doctors requested that the district court submit the issue of the Alexanders' contributory negligence to the jury but the district court denied this request.
On May 4, 1998, the jury found that each of the three doctors was negligent in advising the Alexanders regarding Alyssa's treatment, and that the negligence of each doctor was a substantial factor in causing Alyssa's death. The jury determined that 25% of the negligence was attributable to Dr. Orenstein, 50% was attributable to Dr. Neigut, and 25% was attributable to Dr. Putnam. The jury awarded substantial damages for pain and suffering, medical expenses, funeral expenses, and loss of services. The expenses incurred at Alyssa's stays at Wetzel County Hospital and Ohio Valley Medical Center, both of which occurred prior to Alyssa's transfer to Children's Hospital, were included in the award for medical expenses.
On May 8, 1998, the doctors filed a Fed. R. Civ. P. 50 motion for judgment as a matter of law and a Fed. R. Civ. P. 59 motion for a new trial. On May 15, 1998, the district court denied the doctors' Rule 50 motion, and on July 1, 1998, denied their Rule 59 motion. The doctors filed a timely notice of appeal on July 17. On August 25, 1998, the district court entered a final judgment in favor of the Alexanders, but reduced the amount of medical expenses awarded by $8,943.96, the expenses they incurred at the two hospitals that treated Alyssa before she was transferred to Children's Hospital. Subsequently, the doctors amended their notice of appeal to include the August 25, 1998 order. The Alexanders filed a timely notice of cross-appeal, contesting the district court's reduction of damages for medical expenses.
The doctors on their appeal contend that the Alexanders were guilty of contributory negligence because they rejected livers available to Alyssa during her stay at Children's Hospital. They also argue that statements by the Alexanders' counsel during closing argument were prejudicial. If we accept either of these two points, we would remand for a new trial. Dr. Putnam argues that he was entitled to a judgment as a matter of law as he was not involved in Alyssa's care when the livers were offered. On the cross-appeal, the Alexanders contend that the court erred by reducing the verdict for the medical expenses by $8,943.96 incurred at the two hospitals before she was transferred to...
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