Ball v. Rolling Hill Hosp.

• Decision Date: 16 December 1986
• Citation: 518 A.2d 1238,359 Pa.Super. 286
• Parties: Ida BALL v. ROLLING HILL HOSPITAL, Israel Finestone, M.D., E. DiStefano, R.N., William Carlson and Kenneth Algazy, M.D. Appeal of ROLLING HILL HOSPITAL and Israel Finestone, M.D. Ida BALL, Appellant, v. ROLLING HILL HOSPITAL, Israel Finestone, M.D. E. DiStefano, R.N., William Carlson and Kenneth Algazy, M.D., Appellees.
• Court: Pennsylvania Superior Court

Page 1238

518 A.2d 1238

359 Pa.Super. 286

Ida BALL v. ROLLING HILL HOSPITAL, Israel Finestone, M.D., E. DiStefano,

R.N., William Carlson and Kenneth Algazy, M.D.

Appeal of ROLLING HILL HOSPITAL and Israel Finestone, M.D.

Ida BALL, Appellant, v. ROLLING HILL HOSPITAL, Israel Finestone, M.D. E. DiStefano, R.N., William Carlson and Kenneth Algazy, M.D., Appellees.

Superior Court of Pennsylvania.

Argued May 28, 1986.

Filed Dec. 16, 1986.

Sharon M. Reiss, Philadelphia, for appellants in No. 2654 and for appellees in No. 2763.

Robert C. Daniels, Philadelphia, for appellant in No. 2763 and for appellee in No. 2654.

Appeal from Judgment of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 341 July Term, 1983.

Before WIEAND, BECK and JOHNSON, JJ.

WIEAND, Judge:

On January 25, 1982, Ida Ball, a victim of Hodgkin's disease, was undergoing chemotherapy treatment at Rolling Hill Hospital in Philadelphia when the chemotherapeutic drugs being administered to her intravenously by Dr. Israel Finestone infiltrated the muscle tissue of her right arm. She commenced a medical malpractice action against Rolling Hill Hospital and Dr. Finestone to recover for the loss which she had sustained as a result of the incident. ¹ The jury which heard the evidence returned a verdict in favor of Ball and against Dr. Finestone and the hospital in the amount of $550,000. ² Post-trial motions for judgment n.o.v., new trial, and remittitur were denied. The trial court also denied Ball's motion for declaratory judgment in which she sought an award of post-judgment interest at the prime rate or, in the alternative, at the rate of ten percent. These cross-appeals by the parties followed. We affirm.

It is the contention of Rolling Hill Hospital and Dr. Finestone, in their appeal, that they are entitled to a new trial because of the following eight instances of trial error:

1. The trial court erred several times in misstating and mischaracterizing the deposition of Dr. Finestone and committed such other grievous errors that the granting of this appeal is mandated.

2. The trial court erred in permitting Dr. Edward Viner to testify in terms which clearly failed to meet the community's standard of care.

3. The trial court incorrectly refused appellees' request to charge the jury that a specialist is held to a higher degree of care than is a general practitioner.

4. The trial court erred in admitting into evidence the Rolling Hill Hospital chemotherapy protocol which was not promulgated until after the alleged injury.

5. The trial court erred in admitting into evidence photographs of plaintiff which were gruesome and highly prejudicial.

6. The trial court erred in excluding portions of Dr. David Harris' deposition addressing the issue of assumption of the risk and later in failing to instruct the jury on assumption of the risk, where the defense was at issue in the case.

7. The trial court erred in refusing to charge the jury on habit evidence.

8. The trial court erred in refusing appellees' request for a new panel of jurors.

Because issues two, three, five and seven have been adequately discussed and properly resolved in the opinion of the trial court, we find it unnecessary to discuss them further in this opinion. We are unable to review issue six because a transcript of Dr. Harris' videotaped deposition is not a part of the original record sent to this Court. ³ We note, however, that even if the transcript had been contained in the record, the exclusion of Dr. Harris' testimony concerning the issue of assumption of risk would not have afforded the defendants a basis for relief. "[T]he plaintiff in a malpractice action does not assume the risk of negligence or other malpractice on the part of the defendant or physician or surgeon." 61 Am.Jur.2d Physicians, Surgeons, and Other Healers, § 304. The remaining issues raised by the defendants--numbers one, four and eight--will be discussed seriatim.

The central issue at trial was whether the procedure followed by Dr. Finestone, in administering the chemotherapeutic drugs to Mrs. Ball, was in accordance with the standard practice within the medical community for providing such treatment. According to the undisputed evidence, there were two acceptable procedures for administering chemotherapeutic drugs intravenously. One was to allow the medication to flow from a hanging bag through an intravenous (IV) tube into the patient's vein. Under this procedure, the rate at which the drug was introduced into the vein was to be regulated by a valve attached to the IV line. The other procedure was to use a hypodermic syringe to "push" the medication into the side portal of an established IV line by depressing the plunger of the syringe.

No matter which procedure was used, however, it was standard procedure, throughout the course of each, to check continually to ensure that the IV line was "patent," i.e., that the catheter was still within the "feeder" vein. Four methods were used to test for patency: (1) opening the valve to the IV line to insure that the medication was flowing freely; (2) examining the area around the vein for discoloration; (3) lowering the IV bag below the level of the patient's arm; and (4) closing the IV line and pulling back on the plunger of the syringe. If the catheter were properly in the vein, the latter two tests would cause blood to be siphoned back into the IV line. Where there was little or no blood return in the line, according to prevailing knowledge, infiltration was probable.

Although Dr. Finestone had no independent recollection of the method which he had employed to administer chemotherapeutic drugs to Mrs. Ball on January 5, 1982, he testified at trial to his normal practice. He stated on direct examination that it was his practice, after an IV line had been set up but before administration of chemotherapeutic drugs had begun, to check the patency of the IV line by lowering the IV bag below the patient's arm. However, once he had begun to "push" the medication into the feeder vein via the hypodermic syringe, Dr. Finestone testified, he would thereafter check for patency only by pulling back on the plunger of the syringe.

During cross-examination, plaintiff's attorney attempted to demonstrate that this aspect of Dr. Finestone's testimony was inconsistent with statements which he had made in a pre-trial deposition. Thus, the following colloquy took place:

Q. Doctor, do you recall testifying at your deposition in Hawaii that you would rarely check for blood return by pulling back on the syringe?

A. I recall having read the deposition that I would test most of the time by dropping the bag, but the inference I was making was that this was testing prior to the beginning of the giving of the chemotherapeutic drug. I was not testifying as to what I did during the administration of the chemotherapeutic drug.

Q. But did you not say, sir, that you rarely tested by pulling back on the syringe?

MR. POST: Objection.

THE COURT: Objection overruled.

THE WITNESS: I do not recall that exact wording. If I so stated in the deposition, I so stated, but it's not consistent with the procedure I followed during the administration of the drug.

BY MR. DANIEL:

Q. Sir, let me--

THE COURT: Page.

BY MR. DANIELS:

Q. Page forty-two, line fourteen.

Q. You indicated that there were three or four ways to insure that the IV was in place: number one was to open the line full and to see that it was running freely; number two, to check the site to see that there was no swelling or discoloration; number three, to lower the level of the bag below the level of the arm so there would be blood return; or four, an additional way which would be to close the line off and pull the syringe back with suction to see if there was blood returned.

For any of those four methods, can you specifically recollect that you did those to Ida Ball on that date?

A. I can specifically recollect that I have done this for every case chemotherapy I've administered. I have the right to assume that I did so in this specific instance for Ida Ball.

Do you remember saying that?

A. I recognize it's in the deposition. So, I recognize that I probably said it.

Q. And then you were asked:

How often would you use that fourth alternative; that is to cut the line off and pull the syringe back to check to see if there was blood returned? A. Rarely, since I found the other two techniques almost uniformly satisfactory to prove to me the line was in proper position.

Do you remember saying that, sir?

A. I don't remember having said that. I accept that I said it because it's in the deposition.

Q. So you rarely used that technique of pulling the syringe back to check for blood return by your own admission under oath; isn't that right, sir?

A. That's right and it's not right. The inference that I drew at the time of that questioning was that we were talking about the initial testing before chemotherapy was instituted. There is nothing there, there is no question there to ask me what I did during the administration of chemotherapy.

N.T. at 4.19-.22. The defendants argue that it was error for the trial court to permit plaintiff's counsel to refer to portions of Dr. Finestone's deposition testimony out of context in order to contradict his trial testimony. We disagree.

The scope of cross-examination is largely within the discretion of the trial judge, and his action will not be reversed on appeal in the absence of an abuse of that discretion or an error of law. Townsend Will, 430 Pa. 318, 323, 241 A.2d 534, 537, cert. denied sub. nom, Cochran v. Morris, 393 U.S. 934, 89 S.Ct. 293, 21 L.Ed.2d 270 (1968); Williams v. Philadelphia Transportation Co., 415 Pa. 370, 373-374, 203 A.2d 665, 668 (1964); Kemp v. Qualls, 326 Pa.Super. 319, 324, 473 A.2d 1369, 1371 (1984); Gatling v. Rothman, 267 Pa.Super. 566, 571, 407 A.2d 387, 389 (1979). It is clear from Pa.R.C.P. 4020(a)(1) that a "deposition may be used by any party for the...