Cangemi ex rel. Estate of Cangemi v. Cone

• Decision Date: 24 April 2001
• Docket Number: No. 589 WDA 2000.,589 WDA 2000.
• Citation: 774 A.2d 1262
• Parties: Vincenza CANGEMI, Executrix of the Estate of Michael S. Cangemi, Deceased and Vincenza Cangemi, In her own Right, Appellants, v. Michael CONE, D.O., Alfonse A. Emmolo, M.D., and Northwest Medical Center, Appellees.
• Court: Pennsylvania Superior Court

774 A.2d 1262

Vincenza CANGEMI, Executrix of the Estate of Michael S. Cangemi, Deceased and Vincenza Cangemi, In her own Right, Appellants, v. Michael CONE, D.O., Alfonse A. Emmolo, M.D., and Northwest Medical Center, Appellees.

No. .

Superior Court of Pennsylvania.

Argued October 25, 2000.

Filed April 24, 2001.

Reargument Denied June 28, 2001.

Before KELLY, ORIE MELVIN and LALLY-GREEN, JJ.

ORIE MELVIN, J.:

¶ 1 In this medical malpractice action, Appellant Vincenza Cangemi originally sought to recover wrongful death and survival damages from Appellees Alfonso A. Emmolo, M.D., Michael Cone, D.O. and Northwest Medical Center on a theory of failure to diagnose an abdominal aneurysm. Prior to trial, Dr. Cone and the Northwest Medical Center were dismissed from the case on summary judgment.¹ A jury trial against the remaining physician resulted in a verdict for the defense. In special interrogatories, the jury found Dr. Emmolo was negligent but determined his negligence was not a substantial factor in causing Mr. Cangemi's death, resulting in a defense verdict. Post-trial motions were denied by the trial court. Appellant appeals both the grant of summary judgment in favor of Northwest Medical Center and the judgment entered following the denial of post-trial motions. For the following reasons, we reverse and remand for a new trial as to both Dr. Emmolo and Northwest.

¶ 2 According to the testimony at trial, Michael Cangemi appeared at the Northwest Medical Center Emergency Room on September 27, 1992 complaining of abdominal bloating, discomfort, weakness and vomiting. He was examined by Dr. Davidson, the emergency room doctor. Dr. Davidson ordered an abdominal x-ray and a chest x-ray. At that time, Mr. Cangemi was admitted to the hospital under the service of Dr. Emmolo, his family physician, who was also on staff at the hospital. It is undisputed that the x-ray disclosed the presence of an abdominal aortic aneurysm. However, according to Dr. Emmolo, he never received a copy of the x-ray or the x-ray report. Unfortunately, Mr. Cangemi was released from the hospital, and the aneurysm was not diagnosed at that time by Dr. Emmolo as the source of Mr. Cangemi's internal bleeding. Over the next two months there was continued treatment by Dr. Emmolo for what Dr. Emmolo suspected to be anemia and gastrointestinal bleeding due to diverticulosis. Finally, on November 19, 1992, Mr. Cangemi again went to the emergency room. He was seen by Dr. Cone. Again, the source of his internal bleeding was undiagnosed, and he was sent home. By the time he returned hours later the aneurysm had burst, and Mr. Cangemi was flown to a Pittsburgh hospital for emergency surgery. Although the surgery was a success, Mr. Cangemi died later that same day from shock and kidney failure associated with tremendous blood loss.

¶ 3 The first issue we will address is whether the jury verdict is against the weight of the evidence. We note the standard of review of the denial of a motion for a new trial is not different than the grant of a new trial. Livelsberger v. Kreider, 743 A.2d 494 (Pa.Super.1999).

Our standard of review in denying a motion for a new trial is to decide whether the trial court committed an error of law which controlled the outcome of the case or committed an abuse of discretion. Randt v. Abex Corporation, 448 Pa.Super. 224, 671 A.2d 228, 232 (1996). A new trial will be granted on the grounds that the verdict is against the weight of the evidence where the verdict is so contrary to the evidence it shocks one's sense of justice. Watson v. American Home Assurance Company, 454 Pa.Super. 293, 685 A.2d 194, 198 (1996) appeal denied, 549 Pa. 704, 700 A.2d 443 (1997). An appellant is not entitled to a new trial where the evidence is conflicting and the finder of fact could have decided either way. Id.

Kruczkowska v. Winter, 764 A.2d 627, 629 (Pa.Super.2000).

¶ 4 Appellant claims the jury verdict is against the weight of the evidence so as to warrant a new trial where the jury found Dr. Emmolo negligent but also found his negligence was not a substantial factor in the death of Mr. Cangemi. Appellant complains the verdict is contrary to the evidence in that the appellant's expert Dr. Gramlich established causation which was uncontested by appellees.

¶ 5 At trial, Dr. Gramlich testified that had Dr. Emmolo looked at the x-ray and the x-ray report from September 27th, he would have seen the aneurysm and timely diagnosed it before it ruptured. She opined that at the time the x-ray was taken in September of 1992 there was a high probability that surgery would have been successful. In her opinion, Mr. Cangemi's chance for survival became highly improbable with the delay of surgery until after the aneurysm ruptured. Dr. Gramlich testified "with elective surgery, he had a very high probability of a good outcome and once ruptured, the probability of a good outcome is significantly lower. In fact, I don't ever remember sending a patient to the O.R. with a ruptured aneurysm who survived." N.T., 1/19/99, at 207.

¶ 6 We are mindful of the fact that where evidence has been presented establishing conduct by a physician which increased a risk of a specific harm to the patient and evidence that the specific harm did in fact occur, causation must still be proven. See Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888 (1990) (holding a jury must find the increased risk to be a substantial factor in the resultant harm before liability attaches.) However, in the present case, causation was not contested. We conclude that the jury's determination that Dr. Emmolo's negligence was not a substantial factor bears no rational relationship to the evidence adduced at trial. Appellee's experts did not contest that had Dr. Emmolo been aware of the results of the x-ray and the x-ray report, a diagnosis of the abdominal aneurysm would have been made. While we note the trial court's contention that the verdict could have been a result of the jury's finding Dr. Emmolo was negligent in his treatment unrelated to the failure to...