Denardo v. Carneval

• Decision Date: 12 April 1982
• Citation: 297 Pa.Super. 484,444 A.2d 135
• Parties: Richard R. DENARDO v. Daniel C. CARNEVAL, D.O. Appeal of Daniel C. CARNEVAL, D.O. Appeal of Richard R. DENARDO.
• Court: Pennsylvania Superior Court

Page 135

444 A.2d 135

297 Pa.Super. 484

Richard R. DENARDO v. Daniel C. CARNEVAL, D.O Appeal of Daniel C. CARNEVAL, D.O Appeal of Richard R. DENARDO.

Superior Court of Pennsylvania.

Submitted April 16, 1980.

Filed April 12, 1982.

James T. Marnen, Erie, for appellant in No. 785 and for appellee in no. 786.

James D. McDonald, Jr., Erie, for appellant, in No. 786 and for appellee in No. 785.

Before SPAETH, WICKERSHAM and LIPEZ, JJ.

WICKERSHAM, Judge:

Richard R. DeNardo filed a complaint in trespass against Doctors Osteopathic Hospital and Daniel C. Carneval, D.O., in the Court of Common Pleas of Erie County in which he alleged that on or about April 9, 1975 he was admitted to Doctors Osteopathic Hospital with a chief complaint of right hip pain, right lower back pain and right leg pain with radiation to the knee accompanied by chills and fever. He alleged further that on April 29, 1975, while so hospitalized, Daniel C. Carneval, D.O., an individual engaged in the practice of medicine and surgery, performed a right retroperitoneal exploration (in the psoas area) with intra-abdominal exploration resulting in drainage of an apparent retroperitoneal abscess. Plaintiff was discharged from Doctors Osteopathic Hospital on May 7, 1975.

He further alleged that his symptoms returned; he was readmitted to the hospital on June 7, 1975 and on June 9, Dr. Carneval again performed a retroperitoneal exploration on the right with re-exploration of the right psoas abscess and insertion of irrigating tubes and drains. He was discharged from the hospital on July 7, 1975 and admitted to a different medical facility, Hamot Medical Center in Erie, the same day. While there, complete gastrointestinal tract studies were performed which showed constrictive narrowing in the terminal ileum. An exploratory laparotomy was performed on July 14, 1975 including resection of the terminal ileum and ascending colon and exploration of the retroperitoneal area with drainage of the abscess. He was discharged from Hamot Medical Center July 29, 1975.

The thrust of the complaint filed by Richard R. DeNardo is that while he was being treated by Dr. Carneval at Doctors Osteopathic Hospital, he was suffering from regional ileitis with abscess formation involving the terminal cecum and the ileum with the fistulous tract extending into the right ileopsoas space, which in turn created a right ileopsoas abscess. He alleges further that this problem was ultimately correctly diagnosed by the treating physicians at Hamot Medical Center during his hospitalization there from July 7 through August 21, 1975.

In Count I of his complaint he alleged that the negligence of Dr. Carneval consisted of failing to properly diagnose and treat his condition and of failing to secure a reliable evaluation of his condition including complete studies of his gastrointestinal tract. He set forth various medical expenses that he incurred in excess of $10,000.00 and lost wages from his occupation as a teacher in excess of $1,700.00. Count II of his complaint set forth similar allegations against the Doctors Osteopathic Hospital. The complaint was filed September 9, 1976.

An answer was filed on behalf of Daniel C. Carneval and Doctors Osteopathic Hospital filed a motion for summary judgment. By order dated April 18, 1978 the Honorable Lindley R. McClelland denied the motion for summary judgment. Subsequently, however, on October 31, 1978 all parties by stipulation agreed that Doctors Osteopathic Hospital be discharged from the suit and the court approved such stipulation.

The matter proceeded to trial, non-jury, before the Honorable James B. Dwyer, President Judge, Orphan's Court Division who on November 6, 1978 found "in favor of the plaintiff in the amount of $7,500.00." Exceptions were filed to the verdict by both Richard R. DeNardo and Daniel C. Carneval which exceptions were dismissed May 31, 1979 by the Erie County Court en banc including Judges Dwyer, McClelland and the Honorable William E. Pfadt. Judgment was duly entered on the verdict and both parties have appealed to our court.

I. IS EXPERT TESTIMONY THAT A FAILURE TO PERFORM CERTAIN DIAGNOSTIC PROCEDURES DEVIATES FROM THE ACCEPTED STANDARD OF CARE SUFFICIENT TO PROVE SUCH DEVIATION WHEN IT IS SHOWN THAT SUCH EXPERTS IN THEIR OWN PRACTICE EITHER DID NOT PERFORM SUCH PROCEDURES OR OBTAINED AN INCONCLUSIVE OR INCORRECT DIAGNOSIS OF THE PLAINTIFF'S ILLNESS BY PERFORMING SAME?

The thrust of the first question raised by Dr. Carneval in this appeal is that he was not negligent in his treatment of Mr. DeNardo and that plaintiff's evidence did not establish medical malpractice.

It would be instructive to determine the test before us and our scope of appellate review in this area. In Smith v. Yohe, 412 Pa. 94, 194 A.2d 167 (1963) our supreme court said:

In considering this contention certain well settled principles in this area of the law must be kept in mind: (a) in the absence of a special contract, a physician neither warrants a cure nor guarantees the result of his treatment ...; (b) 'A physician who is not a specialist is required to possess and employ in the (diagnosis and) treatment of a patient the skill and knowledge usually possessed by physicians (of good standing) in the same or a similar locality giving due regard to the advanced state of the profession at the time of the treatment; and in employing the required skill and knowledge he is also required to exercise the care and judgment of a reasonable man' ...; (c) the burden of proof is upon the plaintiff to prove either (1) that the physician did not possess and employ the required skill or knowledge or (2) that he did not exercise the care and judgment of a reasonable man in like circumstances ...; (d) the doctrines of res ipsa loquitur and exclusive control are not applicable in this area of the law ...; (e) in malpractice cases which involve an appraisal of the care and skill of a physician a lay jury presumably lacks the necessary knowledge and experience to render an intelligent decision without expert testimony and must be guided by such expert testimony ...; (f) the only exception to the requirement that expert testimony must be produced is 'where the matter under investigation is so simple, and the lack of skill or want of care so obvious, as to be within the range of the ordinary experience and comprehension of even non-professional persons * * *' ...; (g) a physician is not liable for an error of judgment ...; (h) if a physician employs the required judgment and care in arriving at his diagnosis, the mere fact that he erred in his diagnosis will not render him liable, even though his treatment is not proper for the condition that actually exists (Richards v. Willard, 176 Pa. 181, 35 A. 114 (fracture as a sprain); Duckworth v. Bennett (320 Pa. 47, 181 A. 558), supra, (fracture as arthritis); Ward v. Garvin (328 Pa. 395, 195 A. 885), supra, (wrong diagnosis of injury to foot).

Id. at 98-100, 194 A.2d at 170-71 ¹ (footnotes and citations omitted).

In McMahon v. Young, 442 Pa. 484, 276 A.2d 534 (1971) the supreme court discussed the test for determining whether a doctor's testimony was legally competent evidence. The court said:

... As we said in Menarde v. Philadelphia Trans. Co., 376 Pa. 497, 103 A.2d 681 (1954), summarizing the case law on the subject:

' * * * (T)he expert has to testify, not that the condition of claimant might have, or even probably did, come from the accident, but that in his professional opinion the result in question came from the cause alleged. A less direct expression of opinion falls below the required standard of proof and does not constitute legally competent evidence (citing cases).'

The issue is not merely one of semantics. There is a logical reason for the rule. The opinion of a medical expert is evidence. If the fact finder chooses to believe it, he can find as fact what the expert gave as an opinion. For a fact finder to award damages for a particular condition to a plaintiff it must find as a fact that that condition was legally caused by the defendant's conduct.... Perhaps in the world of medicine nothing is absolutely certain. Nevertheless, doctors must make decisions in their own profession every day based on their own expert opinions. Physicians must understand that it is the intent of our law that if the plaintiff's medical expert cannot form an opinion with sufficient certainty so as to make a medical judgment, there is nothing on the record with which a jury can make a decision with sufficient certainty so as to make a legal judgment.

Id. at 485, 276 A.2d at 535.

Our scope of review of the record of a trial before a judge without a jury was clearly set forth in Rubinstein v. J. E. Kunkel Co., 244 Pa.Super. 474, 368 A.2d 819 (1976):

Initially, '(a)ppellate review of the record of a trial before a judge without a jury is limited to a determination of whether the findings of fact of the court below are supported by competent evidence and whether or not the lower court committed error of law.' ... Further, when an appellate court reviews a claim of sufficiency of the evidence, it must view the evidence in a light most favorable to the verdict winner.... At the same time, a party cannot prevail if the evidence is so insubstantial that the factfinder must speculate about a factual issue.

Id. at 479-80, 368 A.2d at 822. (citations omitted).

Plaintiff's medical expert witnesses Robert G. Timmons, M.D., and M. Lawrence Brockmyer, M.D., testified that Dr. Carneval breached the standard of care owed by a physician. They both testified that Dr. Carneval failed to recognize following the April 29, 1975 surgery that the source of Mr. DeNardo's abscess was in the abdomen. They further testified that Dr. Carneval's subsequent failure to conduct proper diagnostic tests, including the barium enema and G.I. series, to better define the source of this problem after the April surgery and again following...