Denneny v. Siegel, 17064.

Decision Date20 February 1969
Docket NumberNo. 17064.,17064.
Citation407 F.2d 433
PartiesEdward C. DENNENY and Catherine Denneny, Appellants, v. Bernard SIEGEL, Louis H. Block and the Albert Einstein Medical Center.
CourtU.S. Court of Appeals — Third Circuit

F. Hastings Griffin, Jr., Dechert, Price & Rhoads, Philadelphia, Pa., for appellants (R. Neal Risley, Philadelphia, Pa., on the brief).

Charles Jay Bogdanoff, Gekoski & Bogdanoff, Philadelphia, Pa., for appellees (Albert C. Gekoski, Philadelphia, Pa., on the brief).

Before SEITZ, ALDISERT, and STAHL, Circuit Judges.


ALDISERT, Circuit Judge.

This appeal requires us to determine whether there was sufficient evidence presented at the trial of this medical malpractice action to warrant submission to the jury. Ruling that plaintiffs' case lacked the necessary evidence to establish the negligent act as the proximate cause of the injuries sustained, the trial judge granted a directed verdict under Rule 50 in favor of the defendant hospital.1 Before reaching the question of the sufficiency of the evidence, it is necessary to trace the wife-plaintiff's2 medical history prior and subsequent to the alleged act of negligence.

Testimony at trial disclosed that plaintiff was a forty-nine year old woman, five feet three inches tall and weighing over two hundred pounds. Prior to her admission to the defendant hospital in June, 1961, she had been under medical care for the better part of the last twenty years and in that period had undergone some remarkable surgical experiences: a removal of a kidney in 1947, an adult tonsillectomy in 1949, three separate gastric or duodenal ulcer operations in 1953 or thereabouts, and a dilation and curettage (D&C) in 1960.

The hospitalization giving rise to the present action was for the purpose of a vaginal wall repair and hysterectomy. During this latter operation on June 6, the right uterine artery tore loose from a surgical clamp. This necessitated still another operation, a laparotomy, an incision into the abdominal wall and cavity, in order to reach the uterine artery. Post-operatively, there was a packing of the vagina to control bleeding, but this, in turn, caused a bowel obstruction which was relieved by the insertion of a rectal tube. In addition, an infection developed in the surgical wound after the June 6th operation, which infection was described by the patient's doctor as one "expected under the circumstances."3

On June 17 the abdominal incision opened, causing a part of the intestinal tract to protrude through the incision. This complication required further surgical intervention consisting of a left rectal incision to repair the defect in the abdominal wall. A second infection developed, this time in the incision of June 17. Again her physician ascribed its cause to the same factors which caused the similar infection which appeared after the first operation.

Aside from these incidents of post-operative infection, the patient was undergoing an uneventful recuperation when suddenly, on July 2, she began to hemorrhage from the vagina. Fearing a fatal exsanguination, the hospital authorities immediately rushed her to the operating room — not sparing the time to put her into a transfer stretcher. A person in street clothes assisted in this process, helping to move the bed along the corridors and into the operating room where a surgical team went into immediate action. Determining that it was critical to find the cause of the bleeding, the surgeons again entered the abdominal cavity, and "after a number of hours of searching" they finally tied off the bleeding blood vessel which had caused the hemorrhage.4

A week after this operation a third infection appeared, this time in the incision of July 2. This infection required the usual attention of draining, dressing, cleansing, and removing necrotic tissue. Thus, from June 6 through July 2, plaintiff underwent three separate abdominal operations, each of which was followed by a post-operative infection of the surgical wound. It is the presence of the infection following the third operation which forms the basis of the action against the hospital.

It is the theory of the plaintiff that the defendant hospital was negligent in permitting a person in unsterile street clothes to help wheel her into the operating room5 and that this violation of hospital regulations caused the post-operative infection.

At trial, plaintiff called two medical experts who were asked what caused this particular infection. Dr. Helene Young testified that by the late date she examined the patient, it was impossible to determine the cause. The second physician, Dr. Bernard Siegel testified on direct examination that it could have been caused by "a number of things. I think the loss of blood, the many operations she had, the blood in the abdominal cavity as a result of the ruptured blood vessel, the fact that a loop of intestines had to be removed which exposed some contents of the intestinal tract; all these things reduce the resistance of tissue to inflammation and infection and thereby reduce their healing powers."

These were the only two medical witnesses asked an opinion as to the cause of the infection. Neither attributed the cause, whether probably or possibly, to the activity of a person in street clothes wheeling the plaintiff into the operating room on July 2. The hospital laboratory report was introduced, showing the presence of "staphylococcus" in the infection, which report, according to Dr. Siegel, if "read * * * correctly, * * * show(ed) that the amount of staphylococcus present was minimal". There was no evidence produced at trial describing the cause or effect of this particular strain of organism.6

Despite this lack of probative medical testimony, the appellants contend that once it was established that a person in unsterile clothing was present in the operating room, followed one week later by an indication of some staphylococcus in the surgical wound, sufficient evidence was presented for the jury to infer the nexus between the event and the subsequent infection. The District Court disagreed; it held that under these circumstances some expert testimony was necessary to establish a relationship between the alleged cause and effect.7

We perceive the presence or absence of medical expert testimony to be subordinate to the fundamental question involved: was there a sufficiency of evidence of any kind to merit submission of the cause-effect relationship to the jury?

In a laudatory effort to narrow the issues before us, the parties attempt to turn this decision on whether state or federal standards are to be employed to test the sufficiency. The appellant contends that federal standards control, and that under these standards sufficient evidence was present for the jury to establish the necessary causal relationship. The appellee insists that under the Erie doctrine we must apply the law of the forum, Pennsylvania, and under the practice of that state the case did not qualify for submission to a jury.

In the absence of a definitive statement by the Supreme Court as to what standards should apply in a diversity case, the circuits have adopted varying positions.8 This disparity among the circuit decisions has been reflected in this court. The earlier cases uniformly held that the question of sufficiency of the evidence was controlled by state law. This was probably because the litigants generally assumed the application of state law in their presentations to the court. But where the question was raised, earlier decisions uniformly held state law to be controlling. Zentz v. Buchman, 103 F.2d 850 (3 Cir. 1938); Warlich v. Miller, 141 F.2d 168 (3 Cir. 1944). In Waldron v. Aetna Casualty & Surety Co., 141 F.2d 230 (3 Cir. 1944), the court was explicit in ruling that:

"While questions of evidence ordinarily relate to matter of procedure, the sufficiency of the evidence goes to the maintenance of the substantive right and is, therefore, to be tested by local law in cases where such law controls." 141 F.2d at 234.

Similarly, in Bastian v. Baltimore & Ohio R. Co., 144 F.2d 120 (3 Cir. 1944), we affirmed the application of a state rule of evidence on the grounds that it was "in reality decisional law applied by the courts of Pennsylvania which affects the substantive rights of the parties".

Contemporaneously with the development of this state-law sufficiency test, however, was the parallel enunciation of the concept that federal law controlled the division of functions between judge and jury in diversity actions. Thus, in Ettelson v. Metropolitan Life Ins. Co., 137 F.2d 62, 65 (3 Cir. 1943), it was concluded that "well considered federal decisions have held that the division of function between court and jury in a federal court is to be made by federal, not state law".

Ostensibly, it appeared that a dichotomy had developed in the decisions. On one hand it was held that state law controlled the question of whether sufficient evidence had been presented to justify the submission of a diversity action to the jury, while on the other hand it was determined that federal law controlled the division of judge-jury functions.

In 1958 the validity of this latter proposition — that federal law governed the judge-jury relationship in diversity actions — was confirmed by the Supreme Court in Byrd v. Blue Ridge Rural Elec. Corp., Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953. Conceding that the Erie rule generally required the application of state law to diversity suits, the Court recognized that there were exceptions to this concept:

"But there are affirmative countervailing considerations at work here. The federal system is an independent system for administering justice to litigants who properly invoke its jurisdiction. An essential characteristic of that system is the manner in which, in civil common-law actions, it distributes trial

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