Furey v. Thomas Jefferson University Hosp.
| Decision Date | 10 February 1984 |
| Citation | 325 Pa.Super. 212,472 A.2d 1083 |
| Parties | Thomas J. FUREY v. THOMAS JEFFERSON UNIVERSITY HOSPITAL and Gerald Marks, M.D., and Melvin Moses, M.D. Appeal of Gerald MARKS, M.D. |
| Court | Pennsylvania Superior Court |
Argued Sept. 14, 1983. [Copyrighted Material Omitted]
Allan H. Starr, Philadelphia, for appellant.
Gustine J. Pelagatti, Philadelphia, for appellee.
Before CAVANAUGH, MONTEMURO and HESTER, JJ.
This matter is before the court on the appeal of Gerald Marks, M.D., the defendant/appellant in this malpractice action. Thomas J Furey, the plaintiff/appellee, was admitted to the emergency room of Thomas Jefferson University Hospital on November 9 1970, with complaints of severe abdominal pain. Dr. Marks operated on appellee several hours later. While appellee concedes that Dr. Marks' operative performance was proper, he contends that the operation itself was not indicated. The case was tried before a jury from March 24, 1981, through March 31, 1981. A verdict was returned for appellee in the amount of $75,000.00. Motions for a judgment n.o.v. and a new trial were filed by appellant and denied by the lower court. This appeal followed from the denial of the post-trial motions.
While appellant has asserted several grounds of error, we find that the first two assignments of error are crucial and prove to be dispositive. We reverse and remand for a new trial.
The first contention which we address involves the trial court's allowance of testimony by appellee's medical expert. Specifically, appellee's medical expert testified, over objection, that a handwritten result on a laboratory slip was "460" units. Appellant further complains that this error was exacerbated rather than cured by the ensuing judicial comments.
Careful review of the record compels us to agree. An examination of the parties' respective theories of the case reveals that the jury's resolution of whether the disputed result was "460" or "<160" was a pivotal issue, and that admission of the challenged testimony was gravely prejudicial. Scrutiny of the context of the testimony and the subsequent judicial comments demonstrates that the prejudicial error was far from cured.
Appellee's theory of the case was presented through one expert witness, Dr. Robert P. Bass, Jr. [1] Dr. Bass is an osteopathic, Board Certified family practitioner who had practiced for twenty-five years at the time of trial. [2] Dr. Bass testified that appellee entered the hospital suffering from acute pancreatitis, an inflammation of the pancreas. Dr. Bass based his diagnosis of pancreatitis on the results obtained from a laboratory test for serum amylase. He opined that an elevated amylase result was the "hallmark" of pancreatitis. Furthermore, he declared that the laboratory slip indicated that appellee's amylase was "460" units, which represented an elevation from a normal range of 60 to 200 units.
Given this "cardinal" sign of pancreatitis, Dr. Bass stated that the recognized treatment for appellee's condition was nonsurgical. He testified that in ninety-five percent of all pancreatitis cases, the symptoms resolved almost "spontaneously" within forty-eight to seventy-two hours, with only close observation and supportive treatment including hydration, intravenous fluids, and possible antibiotics to prevent infection. [3]
In response to inquiries regarding appellee's documented bacterial infection, Dr. Bass testified that the bacterial infection could not have been significant because appellee did not have an accompanying fever. Laboratory results from a blood sample taken before the operation showed the presence of Escherichia coli (E. Coli) bacteria. Dr. Bass admitted that the existence of E. Coli in the body outside of the digestive system signified an infection in the body, and if the infection reached the blood stream it could possibly become a life-threatening situation. Dr. Bass testified, however, that even in instances of overwhelming infection, treatment should be restricted to antibiotic therapy.
It was Dr. Bass' ultimate opinion, therefore, that appellee had pancreatitis and a mild bacterial infection, neither of which required surgical intervention. This being so, appellant did not, according to Dr. Bass, conform to reasonable standards of the medical profession in that he exposed appellee to the unnecessary risk of surgery and the complications which followed thereafter.
The defense presented three expert witnesses, including the defendant/appellant, to substantiate their position that surgery was not only a proper course of treatment, but an essential one. The defense experts were Dr. Charles C. Wolferth, a Board Certified general surgeon who has practiced since 1954; Dr. George P. Rosemond, a Board Certified general and thoracic surgeon who was retired at the time of trial, having practiced from 1934; and the appellant, a Board Certified general, colon and rectal surgeon who has practiced since 1951. [4] The testimony of these three medical experts was that at the time appellee was admitted to the hospital, he was in a state of shock from an overwhelming and life-threatening bacterial infection. Because of this infection and irrespective of its source, the defense experts testified that emergency surgery was required.
While the cause of the infection was not located during the exploratory surgery, the defense experts were adamant that there were no indications of pancreatitis. The appellant, Dr. Marks, suspected that the infection was caused by a perforated diverticulitis, [5] and Dr. Wolferth suggested that the infection originated from inflammation and leakage of the sigmoid colon. Both of these diagnoses accounted for the appearance of E. Coli bacteria in the abdominal cavity. A lavage of the abdominal cavity was performed to cleanse out the abnormal, infectious fluid, and then drains were inserted and the incision packed closed.
The defense countered Dr. Bass' diagnosis of pancreatitis by attacking the serum amylase result which Dr. Bass claimed to be "460". Dr. Bass had professed no knowledge of the clinical procedures for serum amylase testing at Thomas Jefferson University Hospital in 1970. The defense presented Dr. Schwartz, Director of the Clinical Laboratory of Thomas Jefferson University Hospital. Dr. Schwartz testified that he was familiar with that hospital's laboratory procedures in 1970 and at present, and that because of the way the test was performed, it was impossible for a value of "460" to be obtained, while it was common to reach a result of "<160." Dr. Schwartz explained the serum amylase test and the equation utilized to get the amylase reading. This testimony was undisputed, as was testimony that the laboratory slip results were "called up" to the emergency room surgical resident who then transcribed them in his report to appellant.
It can hardly be argued that Dr. Bass' interpretation of the serum amylase result was anything but inadmissible testimony. Appellee, in fact, completely avoids discussion in his brief on the propriety of this testimony. The scope of expert testimony is limited:
Expert testimony is permitted only as an aid to the jury when the subject matter is distinctly related to a science, skill, or occupation beyond the knowledge or experience of the average layman. McCormick, Handbook on the Law of Evidence, § 13, (2nd ed. 1972); Commonwealth v. Newsome, Pa. , 337 A.2d 904 (Filed 1975); Commonwealth v. Hoss, 445 Pa. 98, 283 A.2d 58 (1971). Where the issue involves a matter of common knowledge, expert testimony is inadmissible. Collins v. Zediker, 421 Pa. 52, 218 A.2d 776 (1966).
Commonwealth v. O'Searo, 466 Pa. 224, 229, 352 A.2d 30, 32 (1976).
Here, Dr. Bass lacked any special expertise which would qualify him to decipher the numerical notations on the laboratory slip--he was neither a handwriting expert, nor was he the preparer of the document. The source of Dr. Bass' interpretation was common knowledge, for which expert testimony is impermissible. His testimony on this subject was a usurpation of the jury's traditional function and manifestly erroneous.
To justify a reversal because of a ruling on evidence, the ruling must not only be technically erroneous, but it must also be harmful to the appellant. Anderson v. Hughes, 417 Pa. 87, 208 A.2d 789 (1965). We do not hesitate to find prejudice here. The ultimate issue before the jury was whether surgery had been necessary; i.e., whether they believed Dr. Bass' version or whether they believed the defense version. The jury obviously decided the issue in favor of Dr. Bass' version. Since the crux of Dr. Bass' testimony was that appellee had pancreatitis, and that diagnosis hinged on his interpretation of the serum amylase result as "460", the improper admission of Dr. Bass' repeated and steadfast translation of that result was "460" was fatal to appellant's case. Where erroneously admitted evidence goes to the heart of the issue, this court must reverse and remand for a new trial. Commonwealth ex rel. Buchakjian v. Buchakjian, 301 Pa.Super. 213, 447 A.2d 617 (1982).
The trial court, however, refused to find error in its admission of this testimony. In its opinion denying the post-trial motions, that court held that the immediate instructions to the jury cured any potential for error.
The injurious line of questioning began when Dr. Bass was allowed to testify, over objection by counsel for appellant, that the hospital records included a laboratory report which recorded appellee's serum amylase as "460" units. Appellee's counsel had Dr. Bass reiterate this numerical value several times, over objection. The trial judge apparently perplexed as to the reason for the persistent and strident...
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