Havasy v. Resnick

• Decision Date: 14 July 1992
• Parties: Richard A. HAVASY, individually, and Richard A. Havasy and Judy Havasy, his wife, and Judy Havasy, in her own right, Appellants, v. Paul RESNICK, M.D., George H. Gilmore, M.D., and St. Margaret Memorial Hospital, Appellees.
• Court: Pennsylvania Superior Court

Page 1326

609 A.2d 1326

415 Pa.Super. 480

Richard A. HAVASY, individually, and Richard A. Havasy and

Judy Havasy, his wife, and Judy Havasy, in her own

right, Appellants, v. Paul RESNICK, M.D., George H. Gilmore, M.D., and St.

Margaret Memorial Hospital, Appellees.

Superior Court of Pennsylvania.

Argued Sept. 11, 1991.

Filed May 8, 1992.

Reargument Denied July 14, 1992.

John F. Becker, Pittsburgh, for appellants.

Louis C. Long, Pittsburgh, for Resnick, appellee.

Kevin Harkins, Pittsburgh, for Gilmore, appellee.

Before WIEAND, CIRILLO and MONTGOMERY, JJ.

WIEAND, Judge:

In this medical malpractice action to recover for the allegedly improper treatment of a leg injury sustained by Richard Havasy, the jury returned a verdict in favor of the health care providers. Post-trial motions were denied, and judgment was entered on the jury's verdict. An appeal by Havasy and his wife followed. They allege numerous trial errors. ¹

On the morning of Monday, March 22, 1982, Richard Havasy sustained a serious injury to his left foot and ankle when a 600 pound metal cabinet fell from a forklift and struck his leg. The initial examination by Dr. Boland, an orthopedic resident at St. Margaret's Hospital, revealed a compound dislocation of the heel bone (talus protruding through a laceration along the medial aspect of the left foot) with no palpable pulse in the posterior tibial artery, diminished dorsalis pedis pulse and diminished plantar sensation (sense of touch on the sole of the foot). Because Havasy's condition merited the attention of a more experienced physician, Dr. George H. Gilmore, an orthopedic surgeon, was summoned from his nearby office and performed a closed reduction, i.e., the foot was manipulated to place the bone in proper anatomical position. Thereafter, the laceration was cleaned and sutured, a cast was applied and x-rays were obtained. Later on the same day the cast was bivalved (cut in half) to accommodate swelling of the leg.

Over the ensuing five days Havasy experienced pain requiring narcotic relief and suffered a continued loss of plantar sensation, as well as a gradual diminishment of motor function, i.e., increasing difficulty in moving his toes. During this period the cast was periodically removed, the leg inspected and the cast reapplied. On Friday, March 26, Dr. Gilmore examined the leg and applied a solid (not bivalved) cast. He informed Havasy on that day that his care would be assumed by another physician while he, Gilmore, attended a medical convention.

Dr. Resnick, Gilmore's associate, saw Havasy for the first time on Monday, March 29. He ordered additional x-rays which disclosed a slight misalignment of the joint (subluxation). Resnick informed Havasy that surgery would be necessary to further reduce the joint. This surgery was performed by Resnick on March 31. During surgery Resnick observed that Havasy had developed an anterior compartment syndrome, i.e., muscle tissue in the front of Havasy's leg had died due to an impairment of blood flow to the muscle. After subsequent surgeries to remove necrotic (dead) muscle, Havasy was left with a permanent disability.

In their complaint, Havasy and his wife asserted that Dr. Gilmore had been negligent in failing to perform a surgical reduction on March 22 and that Gilmore, Resnick and employees of St. Margaret's Memorial Hospital should have diagnosed the compartment syndrome earlier so that all or some of the muscle and nerve damage could have been avoided. Following a lengthy trial, as we have observed, the jury rendered a verdict in favor of all defendants.

Appellants have included in their statement of questions involved a series of twenty-one (21) alleged trial errors which, in violation of Pa.R.A.P. 2116, counsel has spread over two and one-half pages of his brief. We have frequently observed that such a scattershot approach reduces the effectiveness of appellate advocacy. See: Commonwealth v. Akers, 392 Pa.Super. 170, 175, 572 A.2d 746, 748 (1990), quoting United States v. Hart, 693 F.2d 286 (3d Cir.1982). We will address in this opinion those issues which appear to have arguable merit.

"In reviewing the denial of a motion for a new trial we decide whether there was an abuse of discretion or error of law committed by the trial court which might have affected the outcome of the case." Cooper v. Burns, 376 Pa.Super. 276, 281, 545 A.2d 935, 937 (1988), citing Allison v. Snelling & Snelling, Inc., 425 Pa. 519, 229 A.2d 861 (1967); Mohn v. Hahnemann Medical College and Hospital, 357 Pa.Super. 173, 174, 515 A.2d 920, 921 (1986).

Although plaintiffs' experts did not attribute the compartment syndrome to tight casting of the injured leg, plaintiffs sought to introduce a statement allegedly made by Dr. Resnick to Mrs. Havasy that the compartment syndrome had been caused by tight casting. The trial court disallowed such testimony, reciting as its reason an agreement by counsel not to pursue the tight casting theory for Havasy's injuries. Our examination of the record discloses that the only agreement by plaintiffs was that the testimony of their expert witnesses would not include any discussion about tight casting. Nevertheless, we must affirm the trial court's evidentiary ruling if it was correct for any reason, even if it was a reason not discussed by the trial court. Kline v. Blue Shield of Pa., 383 Pa.Super. 347, 351-352, 556 A.2d 1365, 1368 (1989); Jones v. P.M.A. Ins. Co., 343 Pa.Super. 411, 413 n. 1, 495 A.2d 203, 204 n. 1 (1985); Butler v. DeLuca, 329 Pa.Super. 383, 478 A.2d 840 (1984). Here, we conclude that the extrajudicial opinion of Dr. Resnick was properly excluded as hearsay.

Dr. Resnick was available to testify at trial, but he was not called to testify by plaintiffs. Instead, they sought to have Mrs. Havasy testify to an extrajudicial statement of medical opinion allegedly made by Dr. Resnick during the course of treating the husband-plaintiff. This statement was clearly hearsay.

The statement was not admissible as an exception to the hearsay exclusion. It was neither an admission nor a declaration against interest. It was, rather, a self-serving attempt to fix responsibility for the compartment syndrome upon Dr. Gilmore, who had been responsible for treating Havasy before Resnick's entry upon the scene.

Moreover, even a statement against interest can be received only when the declarant is unavailable. Packel and Poulin, Pennsylvania Evidence § 804.3. See also: Movie Distributors Liquidating Trust v. Reliance Ins. Co., 407 Pa.Super. 588, 593, 595 A.2d 1302, 1304-1305 (1991), citing Heddings v. Steele, 514 Pa. 569, 573, 526 A.2d 349, 351-352 (1987) and Commonwealth v. Colon, 461 Pa. 577, 582, 337 A.2d 554, 557 (1975). Hence, even if Resnick's statement could somehow be construed as a declaration against interest, it would not have been admissible in this case.

In general, an out of court admission by a party may be used against him at trial as an exception to the hearsay rule. Perciavalle v. Smith, 434 Pa. 86, 252 A.2d 702 (1969); Finnerty v. Darby, 391 Pa. 300, 138 A.2d 117 (1958); Schweinberg v. Irwin, 379 Pa. 360, 109 A.2d 181 (1954); Mecca v. Lukasik, 366 Pa.Super. 149, 530 A.2d 1334 (1987); Spotts v. Reidell, 345 Pa.Super. 37, 497 A.2d 630 (1985). This exception, however, will not render an extrajudicial statement admissible where the admission of a party would unduly prejudice another party against whom the statement is inadmissible. Commonwealth v. Holloway, 429 Pa. 344, 240 A.2d 532 (1968); McShain v. Indemnity Ins. Co. of N.A., 338 Pa. 113, 12 A.2d 59 (1940); Durkin v. Equine Clinics, Inc., 376 Pa.Super. 557, 546 A.2d 665 (1988), allocatur denied, 524 Pa. 608, 569 A.2d 1367 (1989); Adams v. Mackleer, 239 Pa.Super. 244, 361 A.2d 439 (1976). In McShain v. Indemnity Ins. Co. of N.A., supra, the Supreme Court stated that:

The situation is not unique where, as in the present case, a declaration by a party would be admissible against him but not against others--co-defendants with him or with interests similar to his own,--but where, if the declaration were received as evidence against the person making it, the necessary result would be to prejudice such others; under these circumstances there is abundant authority to the effect that the declaration should be excluded entirely so as to protect those whom its admission would harm, even though the party offering it is thus precluded from the exercise of a right he would have had if the proceeding were against the declarant alone: Goodno v. Hotchkiss, 237 Fed. 686, 696; Windham v. Howell, 78 S.C. 187, 194, 195, 59 S.E. 852, 854, 855; Continental Insurance Co. v. Delpeuch, 82 Pa. 225, 233; Lacock v. Commonwealth, 99 Pa. 207. See also Dickinson College v. Church, 1 W. & S. 462, 465.

Id. 338 Pa. at 119, 12 A.2d at 62. This principle was recently applied in Durkin v. Equine Clinics, Inc., supra. There, in a malpractice action against a veterinarian and a clinic, a panel of the Superior Court held that an out of court admission by the defendant-veterinarian that plaintiff's horse had died after the administration of certain drugs was not admissible at trial. The Durkin Court stated as follows:

[A]lthough the statements made by Dr. DeLeo may be admissible against him as party admissions, they cannot be held admissible against Equine Classics, also a party in this action. There is no evidence to indicate that Dr. DeLeo was authorized to make such an admission for Equine Classics. See Murray v. Siegal, 413 Pa. 23, 31, 195 A.2d 790, 794 (1963); Yubas v. Makransky, 300 Pa. 507, 511, 150 A. 900, 902 (1930). To attempt to caution the jury to use those statements only against DeLeo, and not consider them when determining the liability of Equine Classics would be to attempt the impossible. The liability of both are inextricably intertwined. For this reason, we would hold that the statements allegedly made by Dr. DeLeo would be too prejudicial to Equine Classics to be...