Hreha v. Benscoter
| Decision Date | 09 March 1989 |
| Docket Number | HOSPITAL-SPRINGFIELD |
| Citation | 381 Pa.Super. 556,554 A.2d 525 |
| Parties | John R. HREHA v. Judith L. BENSCOTER, D.O. and Metropolitan Hospital-Springfield Division. Appeal of METROPOLITANDIVISION. John R. HREHA, Appellant, v. Judith L. BENSCOTER, D.O. and Metropolitan Hospital-Springfield Division, Appellees. |
| Court | Pennsylvania Superior Court |
Andrew F. Napoli, Philadelphia, for appellant in No. 983, and appellee in No. 1031.
Herbert Monheit, Philadelphia, for appellant in No. 1031, and appellee in No. 983.
Before WIEAND, McEWEN and MELINSON, JJ.
In this medical malpractice action, John R. Hreha sought to recover damages against Dr. Judith L. Benscoter and the Metropolitan Hospital, Springfield Division, for complications following the surgical replacement of his hip. The jury before whom the action was tried found that the causal negligence of the hospital was fifty (50%) percent, the causal negligence of Dr. Benscoter fifteen (15%) percent, and the causal negligence of Hreha thirty-five (35%) percent. The same jury found that Hreha's damages were in the amount of $350,000. A motion for post-trial relief was filed by the hospital and denied by the trial court; and Hreha's petition for delay damages was also denied. 1 Both parties appealed.
As a result of a biopsy performed on August 8, 1983, plaintiff was diagnosed as having vascular necrosis with degenerative arthritis of the right hip. Therefore, on August 23, 1983, hip replacement surgery was performed by Dr. Benscoter at the Metropolitan Hospital. Following surgery, plaintiff was put on complete bed rest, and side rails were placed on his bed. Plaintiff made an unsuccessful attempt to get out of bed on August 27, and on the following day, August 28, he was found standing beside his bed by an intern. Because of this, x-rays were taken and disclosed that a hip prosthesis had become dislocated. This made necessary a second operation, which was performed by Dr. Benscoter on August 30, 1983. On September 1, 1983, plaintiff again got out of bed and was found lying on the floor by a nurse. Thereafter, Dr. Benscoter ordered that posey restraints be employed to keep plaintiff in bed. Cultures taken during the second operation disclosed that an infection had developed, and plaintiff was subsequently transferred to the University of Pennsylvania Hospital for further treatment. This treatment included additional surgery to remove the head of the femur (known as a girdlestone procedure) and entailed a lengthy hospitalization. Plaintiff claimed that as a result of this procedure, his right leg was permanently shortened. He contended at trial that Metropolitan Hospital and Dr. Benscoter had failed to provide adequate post-operative care and that the hospital and operating surgeon had failed to observe proper surgical procedures which enabled the infection to invade his body.
The hospital contends on appeal that the trial court should have entered judgment n.o.v. in its favor because Dr Herbert Swindell, plaintiff's only medical expert, gave conflicting testimony and failed to express an opinion to the required degree of medical certainty regarding the cause of plaintiff's complications following surgery. The required degree of medical certainty necessary to prove causation was reviewed by the Superior Court in Kravinsky v. Glover, 263 Pa.Super. 8, 396 A.2d 1349 (1979). The Court there said:
When a party must prove causation through expert testimony the expert must testify with "reasonable certainty" that "in his 'professional opinion, the result in question did come from the cause alleged.' " McCrosson v. Philadelphia Rapid Transit Co., 283 Pa. 492, 496, 129 A. 568, 569 (1925). See Hamil v. Bashline, supra. An expert fails this standard of certainty if he testifies Albert v. Alter, 252 Pa.Super. 203, 225, 381 A.2d 459, 470 (1977).
McMahon v. Young, 442 Pa. 484, 486, 276 A.2d 534, 535 (1971). However, to make an admissible statement on causation, an expert need not testify with absolute certainty or rule out all possible causes of a condition. Bialek v. Pittsburgh Brewing Company, 430 Pa. 176, 242 A.2d 231 (1968); Ritson v. Don Allen Chevrolet, supra [233 Pa.Super. 112, 336 A.2d 359 (1975) ]. Expert testimony is admissible when, taken in its entirety, it expresses reasonable certainty that the accident was a substantial factor in bringing about the injury. Hussey v. May Department Stores, Inc., supra, 238 Pa.Super. at 437, 357 A.2d at 638 [ (1976) ]. The expert need not express his opinion in precisely the same language we use to enunciate the legal standard. See In re Jones, 432 Pa. 44, 246 A.2d 356 (1968) (). That an expert may, at some point during his testimony, qualify his assertion does not necessarily render his opinion inadmissibly speculative. Woods v. Pleasant Hills Motor Company, 454 Pa. 224, 309 A.2d 698 (1973); Commonwealth v. Joseph, 451 Pa. 440, 304 A.2d 163 (1973).
Id. at 21-22, 396 A.2d at 1355-1356 (emphasis added) (footnotes omitted). See also: Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978); Pirches v. General Accident Insurance Co., 354 Pa.Super. 303, 511 A.2d 1349 (1986); Williams v. Dulaney, 331 Pa.Super. 373, 480 A.2d 1080 (1984); Walsh v. Snyder, 295 Pa.Super. 94, 441 A.2d 365 (1981); Smialek v. Chrysler Motors Corp., 290 Pa.Super. 496, 434 A.2d 1253 (1981); Sears, Roebuck & Co. v. Workmen's Compensation Appeal Board, 48 Pa.Cmwlth. 161, 409 A.2d 486 (1979).
We have reviewed the testimony of Dr. Swindell and have determined that it contained the required degree of medical certainty with respect to the causation of plaintiff's post-operative complications. "That he may have used less definite language in other parts of his testimony did not render his opinion inadmissibly speculative, as long as he stated his opinion with sufficient definiteness at some point." Pirches v. General Accident Insurance Co., supra 354 Pa.Super. at 310, 511 A.2d at 1353. See also: Brannan v. Lankenau Hospital, 490 Pa. 588, 596-597, 417 A.2d 196, 200 (1980); Kravinsky v. Glover, supra 263 Pa.Super. at 22 & n. 11, 396 A.2d at 1356 & n. 11. Metropolitan Hospital's reliance on an isolated remark made by Dr. Swindell on cross-examination, that it was "possible " that the amount of drugs given to the plaintiff had a cumulative effect, does not require that his medical opinion be rejected.
The hospital also contends that the trial court erred when it permitted Dr. Swindell to express an opinion regarding the cumulative effect of the drugs which had been administered to the plaintiff. It was error, it is argued, because the expert conceded that he was unfamiliar with ancef, one of the drugs administered to plaintiff. However, the physician's testimony concerned the cumulative effect of the narcotic drugs which had been administered to plaintiff. Ancef is not a narcotic or mind-altering drug; it is an antibiotic. In view of the fact that the jury was made aware that Swindell's opinion had referred only to the effect of narcotic drugs, the trial court's ruling did not constitute a basis for awarding a new trial.
The hospital argues next that the jury's apportionment of negligence between the hospital and the surgeon was contrary to the weight of the evidence because "[a]ll throughout the trial, plaintiff's testimony pointed to a joint responsibility of the surgeon and the hospital and, ... [i]f there was going to be a verdict against both defendants, the overwhelming weight of the evidence warranted a verdict against both defendants at least in equal amounts." We are compelled to disagree.
" 'In reviewing a denial of a new trial where the appellant argues that the verdict was against the weight of the evidence, we must award a new trial only where the verdict is so contrary to the evidence as to shock this Court's sense of justice.' " Cervone v. Reading, 371 Pa.Super. 279, 286, 538 A.2d 16, 20 (1988), quoting Bolus v. United Penn Bank, 363 Pa.Super. 247, 259, 525 A.2d 1215, 1221 (1987). The allocation of 50 percent of the causal negligence to Metropolitan Hospital did not shock the conscience of the trial court and does not violate our sense of justice. Under the Comparative Negligence Law, 42 Pa.C.S. § 7102(a), the allocation of causal negligence was a matter properly for the jury to determine. See: White v. Southeastern Pennsylvania Transportation Authority, 359 Pa.Super. 123, 518 A.2d 810 (1986); Beary v. Pennsylvania Electric Co., 322 Pa.Super. 52, 469 A.2d 176 (1983); Peair v. Home Ass'n of Enola Legion No. 751, 287 Pa.Super. 400, 430 A.2d 665 (1981). "It is only in the rare case that a court should hold as a matter of law that the negligence of one party...
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