Isard v. D'Aquili
| Decision Date | 22 April 1981 |
| Docket Number | 3762 |
| Citation | 5 Phila. 521 |
| Parties | Murray G. Isard v. Mary Lou D'Aquili, Joseph P. Atkins, Jr., M.D., the Fidelity Bank, Admrs. of Estate of Joseph P. Atkins, M.D., Deceased |
| Court | Pennsylvania Commonwealth Court |
(1) Judgment N.O.V. is inappropriate if the evidence on a material point presented an issue of fact for decision by the jury
(2) In passing on a motion for judgment N.O.V., testimony must be read in the light most favorable to the verdict winner and all conflicts resolved in its favor
(3) Merely because an expert qualifies his assertion his opinion is not rendered inadmissibly speculative
(4) A new trial will be granted on the basis that the verdict was contrary to the evidence only if the jury verdict is so diametrically opposed to the evidence that judicial conscience could not allow the result to stand
(5) As a general rule, the admission or exclusion of evidence is within the sound discretion of the trial judge
(6) The Captain of the Ship doctrine allows the jury to find a physician vicariously liable for the negligence of those under his direction
(7) Where evidence which would properly be part of case is within the control of the party whose interest it would naturally be to produce it, and without satisfactory explanation he fails to do so, the jury may draw an inference that it would be unfavorable to him
(8) The collateral source rule is the judicial refusal to credit to the benefit of the wrongdoer money received in reparation of the injury caused which emanates from sources other than the wrongdoer.
Jerome J. Verlin, Esquire, for Plaintiff
Charles B. Burr, II, Esquire, for Defendant
The instant action arises out of a claim by the plaintiff, Murray G. Isard, against the defendants, the Administrators of the Estate of Joseph P. Atkins, M.D. [1] for medical malpractice. The alleged malpractice of Dr. Atkins occurred during the course of his treatment of the plaintiff for a strictured esophagus. [2] Dr. Atkins performed three esophageal dilatations on the plaintiff during the period from June 21, 1967 through September 11, 1967. The last esophageal dilatation resulted in a perforation and related medical complications necessitating lifesaving surgery on three occasions.
On June 21, 1967 the plaintiff experienced difficulty in swallowing and was advised by his physician, Dr. Henry J. Tumen, [3] to see Dr. Atkins for treatment at Graduate Hospital. Dr. Atkins, a specialist in bronchoesophagology, upon examining the plaintiff, concluded that he was suffering from achalasia. In simple terms, achalasia is a disease that prevents the smooth passage of food from the esophagus through to the stomach due to a constricted opening between those organs. In an effort to alleviate the seriousness, and pain, of the plaintiff's condition, Dr. Atkins decided to use a pneumatic bougienage procedure [4] designed to dilate the obstruction. [5] If successful the dilatation would expand the constricted area permitting a more natural and less painful flow of food from the esophagus to the stomach.
On June 22, 1967 Dr. Atkins performed a dilatation on the plaintiff by applying 15 pounds of pressure [6] which resulted in partial improvement. The plaintiff was immediately discharged after the procedure and returned home. However, not long after his discharge, the plaintiff began to experience the same difficulty in swallowing and on July 24, 1967 Dr. Atkins performed a second dilatation during which time he again applied 15 pounds of pressure. [7] Again, improvement was noted, but this time Dr. Atkins indicated to the plaintiff that he should report to him for a follow-up examination in September.
The plaintiff did, on September 11, 1967, return for a further examination. Dr. Atkins then informed the plaintiff that x-rays of the constricted area of the esophagus revealed that the previous dilatations had not produced sufficient results. At this time, Dr. Atkins, along with the assistance of a nurse, performed a third dilatation to " . . . stretch this beyond the point we had done on previous occasions because we felt that we were not getting sufficient relief from the previous dilatations." [8] Unlike the first two dilatations, the plaintiff continued to experience pain and discomfort afterward.
During the evening of September 11, 1967 the plaintiff was admitted to the Hospital of the University of Pennsylvania by Dr. Atkins with unbearable lower chest pains. An immediate x-ray examination disclosed a tear in the plaintiff's esophagus and immediate corrective surgery had to be performed by Dr. Julian Johnson [9] to repair the tear. In this instance the surgery entailed cutting off 2 1/2 inches of the lower esophagus, closing the stomach off, and turning the stomach wall around to create a new opening. [10] In addition, Dr. Johnson found it necessary to perform a vagotomy. This encompasses removal of the vagus nerves [11] attached to the esophageal wall. Plaintiff was discharged from the University of Pennsylvania Hospital on September 27, 1967.
Thereafter, on September 28, 1967, the plaintiff was admitted to the Albert Einstein Hospital because of vomiting and severe discomfort in the lower chest area. This was diagnosed to be caused by the stomach's inability to properly empty. Plaintiff's stomach was continuously emptied through a decompression tube procedure until his discharge on October 11, 1967.
Notwithstanding these efforts, stomach problems continued to plague the plaintiff and he was readmitted to the Albert Einstein Hospital on February 21, 1968. Dr. Robert Somers, [12] a general surgeon, thereupon performed a third operation to correct the stomach's malfunctioning persitaltic activity. [13]
Plaintiff was discharged on March 1, 1968 but readmitted on March 8, 1968. On March 9, 1968 Dr. Somers operated again, cutting intestinal adhesions, and on March 26, 1968 Dr. Somers removed more from the plaintiff's intestional tract and lower stomach to permit appropriate emptying.
On June 13, 1969 plaintiff filed his Complaint in Trespass alleging that the tear in his esophagus and the subsequent complications requiring surgery were caused by the negligent bougienage treatment performed by Dr. Atkins on September 11, 1967.
The case was set for trial and heard before this Court on March 17, 1980 through March 21, 1980. The jury returned a verdict in favor of the plaintiff in the amount of $350,000 and by Order of this Court, dated April 23, 1980, the verdict was molded to include delay damages of $15,155.00 for a total of $365,155.00.
Defendants thereafter filed motions for judgment n.o.v. and for a new trial, alleging, inter alia, that the evidence in this case was insufficient to support a verdict in favor of the plaintiff and that a directed verdict should have been entered. Defendants further allege that the jury's verdict was contrary to the evidence, requiring a new trial.
Aside from assigning the lack of sufficiency of the evidence, the defendants also allege other exceptions with respect to their motion for a new trial. Suffice it to say that only those meriting attention will be discussed.
Defendants' counsel contends that the plaintiff's expert witness, Dr. Stanley Lorber, did not render a legally satisfactory opinion which would have allowed the jury to conclude that Dr. Joseph P. Atkins had been negligent. Therefore, they submit that a directed verdict should have been granted at trial.
The standard for granting a judgment n.o.v. was accurately summarized by Superior Court Judge SYDNEY HOFFMAN in his erudite opinion in Eldridge v. Melcher, 226 Pa.Super 381, 386, 313 A.2d 750, 753 (1973) (Citations omitted):
Judgment n.o.v. is inappropriate if the evidence on a material point presented an issue of fact for decision by the jury. This method of attacking the verdict may never be utilized so as to invade the province of the jury, especially where that determination is based partly on questions of conflicting testimony and credibility of witnesses . . . As to whether there is reasonable support for the verdict, it should be noted that the evidence may be found sufficient, though it be meager or uncorroborated. (Emphasis added.) Further, in passing on a motion for a judgment n.o.v., testimony must be read in the light most favorable to the verdict winner and all conflicts resolved in its favor. Hayes Creek Country Club, Inc. v. Central Penn Quarry Stripping and Construction Co., 407 Pa. 464, 181 A.2d 301 (1962). The only issue therefore is whether or not the plaintiff has produced sufficient proof to meet the Eldridge v. Melcher, supra, standard.
It is true, as defendants point out, that expert testimony is needed to substantiate a cause of action based on medical malpractice, and that the jury will not be permitted to presume, or infer, negligence purely from unfortunate results since as laymen they are not knowledgeable enough to pass judgment. Robinson v. Wirts, 387 Pa. 291, 127 A.2d 706 (1956). The cases cited by defense counsel, to support their position, including Robinson v. Wirts, supra, presented situations where the plaintiff completely failed to produce any expert witness testimony. In this case, however, plaintiff did produce the required expert testimony.
Plaintiff called Dr. Stanley Lorber [14] as his expert witness. On direct examination of Dr. Lorber the following questions were propounded and the following testimony was elicited:
By Mr. Verlin:
Q. Doctor, you are familiar, were you not, that there was three dilatations performed by Dr. Atkins; June 21, July 24 and September 11, 1967? Is that correct?
A. Correct.
Q. And Doctor, did you also read the deposition of Dr. Atkins, those depositions as to what he did and the pressure...
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