Kemp v. Qualls

• Decision Date: 08 May 1984
• Citation: 473 A.2d 1369,326 Pa.Super. 319
• Parties: Barbara S. KEMP, Administratrix of the Estate of Martin Kemp, Deceased, Appellant v. Donald QUALLS, M.D., Stanley B. Steinberg, M.D., Mieczsaew Lopusniak, M.D., and Lankenau Hospital.
• Court: Pennsylvania Superior Court

Page 1369

473 A.2d 1369

326 Pa.Super. 319

Barbara S. KEMP, Administratrix of the Estate of Martin Kemp, Deceased, Appellant v. Donald QUALLS, M.D., Stanley B. Steinberg, M.D., Mieczsaew Lopusniak, M.D., and Lankenau Hospital.

Superior Court of Pennsylvania.

Argued Sept. 6, 1983.

Filed Feb. 24, 1984.

Reargument Denied May 8, 1984.

Morton B. Wapner, Philadelphia, for appellant.

James J. McCabe, Jr., Philadelphia, for Qualls and Steinberg, appellees.

William H. Pugh, IV, Norristown, for Lopusniak, appellee.

Ralph L. Hose, Ardmore, for Lankenau Hosp., appellee.

Before ROWLEY, POPOVICH and MONTGOMERY, JJ.

MONTGOMERY, Judge:

The Plaintiff-Appellant, Barbara S. Kemp, instituted the instant action in trespass in the lower court claiming that the Defendant-Appellee physicians and hospital were negligent in failing to diagnose and treat a condition which allegedly caused the death of Martin Kemp, the Appellant's decedent. ¹ A trial was held before a jury which returned a verdict in favor of the Appellees. The Appellant now appeals the lower court's subsequent denial of her motion for a new trial. On this appeal, she claims that the lower court erred in several evidentiary rulings at trial.

The pertinent facts of record show that on February 7, 1971, Martin Kemp was admitted as an inpatient in the Appellee, Lankenau Hospital, while receiving care from Dr. Qualls, another Appellee. The admission and treatment by the physicians was for low back pain suffered by the decedent. During the course of the admission, Dr. Qualls brought Dr. Lopusniak, also an Appellee, into the case as a consulting specialist in connection with the decedent's high blood pressure problem. The decedent was subsequently discharged from Lankenau Hospital on February 28, 1971. On March 6, 1971 he was admitted to Cooper Medical Center in Camden, New Jersey, where he died only six days later as the result of pulmonary emboli.

Two of the Appellant's contentions on this appeal involve the admission and use at trial of certain medical records resulting from the decedent's stay at the Cooper Medical Center. During the course of the trial, the Appellant called Dr. Theodore Rodman as a medical expert. Dr. Rodman expressed the opinion that the Appellees Qualls and Lopusniak acted negligently in failing to diagnose the decedent's pulmonary emboli. In response to questions, Dr. Rodman stated that he had reviewed the records of the Cooper Medical Center before arriving at his opinion. During the course of cross-examination of Dr. Rodman, counsel for Appellees Qualls and Lopusniak questioned the witness concerning matters in the Cooper Medical Center records in an apparent effort to demonstrate that several physicians who had treated the decedent, subsequent to treatment rendered by the Appellees, had failed to diagnose pulmonary embolism as the cause of decedent's symptoms. It appears that in this effort the Appellees' cross-examination was intended to demonstrate the obscurity of the decedent's symptoms and the difficulty of diagnosing pulmonary embolism.

The Appellant first contends that the Cooper Medical Center records, which contain diagnostic opinions of doctors who treated the decedent at that facility, were not relevant to show Appellees' compliance with a reasonable standard of medical care. In reviewing this claim, we must initially recognize that the information from the Cooper Medical Center records was elicited during cross-examination of the Appellant's medical expert. It is well-established that the scope and limits of cross-examination are within the trial court's discretion and the court's rulings thereon will not be reversed in the absence of a clear abuse of discretion or an error of law. Gatling v. Rothman, 267 Pa.Super. 566, 407 A.2d 387 (1979). Further, it is clear that the right of cross-examination extends beyond the subjects testified to in direct testimony and includes the right to examine the witness on any facts tending to refute inferences or deductions arising from matters the witness testified to on direct examination. McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 420 A.2d 514 (1980). Every circumstance relating to the direct testimony of an adverse witness or relating to anything within his or her knowledge is a proper subject for cross-examination, including any matter which might qualify or diminish the impact of direct examination. Commonwealth v. Britton, 251 Pa.Super. 335, 380 A.2d 807 (1977).

We find that the lower court did not abuse its discretion in allowing Dr. Rodman to be cross-examined concerning the diagnoses by physicians at the Cooper Medical Center which were contained in the hospital records he had reviewed in preparing for his own testimony at trial. Dr. Rodman testified on direct examination that decedent's symptoms, as exhibited at Lankenau Hospital, were a "red flag" which indicated that decedent was suffering from pulmonary emboli. The Cooper Medical Center records lacked any diagnosis of pulmonary emboli by physicians who treated the decedent subsequent to the treatment rendered by the Appellees. Obviously, such evidence would have tended to diminish the impact and reliability of Dr. Rodman's assertion that the symptoms of pulmonary emboli should have been absolutely clear to a physician exercising reasonable care in the circumstances then present. We must reject the Appellant's contentions that the Appellees relied on the Cooper medical records to affirmatively establish their own compliance with a reasonable standard of care. It is clear that the Appellees' counsel used these records instead to refute Dr. Rodman's assertion that the Appellees were negligent in failing to diagnose the problem as the cause of decedent's symptoms.

The Appellee next argues that the lower court should not have allowed cross-examination involving the Cooper Medical Center records because they allegedly constituted inadmissible hearsay. However, our review of the record shows that the documents in question were not offered to prove the truth of the matters asserted therein, in this case the specific diagnoses reached by the treating physicians at the Cooper Medical Center. Instead, as explained above, the correctness of the diagnostic opinions of the doctors from Cooper Medical Center was not made an issue in the case, but rather the opinions were used for purposes of cross-examination to elicit evidence of the difficulty of diagnosing a pulmonary embolism condition. We agree with the lower court which concluded that in these circumstances the records in question were probative and relevant. Accordingly, we reject the claims that the records in question should have been excluded from evidence by the lower court because they constituted inadmissible hearsay.

The Appellant next argues that the lower court erred in refusing to admit certain testimony proffered through witness Daniel Brown. The excluded testimony consisted of statements purportedly made by the decedent to Dr. Lopusniak in a telephone conversation, while the decedent was in the presence of Mr. Brown, and statements made by the decedent to Brown which purported to repeat what Dr. Lopusniak had stated to the decedent during the same telephone conversation. After an objection to Mr. Brown's testimony was sustained by the court, the parties had discussions in chambers about the testimony of the witness. The Appellant's counsel related to the court that he wanted to ask questions as to Mr. Brown's discussions with the decedent, and explained he planned to ask these questions to determine the "state of mind" of Mr. Kemp with regard to his condition, for two reasons. First, he stated that he wanted to show that the decedent had a fear of impending death, allegedly a documented symptom in cases of pulmonary embolism. Second, he asserted that he wanted to show Mr. Kemp's reaction to his purported inability to obtain satisfactory answers from Dr. Lopusniak, a situation which allegedly caused the decedent to consult other doctors. In an offer of proof, Appellant's counsel asserted that the witness would testify that he dialed a telephone call to Dr. Lopusniak on behalf of the decedent, and after the call was completed by Mr. Kemp, the witness discussed with the decedent what had been discussed during Mr. Kemp's conversation with the doctor. The following colloquy in the record is germane:

COUNSEL FOR APPELLEE: (Interposing) You said [Mr. Brown] discussed with him, with Dr. Lopusniak, or with Mr. Kemp?

COUNSEL FOR APPELLANT: With Mr. Kemp. Mr. Kemp, after the conversation was over, had discussed with him what, in effect, Dr. Lopusniak said, which was, "There is nothing more I can do for you. See me Friday."

COUNSEL FOR APPELLEE: Now, who is talking to Dr. Lopusniak?

COUNSEL FOR APPELLANT: The phone call was made by Mr. Brown. Mr. Brown is not going to say that he was listening in to the conversation, or anything like that.

THE COURT: He dialed the phone?

COUNSEL FOR APPELLANT: He dialed the phone and got Dr. Lopusniak's office on the telephone; or perhaps got Dr. Lopusniak on...