Lira v. Albert Einstein Medical Center

• Citation: 559 A.2d 550,384 Pa.Super. 503
• Parties: Bonnie B. LIRA and Jose Lira, h/w v. ALBERT EINSTEIN MEDICAL CENTER. Appeal of Jose LIRA in his own Right and as Administrator of the Estate of Bonnie B. Lira. Bonnie B. LIRA and Jose Lira, h/w v. Gary PEARLSTEIN, M.D. Appeal of Jose LIRA. Bonnie B. LIRA and Jose Lira, h/w, Appellees, v. Gary PEARLSTEIN, M.D., Appellant. 2090 Phila. 1988, 2091 Phila. 1988, 2338 Phila. 1988, 2339 Phila. 1988
• Decision Date: 25 May 1989
• Court: Superior Court of Pennsylvania

Page 550

559 A.2d 550

384 Pa.Super. 503

Bonnie B. LIRA and Jose Lira, h/w v. ALBERT EINSTEIN MEDICAL CENTER.

Appeal of Jose LIRA in his own Right and as Administrator of

the Estate of Bonnie B. Lira.

Bonnie B. LIRA and Jose Lira, h/w v. Gary PEARLSTEIN, M.D.

Appeal of Jose LIRA.

Bonnie B. LIRA and Jose Lira, h/w, Appellees, v. Gary PEARLSTEIN, M.D., Appellant.

2090 Phila. 1988, 2091 Phila. 1988, 2338 Phila. 1988, 2339

Phila. 1988

Superior Court of Pennsylvania.

Argued Jan. 11, 1989.

Filed May 25, 1989.

Jayne A. Piarulli, Philadelphia, for appellant (at Nos. 2090 and 2091) and appellee (at No. 2338).

Charles A. Fitzpatrick, III, Philadelphia, for appellee (at Nos. 2090 and 2091) and appellant (at No. 2338).

Before CAVANAUGH, WIEAND and MELINSON, JJ.

WIEAND, Judge:

In this medical malpractice action, the trial court awarded a new trial on motion of the defendant-health care providers because of an erroneous evidentiary ruling which permitted a witness to testify that when the plaintiff-patient was examined by a non-testifying physician, the physician asked, "Who's the butcher who [did] this?" On appeal, the plaintiffs argue that the physician's declaration was properly received and did not warrant a new trial. In a cross-appeal, the defendant-health care providers argue that the trial court should have entered a judgment n.o.v. in their favor. We affirm the order awarding a new trial.

In January, 1981, Bonnie Lira, a young homemaker and professional singer, was admitted to the Albert Einstein Medical Center (AEMC) with complaints of abdominal pain. Exploratory surgery was performed, and Lira was diagnosed as having Crohn's disease, an acute gastrointestinal illness. During this hospital stay, which lasted approximately a month, a nasogastric tube was inserted through Mrs. Lira's nose to suction fluids from her stomach, and two surgical procedures were performed by which the patient was intubated with endotracheal tubes.

On May 13, 1981, Mrs. Lira was taken to the emergency room at AEMC because of diarrhea, abdominal pain, and distension. Dr. Stanton Carroll was on duty at that time and was assisted by Dr. Gary Pearlstein, a surgical resident. Pearlstein inserted a nasogastric tube into the patient's throat via the right nostril in order to make use of a suction machine. Mrs. Lira testified in a deposition ¹ that she felt the tube become stuck in the area of her Adam's Apple while it was being inserted and that she then experienced a jabbing, cutting pain. By the time the insertion had been completed she began spitting up blood and experienced severe pain. The tube remained in place until Mrs. Lira was discharged, following which she continued to experience pain and discomfort of the throat. Early in 1982, she suffered respiratory distress, and an emergency tracheotomy was performed. She remained dependent upon her tracheotomy tube until she died three and a half years later.

During her lifetime, Mrs. Lira and her husband, Jose, commenced actions against AEMC, Dr. Carroll, Dr. Pearlstein and several other physicians. Ultimately, however, the other physicians were removed as party defendants, and the consolidated action went to trial against AEMC and Drs. Carroll and Pearlstein. The trial court directed a verdict in favor of Dr. Carroll, and the jury returned a verdict against AEMC and Dr. Pearlstein in favor of Bonnie Lira (deceased) for $150,000.00 and in favor of Jose Lira, her husband, for loss of consortium in the amount of $125,000.00.

A judgment n.o.v. may be entered only in a clear case where the facts are such that no two reasonable persons can fail to agree that the verdict is improper. Fleck v. Durawood, Inc., 365 Pa.Super. 123, 127, 529 A.2d 3, 5 (1987); Northwest Savings Ass'n. v. Distler, 354 Pa.Super. 187, 191, 511 A.2d 824, 825 (1986). In ruling upon a defendant's motion for judgment n.o.v., the trial court is required to consider the evidence, as well as all reasonable inferences which may be drawn therefrom, in the light most favorable to the plaintiff who won the verdict. Vernon v. Stash, 367 Pa.Super. 36, 45-46, 532 A.2d 441, 445-446 (1987), quoting Maravich v. Aetna Life & Casualty Co., 350 Pa.Super. 392, 396, 504 A.2d 896, 898 (1986) and Kearns v. Clark, 343 Pa.Super. 30, 34-35, 493 A.2d 1358, 1360 (1985). In determining whether the evidence is sufficient to support the verdict, a reviewing court must consider all the evidence received, whether the trial court's evidentiary rulings thereon were correct or incorrect. See: Niles v. Fall Creek Hunting Club, Inc., 376 Pa.Super. 260, 265, 545 A.2d 926, 929 (1988); Dorn v. Stanhope Steel, Inc., 368 Pa.Super. 557, 565, 534 A.2d 798, 802 (1987).

To establish a case of professional negligence, the plaintiffs were required to show that the professional conduct of Dr. Pearlstein fell below the standards of reasonable medical practice and that Mrs. Lira's injuries were caused by the failure to adhere to such standards. Brannan v. Lankenau Hospital, 490 Pa. 588, 595, 417 A.2d 196, 199 (1980); Corbett v. Weisband, 380 Pa.Super. 292, 551 A.2d 1059, 1064 (1988). As a general rule, expert testimony is required to establish the standard of reasonable medical care. Brannan v. Lankenau Hospital, supra 490 Pa. at 595-596, 417 A.2d at 199-200; Brophy v. Brizuela, 358 Pa.Super. 400, 405, 517 A.2d 1293, 1296 (1986). The standard by which an expert witness is qualified is a liberal one. "If a witness has any reasonable pretension to specialized knowledge on the subject under investigation he may testify, and the weight to be given to his [testimony] is for the jury." Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974); Vernon v. Stash supra at 51, 532 A.2d at 448. The admission of expert testimony is a matter which rests largely in the discretion of the trial court, and its ruling thereon will not be reversed absent an abuse of discretion. Pirches v. General Accident Insurance Co., 354 Pa.Super. 303, 307, 511 A.2d 1349, 1351 (1986). Moreover, there is an exception to the general rule requiring expert testimony where the matter is so simple and the lack of skill so obvious as to be within the comprehension of non-professional persons. See: Brannan v. Lankenau Hospital, supra 490 Pa. at 598, 417 A.2d at 201; Chandler v. Cook, 438 Pa. 447, 451 n. 1, 265 A.2d 794, 796 n. 1 (1970).

In this case, Dr. Maurice Romy testified as plaintiffs' expert. He explained that forcing the tube into the patient's trachea while attempting to insert it into the esophagus had caused a traumatic "dislocation of the, what we call the arytenoid cartilage, and swelling and laceration of the vocal cord." This, he said, was "likely to happen if an NG tube is placed in a traumatic fashion." In his opinion, Mrs. Lira had "received medical care falling below the standard ... expected ... in [the] medical community." He had personally examined Mrs. Lira's throat and had also examined her hospital records, as well as the deposition testimony which she gave prior to death. Mrs. Lira had testified as follows:

When he got to my throat, it got stuck and he was hurting me, and I felt him jabbing with the plastic. And it was hurting until he finally pushed it through and then I coughed up blood.

The testimony of Mrs. Lira and Dr. Romy was sufficient to establish that it was professional negligence by Dr. Pearlstein which had caused the wife-plaintiff's injury. The trial court properly denied defendants' motion for judgment n.o.v.

Appellants argue, however, that Dr. Romy was not an otolaryngologist and, therefore, should not have been permitted to testify. We disagree. Romy was a licensed physician who was board certified in neurology. He had also had several months' training in otolaryngology, the specialty dealing with the larynx and trachea. Dr. Romy had initially examined Mrs. Lira for the purpose of determining whether there was a neurological basis for her throat problem. He had ruled this out and concluded that the problem was associated with the traumatic forcing of the nasogastric tube into the patient's trachea. The trial court determined that Romy had sufficient skill, knowledge, and experience and that his opinion would aid the jury in its search for truth. See: McDaniel v. Merck, Sharp & Dohme, 367 Pa.Super. 600, 608, 533 A.2d 436, 440 (1987); Dambacher v. Mallis, 336 Pa.Super. 22, 35-36, 485 A.2d 408, 415 (1984). We find in the trial court's ruling no abuse of discretion. Experts in one area of medicine may be found qualified to address other areas of specialization where the specialties overlap in practice or where the specialist has had experience in a related field of medicine. McDaniel v. Merck, Sharp & Dohme, supra 367 Pa.Super. at 612, 533 A.2d at 442. See: Kearns v. Clark, supra; Ragan v. Steen, 229 Pa.Super. 515, 331 A.2d 724 (1974).

When Jose Lira was called as a witness, he testified as follows:

[MR. LIRA]: I remember the day I take my wife to see [Dr. Silberman], and we wait like everybody else; and as our turn to sit there and see what's wrong, he put my wife in the chair--

[PLAINTIFF'S COUNSEL]: Were you in the room with your wife with the doctor?

[MR. LIRA]: I was with my wife in the room, yes, I was.

[PLAINTIFF'S COUNSEL]: And tell us what you observed.

[MR. LIRA]: My wife was following the instructions from the doctor, open your mouth, and the doctor is looking inside with some kind of instruments and lights, and he said: Who's the butcher who do this!

[DEFENSE COUNSEL]: Objection, Your Honor. In fact, I move for a mistrial with that statement, Your Honor.

THE COURT: Overruled.

Dr. Silberman was not present in court and did not testify. During closing argument to the jury, plaintiff's counsel referred to Lira's testimony, saying: "You will remember that Dr. Silberman examined her throat and asked Bonnie Lira, 'Who butchered you?' " A defense objection to the argument by plaintiff's counsel was sustained, and the...