McNair v. Weikers

• Decision Date: 02 July 1982
• Citation: 446 A.2d 905,300 Pa.Super. 379
• Parties: Marian M. McNAIR, Administratrix of the Estate of Earl P. McNair, Deceased, v. Norbert WEIKERS, Hirsch Wachs, Paul Richter and Allegheny General Hospital, Appellants. Marian M. McNAIR, Administratrix of the Estate of Earl P. McNair, Deceased v. Jules PUSCHETT and Rahat Chaudhry, Appellants.
• Court: Pennsylvania Superior Court

Page 905

446 A.2d 905

300 Pa.Super. 379

Marian M. McNAIR, Administratrix of the Estate of Earl P.

McNair, Deceased, v. Norbert WEIKERS, Hirsch Wachs, Paul Richter and Allegheny

General Hospital, Appellants.

Marian M. McNAIR, Administratrix of the Estate of Earl P.

McNair, Deceased v. Jules PUSCHETT and Rahat Chaudhry, Appellants.

Superior Court of Pennsylvania.

Argued Feb. 10, 1981.

Filed Feb. 19, 1982.

Reargument Denied July 2, 1982.

John D. Rhodes, Pittsburgh, for appellants at No. 487 and for appellees at No. 488.

John C. Conti, Pittsburgh, for appellants at No. 703.

Kenneth W. Behrend, Pittsburgh, for McNair, appellee.

David M. Moran, Pittsburgh, for appellant at No. 488 and for appellee at No. 487.

Before BROSKY, DiSALLE and SHERTZ, JJ.

SHERTZ, Judge:

In the first of these consolidated appeals, Appellants challenge the lower court's grant of a new trial. The decision of the court en banc rested on two grounds: (1) the trial court abused its discretion in that it improperly refused Appellee's request to present rebuttal evidence, and (2) the trial court abused its discretion in that it improperly prohibited Appellee from filing a supplemental pretrial statement and from presenting certain expert medical testimony. Appellants contend the court en banc erred in granting a new trial. We disagree and therefore affirm. ¹

In the second appeal, Appellants contend that the court below erred in denying their motion for summary judgment. ² We agree and therefore reverse.

I.

The facts of this case can be summarized as follows. Appellee brought wrongful death and survival actions alleging that medical malpractice on the part of Appellants caused the death of her husband. The decedent, who had a prior history of hypertension, contracted Guillian-Barre syndrome. In April, 1974, he was admitted to Allegheny General Hospital, an Appellant herein, where he was treated by several physicians, including Appellants Weikers, Wachs, and Richter. During the course of this treatment, the decedent was given the drug Aldomet in an attempt to lower his blood pressure. Although this treatment proved successful in lowering the blood pressure, decedent contracted a high fever and died several days after entering the hospital. The cause of his death is the dispute underlying this lawsuit.

At trial, Appellee offered into evidence, without objection, those sections of the Physician's Desk Reference pertaining to Aldomet, in order to prove that the decedent had received negligent care. That is, Appellee attempted to demonstrate that, in failing to give due consideration to the procedures and precautions set forth in the aforementioned publication, Appellants negligently caused the death of her husband.

Appellants, on the other hand, undertook to prove that the decedent had received proper medical care during his hospitalization. To this end, they presented the testimony of Dr. Puschett, ³ a specialist in renal-electrolyte medicine, who was primarily responsible for the treatment of decedent's hypertension. Dr. Puschett testified on cross-examination, as follows, with regard to Aldomet and its proper administration:

Q Well, sir, earlier you said that you did not necessarily agree with what the manufacturer said in the Physician's Desk Reference?

A Yes. I based that on my clinical judgment and experience with the agent (Aldomet) and the work of others.

* * *

Q Well, you say you used this on patients and you found from your observations that it worked differently than the manufacturer's recommendations?

A Not the recommendations, what we found, for example, was that whereas the Physician's Desk Reference which, by the way, I don't think is holy in any way, whereas the Physician's Desk Reference says that the drug's onset is quite different from what I mentioned to you earlier, that those of us with a lot of clinical experience find that it works more rapidly, much more rapidly under actual clinical settings. And, we found that it might be biologically effective in a shorter period of time than the time given by the manufacturer.

N.T. at 438-39. (parenthesis added).

Q It (the Physician's Desk Reference) does not say what you said, to try to determine if the fever is from something else?

A Well, the book (Physician's Desk Reference) does not take over for the clinical judgment, sir. The book does not tell you how to practice medicine, sir.

N.T. at 442. (parenthesis added)

Q Now, let's assume that the time lag for the Aldomet was exactly as the manufacturer's recommendation for the 4 to 6 hours, and that the carry-over is 10 to 16 hours as the manufacturer described, let's assume that as a fact. Now, at 8 o'clock a. m. on the 8th of May, how far back would we still be getting the effects of the Aldomet?

A Well, you see, you have asked me to make an assumption. I don't have all the facts of the matter and there is no way I can do that. I just cannot assume that .... That is why I mentioned to you earlier in the day that this type of evidence suggests to me very clearly that the indications in the Physician's Desk Reference to which you are referring is inaccurate.

Q Well, you assumed that the Physician's Desk Reference is inaccurate at the point it says that there is a four to six-hour lag and the carry-over to 10 to 16 hours, you will not accept that assumption?

A No, that does not agree with the other authoritated (sic) things on the subject.

N.T. at 481-82.

At the conclusion of Appellants' case-in-chief, Appellee sought to introduce rebuttal evidence, in the nature of expert medical testimony and medical publications, to impeach the medical testimony presented by Appellants, most especially the testimony of Dr. Puschett. The trial court refused to admit this evidence. Following a jury verdict in favor of all four Appellants, Appellee filed a Motion for New Trial, which was granted, and this appeal followed.

It is axiomatic that, absent a clear abuse of discretion or an error of law which controlled the outcome of a case, this Court will not reverse the grant of a new trial by the lower court. Izzi v. Philadelphia Transportation Company, 412 Pa. 559, 195 A.2d 784 (1963). In the instant appeal, Appellants first argue that the trial court properly precluded the proffered rebuttal evidence and that the court en banc's action in granting a new trial therefore constituted a clear abuse of discretion. That is, Appellants contend that Appellee, as part of her case-in-chief, was bound to establish the proper administration and dosage of Aldomet and she attempted to do so through the use of the Physician's Desk Reference. Dr. Puschett's testimony, Appellants argue, merely contradicted the evidence presented by Appellee on this point and it therefore did not afford a basis for allowing rebuttal testimony.

While we agree that Appellee was required to establish the proper use of Aldomet, we reject Appellants' contention that the proposed testimony was not proper evidence for impeachment. As pointed out by Appellee, Appellants "placed in issue, and used as a grounds for a defense, the clinical experience and superior knowledge of Dr. Puschett in the use of Aldomet over those standards established by the plaintiff in her case in chief through the Physician's Desk Reference." Brief for Appellee at 22. Although the decision whether to admit rebuttal testimony is within the discretion of the trial court, See, Mishkin v. Redevelopment Authority, 6 Pa.Cmwlth. 97, 293 A.2d 135 (1972), Murphy v. Philadelphia, 420 Pa. 490, 218 A.2d 323 (1966), the exercise of that discretion is subject to certain well-established limitations. One such limitation, as pertinent hereto, was described by our Supreme Court as follows:

A litigant has the privilege of offering rebuttal testimony, and where the evidence proposed goes to the impeachment of the testimony of his opponent's witnesses, it is admissible as a matter of right. Rebuttal is proper where facts discrediting the proponent's witnesses have been offered. Wigmore on Evidence (2d Ed.) vol. 4, p. 20 § 1873. "For matters properly not evidential until the rebuttal, the proponent has a right to put them in at that time, and they are therefore not subject to the discretionary exclusion of the trial court." Id., p. 25, § 1873.

Schoen v. Elsasser, 315 Pa. 65, 66, 172 A.2d 301-02 (1934).

Insofar as the proffered rebuttal evidence in this case is concerned, Appellee sought thereby to impeach evidence introduced in defendant's case in chief, to wit, Dr. Puschett's asserted superior knowledge and clinical expertise concerning the use and characteristics of Aldomet. The court en banc therefore properly concluded that Appellants had produced evidence which Appellee should have been permitted to rebut with at least some of the proposed evidence and that the trial court's disallowance of same was improper.

Finally, Appellants argue the proferred evidence was properly excluded because it was offered as substantive, rather than impeachment, evidence. A review of the record, in context, simply does not support this proposition.

Order affirmed and case remanded for further proceedings. Jurisdiction relinquished.

II.

The wrongful death and survival action against Appellants, Puschett and Chaudhry, was commenced by Complaint on May 30, 1979, more than five years after the death of Earl McNair. In substance, Appellee averred that, while decedent was a patient at Allegheny General Hospital during April and May, 1974, Appellants negligently caused Aldomet to be so improperly administered as to cause hypertensive shock resulting in the death of Earl McNair on May 10, 1974. Appellants filed an Answer and New Matter and Appellee filed a Reply thereto. Appellants thereupon moved for summary judgment on the grounds that the action was barred by the Statute of Limitations and by the principles of res judicata and collateral estoppel. The court below denied Appellants' Motion and this appeal followed.

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