Mohn v. Hahnemann Medical College and Hosp. of Philadelphia

• Decision Date: 14 October 1986
• Citation: 515 A.2d 920,357 Pa.Super. 173
• Parties: Harry B. MOHN and Helen Mohn v. HAHNEMANN MEDICAL COLLEGE AND HOSPITAL OF PHILADELPHIA, Appellant.
• Court: Pennsylvania Superior Court

Page 920

515 A.2d 920

357 Pa.Super. 173

Harry B. MOHN and Helen Mohn v. HAHNEMANN MEDICAL COLLEGE AND HOSPITAL OF PHILADELPHIA, Appellant.

Superior Court of Pennsylvania.

Argued April 8, 1986.

Filed Aug. 25, 1986.

Reargument Denied Oct. 14, 1986.

David P. Bruton, Philadelphia, for appellant.

Marshall A. Berstein, Philadelphia, for appellees.

Before BECK, POPOVICH and HOFFMAN, JJ.

POPOVICH, Judge:

This is an appeal from a four-million dollar judgment entered against Hahnemann Medical College and Hospital of Philadelphia. We reverse.

We are asked by Hahnemann to review the denial of its motion for a new trial. In doing so, we must decide whether there was an abuse of discretion or error of law committed by the trial court which controlled the outcome of the case. Allison v. Snelling & Snelling, Inc., 425 Pa. 519, 229 A.2d 861 (1967).

So viewed, the evidence reveals that Harry B. Mohn admitted himself to Hahnemann Hospital, upon the advice of his physician, for the evaluation of certain neurological problems. Tests were conducted and indicated that he was suffering from cervical spondylosis, an arthritic condition of the neck. In an attempt to stabilize his condition and prevent the progression of his arthritis, surgery was performed.

No one disputes that the services performed by the hospital before, during and after the operation, up to a point, were medically proper. The matter in dispute concerns the medical care provided to Mohn between 2:00 a.m. and 6:30 a.m. on the 11th of May, 1973. During this period, Mohn was in the hospital's intensive care unit following surgery, and, sometime between 6:00-7:00 a.m., he suffered a "respiratory arrest". He was resuscitated after an emergency code call, but became quadriplegic (paralyzed in all four limbs) immediately subsequent to the respiratory attack. Thereafter, he improved somewhat to his present, permanent condition diagnosed as quadriparesis (weakness in all limbs). Also, Mohn sustained a visual impairment which inhibits his vision to the area above an imaginary equator across his eyes. Further, Mohn contracted speaking and swallowing problems, a condition related to his pseudo-bulbar (muscular control) palsy, from the arrest and the efforts to resuscitate him.

At trial, Mohn's expert testified that his review of the record indicated that the hospital's failure to act in the face of certain information, e.g., detection of decreased urine output by Mohn, x-ray findings (which showed early pulmonary edema--fluid in the lungs) and blood results between 2:00-3:00 a.m.--which were abnormal and demonstrated development of metabolic acidosis (inability of heart to pump fluid to kidneys), was not in accordance with accepted medical practice. This "do nothing" approach, opined the expert, precipitated a deterioration in Mohn's condition and led to the respiratory arrest, a result which could have been avoided had appropriate measures been taken early on.

The hospital, through its experts, contended that it did not depart from accepted medical practice, and that Mohn's infirmities (motor problems--weakness in all four extremities, loss of sensation, spasticity, etc.) were "nothing other than the natural progression of his pre-existing disease." As for the arrest, it was the opinion of the hospital's experts that, rather than caused by the congestive heart failure, it was attributed to "probably mucous plug aspiration possibly on top of some underlying soft tissue."

As properly characterized by Mohn in his brief to us, the case reduced itself to a "battle of experts" on the issues of negligence and causation. The jury, after hearing from all sides, and being instructed by the court on the law, returned a verdict in favor of Mohn and his wife (for her loss of consortium claim) in the amount of $1,776,000.00 and $1,175,000.00, respectively. Pursuant to Pa.R.Civ.P. 238, damages for delay were added and the verdicts were molded to $2,440,175.33 for Mohn and $1,614,417.80 for his wife. Post-verdict motions were filed and denied. After the verdict was reduced to judgment, this appeal followed.

Hahnemann Hospital complains that the trial court committed reversible error in allowing its expert witness (Dr. Urbach) to be cross-examined with regard to his receipt of fees for medical-legal cases other than the one being tried, and cites Zamsky v. Public Parking Authority of Pittsburgh, 378 Pa. 38, 105 A.2d 335 (1954) in support of its contention.

The trial court attempts to minimize Zamsky by labelling it an "outdated and questioned decision" that, at best, should be restricted to its facts.

At the outset, be it known that, regardless of the vintage of a case or its attack by legal scholars in their erudite treatises on the state of the law, in the final analysis it is for the highest court in this jurisdiction to decide when and to what extent, if any, a case has lost its vibrancy so as to signal its demise. No trial court is to usurp this function under the guise of changes presaged by the winds of judicial time, marked by the shifting tides of legal thinking. See Concurring Opinion of Chief Justice Nix in Commonwealth v. Brady, 510 Pa. 123, ---, 507 A.2d 66, 72 (1986) ("Regardless of how laudable the trial court's intentions may ... be[ ], ... its unauthorized refusal to apply existing law cannot be tolerated. To permit such a practice will throw the administration of justice and the expectations of litigants into utter confusion.").

It is interesting to note that both sides draw differing conclusions from the Zamsky decision, one approving of the questioned cross-examination and the other denouncing it as violative of established Pennsylvania law. We will lay this divergence of opinion to rest now.

In Zamsky, property was acquired by a public authority, and the compensation offered to the tenants was challenged in court and resulted in a verdict in their (tenants') favor. On appeal, the Supreme Court reversed and awarded a new trial because the court below permitted the authority's expert to be interrogated concerning fees acquired over more than five years for "services rendered" to the authority in its acquisition of numerous pieces of property. Objection was made but overruled, and the witness-expert testified to the fees received and anticipated in the future from the authority. The Court concluded:

Thus the plaintiffs got before the jury that for services not rendered on the trial of this case (except in part) the firm of the expert witness had been paid $17,866.32, and in the future expected to receive $7,500 to $8,100. Thus error was thrice compounded, as we have said, and in addition consisted in admitting what the witness earned, not as an expert witness, but for general services to the Authority. This examination was clearly prejudicial error which must have contributed to the large verdicts for the plaintiffs.

It is entirely proper to inquire of an expert witness what his fees are for testifying in the case on trial. Commonwealth v. Simmons, 361 Pa. 391, 403, 65 A.2d 353; Grutski v. Kline, 352 Pa. 401, 404, 43 A.2d 142; Reed v. Philadelphia Transit Co., 171 Pa.Super. 60, 62, 90 A.2d 371, 33 A.L.R. 1166. But none of the reported cases go to the length that was permitted here, and in overruling the appellant's objection the court abused its discretion. The earnings of the expert witness from other services performed for the defendant were a purely collateral matter and the testimony thereon was not admissible to affect his credibility.

The judgments are reversed and new trials ordered. 378 Pa. at 40, 105 A.2d at 639. Instantly, as in Zamsky, the expert was permitted to be cross-examined as to the fees he earned, other than as an expert for the defense.

In particular, the scenario begins with counsel for the Mohns/plaintiffs having Exhibit P-30 (the complete financial records of Dr. Urbach) marked for identification. This was permitted over the objection of defense counsel. Dr. Urbach explicated that:

.. the filing system in [his] office is that whoever pays the bill has a ledger card of his or her own, whether it's an agency or an individual or whatnot. If the bill was paid by an agency, that would be a ledger card, if the bill was paid by a law firm, that would be a ledger card.

Now, in these ledger cards, there are, of course, payments for legal reports, appearing in court, examining patients for legal purposes. They are also payments for patients treated, patients evaluated. In other words, patients that were taken care of, treated medically, hospital bills, for whatever reason, were paid by an agency or a law firm. So that all these ledger cards, all these dollar amounts and all these dates do not just refer to medical reports, appearance in court, or that kind of thing. They also refer to treatment of patients, consultations at the request of other physicians, and what-have-you, so long as the bill was paid by an agency or by a law firm.

When Dr. Urbach was asked if the ledger cards produced were all of medico-legal cases, he answered that it depended on counsel for the plaintiffs' definition of the term. Counsel's offer that he considered the instant suit such a case was rejoined with an example by the doctor that a bill for whom a person became sick on the job and necessitated a pacemaker was included in his ledger cards. As it was, the bill was paid by an...