Moses v. Albert Einstein Medical Center
| Decision Date | 24 April 1984 |
| Docket Number | 3062 |
| Citation | 11 Phila. 256 |
| Parties | Pearlena Moses v. Albert Einstein Medical Center |
| Court | Pennsylvania Commonwealth Court |
(1) In malpractice cases which involve the care and skill of a physician, a jury presumably lacks the knowledge and experience to render an intelligent decision without expert testimony
(2) An expert witness may express an opinion only on matters which are within his area of expertise
(3) To qualify an expert, counsel must establish that the witness has special knowledge of the subject in question and have the witness state his qualifications and the source of his knowledge
(4) The Court did not err in limiting a medical doctor's testimony to those matters contained in his report where plaintiff's counsel did not offer the witness as an expert. Therefore, the witness could not give his opinion as to whether the defendant's emergency room conduct caused the plaintiff's ultimate harm
(5) An expert opinion is admissible if based upon a factual foundation
(6) Whether the witness's knowledge or experience justifies admitting his testimony for consideration of the jury is a matter within the discretion of the trial judge and the weight to be given this evidence is for the jury
(7) In order for the jury to consider future continuation of an alleged disability as an element of damages, it is necessary that there be competent testimony that there is a likelihood that the disability will persist in the future, or some evidence from which the jury can reasonably infer what the probable future consequences of the injuries will be and then award damages
(8) Expert medical testimony is necessary in order to determine whether the physical injuries one suffers are temporary or permanent. Since the plaintiff's expert witness did not present evidence that the plaintiff's injuries were permanent, the Court's refusal to charge the jury as to permanency was correct
(9) Counsel's failure to timely object to three peremptory challenges per side rather than four as provided by Pa R.C.P. 221 constitutes a waiver
(10) A new trial will be granted based on newly discovered evidence where three factors are present: the evidence must have been discovered after the trial and must be such that it could not have been obtained at the trial by reasonable diligence, must not be cumulative or merely impeach credibility and must be such as would likely compel a different result
(11) In determining whether to grant a judgment n.o.v., the evidence must be viewed in a light most favorable to the verdict winner. If the evidence is insufficient to sustain a verdict against the losing party, the Court will enter judgment n.o.v. in favor of the losing party despite a verdict to the contrary
(12) In order to establish the liability of the defendant, the plaintiff was required to establish by competent evidence that the conduct of the defendant had fallen below the standard of reasonable medical practice and that her injuries had been caused by their failure to provide such medical care
(13) The standard of care for physicians in Pennsylvania must be established by competent expert testimony. A jury may not presume or infer negligence merely because the medical care or surgical operation terminates in an unfortunate result which might have occurred even though proper care and skill has been exercised.
William David Marvin, Esquire, for Plaintiff
Daniel T. McWilliams, Esquire, for Defendant
This is an action in trespass for personal injuries as a result of alleged failure of defendants to diagnose plaintiff's condition and administer the proper treatment.
This matter was tried before this Court and a jury from November 3 to November 15, 1982. At the conclusion of the trial, the jury rendered a verdict in the amount of $15,000.00 in favor of the plaintiff. The defendant filed a motion for judgment n.o.v. and the plaintiff filed a timely response. The plaintiff filed a motion for a new trial on the issue of damages or in the alternative, for a new trial generally. Both motions were heard before this Court on September 13, 1983. A supplemental motion was filed by the plaintiff alleging newly discovered evidence entitling her to a new trial.
On July 1, 1977, the plaintiff, Pearlena Moses, presented herself to defendant hospital, Albert Einstein Medical Center, Northern Division, Emergency Room, complaining of diarrhea, vomiting and severe pain in her abdomen. [1] Plaintiff was examined by an intern, Dr. William A. Lerner, who had recently graduated from medical school. Dr. Lerner examined the plaintiff, then treated her with a penicillin injection and oral antibiotics, having diagnosed her condition as pelvic inflammatory disease. [2] The plaintiff was sent home with instructions to take the oral medication for three days and if she was not better, she was to return to the defendant hospital or see her private physician. [3] Due to the July 4th holiday, plaintiff did not see Dr. Schiller until July 5, 1977, at which time she was immediately admitted to West Park Hospital. The plaintiff was again diagnosed as having pelvic inflammatory disease. The plaintiff underwent a total abdominal hysterectomy, performed by Dr. Marvin Krane on July 7, 1977. The plaintiff alleges that the total abdominal hysterectomy which resulted in her inability to bear children is permanent and that the jury's award of $15,000.00 is inadequate in light of the permanency of the injury caused.
Plaintiff has alleged several grounds for granting her motion for a new trial. In order to clearly discuss each of the allegations, they will be discussed in the same order as presented by the plaintiff. The defendant in his motion for a judgment non obstante veredicto argues that the plaintiff has failed to prove a prima facie case of professional negligence. These also are discussed in the order presented by the defendant.
The plaintiff contends that the Court erred in not allowing certain testimony from her expert and fact witnesses thereby creating sufficient grounds for a new trial.
The plaintiff's first witness, Dr. Herbert Schiller, was the plaintiff's treating physician and was offered to testify to the plaintiff's health after July 5, 1977. Plaintiff contends that because Dr. Schiller was not permitted to testify to the plaintiff's state of good health, she was unable to show the casual effects of the defendant's negligence. On the contrary, the Court permitted the doctor to testify to his contact with plaintiff on July 5, 1977, and his contact with plaintiff in November of 1981 concerning her complaints and his treatment of those complaints. [4]
The plaintiff wanted to use Dr. Schiller's testimony to demonstrate that the defendant's conduct increased the risk of harm to the plaintiff. In malpractice cases which involve the care and skill of a physician, a jury presumably lacks the knowledge and experience to render an intelligent decision without expert testimony. Smith v. Yohe, 412 Pa. 94, 194 A.2d 167 (1963).
Expert testimony is admissible when the subject matter is beyond the knowledge and experience of a layman. Commonwealth v Crawford, 468 Pa. 565, 364 A.2d 660 (1976). Although in certain situations involving physical injury, it is possible for a jury to infer causation, it is generally acknowledged that the complexities of the human body place questions as to cause of pain or physical injury beyond the knowledge of the average layperson. Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978), citing Lambert v. Soltis, 422 Pa. 304, 224 A.2d 173 (1966); Smith, supra.
In order to qualify as an expert, the witness need only have a reasonable pretension to specialized knowledge of the subject under investigation. Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 437 A.2d 1198 (1981). An expert may express an opinion only on matters which are within his area of expertise. Commonwealth v. Crawford, supra. To qualify as an expert, counsel must: (1) establish that the witness has special knowledge of the subject in question; and (2) have the witness state his qualifications and the source of his knowledge. See, In re Jones Appeal, 449 Pa. 543, 297 A.2d 117 (1972).
Dr. Schiller testified that he was board certified in family practice and the scope of his practice is that of family medicine. [5] Plaintiff's counsel did not offer the witness as an expert; therefore, the witness could not give his opinion as to whether the defendant's emergency room conduct caused the plaintiff's ultimate harm. The Court, therefore, did not err in limiting the testimony to those matters contained in his report and plaintiff's offer of proof as to what the witness could testify about.
Secondly, plaintiff contends that the Court erroneously excluded testimony of Dr. Goldfrank, the plaintiff's medical expert. Dr. Goldfrank's testimony was presented by videotape deposition.
Plaintiff's argument to the Court concerned the Court's refusal to allow testimony of Dr. Goldfrank regarding causation. The defendant objected on the ground that the plaintiff's question lacked foundation. The plaintiff asked Dr. Goldfrank essentially whether he thought the diagnosis was justified based on the findings reflected on the physical examination the history and lab reports. [6] The plaintiff argued that because Dr. Schiller's report was in evidence, in addition to the medical records from Einstein and West Park Hospitals, the foundation was proper. The Court, however, found that Dr. Lerner's commissions or omissions are not...
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