Naccarati v. Garrett

• Decision Date: 14 March 1986
• Citation: 351 Pa.Super. 437,506 A.2d 428
• Parties: Carl NACCARATI and Marion Naccarati, His Wife, Appellants, v. William S. GARRETT, Jr., Appellee.
• Court: Pennsylvania Superior Court

Page 428

506 A.2d 428

351 Pa.Super. 437

Carl NACCARATI and Marion Naccarati, His Wife, Appellants, v. William S. GARRETT, Jr., Appellee.

Superior Court of Pennsylvania.

Argued Dec. 16, 1985.

Filed March 14, 1986.

David M. Moran, Pittsburgh, for appellants.

John W. Jordan, IV, Pittsburgh, for appellee.

Before BECK, JOHNSON and MONTGOMERY, JJ.

BECK, Judge:

This is an action in medical malpractice that arose out of breast augmentation surgery performed by the defendant-appellee, Dr. William S. Garrett, Jr., on plaintiff-appellant, Marian Naccarati, in April of 1979. Mrs. Naccarati claims that subsequent to insertion of the breast implants she developed extreme drooping of the breasts, hardness of the breasts, and bruises due to post-operative procedures designed to reduce the hardness. The Naccaratis brought the action on two theories: negligence in that Mrs. Naccarati's prior condition did not warrant breast augmentation surgery and lack of informed consent in that Mrs. Naccarati was not fully informed of the risks of this kind of surgery. After trial, the jury returned a verdict in favor of the defendant, Dr. Garrett. The trial judge denied plaintiffs' motion for a new trial, and this appeal followed.

On appeal, appellants raise two issues: (1) whether the trial court erred in denying appellants' motion to withdraw a juror on the basis that an answer given by the defendant on direct examination was hearsay and unfairly prejudiced the jury against the plaintiff; and (2) whether the trial court erred in instructing the jury on the issue of professional negligence.

Appellants' first issue requires us to consider a portion of the trial record. On direct examination, Dr. Garrett, the defendant-appellee, had testified that he had regarded as "acceptable" the result of the cosmetic surgery he had performed on Mrs. Naccarati. He testified that he believed Mrs. Naccarati did not need a mastopexy (breast lift surgery) to correct sagging breasts. There followed this exchange:

Q. Could the implants be removed?

A. Oh, yes, this operation is completely reversible. It's rather easy to take the implants out. It's much easier to take them out than to put them in. You can just put a little Novocaine in the incision and reopen the incision and express the implant and take it out very easily. It's interesting that that's an operation that is very infrequently done. I have had one patient who asked if I would remove her implants, and maybe without being too anecdotic, it might help you to understand some background if I told you--

MR. MORAN: Your honor, excuse me. I would object to any statements about what other patients said to Dr. Garrett as hearsay.

THE COURT: Well, this isn't hearsay in a sense that it was a question of what--that any--it was related to the case. So, I'm going to overrule your objection.

THE WITNESS: For an example, a patient who had implants put in really at the insistence of her husband, she knew that I would not have approved of that and she kept that information from me and I did the augmentation. It turned out her husband was a wife beater. It's not related to this case, of course, but it turned out that her husband was a wife beater, and she finally went through counseling and she divorced him, and she came back and said, "Would you remove my implants? My husband did that, and I'm through with him and I want to be back like I was." And I said, "Yes, I think that's perfectly reasonable," and I took her implants out. She's the only patient who's ever asked me to do that.

N.T. May 15, 1984, at 82-83.

After seven more questions and answers, defendant's counsel, Mr. Heintzman, concluded his direct examination and this exchange followed:

MR. MORAN: May we approach the bench, Your Honor?

THE COURT: All right.

(Whereupon the following Side-Bar discussion is held:)

MR. MORAN: Your Honor, I have made the objection to the hearsay of Dr. Garrett. After the hearing the anecdote that he related, and specifically making some allusion to the fact that the woman who requested removal of her implants was married to a husband, a wife beater, I think that that is extremely prejudicial, and I'm going to move for the withdrawal of a juror.

MR. HEINTZMAN: Well, but he also specifically said it has nothing to do with this case.

THE COURT: I'm going to deny that.

MR. MORAN: Thank you, Your Honor.

(Whereupon the Side-Bar discussion is concluded.)

N.T. May 15, 1984, 84-86.

The issue as framed by appellant has two grounds: that the trial court erred in overruling the hearsay objection and that the court erred in not granting a mistrial based on the prejudicial nature of the answer. We hold that much of Dr. Garrett's anecdote about the patient who asked to have implants removed was indeed hearsay. The statements that the patient's husband was "a wife-beater," that the patient "went through counseling," and that she divorced her husband were clearly offered for their truth. Dr. Garrett did not say how he acquired this information, but it is unlikely that it was by personal observation. The source, therefore, was an out-of-court declaration, probably by the patient, to Dr. Garrett. Thus, the statements were hearsay. Kemp v. Qualls, 326 Pa.Super. 319, 327-28, 473 A.2d 1369, 1373 (1984).

Appellee claims that the statements are admissible under the exception to the hearsay rule for statements made to a physician for the purpose of obtaining advice and treatment. Fed.R.Evid. 803(4) provides that the hearsay rule does not exclude "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." Language very...