*3 ROWLEY, Before MONTEMURO, WIEAND and JJ. ROWLEY, Judge: wrongful action,
In this death and survival plaintiff/ap- Jistarri, pellant, Angelo administrator of the of his estate mother, Jistarri, Adeline appeals timely judgment from the *4 entered in defendants/appellees favor of June on action,
Appellant present instituted the against Doctors Mattei, Codario, Nappi, Dominic Frank Ronald and the Saint (hereinafter Agnes Medical Center Agnes”). “Saint He alleged Nappi that Doctors and Codario had been negligent in their treatment of Mrs. Jistarri and Agnes, that Saint hospital in treated, which Mrs. Jistarri was was on a liable theory of apparent ostensible or agency. alleged The liabili- of Dr. ty Mattei was premised solely position as Dr. Agnes Dr. Nappi’s partner. subsequently joined Man- Saint an additional gino as defendant. action, giving present alleged by
The facts rise to the as resident, Mangino, orthopedic are that Dr. an appellant, negligently applied a cast Mrs. Jistarri’s broken wrist causing an ulcer to adequate padding, thereby without cast; Nappi, orthopedist, negli- Dr. an develop beneath and to the infec- diagnose failed to remove cast gently tion; staphylococcus the ulcer allowed a aureus infection to bloodstream; spread enter Mrs. Jistarri’s and the infection heart, damaged weakening Jistarri’s thereby to and Mrs. rendering complications her and her to the susceptible eventually caused her death. Codario,
The case tried before a Dr. an inter- jury. was charge nist and the of the treatment of primary physician infection, granted Mrs. Jistarri’s aureus a com- was presentation plaintiff’s nonsuit at the close pulsory 25, 1986, the September jury case. On returned a verdict defendants, remaining favor of the who are now before us denied, appellees. Post-trial motions were filed and judgment defendants/appellees. was entered favor appeal appellant this contends that the trial court erred 1) instructing on the standard of care of an jury resident; orthopedic 2) instructing the jury physician or guarantee does not warrant a cure the result of treat- 3) ment; and denying appellant to read certain Codario, of Dr. adverse party. below, For the reasons set forth we affirm. began
The events at issue herein on September Jistarri, old, eighty-five when Mrs. who was suffered years a fall in her home. X-rays days taken two later at Saint Agnes revealed an acute fresh fracture of the left wrist. 19, 1980, September Mangino On Dr. to Mrs. applied a cast Agnes. left in the room at emergency Jistarri’s wrist St. told Agnes orthopedic She was to return to the St. clinic at a later date in order cast Dr. by Nappi. to have the checked September On Mrs. Jistarri came to the clinic and Nappi, signs examined Dr. no reported who *5 588 trial, however,
discomfort with the cast. At appellant testi- swollen, fied that at that time his mother had purple fingers of complaining pain. September 24, 1980, and was On Mrs. brought Agnes Jistarri was the St. room emergency of complaining chest pain was admitted into the of care Dr. Codario. Blood cultures presence revealed the staphylococcus aureus September 29, 1980, infection. On removed, revealing the cast was an area redness with exudate. later days Several an ulcer was found in the same A area. taken from culture the ulcer revealed au- reus. responded treatment, The infection well to and by Mrs. Jistarri appeared enough mid-November well to leave so, however, hospital. She did not do owing her inability of children to care for her at home. On 15, 1980, December she became ill A again. number complications developed, 27, died she on December
Appellant challenges two aspects the trial court’s instructions to the To determine jury. whether the trial court erred instructing jury, claimed appellant, must read the jury we instructions their entire 571, ty. Hospital Dohan, Riddle Memorial v. 504 Pa. (1984); 475 Starcher, A.2d v. Spearing 22, 29-31, Pa.Super. 532 A.2d To constitute error, reversible a must jury instruction be shown to have erroneous, only been not but harmful to appellant. also Anderson v. A.2d Hughes, (1965); Starcher, Spearing charge v. If a supra. wholly inadequate unclear, or or if it tendency mislead and issues, confuse rather than to a new clarify trial will granted. Starcher, Spearing supra. first
Appellant challenges the trial court’s instruction concerning standard care which Dr. Mangino, orthopedic resident, held. ex- should be The trial court plained that:
A resident is a physician receiving licensed training Now, in a he specialty hospital. was not fully-trained any general practitioner nor he a without orthopedist training. specialized *6 skill, therefore, degree exercise that of is, held to
He
orthopedic
normally possessed by
care
learning and
Mangino.
of Dr.
resident
the circumstances
care,
physician
a
this
standard
professional
Under
develop-
contemporary
informed of the
keep
must also
and he
specialty
medical
and his
profession
ments
knowledge.
and
use these current skills
must
9/24/86,
that
the trial
N.T.,
Appellant
at 197.
contends
Mangino
that Dr.
should
instructing
jury
erred
court
skill,
degree
learning,
held to exercise the same
be
residents
the same
possessed by orthopedic
normally
care
holding in Pratt v.
Relying on this Court’s
circumstances.
Stein,
(1982),
444 A.2d
Pa.Super.
appellant
resident
held to the
orthopedic
that an
must be
asserts
orthopedic specialist.1
as an
same standard
care
Stein,
supra,
defendant/appellant
Pratt
had erred in
on
that the trial court
hospital argued
appeal
residents were
be
instructing
hospital’s
that the
jury
The basis
“ordinary physician.”
standard of an
held to the
there had been
while
hospital’s objection
of care for a
concerning the standard
testimony
extensive
the standard of
concerning
none
specialist, there had been
that the courts of
nonspecialist.2
It was noted
care for
ques
directly
never
addressed
this
had
Commonwealth
to the standard of a
a resident should be held
tion whether
consider,
contend,
we do not
Appellant does not
and therefore
1.
is so basic
proper application of a cast to a broken wrist
whether
non-specialized
procedure that it falls within the standard of
practitioner.
expected
general
even of a
care to be
present
Appellant
in the
case. He asserts
makes a similar claim
Balensweig,
was a board-cer-
“[appellant’s]
witness Dr. Howard
specialist.
testimony
whether Dr.
orthopedic
There was no
as to
tified
Mangino
comply
some lower standard of care for
failed to
with
11).
(Brief
Appellant
We are unable to
orthopedic
at
residents”
claim,
transcript
Balensweig’s videotaped
of Dr.
this
as a
evaluate
certified
been included in the record that has been
has not
providing
complete
responsibility for
and com-
Court. The
to this
Williams,
appellant.
prehensive
with
Commonwealth v.
record rests
Pa.Super.
516 A.2d
general practitioner or
specialist.
The Court described
as “a sound conclusion” the ruling of the United States
District Court in Harrigan
States,
v. United
408 F.Supp.
(E.D.Pa.1976),
that a resident should be held to the
standard of a specialist
when
resident
acting
within
his field of specialty.
Stein,
Pratt v.
298 Pa.Super.
not instructed to use the “less exacting standard of care applicable to a non-specialist.” Such an instruction would clearly have been error under Pratt v. Stein. To the contrary, the trial court in the present case in- explicitly formed the jury Mangino Dr. was not a general practitioner any specialized without training. The court explained to the jury exactly what Dr. Mangino was: “a licensed physician receiving training in a in a specialty hospital” (emphasis added). Further, the court went to say Mangino that Dr. was required to “keep informed of the contemporary developments in the medical profession and his specialty (emphasis added). ...”
Whether a resident should be held to an intermediate care, standard of such as that which the trial court instruct ed the to in jury apply present case, the is an issue that was before us Pratt v. Stein.3 We conclude that the trial foreign 3. Our jurisdictions research into the law of has revealed a dearth of case law on applied the standard of care to be to a resident. The courts of California have held that a resident who holds himself specialist out as a shall be held to expected the standard of skill specialist, though physician even the defendant completed only had
591 Dr. instructing apply did not err in jury court general of care than that for Mangino higher standard fully orthopedic but less than that for trained practitioners recognizes Mangi- Such an instruction that Dr. specialists. training general practitioner no has had more than a but To a resident fully orthopedist. require less than trained to meet the same standard of care as a trained fully unrealistic. A resident had specialist may would be have only days training specialized residency or weeks hand, on the other program; specialist, complet- will have also have had residency program may years ed in the field. If experience specialized require we were degree resident to exercise the same of skill and train- would, effect, ing specialist, requiring as the we impossible. resident do the holding, reality
In so
we do not
“the
...
that the
deny
majority
day-to-day
patient
vast
treatment which a
hospi-
a resident
employed by
receives
rendered
Stein,
Pratt v.
tal,”
708,
Pa.Super.
A.2d at
if a situation
plaintiffs
nor do we leave
without recourse
given responsibilities
arises
which a resident has been
training reasonably
that exceed the level of skill and
to be
expected
learning
specialty.
of one who is still
his or her
responsibility
training
supervision
The ultimate
for the
employing hospital,
of residents lies with the
and it is to
residency.
Hospitals,
one-third
Valentine v. Kaiser Foundation
(1961),
Cal.App.2d
Cal.Rptr.
disapproved
on other
Weber,
grounds,
Cal.Rptr.
Siverson v.
57 Cal.2d
372 P.2d
*8
(10th Cir.1978)
Reeg
Shaughnessy,
See also
Appellant also asserts that the trial court erred in instructing the jury that a physician does not warrant a cure guarantee or the result of his or her Ap treatment. pellant concedes that instruction, itself, in and of is a correct statement of the law. Hand, See Collins v. 246 A.2d (1968) (in special absence contract, a physician neither warrants a cure guaran nor treatment). tees the result of argues, however, He that as he had not made any claim based on a warranty theory, the trial court’s instruction confused the jury. The relevant portion of the jury instruction is as follows:
Professional negligence, also malpractice, known as con- sists of a careless or unskilled performance aby physi- cian of the duties imposed upon him by professional relationship patient. with his
It is negligence also physician when a shows a lack of proper care and performance of a professional act.
However, a physician cure, does not warrant a nor does he guarantee the result of his treatment.
N.T., 9/24/86, at 195-96. When the instruction to which appellant objects context, is read in it is apparent that the trial not, court did appellant asserts, “introduce a con- cept (Brief which had no place this case” for Appellant at 19). Instead, gave the court the jury piece of information that was if necessary they were fully understand the concept negligence. Having read the instructions in their entirety, must, as we we conclude that the trial court did not err in giving the instruction in question.
Appellant’s final issue is whether the trial court erred in denying request read of Dr. disputed Codario. The portions of the deposition are not included in the record that has been certified to this Court. Appellant allege, does not imply, Agnes we do not that Saint necessarily should theory present held liable on such a in the case. *9 asserts, however, Appellant that in the excluded deposition, Dr. Codario states repeatedly that opinion infection entered Mrs. blood- Jistarri’s through stream the ulcer her under cast.
Dr. Codario’s was taken on July letter appellant’s dated April counsel informed counsel, appellees’ “in lieu of Expert Answers to Witness that he Interrogatories,” intended to read the deposition of Dr. Codario at trial. After receiving objections to this plan counsel, from appellees’ appellant’s them, counsel informed letter dated June light that of their objections he now intended to call Dr. expert Codario as an trial, at witness and “in lieu of expert answers to witness interrogatories, kindly refer to Dr. signed deposi- Codario’s tion....” began
Trial on September 1986. At trial appellant’s counsel called Dr. on Codario as cross-examination and informed the court he intended to offer him as an expert in internal witness medicine and to ask him opinion (N.T., 9/18/86, 127). questions at Appellant’s ex- counsel plained that “I him offering least, am at this at point, a witness for [appellant]. He is an adverse admissions, party; but he has made opinions, including case, are (N.T., relevant to this and I intend elicit those” 9/18/86, 129). at Counsel for the opposing parties, includ- ing Codario, Dr. raised number of objections: appellant had witness, not listed Dr. Codario as an expert he could not require Dr. give expert Codario to against his will, and he should not be allowed obtain testimo- ny from Dr. Codario refusing while at same time witness, Dr. offer Codario as his thereby retaining the advantages that accompany questioning of a witness as (N.T., 9/18/86, 128-136). on cross-examination at Instead on ruling counsel’s opposing objections, the trial court parties provide asked all memoranda law the issues (N.T., 9/18/86, 135). that had been raised Appellant’s counsel proceeded non-opinion questions to ask of Dr. Co- dario. The day, appellant’s next counsel informed the court *10 of Dr. portions into Codario’s read evidence
that he would of opinion questions not he would ask but that deposition 4-5). result, the trial 9/19/86, at As a (N.T., Dr. Codario plan initial appellant’s to objections not rule on the court did Dr. of Codario. opinion questions ask to into to read attempted counsel However, appellant’s when Dr. Codario in which deposition of the portions evidence cast the ulcer under Mrs. Jistarri’s opinion in his stated that infection, counsel opposing staph of her the source was testimony con- opinion They argued again objected. objections to the same subject deposition in the was tained on the wit- testimony given opinion raised to as had been addition, deposition Dr. that, in Codario’s stand, and ness Dr. discovery deposition, aas purely noticed had been at opinions give expert prepared had not been Codario prepared not counsel had been opposing deposition, witness, opposing expert if he were an him as cross-examine all concerning stipulations the usual had agreed counsel portions disputed and the questions, form of the but 11-21). 9/22/86, at (N.T., hearsay contained deposition reading the counsel from appellant’s The trial court barred gave his Dr. Codario which deposition of the infection, reasoning staph source of the as to the opinion evidence substantive constituted these statements 28-37). 9/22/86, Appel- (N.T., at other defendants against non-opinion portions into evidence counsel then read lant’s case appellant’s evidence as substantive deposition of the question counsel did 9/22/86, 33). (N.T., Appellant’s as concerning stand Dr. on the witness Codario infection. to the source within is a matter admissibility The court, decision will whose of the trial sound discretion that discretion. clear abuse reversed absent not be Pa.Super. 357 University, v. Thomas Pascone Jefferson denied, Pa. 384, (1986), 517 appeal 386 524, 529, 516 A.2d Moreover, may affirm (1988). we 320, A.2d 338 ground. any if is correct on court it of the trial decision Products, Inc., Iceland Co. v. E.J. McAleer & 381 A.2d 4 (1977); n. 443 n. Pascone v. Thomas supra. We note also order University, that an Jefferson refusing trial will grant new not be disturbed absent manifest abuse discretion or an error of law. Bell v. Pennsylvania Pa.Super. Western Hospital, A.2d opinion, explains its the trial court that appellant
was denied
challenged
to read the
portions of the
1) appellant
because
attempting
to introduce
an expert opinion
having
without
identified Dr. Codario as
an expert
having
and without
furnished a
of his
synopsis
expected testimony,
required by
4008.5;
2)
Pa.R.C.P.
*11
an expert
compelled
witness
not be
to
may
give an opinion
against his
appellant’s
will. Resolution of
contention that
the trial
so holding
court erred in
requires that we examine
several of the Rules of Civil Procedure. Appellant relies on
4020(a)(2)
(5)
Pa.R.C.P.
support
argument
to
that
the trial
in refusing
court erred
to allow the disputed
portions
deposition
of the
to be read into evidence. Rule
4020(a)(5),
provides
which
that the
of
deposition
a medical
witness, other
party, may
than a
be used at trial
any
for
purpose, regardless of the
availability,
inappli
witness’s
is
cable
the present
Although
case.
Dr. Codario was even
granted
nonsuit,
tually
a
he was still a party
appellant
when
to
sought
introduce
portions
deposition
into evidence.
Therefore,
4020(a)(5)
Rule
not
4020(a)(2),
does
Rule
apply.
hand,
the other
deposition
the
provides
which
of a
may
an
party
party
be used
for
by
any purpose,
adverse
is
applicable. However, it contains a limitation not acknowl
edged by appellant:
deposition may
the
only
be so used
as it is admissible under
the rules
evidence.5
insofar
In general, therefore, the
test
admissibility
deposi
tion
4020(a)(2)
under Rule
is
same as that
admissibility
by
of like testimony offered
witness on
Philadelphia Theological
Seminary,
Pa.Super.
Rivera v.
A,2d
(1984),
(1986),
modified,
stand in
court. Pascone v. Thomas
Univer
open
Jefferson
530, at 387.
Pa.Super.
Appellant
at
A.2d
sity,
of Dr. Codario as that of
deposition testimony
proffered
There
in the field of internal medicine.
expert
an
witness
though
fore,
deposition,
of the
even
disputed
meet the
party,
are
of the
must
they
part
in general
is held.
expert testimony
standards to which
court that
agree
appellant
do not
with the trial
We
to introduce Dr. Codar
give
failed to
notice of his intention
that a
testimony.
provides
party
io’s
Rule 4003.5
expert
other
to
through interrogatories,
require any
party
may,
to call
person
party expects
each
whom the other
as
identify
trial,
matter on
subject
to state the
expert
an
witness
testify,
and to have
expert
expected
which the
in a
state,
interrogatories
to the
or
expert
either
answers
opinions
of the facts and
the substance
separate report,
expected
testify
summary
or she is
which he
procedure
the notification
opinion.
for each
While
grounds
ideal,
hardly
say
we cannot
by appellant
chosen
might
denied notice that Dr. Codario
appellees were
in
They
witness.
were
by appellant
called
trial, by
the letter of
prior
formed almost five months
24, 1986, that Dr. Codario
April
counsel dated
appellant’s
*12
would,
effect,
an
and that
expert
in
offered as
witness
be
contained in
that which was
opinion testimony
his
would be
prevent
of Rule 4003.5 is to
purpose
The
deposition.6
occur if one
unable to
party
unfairness that would
were
the.
produced at the
expertise
surprise
counter the
witness
Hoerner,
v.
opposing party.
last minute
See Clark
by
(1987).
588, 598,
A.2d
382
The notice
362
525
Pa.Super.
case
sufficient to
present
in the
was
provided by appellant
in
opinion testimony,
to counter the
whatev
appellees
allow
offered, of Dr. Codario.
might
er form it
requirements
Appellant
the notice
of Rule
does not assert
that
expert
discovery
opinions of an
witness
apply to the
4003.5 do not
Lu,
Pa.Super.
party.
by Neal v.
who is a
See Neal
(1987),
by appellant
proposition.
for another
A.2d
cited
The second reason offered
by
trial court
support
ruling
of its
allowing
disputed
to be read into evidence would be tanta
to compelling
mount
Dr.
an
give
Codario
expert opinion
The
against his will.
for the
basis
trial court’s
ruling
Supreme
holding
our
Court’s
Co.,
Evans Otis
v.
Elevator
case,
A.2d
In that
defendant/ap
pellant
sought
Geise,
Otis
expert
call Mr.
by
an
retained
Evans,
plaintiff/appellee
witness,
as a
both
testify
factu
al
expert,
and
for Otis.
already
Geise had
been examined
Evans
by
by
and cross-examined
Otis. The trial court
recognized
the expert’s
testify
expert
not to
an
as
witness for the adverse party,
Supreme
and the
Court
Id.,
affirmed.
Appellant suggests several why reasons the rule of Ev- ans Otis Elevator Co. should not be applied First, present argues case. he the area of medi- “[i]n cal causation the line opinion between fact and is often (Brief Appellant times unclear” 16), at and therefore Dr. Codario’s determination of the source of Mrs. Jistarri’s infection could be considered a fact rather an expert than opinion. However, appellant characterized the disputed portions of the deposition opinion as argu- court, ments the trial he and cannot now argue differ- Moreover, ent this theory to Court. Dr. Donald Kaye, specialist board-certified in internal medicine and infectious diseases who was called witness Doctors Nappi Mattei, testified that in his there were possible sites, three all equally likely, at which the infection could have entered Mrs. Jistarri’s bloodstream: ulcer; leg, her which tender; had been swollen and a non-apparent (N.T., skin 9/22/86, 142-143). lesion at Dr. Kaye added that the lungs possible were likely but less 9/22/86, (N.T., source 143-44) at and that he was unable to say awith reasonable degree medical certainty where infection (N.T., 9/22/86, had entered the bloodstream 158). Dr. Codario’s determination of the source of the *13 infection cannot be viewed a reasonably as matter of fact if that “fact” disputed is by expert. another
Second, 4011(f), which out that Pa.R.C.P. appellant points would discovery permitted that would be which provided no give a an party, a or not require deponent, whether objection, over his has been expert as an witness Lu, Neal Neal v. Pa.Super. by See rescinded. however, us, The issue 530 A.2d before discovered, can admitted into not can but what be what be clear, 4003.17 makes infor- at trial. As Pa.R.C.P. evidence during discovery even may properly sought mation be not be admissible at trial. though may that information give Dr. could not refuse to Therefore, the fact that Codario in of his does not deposition the course expert opinion in portions deposition expert that the of his which mean expressed are must be admitted into evidence. opinions the to refuse to appellant suggests Finally, was party, for the adverse which give expert Co., can Elevator claimed only affirmed Evans Otis in non-party expert expert witness. While the witness by its terms non-party, holding by in indeed a that case was not appellant suggest- non-parties, is not limited to Moreover, al- holding should be so limited. why ed at the time that party Dr. to the case though Codario was into evi- deposition his admitted appellant sought have excluded dence, respect to the position with if he had no different than essentially was appellant asked by who had been non-party been by the other concerning the care exercised testify defend- brief, explains As physicians. ant appellant fundamental issues this case was whether [o]ne Mrs. Jistarri's infection entered blood- aureus her found under through the ulcer was stream which certified Ronald Codario is a board cast. Defendant at- primary medicine and in internal specialist care treatment charge tending physician Adeline Jistarri. systemic infection suffered for states, objection ground pertinent part, "It is 7. Rule 4003.1 sought [through discovery] be inadmissible will the information reasonably sought appears calculated the trial if the information discovery of admissible evidence." lead to the *14 During pretrial deposition Dr. Codario was questioned as repeatedly to whether he was able to determine the the source of infection. Dr. Codario stated on at least eight occasions his deposition that the source of the infection was the ulcer under her cast.
(Brief 12; added.) for Appellant at emphasis As this state- clear, ment makes Dr. Codario treated Mrs. Jistarri after systemic infection had developed. Appellant does not of having infection, accuse Dr. Codario caused that nor has appellant appealed grant of a compulsory nonsuit to Dr. Thus, it beyond Codario. dispute that Dr. Codario’s statements concerning staph infection, the source of the if admitted into evidence at a trial requested new by appellant, would address Dr. Codario’s own liability, but rather that the other defendant physicians. us,
The question
therefore,
before
is not whether a medi-
cal
who is also
may
required
a defendant
be
give
expert testimony that
negli-
is relevant to his own allegedly
conduct,
gent
but whether such a witness may
required
to give expert testimony concerning the allegedly negligent
conduct of other defendants. We conclude that he
not.
may
If appellant
present
desired to
expert testimony concerning
origin
of the staph infection as substantive evidence
against
Nappi, Mattei,
Doctors
Mangino,
he was free to
witnesses;
fact,
retain his own expert
appellant retained
Dr.
Balenszweig,
orthopedic specialist. Given our Su-
preme Court’s
Co.,
v.
Evans Otis Elevator
holding
how-
ever, appellant was not free
require
Dr. Codario to give
expert testimony, against
will,
against the other defend-
private
ants.
litigant
has no more
compel
“[T]he
citizen to give up
product
brain,
of his
than he
compel
giving up
Pennsylvania
things.”
material
Insurances, etc.,
Company
Trustee
Philadelphia,
(1918),
WIEAND, J., concurring dissenting opinion. files a *15 WIEAND, concurring dissenting: and Judge, that court correctly the the trial agree majority I with (1) of care for an the on the standard jury instructed (2) that a does not war- physician resident and orthopedic follow, however, reasons which I cure. For the rant a the determination that majority’s dissent from respectfully not physician could be read the defendant depositions the the jury. issue, I would that the control- respect this hold With 4020(a)(2), provides which as authority Pa.R.C.P. ling follows: far or all of so as
(a) trial, part deposition, At the a any evidence, may be used under the rules admissible represented or the any present who was against party thereof if or who had notice taking deposition the any following one of accordance with required, provisions: by used
(2)
party
may
The
...
be
purpose.
party
any
adverse
for
to use Dr.
permitted
be
required
appellant
This rule
that
he
including the
wherein
depositions,
portion
Codario’s
had
the decedent’s
the
infection
entered
that
opined
under
cast.
the ulcer
her
through
stream
blood
Pennsylvania
decisions of the
majority
upon
The
relies
Pa.
Co., 403
v. Otis Elevator
Court
Evans
Supreme
(1961)
Insu-
Pennsylvania Company
168 A.2d
Annuities, Trustee
Phil-
Granting
Lives
rances
(1918).
My appellate no court decision in this Commonwealth which physician holds who is a party cannot be examined about his medical without issue, however, consent. The was considered at trial court level in a by decision the Court of Common Pleas of Northampton Pohlidal, County Decker v. 22 D. C.2d& There, the trial court rejected the rationale upon relied majority case. It instant reasoned as follows:
Defense counsel contends objections that his should be sustained on the theory Doctor Pohlidal cannot by plaintiff asked express expert opinion on any *16 In support matter. of this contention counsel cites case of Penna. Ins. Co. on Lives and Granting for 439, wherein, Annuities v. Philadelphia, 262 Pa. pages Simpson Justice stated: process “The of the courts may always be invoked to require witnesses to appear testify and to any facts knowledge; within their but no private litigant has a that____ to right go ask them to beyond the private But no litigant has more to compel a citizen to give up brain, product than compel he the giving up of In things. material each case it is a matter which, ever, bargain, make, it takes two to and to make unconstrained.”
We cannot and do not objections sustain defendant’s on ground. this Theforegoing expert witness rule is inap- plicable defendant-doctor, where expert, himself
602 no sound In such situation malpractice.
on trial for questioning between can be drawn distinction defend- concerning him questioning and ant-doctor as fact inextricably are since opinion, fact as to whether issue on the intermingled fundamental standards in accepted departed from defendant-doctor diagnosing plaintiffs injuries. treating this added). my judgment, Id. (emphasis at 639-640 reasoning is sound.1 adopted uniformly have jurisdictions other
The courts of
may ques
concluding
plaintiff
that a
reasoning
similar
require
matters which
regarding
physician
a defendant
tion
See, e.g.: Lawless v.
opinion.
medical
expression
Abbey
v.
(1944);
Calaway,
81,
604
24
147 P.2d
Cal.2d
Hartwell,
Nishi v.
Jackson,
(D.C.App.1984);
by the of the New York of Appeals Court Eye, McDermott Manhattan Ear Throat Hospital, & supra, where the Court said:
There is nothing unfair about such a practice. Unlike counterpart his prosecution, a criminal the defendant suit no or, a civil inherent to silent remain once stand, to only on answer those inquiries which will no Rather, must, have adverse effect his he case. if as a witness, respond virtually called all questions information, at eliciting aimed he may possess relevant to issues, his though even such testimony on matters further the might plaintiffs agree case. We cannot with suggestion it is sporting somehow neither nor adversary consistent with the system party allow prove opponent’s (see, case through own Osborn v. 168, Carey, e.g., Idaho 132 P.
supra; see, also, Comment, 449-450) 5 So.Cal.L.Rev. but, view, prefer whatever the merits of this we that, present, believe a situation such as the “[t]he requirement ultimate that judicial decisions be based on * * * facts any might overcomes detriment which (Friedenthal, the adversary system”. suffered Dis- covery Expert and Use of Adverse Party’s Informa- tion, 487; see, also, King, Stan.L.Rev. The Ad- Expert Witness Opinion, verse Statute Wayne 228, 229.) L.Rev. arriving are just
Courts intent decisions upon upon expedient employing properly means to attain such an If in malpractice may end. defendant action truthful-
ly testify that his conduct conformed to the standard required, is, course, his case substantially strength- and, ened if he cannot so the testify, plaintiffs [sic] chances of recovery are unquestionably increased. In case, either the objective of the court in doing justice is achieved. that,
It is true in People ex rel. Kraushaar Bros. & Co. 223, 296 N.Y. Thorpe, 72 N.E.2d upon which the courts below and the defendants rely, this court explicitly person held that a may not compelled be to testify and give opinion his expert against an his will. Our in holding Kraushaar, however, is not dispositive of the case,
issue now us. (a before the witness real appraiser) estate testify called to as an expert was not a party to the action. independent, Such an disinterested witness, held, we could not required to testify as an expert. That our in decision Kraushaar was not con- cerned with the situation where the expert and the de- fendant are one and the same person implicit is from the very tone of opinion and, itself more importantly, from the reasoning underlying decision. That reason- ing, although not in expressly opinion, articulated relied in upon State, Buchman v. 59 Ind. a case cited approval (296 with in N.Y., Kraushaar at p. N.E.2d, 166). p. As (59 the Indiana court noted Ind. “6), ‘to compel person a to attend merely because [a trial] he accomplished is in particular science, art, profes- or sion, would subject same individual to upon, be called in cause in every any which in question department knowledge Thus, is to be solved. the most eminent * * * physician might be compelled to attend from the part district, remotest give every trial in which a medical question should arise' ”.
It is quite clear that no such
or
burden
unfairness occasioned by
practice
of compelling doctor,
who is
actually a
malpractice action,
defendant
to testify
is,
as an expert.
therefore,
It
permit
inconsistent to
the plaintiff to question the defendant as
even
though we would not
him
accord
the same right with
respect
unwilling
to an
witness who is
way
no
connect-
ed with the action. The very inability of a
malpractice
to compel
action
the attendance and testimo-
ny
a “disinterested” medical witness underscores the
need and
importance
allowing such a plaintiff
opportunity of questioning his
as an
adversary
expert.
McDermott v. Manhattan Eye, Ear &
Hospital,
Throat
*19
supra,
28-29,
72-73,
N.Y.S.2d at
It must necessarily follow this reasoning from court it trial erred when refused allow to read to jury deposition testimony Codario, of Dr. a party to Dr. Codario, however, defendant. As the error was receipt harmless. The of his testimony regarding the entry infection, the staph as the majority explained, would not have altered for his non-liability, treatment of the patient did not commence until after the infection had him, developed. As the compulsory proper- non-suit was entered. ly reasons,
For these I would reverse remand for new against trial the claims all except defendants Dr. Codario. him, I As would affirm.
Superior Pennsylvania. Court of
Argued June 1988.
Filed Oct.