Mara REICHMAN, Appellant at No. 2261 Phila. 1980, v. Edward WALLACH, M.D. and the Pennsylvania Hospital. Appeal of Edward WALLACH, M.D., at No. 2198 Phila. 1980 and No. 450 Phila. 1981.
No. 2261 Phila. 1980, No. 2198 Phila. 1980, No. 450 Phila. 1981
Superior Court of Pennsylvania
October 29, 1982
Petition for Allowance of Appeal Denied March 14, 1983
452 A.2d 501
Argued May 28, 1981.
On appellant‘s petition, No. 416, Philadelphia, 1981, filed after submission of this appeal, and agreed to by the Commonwealth, we remand so that there may be a hearing on post-trial motions based upon after-discovered evidence. This remand is without prejudice to appellant being able to raise, on a future appeal, after the after-discovered evidence issue has been litigated in the lower court, the same issues he has raised on this appeal.
Aрpellant‘s petition for remand is granted and the record on this appeal is remanded to the lower court for further proceedings consistent with this opinion. We do not retain jurisdiction.
James E. Beasley, Philadelphia, for Reichman.
Before WICKERSHAM, WIEAND and McEWEN, JJ.
WIEAND, Judge:
In this medical malpractice case Mara Reichman sought damages for ulcerative colitis and neuroses, which she contended had been caused by stress resulting from a failure of a gynecologist and agents of a hospital to prevent and/or correct promptly internal bleeding which followed the performance of a hysterectomy. A jury returned a verdict for $429,960 against the gynecologist, Dr. Edward E. Wallach, and also against The Pennsylvania Hospital. The trial court subsequently set aside the verdict against the hospital and entered judgment n.o.v. in its favor. Dr. Wallach‘s post verdict motions were denied, however, and he appealed from the judgment entered on the verdict. Mrs. Reichman ap
Mara Reichman consulted Dr. Wallach in October, 1973, after a routine physical examination had disclosed the presence of a pelvic mass. Dr. Wallach‘s examination confirmed the presence of the mass, but it was not possible by еxamination to determine the precise nature of the tumor or whether it was malignant. This was explained to Mrs. Reichman. Dr. Wallach recommended that she undergo a laparotomy, with removal of the uterus, fallopian tubes and ovaries. Mrs. Reichman hesitated, but by November 13, 1973, the mass had increased in size and was palpable abdominally. Dr. Wallach again recommended a total hysterectomy. Still Mrs. Reichman hesitated. After consulting further with Dr. Viner, her internist, who made a separate examination, Mrs. Reichman consented to surgery. According to her testimony, she instructed Dr. Wallach not to remove her ovaries unless they were diseased and “life-threatening.” Mrs. Reichman was admitted to The Pennsylvania Hospital on December 4, 1973, and on December 7 a total abdominal hysterectomy and bilateral salpingo-oophorectomy was performed.
Because Mrs. Reichman had a history of hypertension and high blood pressure, Dr. Viner requested that Dr. Troncelliti, chairman of the hospital‘s anesthesia department and supervisor of the recovery room, administer a spinal anesthetic. Surgery began at 8:00 o‘clock, A.M., and was completed without observed complications by 10:00 o‘clock, A.M. Because the natural tendency of the spinal anesthesia administered to Mrs. Reichman was to paralyze the sympathetic nerves and dilate the vessels, thus lowering the patient‘s blood pressure, her blood pressure was artificially elevated during and following surgery by the use of neo-synephrine. When its use was discontinued in the recovery room at or about 1:00 o‘clock, P.M., Mrs. Reichman‘s blood pressure fell precipitously. Consequently, the use of neo-synephrine was resumed, and Mrs. Reichman was monitored closely for signs that a normal blood pressure was returning. Because of the
Post operatively, Mrs. Reichman developed abdominal pain, vomiting, nausea, diarrhea, and an inability to eat solid foods. She also lost weight, and an abnormality of her liver enzymes was discovered. These symptoms, she testified, continued after her discharge from the hospital on January 18, 1974. There followed a series of four hospitalizations during the next seven months, none of which disclosed the etiology of Mrs. Reichman‘s symptoms. In February, she returned to Pennsylvania Hospital for five days with the same complaints. On March 6, she was readmitted, only to be discharged on March 11 without diagnоsis. Her symptoms persisted, however, and she also developed a temporary swelling of the face and legs and hemorrhagic cystitis. On April 7, she was admitted to the Hospital of the University of Pennsylvania and remained there for nine weeks, during
Mrs. Reichman continued thereafter under the care of Dr. Zimmerman and, on September 20, 1974, a sigmoidoscopic examination disclosed the presence of ulcerative colitis, a chronic, debilitating disease of the large intestine. Dr. Zimmerman and Dr. Rieger, an expert witness employed on Mrs. Reichman‘s behalf, testified that there is no cure for ulcerative colitis, that persons suffering from the disease require medical care for the remainder of their lives, and that in some cases a colostomy is required during the later stages of the disease.
I. THE MOTIONS FOR JUDGMENT N.O.V.
In order to establish the liability of the defendants, appellee was required to establish by competent evidence that the conduct of Dr. Wallach and the agents or employees of The Pennsylvania Hospital had fallen below the standards of reasonable medical practice, and that her injuries had been caused by their failure to provide such medical care. Brannan v. Lankenau Hospital, 490 Pa. 588, 595, 417 A.2d 196, 199 (1980); Hamil v. Bashline, 481 Pa. 256, 265, 392 A.2d 1280, 1285 (1978); Collins v. Hand, 431 Pa. 378, 383, 246 A.2d 398, 401 (1968); Richmond v. A. F. of L. Medical Service Plan of Philadelphia, 421 Pa. 269, 270-271, 218 A.2d 303, 304 (1966); Donaldson v. Maffucci, 397 Pa. 548, 554, 156 A.2d 835, 838 (1959); Pratt v. Stein, 298 Pa.Super. 92, 120 n. 23, 444 A.2d 674, 689 n. 23 (1982); Ragan v. Steen, 229 Pa.Super. 515, 521, 331 A.2d 724, 727-728 (1974).
However, appellee was not required to establish that the negligent acts or omissions of the defendants were the
“[In] an appeal from the denial of a motion for a judgment n.o.v., the evidence must be viewed in a light most favorable to the verdict winner. Evidence supporting the verdict is considered, and the rest is rejected. All conflicts
In determining the sufficiency of the evidence, we consider the evidence actually received, whether the trial rulings thereon were correct or not. Jones v. Treegoob, 433 Pa. 225, 229, 249 A.2d 352, 354 (1969); Carney v. Pennsylvania Railroad Company, 428 Pa. 489, 497, 240 A.2d 71, 75 (1968); Brandon v. Peoples Natural Gas Co., 417 Pa. 128, 134-135, 207 A.2d 843, 847 (1965); Rosche v. McCoy, 397 Pa. 615, 619, 156 A.2d 307, 309 (1959); Rodgers v. Sun Oil Company, 189 Pa.Super. 559, 563, 151 A.2d 673, 676 (1959); Hughes v. Hanna, 187 Pa.Super. 466, 469, 144 A.2d 617, 619 (1958). “However, where the evidence is insufficient to sustain a verdict against the losing party, a court will enter judgmеnt n.o.v. in favor of the appellant despite a verdict to the contrary.” Szumski v. Lehman Homes, Inc., 267 Pa.Super. 478, 481, 406 A.2d 1142, 1143 (1979). Accord: Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 389, 421 A.2d 251, 254 (1980); Kolb v. Hess, 227 Pa.Super. 603, 323 A.2d 217 (1974).
It was Mrs. Reichman‘s contention that Dr. Wallach had negligently performed the hysterectomy and had again violated medical standards by waiting until the following morning to perform a second operation to correct the bleeding ovarian artery. The evidence of negligence in performing the hysterectomy, although neither specific nor compelling, was sufficient to be submitted to the jury. Dr. George C. Lewis, Director of Gynecology at Jefferson Medical College, was asked: “Doctor, in the ovarian bundle branch area,
The opinion evidence that Dr. Wallach had been guilty of post operative negligence was clearer and more direct. Dr. Lewis testified that under the circumstances as then known, reasonable medical сare dictated that corrective surgery be performed between 4:00 o‘clock and 9:00 o‘clock, P.M. on the same day on which the hysterectomy had been performed and that it was medical negligence to delay such surgery until the following morning. Dr. Zimmerman, appellee‘s gastroenterologist, testified that although medical science is uncertain of the exact etiology of ulcerative colitis, in his opinion the formation of the hematoma, the length of time that she had been under close and prolonged monitoring, and the stresses resulting from the surgical procedures and during the post-operаtive periods were the factors which caused her to develop ulcerative colitis in August or September of 1974. Dr. Wolfgram Reiger, a psychiatrist who had been treating Mrs. Reichman since October 17, 1977, testified that Mrs. Reichman was suffering from marked depression, anxiety and traumatic neuroses, as well as ulcerative colitis, and said: “The post-operative course, and specifically the complications, represent the very trauma that caused these many neuroses that I have described and also directly caused the ulcerative colitis.”
We conclude, as did the lower court en banс, that this evidence was sufficient, if believed, to support a finding of causative negligence against Dr. Wallach. Consequently, the court correctly denied the doctor‘s motion for judgment n.o.v.
The court‘s entry of judgment n.o.v. in favor of The Pennsylvania Hospital was also correct. Although it was Mrs. Reichman‘s contention that the hospital staff had failed to exercise reasonable medical care in monitoring her condi
In support of her appeal from the order entering judgment n.o.v. in favor of the hospital, Mrs. Reichman relies on the following testimony of Dr. Zimmerman, her gastroenterologist:
Q. Doctor, taking into consideration the recovery room record, do you have an opinion based upon reasonable medical certainty as to whether Mrs. Reichman received reasonable medical care during the time that she was in the recovery room?
A. Yes, I do.
Q. And what is that opinion?
A. I think she had terrible medical care.
Q. Do you have an opinion as to whether the failure to exercise that reasonable medical care during the recovery room period is the cause of her condition today?
A. Yes, sir.
Q. And what is that opinion?
A. It is.
Q. Doctor, do you have an opinion based upon a reasonable medical certainty that if the patient had received proper recovery room care and had been reoperated before the establishment of the hematoma, whether she would have had an uneventful recovery?
*
*
*
*
*
*
A. I can answer the question, sir. I think she would have had a reasonable recovery.
N.T. 361(a), 363(a). (Emphasis supplied.)
It is impossible to ascertain from the witness’ opinion that Mrs. Reichman recеived “terrible medical care,” whether he
The lower court observed, and we agree: “The record fairly indicates that the general functions of the recovery room arе threefold: (1) to monitor the patient‘s vital signs; (2) to administer medical care in achieving post-operative recuperation; and (3) to advise the attending physician on any significant problems with respect to the patient‘s condition of which the physician should be made aware. The evidence wholly fails to furnish a sufficient factual basis to enable reasonable minds to conclude that the hospital negligently failed to perform any of these functions.”
Dr. Zimmerman was not asked and expressed no opinion regarding the care exercised by Dr. Troncelliti or by any other member of the hospital stаff assigned to the recovery room. His opinion that Mrs. Reichman “had terrible medical care” identified no person responsible therefor and was delivered in a total vacuum. It was not a response to a hypothetical question and was sustained by neither facts nor reasons.
“We have said many times that the jury may not be permitted to reach its verdict merely on the basis of speculation or conjecture, but that there must be evidence upon which logically its conclusion may be based.” Smith v. Bell Telephone Company of Pennsylvania, 397 Pa. 134, 138, 153 A.2d 477, 479 (1959). Accord: Jones v. Treegoob, supra 433 Pa. at 229, 249 A.2d at 354; Warden v. Lyons Transportation Lines, Inc., 432 Pa. 495, 498, 248 A.2d 313, 314 (1968); Flaherty v. Pennsylvania Railroad Company, 426 Pa. 83, 85, 231 A.2d 179, 180 (1967); Winkler v. Seven Springs Farm, Inc., 240 Pa.Super. 641, 646-647, 359 A.2d 440, 442 (1976), aff‘d, 477 Pa. 445, 384 A.2d 241 (1978).
II. DR. WALLACH‘S MOTION FOR NEW TRIAL
In support of his motion for a new trial, Dr. Wallach argued in the court below that the trial court had committed error when it (1) sent out with the jury, over objection, the blackboard upon which Mrs. Reichman‘s attorney had computed damages during his closing argument; (2) received evidence, over objection, pertaining to Mrs. Reichman‘s being a survivor of the Holocaust; (3) permitted testimony, over objection, regarding the musical talents and accomplishments of Mrs. Reichman‘s daughter; and (4) permitted Mrs. Reichman to testify, over objection, that when she was in the recovery room she overheard Dr. Troncelliti say to an unidentified person that she was in critical condition and that Dr. Wallach had failed to respond to numerous messages regarding her condition.
The blackboard containing damage computations placed thereon by plaintiff‘s counsel during closing argument had not been received in evidence. However, it was allowed to go into the jury deliberating room upon the jury‘s request. Whether to allow such a request rests largely in the discretion of the trial judge, although it is better practice to caution the jury that it is not evidence and should not be considered as such by the jury. See and compare: Phoenix Mutual Life Insurance Company v. Radcliffe on the Delaware, Inc., 439 Pa. 159, 169, 266 A.2d 698, 703 (1970); Lancaster Redevelopment Authority Appeal, 425 Pa. 36, 41-42, 227 A.2d 827, 831 (1967); Solomon v. Luria, 45 D. & C.2d 291, 297-298 (1967), aff‘d on the opinion below, 213 Pa.Super. 87, 246 A.2d 435, (1968). Here, the information contained on the blackboard has not been preserved, and we
“Generally, it may be said that any legally competent evidence which, when taken alone or in connection with other evidence, tends to prove or disprove a material or controlling issue or to defeat the rights asserted by one or the other parties, and sheds any light upon or touches the issues in such a way as to enable the jury to draw a logical and reasonable inference with respect to the matter or principal fact in issue, is relevant. As thus defined, relevancy means the logical relation between the proposed evidence and a fact to be established.” Commonwealth v. Vukovich, 301 Pa.Super. 111, 118, 447 A.2d 267, 270 (1982), quoting 29 Am.Jur.2d 302, 303, Evidence § 252. “The law furnishes no test of relevancy, but tacitly refers it to logic and general experience. Evidence is admissible which tends to make the fact at issue more or less probable or intelligible or to show the origin and history of the transaction between the parties and explain its character.” Gregg v. Fisher, 377 Pa. 445, 454, 105 A.2d 105, 110 (1954). See also: Commonwealth v. Duca, 312 Pa. 101, 107, 165 A. 825, 827 (1933); Ickes v. Ickes, 237 Pa. 582, 85 A. 885 (1912); Whistler Sportswear, Inc. v. Rullo, 289 Pa.Super. 230, 243, 433 A.2d 40, 47 (1981); Catina v. Maree, 272 Pa.Super. 247, 261, 415 A.2d 413, 420-421 (1979); Henry, Pennsylvania Evidence, p. 3. Much is left to the discretion of the trial judge. Abbott v. Onopiuk (Steel City Piping Company), 437 Pa. 412, 419, 263 A.2d 881, 884 (1970); Catina v. Maree, supra 272 Pa.Super. at 260, 415 A.2d at 419; Lewis v. Mellor, 259 Pa.Super. 509, 515, 393 A.2d 941, 944-945 (1978); Radogna v. Hester, 255 Pa.Super. 517, 520, 388 A.2d 1087, 1088 (1978); Cartmel v. Williams, 207 Pa.Super. 144, 147, 215 A.2d 282, 284 (1965); Wolfe v. Pickell, 204 Pa.Super. 541, 544, 205 A.2d 634, 635 (1964). “[T]he admission of irrelevant evidence is not always ground
We cannot say that the trial court erred in receiving evidence that Mrs. Reichman had survived the Holocaust. It was relevant, perhaps marginally, in view of the testimony that her ulcerative colitis had been caused by stress.
However, the evidence that her daughter had been a widely acclaimed child prodigy, held a master‘s degree from Julliard, and was an exceptionally talented person was clearly irrelevant. It neither proved nor disproved a legitimate issue pertaining to liability or damages. It included oral testimony that the daughter had written musical compositions at the age of three, had played benefit concerts with Rubenstein, had performed at the White House, and had been labeled a genius by several newspapers. Her talents were documented by newspaper articles, a photograph with the president, letters of praise by other musicians, and even some of the musical compositions she had written as a child. All were received in evidence over objection.
The lower court‘s opinion concedes that this evidence was irrelevant, but holds that the issue of its admissibility was not preserved for post-verdict review because counsel, after it had been received over objection, did not thereafter move to strike it. We disagree with this court imposed requirement. An objection to evidence distinctly made and overruled need not be repeated or renewed. 38 P.L.E. Trial § 81. See also: Hill v. Gerheim, 419 Pa. 349, 352-353, 214 A.2d 240, 243 (1965); Hachick v. Kobelak, 259 Pa.Super. 13,
A more difficult question is whether this irrelevant evidence, in the absence of other trial error, would require a new trial. Because there was additional, more compelling error, we find it unnecessary to decide this issue. Suffice it to say, that the evidence was irrelevant and should not have been received.
Mrs. Reichman was permitted to testify over objection that while she was lying in the recovery room, at or about 5:00 o‘clock, P.M., she overheard Dr. Troncelliti yell into a telephone: “I have put five messages to Dr. Wallach‘s office. None of them returned. I have Mrs. Reichman in critical condition.” The purpose of this testimony was explained in counsel‘s opening statement to the jury as follows: “Mrs. Reichman ... will tell you further that late in the evening the anesthesiologist was still trying to get ahold of Dr. Wallach. She was in critical condition. Suffice it to say she was taken out of the recovery room when it closed.” The jury was never instructed to consider the evidence for any purpose other than as substantive evidence against Dr. Wallach.
This testimony was clearly hearsay. It was what Mrs. Reichman said that she had heard Dr. Troncelliti say. Herr v. Erb, 163 Pa.Super. 430, 435, 62 A.2d 75, 78 (1948). It was secondhand evidence, not proceeding from the personal knowledge of Mrs. Reichman. Maglin v. Peoples City Bank, 141 Pa.Super. 329, 334-335, 14 A.2d 827, 829 (1940). It was evidence of an extra-judicial utterance offered as evidence of the truth of the matter asserted. Whitfield v. Reading Co., 380 Pa. 566, 570, 112 A.2d 113, 115 (1955); Klischer v. Nationwide Life Insurance Company, 281 Pa.Super. 292, 300, 422 A.2d 175, 179 (1980); Wagner v. Wagner, 158 Pa.Super. 93, 97, 43 A.2d 912, 914 (1945). It was not rendered admissible because Dr. Troncelliti was subsequently called as a defense witness and testified that he called Dr. Wallach‘s office only once оn the afternoon of December 7. See and
Mrs. Reichman contends that Dr. Troncelliti‘s statement was either (1) an excited utterance or (2) a declaration of a present sense impression and, therefore, admissible under the res gestae exception to the hearsay rule. In the alternative, she argues that the erroneous receipt of this evidence was harmless. The excited utterance exception to the hearsay rule has been defined as “a spontaneous utterance by an individual whose mind has suddenly been made subject to an overpowering emotion caused by some unexpected and shocking act or occurrence. The utterance is generated by, or springs out of the act, and the words are in a sense part of the act itself. Hence, the exciting events actually speak through the ‘verbal acts’ of the declarant. The words, which are in the nature of this emotional impulsive outburst, must be in the same continuous transaction with the acts, thus they are in a sense integrated into the acts. The utterance must be near in time to the occurrence and to insure trustworthiness it normally must be spoken to one of the first persons seen by the declarant after the act. The basis for the admission of the utterance is its spontaneity, thus all utterances which do not display the mandated instinctive naturalness must be excluded for fear that the words will emanate in whole or in part from the declarant‘s reflective faculties. The declaration must be spoken under conditions which insure that it is not the result of premeditation, consideration or design, and it cannot be in the form of a
Dr. Troncelliti‘s declaration was not an excited utterance. It was not a spontaneous declaration made so near in time to an unexpected and shocking occurrence so overpowering as to make Dr. Troncelliti‘s declaration a product of his reflective faculties. His statement, as related by Mrs. Reichman, was a narrative of past events and contained an opinion regarding Mrs. Reichman‘s medical condition. In view of the fact that the declarant was a physician and the supervisor of the hospital recovery room, one searches in vain for the ingredients of an “excited utterance.”
Similarly, the statement was not admissible as a present sense impression. This exсeption allows the receipt of a person‘s declarations concerning conditions or events which the declarant is observing at the time of his declaration. The rationale underlying this exception to the general rule is that the declarant will have no opportunity for reflection or calculated misstatement because his declaration has been contemporaneous with the occurrence of the event to which the declaration refers. It is “the reflex product of immediate sensual impressions, unaided by retrospective mental action.” Commonwealth v. Coleman, 458 Pa. 112, 117, 326 A.2d 387, 389 (1974), quoting Morgan, Res Gestаe, 12 Wash. L.Rev. at 96. (Emphasis supplied.) By definition, an utter-
It is argued finally that Dr. Troncelliti‘s statement would have been admissible in rebuttal to contradict his direct testimony that the only time he called Dr. Wallach was shortly before 1:00 o‘clock, p.m., to inform him thаt Mrs. Reichman would be remaining in the recovery room and that, therefore, the receipt of the hearsay statement on plaintiff‘s side of the case was harmless error. This overlooks the fact that Mrs. Reichman not only offered the statement on her side of the case but offered it, as it was received, to show substantive negligence on the part of Dr. Wallach. If the anesthesiologist‘s statement had been admitted as a prior inconsistent statement to impeach his credibility, the jury would have been cautioned of the limited purpose for which it had been received and that it was not to be considered as substantive evidence. Commonwealth v. Waller, 498 Pa. 33, 39 n. 2, 444 A.2d 653, 656 n. 2 (1982); Commonwealth v. Russell, 456 Pa. 559, 565-566, 322 A.2d 127, 130-131 (1974); Wilson v. Pennsylvania Railroad Company, 421 Pa. 419, 431-432, 219 A.2d 666, 673 (1966); Dincher v. Great Atlantic and Pacific Tea Co., 356 Pa. 151, 156, 51 A.2d 710, 713 (1947); Commonwealth v. McGuire, 302 Pa.Super. 226, 234, 448 A.2d 609, 613 (1982); Westerman v. Stout, 232 Pa.Super. 195, 202-203, 335 A.2d 741, 745 (1975); Crawford v. Manhattan Life Insurance Company of New York, 208 Pa.Super. 150, 162, 221 A.2d 877, 884 (1966).
A majority of the court en banc which heard the post verdict motions concluded that the admission of the hearsay statement had been error but that the error was harmless. We are unable to agree with the assessment of harmlessness.
The judgment n.o.v. in favor of The Pennsylvania Hospital is affirmed. The judgment entered in favor of Mara Reichman and against Edward E. Wallach is reversed, and the case is remanded for a new trial.
WICKERSHAM, J., files a concurring & dissenting statement.
I concur with the majority in concluding that the entry of judgment n.o.v. in favor of The Pennsylvania Hospital was correct.
I dissent from the award of a new trial and the reversal of the judgment entered in favor of Mara Reichman against Edward E. Wallach. Mrs. Reichman‘s testimony was, indeed, clearly hearsay ... but Dr. Troncelliti was examined and cross-examined at great length. The jury could not have been misled. The error was harmless under all the circumstances. I would affirm the jury verdict which followed a four-week trial.