*1 unity”. pe- od of follows that limitation “marital It riod will not start run from the date contract becomes, question made. The therefore When does period start to limitation run ? majority. I with the answering question, I
In am criticism, Judge that recognize the force of Hoffman’s separation” may be difficult to deter- “final date of may prove it that hand, remand mine. the other on On question be no about difficult; may there it is not at all finally separated all would parties that so when unity agree ended. their marital had addition, there is another men- date should be parties tioned. It the date the were divorced. There difficulty determining can be no that date. Neither any question date, can there be of that mari- therefore, unity least, tal At had ended. limitation period run started to then. join remand, I
Accordingly, majority’s I in the but de- the instruction that the lower court should would add cide whether the action was barred because was brought years five of divorce. within date
Superior Pennsylvania. Court of
Argued March 1975. Sept.
Decided 27, 1976. *3 Jay Bogdanoff, appellant, Charles at Philadelphia, for No. 246. appellants, Philadelphia, at
Harry Short, Jr., for A. Nos. and 279. Fein, Philadelphia, Fein, Criden,
Albert S. with him Johanson, Morrissey, appel- Philadelphia, Dolan & lees. WATKINS, Judge, JACOBS,
Before President HOFFMAN, CERCONE, PRICE, der VAN VOORT and SPAETH, JJ. Judge:
SPAETH, malpractice This is a medical case in which a re- a against turned verdict in the $40,000 amount of all of appellants eight-day after an trial.1 In thorough scholarly unreported Judge opinion, McDevitt denied appellants’ judgment motions for or for a new n. o. v. trial. We affirm. evidence,
The fully which is summarized in the trial judge’s opinion, appellee2 showed that was admitted to the Albert Einstein Philadelphia Medical Center on August 16, 1962, give birth to her fourth child. At the time of her ap- she admission, was under the care of pellants Wapner, Brownstein, Arno, physicians asso- ciated partnership. a medical The evidence was con- flicting concerning appellant whether Brownstein, who charge was in appellee’s present case, was the time at appellee hospital. entered the records, how- ever, do not any indicate doctors were present delivery before the appellee’s at a.1 child 8:30 August m. on 17. The appellee’s entries on labor room chart were made either by Eugene Shuster, nurse or *4 physician who recently begun had gynecological residency appellant hospital. at alleged Dr. Shuster’s negligence formed the hospital basis on which the was made a defendant.
1. The appellees found in favor of David Stack and Rita respective $15,000 $25,000. Stack in the amounts of and convenience, 2. For the sake of we shall designation use the “ap- pellee” solely to refer to Mrs. Stack. Appellee’s hospital chart indicates that at 2:45 a. m. began drug intravenously. she Pitocin Pi- receive tocin, generic Oxytocin, drug name of which is is a employed by causing obstetricians to induce labor con- tractions of the uterus. The labor room chart contains no that the moni- notation administration of Pitocin was though tored, accepted practice even medical calls for monitoring. any Indeed, constant of chart is devoid any appellee’s indication that check at all on condition was made between m.; 2:30 the latter a. m. 5:15 a. entry is followed one made at 7:05 a. m. The first presence on appellant reference the chart of Brownstein m., per- is as of 8:00 a. when he is noted as part forming delivery procedure. of the Following the delivery, appellee began heavy intrauter- bleeding. ine attempted repair ap- When the a tear pellee’s stop uterus failed to the bleeding, Arno obliged perform hysterectomy appellee. a total on In the course hysterectomy, appellee of the received a transfusion of six pints and one-half of blood.
Appellee was released from at end August, 1962, but shortly was readmitted thereafter suf- fering hepatitis. from severe During infectious her sec- hospitalization, appellee ond received medication that al- legedly partial her hearing caused to suffer loss in both ears. ruptured theory appellee’s case was that ensuing
uterus, medical all the hysterectomy, ap- experienced by misfortunes were caused appellee, pellants’ Pi- failure to monitor the administration theory supported by tocin. testimo- This ny Weinberg, Arthur York obstetrician a New gynecologist. Weinberg on testified that based record, appellee’s absence he of entries on labor room opinion appel- was of the rendered medical care conformity practice lee accepted was not in with medical Philadelphia experts Appellants produced in 1962. *5 who testified that governing medical standards had complied been addition, with. In appellant Brownstein, by appellee called as on cross-examination, testified that present he was during period the relevant and checked on the administration throughout of the Pitocin night. This by was corroborated Shuster, who testified that be,” “as certain Ias can appel- either lant Brownstein or he drip watched the through- Pitocin out night (Record 307-308a). parts In other of his testimony, however, Dr. Shuster testified that he had no independent recollection of what happened had (Record 285a-287a).
I Appellants there was insufficient evi- contend part. support finding negligence on their dence to a of support contention, argue appellee they In appellant Brownstein and bound monitored the Shuster that had Brownstein appellee if Pitocin, administration of that even “positive” provided by bound, not the tes- so evidence timony of these two doctors could not be overcome “negative” appel- of entries on evidence the absence lee’s labor room chart.
A Appellant appellee Brownstein, on called as present cross-examination, testified been at that he had had of Pi the administration monitored appellee. tocin to non of this tes conclusiveness vel timony governed by May 1887, is the Act of P.L. 7, 28 part, P.S. provides, § as follows: § any brought proceeding, civil or whether be by person representing
or defended a the interests of a assignor any thing deceased or lunatic or contract action, party record, person or whose proceeding prosecuted immediate benefit such is or de- any person fended whose interest ... or other party calling witness, may adverse to the him a compelled by testify *6 if the adverse as under to party cross-examination, subject ap- of to rules evidence plicable cross-examination, to witnesses under party calling adverse shall not be con- such witnesses by person testimony, cluded his but such so cross-ex- thereby fully competent amined shall witness become a party for the other toas all relevant matters whether upon or not these matters were touched in cross-ex- his amination . . . testimony appellant Brownstein’s statute,
Under Pitocin monitoring concerning the administration by upon appellee unless contradicted binding would be in was summarized applicable rule testimony. The other 707, 594-95, A.2d 588, 178 Iannocone, 406 Pa. Piwoz v. (1962): 710 litigant his calls where a that is established
It well P. pursuant adversary [28 as for cross-examination conclu- is testimony obtained thus 381], S. § by ev- other it not rebutted sively true is taken to be if always contra- may be It idence omitted]. [citation accomplished testimony this is if other dicted is for thereof testimony the truth all of rule general Again, this jury’s . . . consideration party calling opponent for cross-examina- his as that a subject the ex- by this tion is concluded improba- degree ceptions may a there be such deprive them bility in themselves as the statements may themselves credit, or that the circumstances omitted]. constitute sufficient contradiction [citations necessary short, In the contradiction is not in the of direct omitted]. form [citations (Emphasis original) in neither Brownstein, appellant Dr. Shuster was
Unlike party with a defendant nor affiliated testified Consequently, at the time of Shuster trial. 285 appellee as a support witness for without restriction. proposition that his was therefore bind ing upon appellee, Peoples appellants cite Lott Natural 517, 188 Co., (1936). 324 Gas Pa. A. 582 Lott, however, involved the doctrine of incontro facts, vertible and the one doctrine that is bound one’s ago own long repudiated. witnesses was The correct rule was Pennsylvan stated Mr. Justice MERCUR ia R.R. Fortney, 323, Co. v. (1879), Pa. 328 and was repeated Duffy Services, Inc., v. National Janitorial (1968): Pa. 336 n. 240 A.2d n. 2 true, general
It is rule, party per- cannot be impeach mitted to veracity witness, yet of his own may disprove he the facts to witness has tes- *7 tified. (Chadbourn Wigmore, 907 rev.
See also 3A Evidence J. § 1970). Indeed, articulated even recent cases have expansive party may impeach rule the credi more that a bility See, g., v. Commonwealth his own witness. e. (1975), Hill, Pa.Super. 553, 870, 543, 237 A.2d 877 353 160, quoting Pa.Super. 200 Gomino, Commonwealth v. 173, 784, 791, 865, denied, 84 188 A.2d cert. 375 S. U.S. 136, (1963) cases); (collecting 11 see Ct. L.Ed.2d 92 also may (“[t]he credibility Evid. F.R. of a witness 607 by any including party calling him”). attacked party, credibility The old rule party that vouched for the by witness called him roots has historical that are anach light ronistic contemporary litiga in of the realities of 3A (Chad tion. J. Wigmore, 896, Evidence at 658-659 § bourn rev. 1970); (2d McCormick on Evidence 38 ed. § 1972). Judge As the late in observed John GOODRICH son R.R., (3d v. Baltimore & 633, O. 208 F.2d 635 Cir. 1953), denied, cert. 347 U.S. 98 L.Ed. 74 S.Ct. (1954), when
[b]ut witnesses are in stranger’s called, some lawsuit, to tell things did, about they saw, heard, or there is no logic reason in or common sense or fairness vouch have to
why them should party who calls they say. everything
B appellee Since bound appellant either Brownstein or of Shuster it, question she could contradict is whether she did by presenting contradict it sufficient evidence of fail ure to monitor the administration of Pitocin.
Appellants contend, dissenting opinion agrees, and the “negative records evidence” constituted “positive provided could not overcome the evidence” Brownstein Shus- principle ter. This origins asserted of law finds its involving testimony railroad accident cases that a rail- road bell or whistle was not heard. Illustrative Pennsylvania Ry. Grimes Co., 320, 324, 289 Pa. 137 A. (1927): legal frequently rule stated recognized has been applied State, in this uniformly and it has been held that where the evidence prop- to establish lack of negative er care is only, it positive is overcome contrary, evidence though to the the latter comes from the mouths of witnesses, and, defendant’s under such circumstances, question is not one for the pass upon, where physical facts corroborate their *8 . . . negative testimony, being [T]he controverted, does not amount to more scintilla, than a prevail therefore cannot to establish an essential fact. however, are no enunciating principle,
The cases recognized reason- longer good that their It is now law. depended Thus, in Costack ing form, not substance. on 127, 348, 131 Ry. Co., 341, 102 Pa. A.2d v. Penna. 376 through Court, speaking Chief (1954), Supreme Mr. merely STERN, question is not one Justice said: “The expression whether, example, for the witness form of — distinguished warning given’ from says that ‘no was warning’ saying omitted]. ‘he heard no [citation hearing, suffi it he had acuteness of Rather is whether listening, opportunity hearing, for cient for and occasion to show circumstances tended and whether all the other proba warning signal given if he a had been would it, therefore, having he bly it, have not heard heard fairly warning given.” In could assert that no Feer was 706, Pittsburgh, ruzza 145 A.2d 394 Pa. Supreme (1958), earlier Court stated that “[t]he (expressly . subsequently cases . . modified [were] by implication) or hear and the statement that he did not rung a bell rung interpreted or that was was meaning positive have the same and amount to —positive in character and substance —if the witness position listening consciously a to hear and was warning.” (Citations emphasis a sound omitted; or original.) Transp. Finally, in Fallon v. Cent. Penn. Co., 444 148, 155, Pa. (1971), 279 A.2d the Su preme Court, citing quoting from Fer Costack and ruzza, say held that “a he witness does not have to listening positive for his to be considered Although evidence. Fallon had his radio on and window open only quarter inch, of an we think that properly could consciously infer listening that he was from the fact listening’ that he had ‘occasion for —he was approaching crossing.” a railroad Thus, if not be fore, at least Fallon, positive negative with versus evidence issue was laid to rest.
Here, judge points as the opinion, trial out in his “there was evidence of hospital an policy official man- dating patient (Opinion chart entries.” of Lower Court at 1396a). Specifically, Record the Assistant General Director and Administrator of the testified that “[p]atients’ provide charts must jus- information which diagnosis, tifies the treatment and end results.” ad- ministrator paper also read from prescribing the duties *9 physicians This stated that the resident on obstetrics. “ [attending present throughout obstetricians must be procedure danger
this entire uter- due to the of excessive ine contractions with resultant fetal distress or threat- rupture.” ened uterine this evidence is taken with When chart, evidence that there were no entries on ample inferring there had basis for had been monitoring. appellee’s expert, no Similarly, Dr. Wein- opinion, formulating testifying berg, to his monitoring. could assume no
II Appellants judge also contend erred trial striking expert opinion testified Dr. to Weinberg. they Specifically, contend that Dr. Wein berg’s opinion incompetent was because of his refusal assume the truth of the Brown- monitoring stein concerning Shuster Dr. Appellants administration of Pitocin. reason that since Weinberg repeatedly said he did not the testi believe mony opinion there monitoring, had been proper foundation, without and that since the trial judge’s charge defect, was insufficient to cure this a new trial must be awarded. hypothetical
It is true question that a should contain “significant all the facts which taken into should be con- sideration, having regard McGarity to the real issue.” New York Co., Ins. 359 Pa. 59 A.2d Life (1948). Weinberg’s task, complicated however, was conflicting concerning monitoring evidence the administration Pitocin. issue that case presents, therefore, is, What is if one do fact hypothetical set forth in (that there was no monitoring) is (that contradicted another fact there monitoring) judge ? thoroughly The trial so re- necessary only quote from solved this issue that *10 opinion: his argue of Dr.
Defendants next
that
the
Weinberg
stricken from the record
should have been
accept
the
the
declined to
some of
because
Doctor had
posed
hypothetical question
evidence
in the
included
plaintiff’s
particular,
him
counsel.
defendants
contend that the
considered Dr.
should
have
Weinberg’s opinion because he
that
in first
admitted
answering
disregard
the
he
chosen to
hypothetical
had
of Drs. Brownstein and Shuster
they
continuously
patient.
(N.T.
had
mointored
804)
complaint here,
find no
We
cause for
for on
Weinberg
cross-examination
also testified as
opinion
assuming
what
have been
would
that Drs.
Brownstein
telling
and Shuster had been
the truth.
changed
facts,
Under this
hypothetical
set of
he testi-
fied that
there
compliance
would have been
with rea-
(N.T.
sonable medical
792)
appellate
standards.
Our
long recognized
courts have
opinion
that the
ex-
an
pert
not, cannot,
need
upon
be based
all the evidence in
the case where there
conflicting
exists
testimony be-
parties.
tween the
It
opinion
is sufficient
that an
premised
only part
on
evidence,
provided, of
course,
particular
facts assumed be made
known
jury.
to the
Battistone v. Benedette, 385 Pa.
[,
169-70
122
(1956);
A.2d
Gillman v. Me-
536]
dia,
[,
Pa.
(1909).
274
Defendants to make an issue of the fact hypothetical question posed plaintiff’s counsel contained contradictory regarding statements presence of Drs. Brownstein is, It Shuster. course, well hypothetical established that a question should contain all Murray material Siegal, facts. v. 413 Pa. [, 195 A.2d (1963). It is also the 790] law that where an issue is in dispute, pro- counsel pounding hypothetical may disputed include the question
fact testified his witnesses. Benedette, supra,; Pennsylvania Battistone Trial (Feldman Revision). case, Guide 7.79 In this con- § tradictory presented by plaintiff’s evidence had been evidence, e., own i. Brownstein arising and Dr. Shuster the inferences from la- vs. ap- Therefore, keeping bor room with the record. plicable plaintiff’s obliged rule, to include counsel was question hypo- references to both sides in the Indeed, position thetical. at was defendant’s hypothetical to the time of trial that the had to refer testimony, thereby making doctors’ unavoidable 588). ensuing question (N.T. contradiction in the *11 practical difficulty by re- was created this situation during solved on cross-examination which Wein- berg opinion vary depending made clear that his would upon. conflicting piece on which of evidence was relied was, up jury course, It which side should be to the accepted. Weinberg’s testimony way in no re- expressed opinions them; he moved that function from assuming dispute, the both ba- sides factual opinions sis for his to alternative were made known jury Opinion the for their of Lower consideration. Court, at Record 1403a-1404a.
It is wit also true that it is not the role of an upon selectively ness the facts determine opinion rest; opinion will the must rather be “based upon personal examination, upon or the assumed truth of court, the of other or witnesses adduced upon Hussey v. combination of these two sources.” May Department Stores, Inc., Pa.Super. 431, 357 A. (1976). 2d Yardley Cuthbertson, See also 108 Pa. (1885). judge, however, 450-451 The trial was ful ly propositions, aware of these and, he states in his opinion, great lengths jury “went to insure that would not be bound of Dr. factual determinations Weinberg any (Opinion or other Lower witnesses.” Court, 1404a). at Record jury very simple, certain- really issue was
The long and hard. On ly it. The trial had been understood might tíre medicine used appellee’s side was evidence with resultant fetal contractions “excessive uterine cause 1395a); rupture” (Record uterine distress or threatened “[attending obstetrician danger that because (id.); procedure” throughout the entire present be must records, the obstetri- according hospital but appellants’ side was evi- present. not On cian had been Obviously, present. dence that the doctor been had accepted going upon whether the case was to turn present, the doctor been or had whether found that this from inter- an documentary ested witness and was overcome evi- present, if dence that the doctor had been that fact would noted, temporarily, have been on a but in blackboard records. Weinberg No doubt it been better for Dr. would have not to interest- have said that he himself disbelieved the persuaded ed witness and documentary evi- dence. However, extent, least, to some at he could hard- say ly otherwise, opinion lest his unintelligible. judge
trial neatly: position summarized this “it is his that he did not see blackboard, chart, he does see the chart, based on the opinions he has the which he has given you” (Record 1300a).
Concededly, during testimony, the and before the charge, jury might the impressed by have been Dr. Wein berg’s appraisal, is, might that itself, it have said to “Well, if expert this believes the record over the witness, so will we.” The charge, however, removed this danger. As dissenting the opinion observes, itself the charge jury instructed the that
A doctor, though even specialist a or expert, an does not questions determine credibility of believability. or He accept must as true the information given which is to him in hypothetical question.
Any questions you credibility, of who believe are for you and not for the attorneys Court and not for the certainly and not a doctor. passage
We have added the in this because emphasis^ phrase emphasized significant, seems most one overlooked; that the could not have nor do we see parts emphasized dissenting charge how the of the opinion any way phrase. in diminish the force of this addition, view, noteworthy it in is, our judge’s charge put expert testimony proper in perspective:
Experts type, indicated, of this as I have are not spe- occurrence, but, witnesses to an because of their training, they express opinion. cial are an entitled weigh opinion accept disregard You it. it or opinion only opinion, An an it creates no fact. Be- opinion this, cause of evidence is considered of a low grade. expert testimony upon theory be
While based must grade considered of low and should little be afforded weight against positive testimony facts, of this actual disregarded. it does mean must in Weinberg Lewis are said, and Dr. As I both Dr. give expert they brought here to category, in this are testimony the consid- expert testimony. give You you merits, eration believe it but bear mind dif- treating doctor between ference of upon hypothetical an based question. 1302a). (Emphasis (Record added) Indeed, language part following the trial judge’s comparison expert testimony of Wein- berg with the Brownstein and objection by appellee’s Shuster led to an counsel: likely probabilities. Is it consideration some Give ig- lady, receiving Pitocin, labor and hours, nored for four five as that is what
293 likely amounts to? Is it Brownstein was up just there at no time until the time she about delivery went to the room around 8 o’clock? Of course, be, your job it could but it is of de- well within termining credibility. (Record 1306a) .3 it how any jury’s If in mind about doubt remained the surely Weinberg, appraise was to the of Dr. foregoing parts the was removed both of the opin- dissenting charge (neither the which is cited ion). ques
Ordinarily
charge,
when we review a
despite
confusing language,
tion is whether
some
charge
error,
enough,
despite
or
some
clear
whether
enough.
charge
correct
was when taken as a whole
applied
approaching
general
cases,
rule to be
such
is that no new trial
unless
confusion
will be ordered
jury
or the error were such as to have misled
prejudice
party.
Pickett,
Pa.
losing
of the
v.
434
Keba
Montgomery,
397
(1969);
252 A.2d
Miller v.
675
Tizer,
(1959);
204 Pa.Su
Pa.
Affirmed. opinion in VOORT, J., dissenting
VAN der files a joins. WATKINS, Judge, President PRICE, *14 a jury trial at appeal after a instant arises damages of plaintiffs-appellees
general verdict against forty ($40,000.00) was awarded thousand dollars trespass medical defendants-appellants, in a action for all August 16, the malpractice. arose out of The action maternity hospitalization appellee Stack. Rita of. evening appellant date, Al- On the of that she entered delivery for the of her bert Einstein Center Medical During pregnancy course of her fourth child. continuing through hospitalization, her Mrs. Stack under the care physicians. three presented by
As plaintiffs-appellees, Mrs. Stack’s problems given" labor-inducing arose when she was a drug, Pitocin, during very known as early hours August 17, according 1962. Pitocin, experts to who tes- tified, drug is commonly used childbirth labor. Tes- timony significant demonstrated while that it offers medical benefits in regulation the inducement and of la- bor pregnant in the patient, possible it has well known dangerous side properly. effects if not It administered is intravenously administered practice and safe medical drug dictates that flow condition patient constantly by attending be monitored medical personnel steps to assure immediate to curtail the devel- opment of possible the known side It was the effects. plaintiffs-appellees’ theory proper contention and monitoring place did not alleged take and that such shortcomings leading started a chain of events to severe problems medical for Mrs. Stack.
The actual difficulties which befell Mrs. Stack were really dispute, prob- only but the causes of such lems. delivery The record shows that of her after the at August child 8:30 on 17, 1962, A.M. suf- Mrs. Stack bleeding. fered intrauterine A in her tear uterus was discovered, attempts repair failed, and after it be- necessary perform came complete hysterectomy. As unhappy events, a result of these required Stack Mrs. following pints Shortly transfusion several of blood. hospitalization, Mrs. Stack initial from the her release n vyas hepatitis to be suffering and had from diagnosed as Plaintiffs-appellees that med- re-hospitalized. contended time of at the negligence of blood in the transfusion ical Finally, hepatitis. hospitalization caused initial received Stack hospitalization, Mrs. second during the to suffer a which, her medication, alleged, caused it was hearing loss. lower court by appellant
It is contended Judgment Non granted Obstante Motions for should have agree I am constrained or a Trial and New Veredicto necessary. conclusion as reach this I a new trial *15 improper was my result of conclusion a in its de- the trial considered introduced at liberations. above, the fun- my facts, it was
As noted in resume of malpractice appellees oc- theory that medical damental of provide alleged appellants’ in failure to ade- the curred drug during the quate monitoring the of administration appel- that the to Mrs. The record shows Pitocin Stack. proof primarily upon hospital for records lees relied the was During time that the Mrs. Stack of such failures. delivery child, the receiving prior her the of Pitocin to prepared contemporaneously with hospital chart, usually drug patient to of a a of the administration observations personnel, of entries medical an absence showed The during period of care. the critical several hours by the hospital only offered chart was not the evidence however, concerning element of appellees, the crucial appellees two monitoring. first called as witnesses The night during the physicians Mrs. who had attended Stack the defend- question. one of in The witness was first ants-appellants, Brownstein, the second was while duty Shuster, physician resident on who had been a delivery during period la- the of Mrs. Stack’s the area on delivery. was called as Dr. Brownstein bor While .and not; both cross-examination, former was resident and the administra- testified that Mrs. condition Stack’s constantly tion of throughout Pitocin were monitored times relevant prog- to case and further testified her ress steadily delivery noted on a blackboard in the room.
In the face of this conflict testi- between witnesses’ mony monitoring, as to and the evidence to inferred from hospital charts, ap- absence notations in the pellees physician called another as an witness. solely upon This witness relied the medical record as evi- testifying great dence in length at to his conclusions that departure there accepted had been a from medical stan- treatment, thereof, dards in the or lack rendered to Mrs. also, expressed repetition, Stack. He with the view that he opinion upon could not base his attending physicians, despite two the fact it com- prised part hypothetical upon question he opinion, opined instructed base his because he testimony. ig- that he Rather, did not believe their he upon solely nored their no- version and relied the lack of finally stated, tations in on record. He cross-examination, accept he were forced if attending physicians true, he would accepted departure conclude that had there been no from practices. medical court, charge concerning jury, lower its *16 expert’s testimony
this said: he
“He said if assumes that Dr. Brownstein and regularly Shuster did monitor Mrs. Stack’s condition placed board, and the information on the that would change opinion, his he would then state that the care acceptable prac- and treatment treatment within tice. weigh
What he here evidence and decide did testimony accept for going he was to as a basis accept- opinion. where, position his if he He was in a testimony ed the of and Dr. Shuster Dr. Brownstein and, extent, Arno, then this condition to a lesser thousand, (sic) may or some- occurred be one causally that, thing result or was like but it did not closely part to failure on the of the doctors related to a her monitor condition. opinion disregards his on the hos-
He that and bases pital record, saying record shows that supervision of Mrs. adequate there was no medical during period. her labor Stack expert, doctor, though specialist or an does
A even believability. credibility questions or not determine of accept given which is He must as true the information hypothetical question. to him in Any credibility, you believe, questions who are you not for the attor- and not for the and Court Nevertheless, it is neys certainly not for a and doctor. blackboard, does position he he his did not see opin- chart, chart, he has the see the and based on the you. given to ions which he has you saying, finally, examine I am is that
What testimony you the same examine the anybody else in the Dr. Brownstein or Dr. Shuster or give weight you going to case, you are decide what added). testimony.” (Emphasis to objections appellants to numerous raised appellees’ above-described jury. to the court’s submission of this evidence lower questions Objections hypothetical were raised to preserved allegations pertinent or error were All asked. Judgment Obstante inclusion Motions for Non Ve- court, Contrary to the lower redicto and New Trial. my majority supporting the view oh learned Brethren appeal, are I believe that several matters error clearly apparent, and mandate reversal.
Appellants appellees contend were bound attending physicians and should not permitted place hypothesize have been reliance on or *17 to an on the medical charts in this case. The first
physician called,
Brownstein,
defendant,
was a
appellees
naturally permitted
were
to treat him as an ad-
verse witness and call him for cross-examination. How-
ever, the other physician,
Shuster,
longer
no
who is
employed by
appellant hospital,
way
any
nor in
con-
nected
with the
physicians
properly
held
not to be an adverse
appellees requested
witness when
this status for him
Knowing
they
at trial.
would
clearly
by
appel-
bound
witness,
of this
lees elicited from him his recollection that close monitor-
ing of
place throughout
Mrs. Stack had taken
the crucial
period
labor,
time
of her
progress
and further
that her
contemporaneously
had been
charted on a blackboard.
circumstances,
my opinion,
applicable
the law
in these
holding
requires
appellees
were bound
the testi-
mony
Peoples
of Dr. Shuster. See Lott v.
Natural Gas
Co.,
(1936).
324 Pa.
“Courts have recognized, that a strict application of the ancient voucher rule under the con- jurisprudence ditions of modern injustice, can lead to they and so have developed articulated and a number
299
exceptions
usually
questioning
rule,
of
to the
without
whether
rule
remains a valid one.”
itself
Gee,
123,
See
Commonwealth
467 Pa.
‘T believe example (1) that this case why we should abandon the ancient doctrine that party producing a witness vouches his truthfulness justify I will not seek to the rule —I do believe however that our Court is constrained to such follow clear and re- precedent. cent exception
I present also note no to this rule in the in- permitting appellees stant case to avoid the onus of testimony. Appellees Dr. Shuster’s did not claim sur- prise at the Gee, when it was elicited. su- See pra. light facts, In of these required by I believe we are applicable precedent appellees to hold that are bound monitoring per- Dr. Shuster that formed. above, appellees
As discussed hospital offered a set of charts which contained no notations of observations or during treatment several hours when or observation required. records, treatment was my view, These con- negative evidence, stituted creating mere inferences which could not overcome Dr. Shuster’s positive direct contrary.1 evidence to the See Wil- appellee presented 1. hospital While policy requiring evidence of a its charts contain a reference to all observations and treat- ment, the lack of entries could not create more than an inference reason, that observations and treatment did not occur. For this negative charts constituted evidence. While not be con- case, any doned in no there is evidence that the lack a com- plete proximate chart could be considered a cause the medical problems which befell Mrs. Stack. 300 Pittsburgh,
liams v.
(1944);
349 Pa.
With to the and the trial *19 handling it, apparent court’s other error is to me. As expert above, discussed the permit- should not have been any opinion hypothetical ted to base on a set of facts negative hospital included the evidence from the expert only chart. record shows the that relied upon chart, continually rely the but refused to on the contrary by attending physicians. evidence offered the expert rely upon It clear that an must the all facts set hypothetical rendering forth in the question opin- in McGarrity ion. Life, 308, v. New York 359 Pa. 59 A.2d (1948). Moreover, expert 47 the in the instant re- case petitively rely testified he could not on the version of by physician spec- facts offered the witnesses because he they telling ulated that were not truth. the He offered opinion the their that was not when credible against measured in the absence of notations the may opinion An upon chart. witness not base his opinion another in Hand, this manner. Collins v. 431 378, (1968). Further, Pa. 246 A.2d I 398 believe the granted appellant’s trial court request should have majority negative 2. While the contends that evidence rule rest”, respectfully disagree. “was I laid to must Fallon v. Penn 148, Transportation Company, Central 164 444 Pa. 279 A.2d (1971), position, by Majority support merely cited indi- its types posi- cated certain be would considered be tive, supports negative. my rather than I Fallon view believe positive negative principle viable versus evidence is still in our law. expert. I do not believe all such struck cautionary charge, quot- the court’s instruction in permitted above, not have sufficient —he should ed upon expert’s testimony, negative evidence based credibility assessment, expert’s of the chart and the own jury. considered be Last, I appellants note sought either a new trial judgment or non obstante appellees veredicto. The al- leged physical problems several distinct were suf- Stack, fered including ruptured Mrs. (with a uterus hysterectomy), hearing hepatitis, subsequent loss. appellees’ proof While the of causation relative to some problems of these not strong, reviewing light in init request judgment for veredicto, non obstante “[w]e accept body must strongest whole of evidence way it reasonably interpreted can support be reject any Geiger verdict and contrary”. evidence to the Schneyer, (1969). 157 A.2d Pa. review, appellees’ such a evidence would have to con- sufficient, sidered expert’s improper even without testimony, appellants’ to overcome the request judg- ment non obstante veredicto. grant
I would therefore a new trial. *20 WATKINS, J., joins dissenting P. opinion. in this notes dissent. J., VOORT, Judge, dissenting: VAN der respectfully I must dissent. trial, 3. appellee objected (Record After 1344a), counsel judge, essentially attempted' language quoted, the same as that explain portion charge jury (Record to the 1362a- 1363a).