Brennan v. St. Luke's Hospital

285 A.2d 471, 446 Pa. 339, 1971 Pa. LEXIS 636

• Court: Supreme Court of Pennsylvania
• Decided: December 29, 1971
• Docket: Appeal, 75
• Status: Published

Opinions

Opinion by

Mb. Justice Barbierl,

This is a trespass action brought by appellant as Administrator of the Estate of Bose Margaret D’Agostino, claiming damages on the ground that the decedent’s death on December 29, 1966, was caused by medical malpractice. At the conclusion of the jury trial, a compulsory nonsuit was entered by the trial judge in favor of the defendant, Dr. Francis J. McAndrews. The jury found in favor of the other two defendants, St. Luke’s Hospital and Dr. Ann Snyder. Appellant’s motions for a new trial and judgment n.o.v. were argued before a court en banc and denied, and judgment was entered on the jury’s verdict. This appeal followed. We will affirm.

Bose Margaret D’Agostino became ill late in December of 1966. She was then 23 years of age and had been in apparent good health prior to the onset of what proved to be her terminal illness. Prior to December 25, she had had some slight temperature, but had been able to visit friends, returning home on the evening of December 25th. At that time she appeared to her mother and other lay persons to be acutely ill. Both of her legs were covered with black and blue blotches, she was coughing, moaning and was quite weak. In the next two days her temperature dropped from a high of 104° to a low of 93° and her extremities became stiff and cold. At this point, on the advice of her family physician, she was transported to defendant hospital, being then in a condition described as semi-conscious. After examination by the defendant, Dr. Snyder, she was not admitted but was sent home with a diagnosis of “gastroenteritis”. She remained in bed for the next 38 hours at the end of which time her death occurred. Upon autopsy the cause of death was certified to be “intestinal gastroenteritis” and “bilateral pneumonia”.

We have examined the record with care in- the light of appellant’s contentions, and find all of them to- be without merit. Some of these contentions, however, warrant some comment. Two of the contentions have to do with a changed autopsy report and áre based upon the participátion of Dr. J. W. Fisher in the autopsy examination and studies and the admissibility of the new report at the time of the trial.

Dr. Fisher, a consulting pathologist at the hospital was present with others at the autopsy ordered by the coroner and held on December 30,. 1966. Dr. Fisher testified that tissue was removed from the body at- the autopsy, placed in paraffin blocks, kept in bottles-and stored in a cabinet in Dr. Fisher’s laboratory. Four months later, after a microscopic examination of some of the tissue, Dr. Fisher identified the cause of death as nonspecific myocarditis and prepared his new autopsy report.

First, we find no error, as appellant contends that we should, based upon provisions of the Uniform Business Records as Evidence Act,¹ in the admission and use of the final autopsy report. The pathologist who supervised the preparation of the autopsy, Dr. J. W. Fisher, actually testified at the trial as to the specific findings and conclusions in the report. The Act in question provides a practical procedure for avoiding the bar to proof of hearsay statements in so-called business records. Here, Dr. Fisher, the person responsible for the records was present and subjected to vigorous cross-examination as to the reliability of the method of preparation, as to the contents and as to the conclusions in the report. Moreover, because of the extent of Dr. Fisher’s direct testimony, from which the jury could have reconstructed the entire report, the admission of the report was proper, or at most harmless error. See Woods v. National Life & Accident Ins. Co., 380 F. 2d 843 (3rd Cir. 1967).

Second, we find no merit in appellant’s contention that the case should be retried on the ground that the trial court permitted unfair and prejudicial cross-examination of plaintiff’s expert medical witness, particularly in allowing it to continue for too long a time. We are satisfied that the cross-examination of this expert witness as to the cause of death was within permissible limits as a test of the value of the witness’ expert opinion. Admittedly, when the cross-examination finally appeared to be extended excessively as to the final autopsy report, the trial judge took steps to terminate further questioning when it appeared that defense counsel was doing more than testing the soundness of the expert’s opinion. Since we conclude that the trial judge did not abuse his discretion and that the plaintiff was not obviously injured by the challenged cross-examination, we find no basis for a new trial because of the trial court’s action here. Tolomeo v. Harmony, 349 Pa. 420, 423-424, 37 A. 2d 511 (1944). See also Woodland v. Philadelphia Transportation Company, 428 Pa. 379, 238 A. 2d 593 (1968).

Appellant also urges that there was reversible error in the court’s charge. Alleged errors with regard to jury instructions, of course, must be considered in relation to the entire charge, particularly other portions of the charge dealing with cognate matters, and in the light of the evidence. Mount v. Bulifant, 438 Pa. 265, 265 A. 2d 627 (1970). At the conclusion of the charge, plaintiff’s counsel objected to the court’s action in reading the following two of the defendants’ points for charge:

“18. If you find that the decedent died of myocarditis as testified to by the pathologist, Dr. Fisher, then your verdict must be in favor of all of the defendants.

“23. In order to enter a verdict in favor of the plaintiff and against Dr. Ann Snyder you would be obliged to find that the cause of death was pneumonia and not congestive heart failure as testified to by Dr. Fisher as set forth in the Pathology Report.”

Pursuant to the plaintiff’s objections, the court modified the charge by further instructions as follows:

“This [No. 18], perhaps, must be tempered and considered in the light of any testimony that you may believe that there was a connection between myocarditis and a virus which would be consistent with the disease of pneumonia.

“The same, then, is true with respect to No. 23. . . .

“It may be too strong to say that if you find the cause of death was pneumonia and not cardiac heart failure that you must find, in favor of the Defendant. If there is evidence leading to a conclusion that the death from myocarditis could be associated with a symptom of pneumonia then those points were obviously too strong, but I will reiterate that the theory of the Plaintiff was that death occurred from pneumonia, and it is the theory of the defense that death occurred by virtue of myocarditis.”

Plaintiff’s counsel merely took a general exception to the charge, with no specific complaint registered about the court’s modification. Since our study of the record convinces us that the cause of death question was fully and clearly presented to the jury including the inter-relationship between pneumonia and myocarditis, in light of the court’s amendatory further instructions, we find no error in the charge requiring a retrial of the case.

Finally, it is argued that the verdicts in favor of Dr. Snyder and the hospital are not supported by the record. The jury could have believed competent evidence which supports their verdict. The trial in this case lasted for four days and produced a record of nearly 700 pages and we are satisfied, on the basis of an independent review of the entire record, that plaintiff was afforded a full and fair trial. All parties were permitted a full exposure of their theories to the jury and after a careful charge, the jury found for the defendants. Since this result is adequately supported by the competent evidence, it should not be disturbed.

Judgment affirmed.

Mr. Justice Pomeroy concurs in the result. Mr. Justice Roberts took no part in the consideration or decision in this case.

1 Act of May 4, 1939, P. L. 42, §2, 28 P.S. §91b. Parenthetically, we find that, on this record, the defendants met the requirements of admissibility by offering a meaningful explanation of the time lag between the gross autopsy, and the microscopic examination of the tissue and the final report which would permit the trial court to find “the sources of information, method and time of preparation were such as to justify its admission.” The court allowed the report to be admitted only after a full discussion of the requisites for admissibility with counsel and full examination of Dr. Fisher as to the preparation of the report.