Clark v. Frankford Hospital

30 Pa. D. & C.4th 1
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedJune 7, 1996
Docketno. 6623
StatusPublished

This text of 30 Pa. D. & C.4th 1 (Clark v. Frankford Hospital) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. Frankford Hospital, 30 Pa. D. & C.4th 1 (Pa. Super. Ct. 1996).

Opinion

GOLDMAN J.,

— This case involves allegations of medical malpractice arising from the claim of plaintiff Francis J. Clark M.D. and his wife Alison Clark that defendants Frankford Hospital — Torresdale Division and various defendant doctors failed to administer proper care to Francis Clark in the hospital’s emergency room when he presented there complaining of vision problems after sustaining a blow to his left cheek. Plaintiff alleged that undiagnosed retinal tears at that time resulted in eventual retinal detachments in both of his eyes, requiring a series of surgical and other treatments, and leaving him with vision defects that destroyed his plans to become an oculoplastic surgeon. Defendants denied that their treatment of plaintiff departed from the proper standard of care and further argued that plaintiff’s retinal detachments were probably caused by factors linked to his extreme myopia and an inherited eye condition, rather than the blow to his face.

The record discloses these facts: On October 18,1987, plaintiff Francis Clark competed in a running-race sponsored by Frankford Hospital. During an altercation immediately after the race, he was struck in the left cheek and knocked to the ground by another race participant. Accompanied by friends, plaintiff walked to the nearby Frankford Hospital emergency room, complaining of trouble seeing out of his left eye and double vision. Plaintiff was examined there by several physicians, including defendant David Cionni M.D., an emergency medicine doctor; defendant Christine Obermesser M.D., a trauma surgeon; and defendant Merylee Werthan M.D., a neurosurgeon. By the time he saw Dr. Werthan, plain[4]*4tiff’s double vision had “dramatically improved” and his blurred vision was improving as well. N.T. 438. In the course of her examination of plaintiff, defendant Werthan examined plaintiff with an ophthalmoscope and consulted, by telephone, with the hospital’s on-call ophthalmologist, defendant Paul Shawaluk M.D.1

Following defendant Werthan’s examination, plaintiff left the emergency room. At the time of these events of October 1987, plaintiff, a 1986 graduate of Thomas Jefferson University Medical School, had completed a year-long medical internship and was working as a house physician at Delaware County Memorial Hospital, and was scheduled to begin a residency in ophthalmology at Vanderbilt University in Tennessee in July 1988.

Plaintiff testified that in late September 1989, while at Vanderbilt, he noticed “floaters” in the vision of his right eye, leading him to see a local ophthalmologist on November 6,1989, who diagnosed a detached retina in that eye, requiring immediate attention. The next day, plaintiff underwent surgery on the eye (a scleral buckling procedure) at Wills Eye Hospital in Philadelphia, performed by Dr. Gary Brown, a retina spe[5]*5cialist. After the surgery, plaintiff learned that his left eye also required treatment for a detached retina. Plaintiff later had further surgery on the right eye and a laser procedure on the left to treat the bilateral detachments. He claimed that the double vision and focusing problems that resulted from the multiple procedures on his eyes terminated his long-held plans to become an oculoplastic surgeon, thus leading to his loss of lifetime earnings, although he presently practices as a general ophthalmologist and can perform “gross” ophthalmic surgery. N.T. 479-81.

The case revolved around disputed facts on the issue of whether defendant Werthan followed the applicable standard of care in treating plaintiff during the examination in the Frankford Hospital emergency room. At trial plaintiff and defendant offered conflicting accounts of that examination. Plaintiff testified that defendant Werthan allowed him to leave the hospital without properly insisting either that he be seen immediately by an ophthalmologist, or that he be admitted to the hospital for observation. His testimony is that Dr. Werthan told him that there was no need for the on-call ophthalmologist to come in and see him, and that she merely told him that if his vision got worse he could follow up with the ophthalmologist at the hospital where he worked as a house physician. Defendant Werthan, for her part, testified that plaintiff insisted that he did not want to stay in the Frankford emergency room and, instead, he was eager to leave. She stated that she conferred with the on-call ophthalmologist defendant Dr. Shawaluk by phone, and that he opined that plaintiff could leave Frankford Hospital and go to the ophthalmologist of his choice for follow- through. She states that she offered plaintiff the option of admission to Frankford for later evaluation by an ophthalmologist [6]*6or the option of being seen at his own hospital. Evidence at trial showed that defendant’s hospital record of that examination included the notation that “patient will be seen by ophthalmologist Del. Valley Hosp. (I spoke to Dr. Shawaluk, eye). To be followed Del. Valley. Contact me if any problems — re head injury.” Plaintiff’s exhibit, P-16. N.T. 183-85.

Jury trial began on September 8, 1995. Jury deliberations began on September 19, and concluded on September 22. In response to special interrogatories, the jury found that defendants Werthan and Shawaluk were not negligent. Plaintiff filed post-trial motions seeking a new trial on the grounds that: (1) defendant Shawaluk’s counsel improperly argued to the jury that plaintiff’s expert’s report was written on the letterhead of plaintiff counsel’s law firm, thereby impugning the credibility of that expert; (2) counsel for defendant Shawaluk improperly argued that the jury could make an adverse inference from plaintiff’s failure to call certain physicians as witnesses and to ask certain questions of plaintiff’s treating physician who did testify, and the court failed to provide a specific curative instruction; (3) the court failed to instruct the jury on circumstantial evidence and concurrent causes as requested in plaintiff’s pretrial submitted points for charge; (4) the jury’s verdict was contrary to the evidence and contrary to the weight of the evidence; (5) the court erroneously refused to permit plaintiff’s expert to refer to the records of another physician who did not testify at trial; and (6) during voir dire, the court erroneously refused to strike a particular juror for cause despite her display of anti-plaintiff bias.2 For the reasons discussed below, plaintiff’s post-trial motions were denied.

[7]*7I. DEFENSE COUNSEL’S CLOSING ARGUMENT REGARDING EXPERT’S REPORT

Plaintiff contends that defendant Shawaluk’s counsel made an improper and factually inaccurate argument in his closing remarks to the jury when he argued that plaintiff’s expert, Dr. Mausolf, had submitted his pretrial report on the “stationery of plaintiff’s lawyer.” According to plaintiff, this falsely created the impression for the jury that plaintiff’s lawyer had authored the report. At trial, plaintiff’s counsel objected, and explained to the judge at a sidebar conference that he, plaintiff’s counsel, had submitted the content of the expert’s anticipated testimony in the form of answers to expert witness interrogatories on the firm’s pleading paper, signed by the expert, in compliance with one of the permissible methods for pretrial discovery of expert opinions under Pa.R.C.P. 4003.5. N.T. 1024-26. Plaintiff again contends post-trial that the form of its pretrial submission of Dr. Mausolf’s opinions accorded with the sections of the rule stating that:

“a party may through interrogatories

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Bluebook (online)
30 Pa. D. & C.4th 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-frankford-hospital-pactcomplphilad-1996.