Clark v. Hoerner

525 A.2d 377, 362 Pa. Super. 588, 1987 Pa. Super. LEXIS 7582
CourtSupreme Court of Pennsylvania
DecidedApril 2, 1987
Docket821
StatusPublished
Cited by33 cases

This text of 525 A.2d 377 (Clark v. Hoerner) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. Hoerner, 525 A.2d 377, 362 Pa. Super. 588, 1987 Pa. Super. LEXIS 7582 (Pa. 1987).

Opinions

WIEAND, Judge:

Sharon Clark died on January 1, 1981. The cause of death was pneumonia. Her parents filed wrongful death and survival actions against Dr. Oscar Hoerner and his employer, the Harrisburg Hospital, alleging that Hoerner had failed to detect and correctly diagnose Sharon’s condition in adequate time to save her life.

The evidence offered at trial showed that Sharon had been examined for the first time by Dr. Hoerner on December 26, 1980. He diagnosed the malady of the fifteen year old girl as influenza and prescribed antihistamines and Tylenol. He gave Sharon permission to travel with her parents to New York. Dr. Hoerner saw Sharon a second time on December 29, when she complained of a sore throat, a swelling of the cervical glands, chest pains and a general malaise. He refused a request for an antibiotic. He again diagnosed Sharon’s condition as the flu and prescribed medicine for the sore throat. He also performed a strep screen for throat bacteria which was negative. However, he took no x-rays. Sharon and her mother were instructed to call Dr. Hoerner if Sharon’s condition became worse. However, Sharon’s parents were dissatisfied with Dr. Hoerner’s services and decided that they would not return.

Sharon’s condition did become worse. At or about 8:00 p.m. on December 29, Sharon began vomiting blood. Ice was applied to her throat during the night. At 8:30 a.m. on December 30, Sharon’s mother took her to the emergency room at Holy Spirit Hospital. A chest x-ray disclosed a rapidly progressing, fulminating pneumonia of the right lung. Sharon was admitted to the hospital, and antibiotics were administered. When Sharon suffered respiratory failure and kidney dysfunction, she was transferred to the Harrisburg Hospital, where she died. Dr. Sullivan, who treated her at both hospitals, diagnosed her condition and [592]*592testified that it was a rare and rapidly progressive pulmonary disease not often seen in the young.

A jury awarded damages of $650,000.00 against both defendants. The trial court added delay damages; post-trial motions were denied, and judgment was entered on the molded verdict. On appeal, Dr. Hoerner and Harrisburg Hospital contend: (1) that the evidence failed to establish a causal connection between the failure to make an immediate diagnosis and Sharon’s death; (2) that the trial court erred when it declined to instruct the jury regarding the possible negligence of Sharon’s parents; (3) that the trial court should have granted a motion for mistrial after an outburst by Sharon’s mother while being cross-examined; and (4) that the trial court erred by allowing appellee-plaintiffs to call in rebuttal an expert witness not previously disclosed. Although we perceive no merit in defendant-appellants’ first three arguments, we find their fourth and final contention to be well taken. The trial court abused its discretion when it permitted plaintiff-appellees to call a surprise expert witness, whose identity had not previously been disclosed. Accordingly, we vacate the judgment entered for plaintiffappellees and remand for a new trial.

Although the medical testimony was in dispute, there was expert testimony attributing negligence to Dr. Hoerner because he had not ordered Sharon to rest following her first visit to the doctor’s office and also because he had failed to use available diagnostic techniques, with a resulting erroneous diagnosis and treatment, on December 29. One of the experts called by the plaintiff-appellees, Dr. Hymen Kanoff, testified that the sooner Sharon had been properly diagnosed and treated, “the better the chances she had of survival.” Another expert, Dr. Barry Singer, testified that if Sharon had been correctly diagnosed and treated on December 29, her chances of survival would have been “much better.” Dr. Atkinson, who was the surprise witness, gave similar testimony. However, none of the experts were willing to say with reasonable medical certainty that Sharon’s life could have been saved if Dr. Hoerner had [593]*593diagnosed and correctly treated her when she visited his office. Appellants contend that this was insufficient as a matter of law to establish that Dr. Hoerner’s failure to diagnose and properly treat Sharon on the occasions when he saw her was the cause of her death.

A similar question was presented to the Supreme Court of Pennsylvania in Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978). The Court held:

Such cases by their very nature elude the degree of certainty one would prefer and upon which the law normally insists before a person may be held liable. Nevertheless, in order that an actor is not completely insulated because of uncertainties as to the consequences of his negligent conduct, Section 323(a) [of the Restatement (Second) of Torts] tacitly acknowledges this difficulty and permits the issue to go to the jury upon a less than normal threshold of proof. The Fourth Circuit in a case similar to the one at bar, has well stated the justification for this deviation from the normal requirements of proof. In Hicks v. United States, 368 F.2d 626, 632 (4th Cir. 1966), the court stated:
“When a defendant’s negligent action or inaction has effectively terminated a person’s chance of survival, it does not lie in the defendants mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly.”
We agree with this statement of the law and hold that once a plaintiff has demonstrated that defendant’s acts or omissions, in a situation to which Section 323(a) applies, have increased the risk of harm to another, [594]*594such evidence furnishes a basis for the fact-finder to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm; the necessary proximate cause will have been made out if the jury sees fit to find cause in fact.
In light of our interpretation of Section 323(a), it follows that where medical causation is a factor in a case coming within that Section, it is not necessary that the plaintiff introduce medical evidence — in addition to that already adduced to prove defendant’s conduct increased the risk of harm — to establish that the negligence asserted resulted in plaintiff’s injury. Rather, once the jury is apprised of the likelihood that defendant’s conduct resulted in plaintiff’s harm, that Section leaves to the jury, and not the medical expert, the task of balancing probabilities. In so saying we do not intend to undermine the well-established standard of “reasonable degree of medical certainty” as the accepted norm for medical opinions on causation. But we think it would be unreasonable and unrealistic in this type of case to expect a physician to state with a “reasonable degree of medical certainty” what might have happened when the law (Section 323(a)) recognizes the contingencies involved. See generally D. Danner and E.

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Bluebook (online)
525 A.2d 377, 362 Pa. Super. 588, 1987 Pa. Super. LEXIS 7582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-hoerner-pa-1987.