D'ANGELIS v. Zakuto

556 A.2d 431, 383 Pa. Super. 65, 1989 Pa. Super. LEXIS 764
CourtSupreme Court of Pennsylvania
DecidedMarch 29, 1989
Docket01536
StatusPublished
Cited by18 cases

This text of 556 A.2d 431 (D'ANGELIS v. Zakuto) 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
D'ANGELIS v. Zakuto, 556 A.2d 431, 383 Pa. Super. 65, 1989 Pa. Super. LEXIS 764 (Pa. 1989).

Opinions

[67]*67MONTEMURO, Judge:

This is an appeal from a judgment entered pursuant to a jury determination that appellants’ decedent was not the victim of appellee’s medical malpractice.

On Dec. 5, 1981, appellants brought their twenty-six month old son, Georgie, to appellee for examination. The child had been febrile for several days; he was coughing up mucus, his nose was running, the gland on one side of his neck was swollen, and he was suffering from diarrhea. The diagnosis was purulent rhinitis, and an upper respiratory infection, for which appellant prescribed erythromycin, a broad spectrum antibiotic, and Dimetapp, a cough syrup. On Dec. 19, appellants telephoned appellant’s office to report the persistence of their son’s cough. Appellee was not available, and one of his associates prescribed a stronger cough medication. On Dec. 25, Georgie’s fever, which had abated, reappeared, and he was again brought in for examination. The chart entry for this visit indicates that the child’s temperature was 104 degrees, the glands on both sides of his neck were swollen, his throat was red, and his chest was congested with rhonchi. Appellee treated these symptoms with a change of both antibiotic and cough syrup, this time prescribing oral penicillin and Ambenyl.

Since Georgie’s fever had subsided, appellants decided that despite the persistence of his cough, he could be left with his aunt on New Year’s Eve. Georgie slept during most of the night, awakening only when his aunt roused him to administer medication, and to move him to another room. The next morning, however, the child went into cardiopulmonary arrest. Despite efforts at resuscitation, Georgie died at 2:80 that afternoon.

Post mortem examination, without specifying cause of death, revealed that Georgie had suffered from acute and chronic pneumonia of the left lung. No culture was obtained, and no etiology for the pneumonia was given.

Appellants filed the instant suit, alleging medical incompetence on appellee’s part for having failed adequately to examine, test, diagnose and monitor the baby’s illness. At [68]*68trial, the deposition testimony of the pathologist who had performed the autopsy, Dr. Jane Chatten, revealed that based on her microscopic examination of the lung tissue, the pneumonia had been in existence many days and probably at least a week. Appellants’ pediatric expert, Dr. William Bason, opined that the pneumonia had been present from the time of the Dec. 5 visit, and could have been detected by any one of a number of tests. More specifically, he noted that given the results of the autopsy, an X-ray would certainly have demonstrated the presence of pneumonia on Dec. 25. The post mortem absence of a specific pathogen was explained by the effects of the antibiotics administered. Both doctors attributed the infant’s death to the pneumonia.

Neither of appellee’s experts. Drs. Caroline Hall and Gerald Fendrick, were able to isolate cause of death, both testifying that the degree of pneumonia was insufficient to bring on cardiopulmonary arrest. Although both physicians agreed that pneumonia might be present despite the absence of rales, Dr. Hall testified that she believed appellee to have considered pneumonia as a possible diagnosis, but that the lack of signs justified his discarding it to explain the illness. Appellee indicated his view that the child had not presented symptoms serious enough to warrant testing, and that despite the persistence of the cough the two visits to his office represented two episodes of unrelated disease. Dr. Fendrick, in supporting this assessment posited viral infection as responsible for the cough. Despite his testimony that antibiotics were not useful in combating viral illnesses, it was stated that the two courses of treatment prescribed did operate to decrease the child’s fever, and that because of the course of Georgie’s illness, there was nothing further appellee could or should have done. Despite the autopsy findings, Dr. Fendrick, disagreed that the child had pneumonia on Dec. 25, reasoning that the boy was not sick enough. Both appellee’s experts suggested that testing, inclusive of radiography, would have revealed nothing, and would not have resulted in treatment any different than that prescribed. The jury found that appellee had not been negligent.

[69]*69Appellants have presented us with three issues, which we will address seriatim.

It is first argued that the trial court erred in its charge on the “two schools of thought doctrine.” Appellants do not contend that the charge should not have been given, but that its presentation was unclear, and failed to conform to Pennsylvania law.

The doctrine referred to has a secure place in our jurisprudence. See Duckworth v. Bennett, 320 Pa. 47, 181 A. 558 (1935); Remley v. Plummer, 79 Pa.Super. 117 (1922). It directs that “a lay jury is not to be put in a position of choosing one respected body of medical opinion over another, when each has a reasonable following among the members of the medical community.” Trent v. Trotman, 352 Pa.Super. 490, 496, 508 A.2d 580, 584 (1986). See also, Brannan v. Lankenau, 490 Pa. 588, 417 A.2d 196 (1980). The charge complained of was as follows:

A physician may rightfully choose to practice his profession in accordance with a school of thought which differs in its concepts and procedures from another school of thought. Even though the school that he follows is a minority one, he will not be deemed to be negligent or practicing improperly so long as it is reputable and respected by reasonable medical experts.

No further explanation of this doctrine was offered.

Counsel objected to the instruction on grounds that it may have led the jury to believe in the acceptability of a particular practice so long as that practice was condoned by any reasonable medical expert.

In a case presenting striking similarities to the one before us, this court has recently expounded on the limitations of the two schools of thought doctrine. In Morganstein v. House, 377 Pa.Super. 512, 547 A.2d 1180 (1988), appellant’s decedent died as a result of undiagnosed unstable angina. An overweight man with a history of hypertension, Mr. Morganstein had visited his physician complaining of pain in his left armpit and arm. An EKG was taken, along with a [70]*70routine history, and nitroglycerine was prescribed pursuant to a diagnosis of presumptive coronary artery disease. No hospitalization or further testing was ordered. Several days later, having in the interim reported to Dr. House another, albeit brief, recurrence of the pain, Mr. Morgan-stein collapsed and died.

Predictably, the experts called at trial disagreed over the significance of the EKG readings and the symptoms presented. After the two schools of thought charge was given to the jury, counsel objected on grounds that it was inappropriate and misleading, giving the jury the impression that any expert validation of a particular course of treatment negates a malpractice verdict. We agreed.

The basis for our agreement was found in Hodgson v. Bigelow, 335 Pa. 497, 7 A.2d 338 (1939).

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D'ANGELIS v. Zakuto
556 A.2d 431 (Supreme Court of Pennsylvania, 1989)

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Bluebook (online)
556 A.2d 431, 383 Pa. Super. 65, 1989 Pa. Super. LEXIS 764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dangelis-v-zakuto-pa-1989.