Hoeke v. Mercy Hospital of Pittsburgh

445 A.2d 140, 299 Pa. Super. 47, 1982 Pa. Super. LEXIS 4052

Opinions

WICKERSHAM, Judge:

This is a professional negligence case filed by the appellees (plaintiffs) against the appellants (defendants) as a result of the care and treatment which was rendered to the woman plaintiff in June of 1971 and thereafter. The essence of this case was that as a result of the negligent performance of an abdominal hysterectomy and negligent postoperative care, Mrs. Hoeke sustained the loss of her right kidney and an above-the-knee amputation of her right leg. The case was tried in the Court of Common Pleas of Allegheny County before the Honorable Marion K. Finkelhor and a jury.

After 19 days of trial during which multiple expert witnesses testified, a verdict was rendered in favor of Maria Hoeke in the amount of $500,000 and Jonathan Hoeke, her husband, in the amount of $50,000 and against defendants Kairys, an obstetrician/gynecologist, and Cushing, a cardiovascular surgeon. The Mercy Hospital, original defendant, and Dr. Hassan Jamil Tabbarah, additional defendant, were exonerated by the jury.

During the course of the trial, plaintiffs testified in their own behalf and called as witnesses in their case Doctors Kairys and Cushing (for cross-examination); Dr. William Stewart, the anesthesiologist at the time the operation was performed; Dr. Jerry S. Wolkoff, a vascular surgeon and expert witness; Dr. I. Biskind, an obstetrician/gynecologist, and expert witness; Dr. John R. Perri, the orthopedic surgeon who amputated plaintiff’s leg; Dr. Martin Cohen, a pathologist at Mercy Hospital; and additional defendant Dr. Hassan Jamil Tabbarah. On the side of the defendants, there was the direct testimony of Drs. Kairys, Cushing and Tabbarah; Dr. Terry Hayashi, an obstetrician/gynecologist and expert witness for the defendant Kairys; Dr. Douglas McDonald, a surgical resident at Mercy Hospital who was present during the operation; Dr. Jessica Lewis, a hematologist; and Dr. Mitchell Webster, a cardiovascular surgeon and expert witness. From this complex record, only the testimony of Drs. Kairys, Cushing and Tabbarah and an excerpt from the testimony of Dr. Wolkoff have been transcribed and reviewed by this court of defendants’ issues on appeal is accordingly limited.¹

Mrs. Maria Hoeke, a citizen of the Netherlands and presently a resident of the United States for the past fourteen years, was a patient of Dr. Leo R. Kairys and had used the services of Dr. Kairys in the birth of her child on September 13, 1966. On or about April 28, 1971, Mrs. Hoeke consulted Dr. Kairys with complaints of excessive bleeding and, after discussion, it was his recommendation that Mrs. Hoeke undergo a hysterectomy.

Mrs. Hoeke entered the hospital in June, 1971, for the operation which was performed by Dr. Kairys on June 25, 1971. He was assisted by Dr. McDonald, an obstetrical resident of Mercy Hospital at that time.

The allegations and proof of negligence in these proceedings divide between operative and postoperative procedures.

During the operation itself, excessive and profuse bleeding occurred in the operative area and, in the middle of the operation, Dr. Kairys sent for Dr. Cushing, a cardiovascular surgeon. Drs. Kairys and Cushing attempted to ligate the arteries involved to stop the massive bleeding and a right hypogastric artery ligation was performed. Some damage apparently occurred to the ureter and kidney in the course of surgery. The cause of the bleeding was at issue at the trial and Drs. Kairys and Cushing presented diverse testimony on the cause of injury to the ureter and kidney. It was conceded by all parties that damage to the ureter and the kidney were related to the operative procedure. There was no testimony on postoperative negligence on this issue.

It was the testimony of plaintiffs’ experts that other operative procedures could have reduced the risk of harm to the leg. After surgery, plaintiff was placed in an intensive care unit. The blood supply was diminished to her right leg and, subsequently, the leg was amputated. Dr. Cushing, who had performed the cardiovascular surgery, left for vacation at the end of June (30th) and Dr. Tabbarah, his associate, was not alerted by Dr. Cushing or called on the case by Dr. Kairys until, in the opinion of Dr. Tabbarah, irreversible damage had already occurred. There was considerable controversy in the testimony as to the symptoms exhibited by the leg and when diagnosis of the diminished blood supply was possible. At issue in the postoperative care of Mrs. Hoeke was whether the leg was properly monitored and procedures taken to determine the status of the blood supply. The kidney, which appeared to be perforated, was removed at a later date.

APPEAL OF DR. WILLIAM J. CUSHING

The single issue raised by William J. Cushing, appellant, relates to the court’s charge to the jury and whether or not the court, in effect, directed a verdict in favor of the plaintiff and against himself.²

In his brief Dr. Cushing concedes that having been charged with negligent performance of an undertaking to render services to another, the law set forth by the Restatement, Second, Torts, § 323(a) applies:

§ 323. Negligent Performance of Undertaking to Render Services

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such

harm .. .

The theory under Section 323(a) against Dr. Cushing in this case is that his failure to act in the postoperative period was a proximate cause of the plaintiff’s harm. The court’s charge on this aspect of the case is contained on pages 54 and 55 of the original record, and reads as follows:

However, when a defendant physician negligently fails to act, or negligently delays in employing indicated diagnostic or therapeutic measures, and his negligence proximately causes injuries to his patient, the plaintiff does not have to prove to a certainty that proper care would have, as a medical fact, prevented the injuries in question. If a defendant physician’s negligent action or inaction has effectively terminated his patient’s chances of avoiding injuries, he may not 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 avoiding injuries and the defendant has destroyed that possibility, he is liable to the plaintiff.

Now, this is particularly true in this case as it relates to the post-operative care. Plaintiff does not have to establish that—plaintiff does not have to prove to a certainty that an arteriogram ... or some of the other procedures that were discussed would have saved her leg but what the plaintiff has to establish is that the defendant physician’s careless action or inaction has effectively terminated the patient’s chances of avoiding injury and if there was any substantial possibility of avoiding injury and the defendant destroyed that possibility, plaintiff has established causation and there is liability.

A causal connection between the injuries suffered and the defendant’s failure to exercise reasonable care may be established by evidence that the risk of incurring those injuries was increased by the defendant’s negligent conduct. In other words, was the risk increased?

Conflicting testimony on both sides of the issue of medical causation was presented. The lower court acknowledged that a jury question as to causation was presented. Dr. Cushing argues in the instant case, however, that while the words “direct a verdict” were not specifically used by the court, the clear import of the court’s charge on causation for postoperative care directed a verdict against him on that point.

We do not agree.

The defendant Cushing calls into question the following language in the lower court’s charge on the issue of causation:

If a defendant physician’s negligent action or inaction has effectively terminated his patient’s chances of avoiding injuries, he may not raise conjectures as to the measure of the chances that he has put beyond the possibility of realization.

Record at 54.

This language is taken almost verbatim from the supreme court’s opinion in Hamil v. Bashline, 481 Pa. 256, 271-72, 392 A.2d 1280, 1288 (1978) (hereinafter referred to as Bashline III). The issue in Bashline III was the degree of certainty of proof required before a physician may be held liable for professional negligence. The supreme court resolved this issue by adopting Section 323(a) of the Restatement of Torts, Second and held that evidence would be sufficient to support a finding of proximate causation if it appeared that the defendant’s negligence increased the risk of harm to his patient and that the increased risk of harm was in turn a substantial factor in bringing about the injuries to the plaintiff. In reaching this holding, the court quoted with approval the statement that:

When a defendant’s negligent action or inaction has effectively terminated a person’s chance of survival, it does not lie in the .defendant’s 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.

Id., 481 Pa. at 271-72, 392 A.2d at 1288 (quoting from Hicks v. United States, 368 F.2d 626, 632 (4th Cir. 1968)).

Bashline III did not deal with the defendant’s right to present expert testimony on the issue of causation but, rather, dealt with the plaintiff’s burden of proof on causation in a professional negligence case. Prior to Bashline III, a plaintiff had to prove, to a reasonable degree of medical certainty, that the defendant’s negligence was the sole cause of the plaintiff’s injuries. After Bashline III, a plaintiff is entitled to have his case submitted to the jury on evidence, from an expert witness, that the defendant’s negligence “increased the risk of harm” to the plaintiff. Once the plaintiff has developed such testimony, a defendant may present expert testimony to the opposite effect which, of course, was the law even prior to Bashline III.

In determining whether or not a statement of law given in a charge is erroneous, the charge of the court must be considered in its entirety. Schneider v. Albert Einstein Medical Center, 257 Pa.Super. 348, 390 A.2d 1271 (1978). Moreover,

‘[appellate courts are disinclined to reverse a judgment of a trial court for alleged inadequacy of the charge unless the inadequacy is such that the issues are not made clear to the jury or the jury was palpably misled by what the trial judge said. . . . ’

Voitasefski v. Pittsburgh Railways Co., 363 Pa. 220, 226, 69 A.2d 370, 373 (1949). We believe that the language cited by the defendant Cushing in the lower court’s charge, when taken in the context of the charge as a whole, is merely an explanation of the plaintiff’s burden of proof on the issue of causation.

Recently, in Jones v. Montefiore Hospital, 494 Pa. 410, 416, 431 A.2d 920, 923 (1981), Justice Kauffman said:

Proximate cause is a term of art, and may be established by evidence that a defendant’s negligent act or failure to act was a substantial factor in bringing about the harm inflicted upon a plaintiff. Pennsylvania law has long recognized that this substantial factor need not be, as the trial court incorrectly charged, the only factor, i.e., ‘that cause which . . . produces the result.’ Gradel v. Inouye, 491 Pa. 534, 542, 421 A.2d 674, 678 (1980); Hamil v. Bashline, 481 Pa. at 266, 392 A.2d at 285; Majors v. Brodhead Hotel, 416 Pa. 265, 273, 205 A.2d 873, 878 (1965). A plaintiff need not exclude every possible explanation, and ‘the fact that some other cause concurs with the negligence of the defendant in producing an injury does not relieve defendant from liability unless he can show that such other cause would have produced the injury independently of his negligence.’ Majors v. Brodhead Hotel, 416 Pa. at 273, 205 A.2d at 878.

In Hamil v. Bashline, supra, we noted that Section 323(a) of the Restatement (Second) of Torts (1965) has long been recognized as part of the law of Pennsylvania, and then held that the effect of that section was to relax the degree of certainty ordinarily required of a plaintiff’s evidence to provide a basis upon which a jury may find causation.

APPEAL OF DR. LEO R. KAIRYS

In his second argument advanced in his appellate brief, Dr. Kairys maintains that the lower court erred by precluding the jury from distinguishing injuries pertaining to the leg from those involving the kidney and ureter and awarding damages accordingly. Again, we do not agree.³

Due to the complex factual context of this case, negligence could have been found at a number of different points in the care and treatment of Mrs. Hoeke—1) the decision to perform the hysterectomy; 2) the operative procedure of Dr. Kairys; 3) the operative procedure of Dr. Cushing; 4) the postoperative care of the leg by Drs. Kairys, Cushing or Tabbarah. Under the facts, it is impossible to distinguish the negligence of Dr. Kairys and Dr. Cushing in causing the injuries to the leg from their negligence in causing the injuries to the kidney and ureter.

The first argument advanced in Dr. Kairys’ appellate brief is that the lower court erred in refusing to instruct the jury as to primary and secondary liability as between Dr. Cushing and himself. We do not agree.

Both Doctors Kairys and Cushing participated in postoperative vascular care of Mrs. Hoeke. Most importantly, Doctor Kairys testified that he was the physician who ultimately ordered the arteriogram, a vascular procedure, for Mrs. Hoeke which was a crucial issue insofar as the postoperative liability aspect of this case was concerned. Further, Doctor Tabbarah, the additional defendant in this case, testified that Doctor Kairys was “commander in chief of this patient”, Reproduced Record at 1167a, that Doctor Kairys was the primary physician in this case and had overall responsibility for the patient and, that Doctor Kairys “wanted to really play as a cardiovascular surgeon in the case.” Reproduced Record at 1282a.

Doctor Kairys’ testimony reflects that he knew Mrs. Hoeke was suffering from vascular insufficiency, that he did not need vascular consultants to assist him in the diagnosis of this problem and that he recognized and appreciated the risk of the vascular insufficiency which was of course, the cause of the loss of Mrs. Hoeke’s right leg. Further, plaintiffs’ expert, Doctor Jerry S. Wolkoff, testified that Doctor Kairys, as an obstetrician/gynecologist, fell below the standard of care in his postoperative treatment of Mrs. Hoeke in not detecting and ordering diagnostic procedures in order to correct the vascular insufficiency from which Mrs. Hoeke was suffering.

The issue, therefore, is not primary versus secondary responsibility. The issue is whether the defendant, Doctor Kairys, fell below the standard of care in his duties owed to Mrs. Hoeke as attending physician. In the present case, the respective duties, insofar as standards of care were concerned, were submitted to the jury based upon the testimony presented at the time of trial. Based upon the charge, as well as this testimony, the jury found that both Doctors Kairys and Cushing were responsible for the loss of Mrs. Hoeke’s right leg and right kidney.

The defendant Kairys cites Builders Supply Company v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951) for the proposition that when one actor’s negligence is passive in comparison to the other actor’s active negligence, that the passive tort-feasor is entitled to indemnification from the active tort-feasor. Doctor Kairys could hardly be termed a passive tort-feasor. On the contrary, Doctor Kairys at all times participated in the postoperative vascular care of Mrs. Hoeke and realized the risks involved based upon the symptoms which Mrs. Hoeke displayed in the immediate postoperative period. As such, Doctor Kairys was a joint tort-feasor and, hence, was not entitled to indemnification. Accordingly, the lower court did not err in not submitting the issue of indemnification to the jury.

We have carefully reviewed the entire record as submitted to us, the briefs of counsel and have given full consideration to oral argument and applicable legal authority and we find no merit in the refnaining contentions of Dr. Kairys in this appeal and will not further discuss them.⁴

Judgment affirmed.

WIEAND, J., files a dissenting opinion.

Footnotes

1

. We had to carefully review the briefs of appellees and appellants as well as the opinion of the lower court in order to develop a composite of the facts since, as stated, a limited record on appeal was presented to us. We add, however, that there is very little difference between the factual assertions of all the parties.

2

. Dr. Cushing frames the statement of question involved as follows: Did the Court, in its charge to the jury, under Hamil v. Bashline, in effect, direct a verdict in favor of the plaintiff vis-a-vis this defendant?

Brief for Appellant-Cushing at 3.

3

. The first two questions propounded by Dr. Kairys in his appellate brief are set forth as follows:

1. Did the lower court commit reversible error by refusing to instruct the jury so that it could either return a finding on the issue of primary and secondary liability or make factual determinations enabling resolution of this issue and by incorrectly summarizing the testimony about the responsibilities of the doctor-defendants.

2. Did the lower court commit reversible error by precluding the jury from distinguishing injuries pertaining to the leg from those involving the kidney and ureter and awarding damages accordingly-

Brief for Appellant-Kairys at 3.

4

. The remaining issues raised by Dr. Kairys were as follows:

3. Did the lower court commit reversible error by misstating defendant’s contentions?

4. Did the lower court commit reversible error by refusing to offer responsive answers and appropriate instructions when questions were submitted by the jury?

5. Did the lower court commit reversible error by refusing to withdraw a juror or issue specific instructions after plaintiffs’ counsel made inflammatory and prejudicial remarks while closing?

6. Should a new trial be granted to both defendants if granted to one defendant?

Brief for Appellant-Kairys at 3.