Jackson v. Medical College of Pennsylvania Hospital

40 Pa. D. & C.4th 519
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedApril 22, 1998
Docketno. 4258
StatusPublished

This text of 40 Pa. D. & C.4th 519 (Jackson v. Medical College of Pennsylvania 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
Jackson v. Medical College of Pennsylvania Hospital, 40 Pa. D. & C.4th 519 (Pa. Super. Ct. 1998).

Opinion

GORDON, J.,

This is a medical malpractice action that arose as a result of the alleged delayed diagnosis and surgery of the plaintiff’s decedent.

This case was brought by the plaintiff, Robert S. Jackson, on behalf of the estate of his late wife, Aven S. Jackson. The plaintiff as administrator sought damages from the defendants, The Medical College of Pennsylvania, Michelle Battistini M.D., Deurward Hughes M.D., and Thomas Santera M.D. Both a wrongful death and survival action were instituted against the defendants.

This litigation was predicated on the following facts: On December 15, 1992, the decedent, Aven Jackson, who was 46 years of age at the time, entered MCP for an elective hysterectomy to be performed by Dr. Battistini. Following the surgery, no complications developed the first two days. On the third day postoperative, Mrs. Jackson began to experience abdominal pain and fever. This condition continued until the sixth postoperative day. Dr. Battistini and the physicians attending to Mrs. Jackson diagnosed her condition as a bowel obstruction.

On the sixth day after surgery, Dr. Battistini performed abdominal surgery on the decedent to determine the nature of the problem. She was assisted during this operation by Dr. Hughes, who was the chief of the department of obstetrics and gynecology at MCP. The surgery showed that the problem was not a bowel ob[522]*522struction, but instead a portion of the bowel had herniated through a membrane that covers the abdominal organs. Dr. Battistini reinserted the bowel into the abdomen and called Dr. Santera, a general surgeon, for consultation.

After performing a Doppler test on the bowel, Dr. Santera concluded that the bowel was viable. Based on the assessment that it was viable, the doctors did not perform a resection of it during this surgery.

When there was no improvement in Mrs. Jackson’s condition after 24 hours, another abdominal surgical procedure was necessitated. At this time, Dr. Santera determined that approximately six feet of small bowel was not viable and performed a resectioning of affected portion. Mrs. Jackson subsequently underwent four more operations. After six operations, her condition did not improve and she succumbed on January 12, 1993 of system failure, approximately 28 days after the original surgery.

The plaintiff contends that his wife’s death was due to the negligence of the named defendant doctors, other physicians, and nurses who attended Mrs. Jackson while she was a patient at MCP. He bases this theory on the assertion that there was an unreasonable delay in diagnosing the mechanical bowel obstruction, and when it was discovered, the physicians failed to resect it in a timely manner. The plaintiff presented the testimony of two board-certified general surgeons, Dr. Theodore Bitsack and Dr. Theodore Struhl, to support his propositions.

On March 25, 1997, after a trial before this court and a jury, the jury found the defendants MCP and Battistini negligent and returned a verdict in favor of the plaintiff against them. Hughes and Santera were found not liable. The jury found Battistini 60 percent [523]*523liable and MCP 40 percent liable. Damages were awarded in the amount of $750,000. The two defendants found culpable filed a timely post-trial motion requesting a new trial or in the alternative judgment notwithstanding the verdict.

In requesting j.n.o.v. or new trial, the defendants have averred that:

(1) Over the defendants’ objection, this court erred when it allowed the plaintiff’s experts to give unqualified testimony and render an opinion as to the standard of care for a board-certified gynecologist;

(2) This court erred by allowing the testimony of the plaintiff’s experts to go beyond the scope of their reports;

(3) This court committed error by not providing instructions to the jury on the different schools of thought doctrine;

(4) This court erred by not instructing the jury to reduce future damages to present worth; and

(5) The plaintiff’s experts did not provide opinions with the required level of medical certainty.

The defendants’ post-trial motion was denied.

In reviewing the request for a new trial, the court must determine if the verdict is so contrary to the weight of the evidence that it “shocks one’s sense of justice” or results in a miscarriage of justice. See e.g., Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985). Such a determination is always within the discretion of the trial judge and is reviewable only where there is an abuse of discretion. See e.g., Sacco v. City of Scranton, 115 Pa. Commw. 512, 540 A.2d 1370 (1988); Myers v. Gold, 211 Pa. Super. 66, 419 A.2d 663 (1980); Macina v. McAdams, 280 Pa. Super. 115, 421 A.2d 432 (1980).

[524]*524Judgment n.o. v. will only be granted when the moving party is entitled to judgment as a matter of law or because the evidence is such that no two reasonable minds could disagree. Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003 (1992). The facts must be considered in a light most favorable to the verdict winner, in this case the plaintiff. Moure, supra. Because this court is, in a sense, intruding upon the province of the jury, we will review the entire record to determine if there exists a serious injustice. Hilbert v. Katz, 309 Pa. Super. 466, 455 A.2d 704 (1983).

I. EXPERTS QUALIFIED TO OPINE ON THE STANDARD OF CARE

In medical malpractice cases, expert testimony is required to determine the standard of care in assessing whether there was negligence by the defendant doctor or hospital. The defendants aver that such testimony must be presented by an expert in the particular field or specialty of the defendant doctor in order to fully assess whether the proper standard was met. Dr. Battistini is a board-certified gynecologist and obstetrician, whereas plaintiff’s expert, Dr. Bitsack, is a general surgeon who has not performed gynecological surgery since the early 1970s.

The defendants aver that although Dr. Bitsack was only offered as an expert in general surgery, this court allowed his expert opinions regarding the standard of care of an obstetrician. Additionally, the second expert, Dr. Struhl, is also not board certified in gynecology. Therefore, the defendants state, he should not have been permitted to testify as to the standard of care of Dr. Battistini.

The defendants refer this court to a series of case law which provides that experts should not be permitted to [525]*525testify as to the standard of care for a medical procedure which falls outside their areas of specialization. See Dambacher by Dambacher v. Mallis, 336 Pa. Super. 22, 485 A.2d 408 (1984); Harris v. Campbell, 409 P.2d 67 (Ariz. App. 1965); Sweeney v. Blue Anchor Beverage Co., 325 Pa. 216, 189 A. 331 (1937).

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Bluebook (online)
40 Pa. D. & C.4th 519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-medical-college-of-pennsylvania-hospital-pactcomplphilad-1998.