SHERIDAN, District Judge.
Plaintiff, Gerald J. Schuler, administrator of the estate of Betty Mae Carlier, deceased, brought a malpractice action against defendant, Melvin M. Berger, an obstetrician-gynecologist, under the Pennsylvania Wrongful Death Act, 12 P. S. § 1601 et seq. and Survival Act, 20 P.S. § 320.601 et seq. The jury returned a verdict for plaintiff and awarded damages under both acts. Defendant's motions for judgment notwithstanding the verdict (n. o. v.) and, in the alternative, for a new trial, are before the court.
This is a diversity action. The court has jurisdiction under 28 U.S.C.A. § 1332. The substantive law of Pennsylvania applies.
On August 14, Mrs. Carlier complained of cramping abdominal pains. On August 15, she complained of progressively severe pain in the left lower abdominal quadrant, aggravated by movement, with associated left shoulder and back pain. At 2:30 P.M. Dr. Sugden found voluntary guarding in all abdominal quadrants and reported his findings to Dr. Alexandrian, a resident who had relieved him. Dr. Alexandrian noted that Mrs. Carlier screamed occasionally, but after examination concluded she had a postpartum psychosis. He prescribed an intramuscular dose of Compazine, a tranquilizer. At about 5:00 P.M., in a telephone conversation, Dr. Alexandrian fully apprised defendant of Mrs. Carlier's condition. No diagnostic or evaluatory procedures were ordered, however. At 8:00 P.M., the severity of Mrs. Carlier's pain, which rendered her to be unable to walk, caused her husband to call defendant. Defendant attributed the symptoms to normal postpartum cramps as magnified by a low pain threshold. During the day of August 15, Mrs. Carlier received Librium, a tranquilizer, on four occasions; Compazine at 4:30 P.M.; Miltown, another tranquilizer, at 9:15 P.M.; two capsules of Darron Compound, an analgesic drug, at 2:00 A.M.; and two A.P.C. tablets, with a full grain of codeine, at 7:00 P. M. All orders were countersigned by defendant. Mrs. Carlier was reportedly asleep when the defendant called the maternity floor between 11:00 and 11:30 P.M. The hospital record showed that at 11:30 P.M. Mrs. Carlier was discovered in profound shock, with no pulse or blood pressure obtainable, cold and clammy, with abdomen distended. Dr. Lentz, an intern, and Dr. Chung were summoned. For the period from 11:30 P.M. to 1:00 A.M., no active or therapeutic measures are reported on the chart. Defendant, notified by telephone at 1:00 A.M. on August 16, ordered an intravenous infusion of glucose and water with Aramine, a vasopressor drug. Whether this was successfully started is disputed. Dr. Chung stated that all attempts to start the infusion were unsuccessful. Defendant, who arrived at about 1:15 A.M., testified that the intravenous was started but the needle came out of the vein; whether it was restarted is also disputed. No cutdown was performed. Following a physical examination by defendant, which was completed by 1:30 A.M., the diagnostic and therapeutic measures consisted merely of aspiration of vomitus, administration of oxygen, application of heat and elevation of the feet, other than the attempts to give intravenous fluids.
Mrs. Carlier was pronounced dead at 3:30 A.M. on August 16, 1961. Defendant stated on the death certificate that the onset of Mrs. Carlier's condition had occurred four to six hours prior to her death.
The autopsy findings were a diverticulitis of the sigmoid colon with an acute rupture of the diverticulum resulting in peritonitis. The medical witnesses all agreed that the symptoms of diverticulitis were obscure and that no doctor could have diagnosed it. The jury was instructed that they could not find negligence based on a failure to diagnose. Plaintiff claims defendant was negligent in failing to take the necessary and proper steps to detect and treat the peritonitis, which would have saved Mrs. Carlier's life.
MOTION FOR JUDGMENT N. O.V.: Defendant argues that plaintiff failed to prove proximate cause because
Dr. Spelman, plaintiff's expert, testified on direct examination:
On cross-examination, Dr. Spelman testified:
The argument is that "there is good reason to believe" and "I feel she would have" is tantamount to stating that death "might have" resulted, or "possibly" or "probably" did result from defendant's conduct and that such expressions are insufficient under Pennsylvania law. Dr. Spelman's responses were equivalent to saying that he believed that had certain specified therapeutic measures been taken, Mrs. Carlier would have survived. It is true that expert testimony must assert that it is the professional opinion of the witness that the result came from the cause alleged. Smail v. Flock, 1962, 407 Pa. 148, 180 A.2d 50. The use of "I believe" amounts to an assertion of an expert's professional opinion. Jones v. Philadelphia & Reading Coal & Iron Co., 1926, 285 Pa. 317, 132 A. 122. In Auerbach v. Philadelphia Transp. Co., 1966, 421 Pa. 594, at 604, 221 A.2d 163, at 171, a medical expert testified "Well, had she not had an amputation on one side, I feel quite certain she would not have fallen." This was held to be sufficient. While on cross-examination Dr. Spelman indicated that he could not state with certainty that Mrs. Carlier would have lived, he did state that in his opinion she would have lived. This was sufficient. McMinis v. Philadelphia Rapid Transit Co., 1927, 288 Pa. 377, 135 A. 722.
Defendant also argues that Dr. Spelman listed six conditions as a prerequisite to his conclusion, which, apparently, make it conjectural. These were not, strictly speaking, "conditions" prerequisite to the conclusion; rather, they were an enumeration of the various steps which would have had to be taken, and which the testimony showed were not taken, to save Mrs. Carlier's life. The evidence of the absence of these steps was accepted by Dr. Spelman and formed part of the basis for his ultimate conclusion.
In Hicks v. United States, 4 Cir. 1966, 368 F.2d 626, at page 632, the court stated:
In note 3, the court pointed out:
Aside from the opinion of Dr. Spelman, the jury had before it enough medical evidence on which to find causation. Defendant testified it is accepted medical practice to do blood work when a patient is in shock and that a failure to do it would be negligence. A nurse's note on the chart showed "blood work done, type and cross match," but the pathologist testified that all requests for blood work are under his supervision and that the laboratory records showed neither a request slip nor that any blood work had been done on the 15th or the 16th of August. The records showed Mrs. Carlier had only a prenatal typing of blood, and that her blood had not been cross matched. Defendant's explanation that the blood work had probably been ordered by Dr. Chung and that in emergencies it is common to give oral orders for blood work was for the jury. The jury could have found that blood work was not performed, that it should have been, and that the failure to perform it was negligence.
MOTION FOR NEW TRIAL: Defendant argues that the court improperly instructed the jury that it could find defendant vicariously liable for the negligence of all hospital employees (residents, interns and nurses) who treated Mrs. Carlier. He relies on the following part of the charge.
While he admits that the court properly charged the jury on the standards of vicarious liability, he argues that the admission related to events which took place only in the late evening of August 15 and early hours of August 16, and had no reference to any acts or omissions of others which had taken place earlier in the day when he was not present. The above part of the charge is taken out of context. After instructing the jury on the standards applicable to vicarious liability, the court reviewed some of the relevant evidence. The court then instructed the jury on the manner in which the evidence should be considered:
Defendant had requested a charge that defendant would not be liable for the acts of hospital employees who perform their usual functions "and are not directly supervised by the Defendant physician." This was denied because vicarious liability was covered in the charge, and also because the right to control, and not direct supervision, is the proper standard. Yorston v. Pennell, 1959, 397 Pa. 28, 39, 153 A.2d 255, 85 A.L.R.2d 872.
The evidence was sufficient to submit to the jury the agency of all residents and interns who attended Mrs. Carlier:
Moreover, prior to his arrival at the hospital at 1:00 A.M., defendant had ample opportunity to exercise control. He had been apprised of Mrs. Carlier's complaints at 5:00 P.M. by Dr. Alexandrian, and by the 8:00 P.M. call from her husband. Dr. Chung had discussed with him the steps taken by Dr. Chung and Dr. Lentz before his arrival, and these had his approval. Nevertheless, defendant delegated the responsibility to treat Mrs. Carlier.
There was sufficient evidence of defendant's direct negligence to support the verdict. The jury could have found that defendant's inaction from 5:00 P.M. until 1:00 A.M. or his failure to take proper procedures after 1:00 A.M. constituted negligence in view of the information at his disposal. Dr. Spelman enumerated the studies and therapeutic measures which were indicated and required to meet the accepted standards of due medical care after Mrs. Carlier lapsed into shock. These were blood studies; cross matching of whole blood for transfusion; x-ray studies of the abdomen; vigorous intravenous fluid infusion; using plasma and whole blood; venous cutdown to administer the fluids if vein puncture was at all delayed; administration of antibiotics by vein; and a laparotomy, after the diagnosis of peritonitis. Although defendant made the diagnosis of shock and peritonitis at 1:30 A.M., none of these measures was taken, except for the attempt at intravenous infusion. The jury might have found that no venous cutdown was performed.
Defendant explained the course of action he took and why he had not taken certain other actions. These explanations were for the jury.
Defendant questions the competency of Dr. Spelman to testify to the standard of care of an obstetrician-gynecologist in treating shock. Dr. Spelman, a graduate of Yale Medical School, is the Medical Examiner for the City of Philadelphia. His studies have included obstetrics-gynecology and internal medicine and surgery. He is a professor of pathology at the Medical Schools of the University of Pennsylvania, Temple University and at Jefferson Medical College. His work requires him to constantly review hospital charts and records, to work closely with physicians and to be knowledgeable of current medical standards of treatment and care, to determine the causes of death, and to determine whether treatment and care comport with medical standards. He is consulted on a daily basis by other doctors. The County Medical Society in Philadelphia, at his request, established a mortality survey committee to which he refers cases considered by him to be below accepted standards. He was certainly qualified to testify. The weight of his testimony was for the jury. Roberts v. United States, 3 Cir. 1963, 316 F.2d 489.
Defendant argues next that the court erred in permitting Milton Rosner, proprietor of an employment agency, to testify to the economic value of services rendered by a wife and mother, because this was not a proper subject for expert testimony. A similar argument was made in Merrill v. United Air Lines, Inc., S.D.N.Y.1959, 177 F.Supp. 704. In rejecting the argument, the court stated:
See Curnow v. West View Park Co., W.D. Pa.1963, 220 F.Supp. 367, 373.
Defendant's remaining contentions concern damages. The court denied him permission to introduce evidence of Mrs. Carlier's premarital pregnancy and four months' marriage. Defendant offered to prove that apprehension of approaching childbirth is more marked in women who become pregnant before marriage and that this and the premature birth were taken into consideration by the doctors in arriving at a diagnosis of postpartum psychosis. This evidence was excluded because, even if it were logically relevant, it was not indispensable for its legitimate purpose, and the undue prejudice which would be caused by its admission made it legally irrelevant. McCormick, Evidence § 152 at pages 319-320; 1 Wigmore, Evidence § 29a (3d ed.); 6 id. § 1864. Subsequently, after Dr. Spelman testified, defendant
Defendant also contends the court erred in excluding evidence of Mr. Carlier's remarriage in connection with damages under the Wrongful Death Act. In Pennsylvania the rights of the surviving spouse are fixed at the moment of death and remarriage cannot be considered in the assessment of damages. Philpott v. Pennsylvania R. R. Co., 1896, 175 Pa. 570, 34 A. 856; Johns v. Baltimore & O. R. R. Co., W.D.Pa.1956, 143 F.Supp. 15, 29, aff'd 3 Cir. 1957, 239 F.2d 385. In the Johns case, the district court quoting from City of Rome, S.D. N.Y.1930, 48 F.2d 333, and an agency report under review in that case, set forth the reasons why the fact of remarriage is not proper evidence.
Cf. Curnow v. West View Park Co., supra, rev'd on other grounds, 3 Cir. 1964, 337 F.2d 241.
Finally, the defendant argues that the court erred in refusing to permit cross-examination of Mr. Carlier on his actual expenses in replacing his wife's services in view of the testimony of Rosner who separately valued the cost to replace the loss of the various services provided by a wife-mother. To have permitted this would have resulted in a disclosure of Mr. Carlier's remarriage and would have opened the door to the "realm of speculation * * * and sea of impossible calculations." The testimony of Rosner was merely a guide to the jury. On cross-examination, defendant effectively brought out whatever improbabilities there were by showing under Rosner's testimony that the substitute would
The motions for judgment n. o. v. and for a new trial will be denied.