Petyak v. Commonwealth

Dissenting Opinion by

Judge Craig:

I respectfully dissent because the referee, in order to reach his decision, necessarily had to disregard the only expert medical testimony concerning the cause of death, that of the physician who performed the autopsy, and who twice affirmed his reasonable certainty that pneumoconiosis was the cause of death.

The autopsy, although limited to the thoracic area, was nevertheless sufficient to eliminate, and did eliminate, as the cause of death, the only alternative possibility suggested by the evidence — acute myocardial infarction.

The fact that the thoracic autopsy did not eliminate the possibility of a cerebral vascular accident is immaterial because the clinical findings and history provided no basis for introducing any such speculation. We cannot require that every post-mortem examination have a scope so total that it refutes every conceivable cause of death which the ingenuity of cross-examining counsel may imagine.

*163Here the medical witness, as a mark of his sincerity, admitted the limitation of his autopsy procedure, but every medical examination obviously has some limitations.

The medical certainty we require is reasonable, not absolute. I would reverse.