Alexander v. University of Pittsburgh Medical Center System

ALITO, Circuit Judge,

dissenting:

The negligent advice provided by the defendant physicians was found by the jury to have caused a young woman’s death,5 and the defendants do not contest the sufficiency of the evidence supporting that finding. They now argue, however, that they should escape all or part of the liability for their malpractice because the young woman and her parents were foolish to have followed their bad advice. The majority holds that the trial judge should have charged the jury on this defense. In my view, however, there is no evidence that the girl and her parents were negligent. Their only mistake was to trust the defendants’ advice, which, although negligent, was not so implausible on its face that lay people should have known better than to have followed it. I therefore dissent.

I.

It is important to keep in mind that the jury found that the defendants “were negligent in advising [the Alexanders] re*152garding options for the treatment of her condition,” see app. at 1860, and that the defendants do not dispute the fact that there was sufficient evidence to support this finding. The defendants, contrary to the advice of the experts who were consulted regarding Alyssa’s condition, never recommended a liver transplant but instead advocated the use of chelation therapy.

1. Dr. Scheinberg

Dr. Scheinberg, an expert on Wilson’s disease, testified that when the livers became available, chelation therapy was not a reasonable option. See App. at 686-87. By failing to recommend strongly in favor of a transplant, Dr. Scheinberg testified, the defendants violated the applicable standard of care. See id. at 687.

2. Dr. Neigut

Dr. Neigut, one of the defendants, testified that when the second liver became available, she advised the Alexanders that “there was no clear-cut indication that[a liver transplant] would be imperative ... to avoid death” and that the transplant was not “the only option.” Id. at 349. Dr. Neigut stated that when the third liver became available, she told Mrs. Alexander that she “did not see an urgent need at that point to pursue the transplant.” Id. at 359. She also testified that she advocated chelation therapy and explained to the Alexanders that Alyssa would be in a better condition in the long-term if they avoided a transplant. See id. at 360.

Dr. Neigut also said that it was “reasonable” for the Alexanders to rely on her advice because she was their primary care physician. See id. at 373-74. She testified that, as Alyssa’s primary care physician, she had daily contact with Alyssa and was “primarily responsible for collating all [of the] information, for reasoning through all [of the] information, and making recommendations to the family.” Id. at 373.

3. Dr. Orenstein

Dr. Orenstein, another defendant, testified that when the first liver became available, she “agreed with” the Alexanders that chelation therapy was a reasonable way to proceed. See id. at 408. Dr. Oren-stein also testified that she discussed the risks of electing to continue chelation therapy but stressed that chelation therapy was the “preferred” method of treatment. See id. at 440. Dr. Orenstein did not dispute that she told the Alexanders that it would be appropriate for them to reject the livers. See id. at 425-26. Dr. Oren-stein further testified that her recommendations were reasonable, despite Dr. Reyes’s contrary suggestions, because she “was examining Alyssa everyday (sic) and going through things in more detail than ... Dr. Reyes had the time to do-” Id. at 414.

4. Mr. Alexander

Mr. Alexander testified that the defendants persuaded the family to reject the liver transplant option in favor of chelation therapy. For instance, Mr. Alexander testified that Dr. Neigut recommended that they should “pass” on the livers. See id. at 885. He testified that Dr. Neigut told the Alexanders that Alyssa had a good chance of survival without a transplant and that the chelation therapy was improving Alyssa’s condition. See id. Mr. Alexander also testified that Dr. Orenstein stated that “everything looks great” and that “she doesn’t see any need at all for a transplant.” Id. at 818.

5. Mrs. Alexander

Mrs. Alexander testified that Dr. Neigut stated that a liver transplant was not necessary. See id. at 904. She further testified that Dr. Orenstein recommended that they should continue chelation therapy because Alyssa’s lab reports were improving. See id. at 901.

*153II.

The majority notes that, according to the testimony of Drs. Orenstein and Nei-gut, they never advised against a transplant. See Maj. Op. at 146. However, it is undisputed that they never advised in favor of a transplant until it was too late and that they instead consistently recommended chelation therapy. It is obvious, therefore, that the jury inferred that the defendants implicitly advised against a transplant (by instead recommending an alternative method of treatment) and that this implicit recommendation was negligent and was the proximate cause of Alyssa’s death. And, as previously noted, the sufficiency of the evidence to support the jury’s finding is not contested on appeal.

Therefore, the defendants are essentially arguing that, although they negligently steered the family in a direction that proved fatal, they should not be held fully responsible for their actions because other doctors provided nonnegligent information. The real question before us, then, is the following: in view of the fact that the defendants implicitly advised against a transplant and that this advice constituted medical malpractice, was there evidence that Alyssa, a young woman hospitalized with a life-threatening disease, and her parents, neither of whom had any medical background, were contributorily negligent in heeding the defendants’ implicit advice rather than that of the consultants who strongly recommended in favor of the transplant? I do not think so.

The defendants have cited no Pennsylvania case, and I have uncovered none, that requires a contributory negligence charge under the circumstances presented here. Indeed, the only cases even remotely similar held that the instructions on .contributory negligence were proper because the plaintiffs failed to follow the advice of their primary care physicians. See Ferguson v. Panzarella, 549 Pa. 109, 700 A.2d 927, 930 (1997) (holding contributory negligence charge proper where plaintiff failed to attend scheduled doctor’s appointments); Morganstein v. House, 377 Pa.Super. 512, 547 A.2d 1180, 1184 (1988) (holding contributory negligence charge proper where plaintiff disregarded physician’s instructions about working and taking medication).

Here, the Alexanders followed the advice of their primary care physicians, and I fail to see how this can be deemed unreasonable. Indeed, Dr. Neigut conceded at trial that the Alexanders decision to rely upon her advice to forego the livers and continue with chelation therapy was “reasonable” because she was Alyssa’s primary care physician. See App. at 373-74. And, as their primary defense at trial, the defendants argued that their decision to recommend chelation therapy over liver transplantation was medically reasonable. See Defendants’ Closing Arg., App. at 1714 (“[Cjhelation, [the] medical approach, was a reasonable one....”).

I suppose that I can imagine an extreme case in which a physician’s advice is so transparently wrong that a reasonable lay person would be negligent in heeding it. Here, however, the defendants’ advice was not so obviously bad on its face that it fell into this category, and I do not think that the Supreme Court of Pennsylvania would allow them to escape all or part of their liability on contributory negligence grounds. Except perhaps in truly extreme eases, it is not negligent for a patient such as Alyssa or her parents to follow the advice of primary care physicians. To hold otherwise puts patients in an impossible position, undermines the relationship between patients and their primary care physicians, and gives grossly negligent physicians an unwarranted way to escape malpractice liability. I therefore dissent.

. See App. 1861 (verdict sheet showing jury found defendants' negligence was "a substantial factor in causing Alyssa Alexander's death”).