Mitzelfelt v. Kamrin

TAMILIA, Judge,

concurring and dissenting:

While I agree with most of what the majority has written, I respectfully dissent from the ruling of the majority, which overturns the jury verdict against Riddle Memorial Hospital, because the testimony given by Dr. Shenkin, an expert relied upon by appellee, did not express an opinion with sufficient medical certainty with respect to the cause of Mrs. Mitzelfelt’s condition to allow the case to go to the jury. I have no quarrel with the majority on its finding that failure to request a nonsuit, following appellees’ case, would not result in a waiver when Riddle went on to put in its defense, when the motion for nonsuit can be construed to be a motion for judgment n.o.v.

The issue as posed by the appellant and ruled on favorably by the majority was whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every reasonable inference which can reasonably be drawn from the evidence and rejecting all unfavorable testimony and inferences. As such no two reasonable minds could fail to agree that the verdict was improper. Ingrassia Construction Co., Inc. v. Walsh, 337 Pa.Super. 58, 486 A.2d 478 (1984). I disagree with the majority that this test was met.

The majority correctly states the general rule for establishing malpractice in this Commonwealth that plaintiff must present expert testimony establishing variance from accepted medical practice and that this deviation from com*133munity standards caused the plaintiffs injuries (citations in majority).

As I view the case, the majority minimizes the impact of the testimony of Nurse McGrath, that in her opinion it would be negligence to allow a patient’s blood pressure to fall to a level of 80/55 without taking corrective measures. The evidence in this case and the testimony of Nurse McGrath brings the case within the parameters of Brannan v. Lankenau Hospital, 490 Pa. 588, 417 A.2d 196 (1980) , where the exception to the rule regarding expert testimony applied when “[t]he matter under investigation is so simple, and the lack of skill or want of care so obvious, as to be within the range of ordinary experience and comprehension of even nonprofessional persons”, citing Chandler v. Cook, 438 Pa. 447, 265 A.2d 794 (1970); Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968); Smith v. Yohe, 412 Pa. 94, 194 A.2d 167 (1963). See generally, Restatement (Second) of Torts, § 323B(d). There, the court went on to say: “We think it clear that staff failure to notify the attending physician of the deteriorating condition of one of his patients falls within the exception to the requirement of expert testimony.” Brannan, 490 Pa. at 598, 417 A.2d at 201.

The error of the majority is treating Nurse McGrath’s testimony as insignificant and relying totally on the failure of of Dr. Shenkin to state, on cross-examination, the drop in blood pressure caused Mrs. Mitzelfelt’s condition within a reasonable degree of medical certainty. As to her qualifications, the standard is a liberal one: “If a witness has any reasonable pretention to specialized knowledge on the subject under investigation he may testify, and the weight to be given to his evidence is for the jury.” Beary v. Container General Corp., 368 Pa.Super. 61, 74, 533 A.2d 716, 722 (1987), quoting Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 598, 437 A.2d 1198, 1201 (1981) . As in Brannan, supra, from the hospital records there appeared to be a staff failure resulting in the patient’s receiving care below an acceptable standard, and *134from the testimony and evidence presented, a jury could reasonably find that Riddle was negligent.

Two things appear in this case that are ignored by the majority. First is that Nurse McGrath is a nurse anesthetist and as such she is sufficiently trained and skilled to be present daily in operations requiring anesthesia so that she has a knowledge of that field which would or should be only somewhat less than the doctor anesthetist. Her opinion as to the effect of permitting a patient’s blood pressure to fall to a level of 80/55, without taking corrective measures, can not be ignored. The trial court treated her as an expert and, in fact, she is an expert. While she does not have the stature of Dr. Shenkin, her opinion that permitting this to happen was negligence carries weight, and despite Dr. Shenkin’s refusal to state that the drop in blood pressure was the cause of injury, within a reasonable degree of medical certainty, at best, the statement of Dr. Shenkin is conflicting and qualified in relation to his prior statements, but in reality, even if the majority is correct on that aspect of the case, his testimony and that of Nurse McGrath as to the harm caused by a drop in blood pressure cannot be ignored, first as being negligence on the part of the anesthesiologist, and second as capable of causing serious harm. Put into perspective with the direct evidence from the hospital records as to the actual drop in blood pressure, failure to take action at that time and the well established opinion of all expert testimony, there was ample expert testimony and evidence for determination by the jury as to causation and liability. The plaintiff need not exclude every possible explanation and the fact that some other cause concurs with the negligence of defendant in producing injury does not relieve defendant from liability unless he can show that such other cause would have produced the injury independent of his negligence. Jones v. Montefiore Hospital, 494 Pa. 410, 431 A.2d 920 (1981).

Judge Mirarchi’s Opinion clearly pointed out these matters and properly determined this was a jury question, as follows:

*135Dr. Henry Shenkin, a neurosurgeon, called by the plaintiff was qualified as an expert in his field. He outlined the procedure to be taken when a patient undergoing a cervical laminectomy sustains a drop in blood pressure. His procedure began with attempting to ascertain the cause and initiate preventive measures. He maintained that it was necessary to prevent “pooling of the blood in the lower extremeties [sic], or in the lower part of the body.” The patient’s legs must be wrapped, the patient is then placed in a g-suit or a g-blanket and/or administer drugs. The responsibility is with everyone concerned.
“But, in treating that, the diagnoses of the pressure dropping is in the hands of the anesthesist [sic] who is recording the blood pressure and the treatment, therefore is generally in their hands because the surgeon is busy surgeoning [sic].” (emphasis supplied) (N.T. 1.171) Dr. Shenkin further testified that a drop in blood pressure as sustained by the plaintiff was “sufficient to compromise the blood supply to the spinal cord of this particular patient in the upright position and under general anesthesia.” (N.T. 1.73-1.75)
Nurse MARLENE MC GRATH testified that it is the responsibility of the anesthesia department to monitor the vital signs of the patient. She further testified that if the blood pressure dropped too low she would take corrective measures to bring it up. Specifically, McGrath testified that she would take measures to bring up plaintiff’s blood pressure if it had dropped to eighty (80) over fifty-five (55). (3.144). In the instant case, the record indicates such a drop in pressure. The record further indicates that no corrective measures were taken during plaintiffs surgery (emphasis added).
Defendant’s expert medical witness in neuro-anesthesiology, on cross-examination, stated in his report the plaintiff, Nancy Mitzelfelt had a [sic] intraoperative range of blood pressure between 100 and 80 systolic. However, when he examined the original chart he testified that it did not show an 80 systolic. This inconsistency between *136his report and testimony was properly a question for jury determination.

Slip Op., Mirarchi, J., 12/30/87, pp. 16-17.

While the majority would have us rule that absent the explicit testimony of a doctor medical expert, the jury cannot be permitted to make a determination as this would amount to mere speculation. That rule applies only in the situation when no other competent evidence is available upon which a decision can be made. Such is not the case here as the record is complete as to causation and liability and sufficient for a jury to find that the hospital is liable under an agency theory, due to the negligence of the anesthesiologist. While there might be some conflict in the testimony, it has been held that conflict in testimony is fatal only if absolute. Menarde v. Philadelphia Transportation Co., 376 Pa. 497, 103 A.2d 681 (1954).

I would affirm the jury verdict and resolve all other issues in favor of the plaintiff as I perceive no reversible error as to the remaining issues.