dissenting:
I must respectfully dissent.
*294The instant appeal arises after a jury trial at which a general verdict for plaintiffs-appellees and damages of forty thousand ($40,000.00) dollars was awarded against all defendants-appellants, in a trespass action for medical malpractice. The action arose out of the August 16, 1962 maternity hospitalization of. appellee Rita Stack. On the evening of that date, she entered the appellant Albert Einstein Medical Center for the delivery of her fourth child. During the course of her pregnancy and continuing through her hospitalization, Mrs. Stack was under the care of the three appellant physicians.
As presented by plaintiffs-appellees, Mrs. Stack’s problems arose when she was given" a labor-inducing drug, known as Pitocin, during the very early hours of August 17, 1962. Pitocin, according to experts who testified, is a drug commonly used in childbirth labor. Testimony demonstrated that while it offers significant medical benefits in the inducement and regulation of labor in the pregnant patient, it has well known possible dangerous side effects if not administered properly. It is administered intravenously and safe medical practice dictates that the flow of the drug and the condition of the patient be monitored constantly by attending medical personnel to assure immediate steps to curtail the development of the known possible side effects. It was the plaintiffs-appellees’ contention and theory that proper monitoring did not take place and that such alleged shortcomings started a chain of events leading to severe medical problems for Mrs. Stack.
The actual difficulties which befell Mrs. Stack were not really in dispute, but only the causes of such problems. The record shows that after the delivery of her child at 8:30 A.M. on August 17, 1962, Mrs. Stack suffered intrauterine bleeding. A tear in her uterus was discovered, and after attempts to repair it failed, it became necessary to perform a complete hysterectomy. As a result of these unhappy events, Mrs. Stack required the transfusion of several pints of blood. Shortly following *295her release from the initial hospitalization, Mrs. Stack ■vyas diagnosed as suffering from hepatitis and had to be re-hospitalized. Plaintiffs-appellees contended that medical negligence in the transfusion of blood at the time of the initial hospitalization caused the hepatitis. Finally, during the second hospitalization, Mrs. Stack received medication, which, it was alleged, caused her to suffer a hearing loss.
It is contended by appellant that the lower court should have granted Motions for Judgment Non Obstante Veredicto or a New Trial and I am constrained to agree that a new trial is necessary. I reach this conclusion as a result of my conclusion that improper testimony was introduced at trial and considered by the jury in its deliberations.
As noted in my resume of facts, above, it was the fundamental theory of appellees that medical malpractice occurred in the appellants’ alleged failure to provide adequate monitoring during the administration of the drug Pitocin to Mrs. Stack. The record shows that the appellees relied primarily upon the hospital records for proof of such failures. During the time that Mrs. Stack was receiving Pitocin prior to the delivery of her child, the hospital chart, usually prepared contemporaneously with observations of the administration of a drug to a patient by medical personnel, showed an absence of entries for several hours during the critical period of care. The hospital chart was not the only evidence offered by the appellees, however, concerning the crucial element of monitoring. The appellees first called as witnesses two physicians who had attended Mrs. Stack during the night in question. The first witness was one of the defendants-appellants, Dr. Brownstein, while the second was Dr. Shuster, a physician who had been a resident on duty in the delivery area during the period of Mrs. Stack’s labor .and delivery. While Dr. Brownstein was called as on cross-examination, the former resident was not; both testified that Mrs. Stack’s condition and the administra*296tion of Pitocin were constantly monitored throughout the times relevant to this case and further testified her progress was steadily noted on a blackboard in the delivery room.
In the face of this conflict between the witnesses’ testimony as to monitoring, and the evidence to be inferred from the absence of notations in the hospital charts, appellees called another physician as an expert witness. This witness relied solely upon the medical record as evidence in testifying at great length to his conclusions that there had been a departure from accepted medical standards in the treatment, or lack thereof, rendered to Mrs. Stack. He also, with repetition, expressed the view that he could not base his opinion upon the testimony of the two attending physicians, despite the fact that it comprised a part of the hypothetical question upon which he was instructed to base his opinion, because he opined that he did not believe their testimony. Rather, he ignored their version and relied solely upon the lack of notations in the hospital record. He finally stated, on cross-examination, that if he were forced to accept the testimony of the attending physicians as true, he would conclude that there had been no departure from accepted medical practices.
The lower court, in its charge to the jury, concerning this expert’s testimony said:
“He said if he assumes that Dr. Brownstein and Dr. Shuster did regularly monitor Mrs. Stack’s condition and placed the information on the board, that would change his opinion, he would then state that the care and treatment was within acceptable treatment practice.
What he did here was weigh the evidence and decide which testimony he was going to accept as a basis for his opinion. He was in a position where, if he accepted the testimony of Dr. Brownstein and Dr. Shuster and, to a lesser extent, Dr. Arno, then this condition *297occurred (sic) it may be one in a thousand, or something like that, but it did not result or was not causally related to a failure on the part of the doctors to closely monitor her condition.
He disregards that and bases his opinion on the hospital record, saying that the hospital record shows there was no adequate medical supervision of Mrs. Stack during her labor period.
A doctor, even though a specialist or an expert, does not determine questions of credibility or believability. He must accept as true the information which is given to him in the hypothetical question.
Any questions of credibility, who you believe, are for you and not for the Court and not for the attorneys and certainly not for a doctor. Nevertheless, it is his position that he did not see the blackboard, he does see the chart, and based on the chart, he has the opinions which he has given to you.
What I am saying, finally, is that you examine his testimony the same as you examine the testimony of Dr. Brownstein or Dr. Shuster or anybody else in the case, and you decide what weight you are going to give to that testimony.” (Emphasis added).
The appellants raised numerous objections to the above-described testimony of the appellees’ expert and to the lower court’s submission of this evidence to the jury. Objections were raised to the hypothetical questions asked. All pertinent allegations or error were preserved by inclusion in Motions for Judgment Non Obstante Veredicto and New Trial. Contrary to the lower court, and to my learned Brethren supporting the majority view oh this appeal, I believe that several matters of error are clearly apparent, and mandate reversal.
Appellants contend that appellees were bound by the testimony of the attending physicians and should not have been permitted to place reliance on or hypothesize to an expert on the medical charts in this case. The first *298physician called, Dr. Brownstein, was a defendant, and appellees were naturally permitted to treat him as an adverse witness and call him for cross-examination. However, the other physician, Dr. Shuster, who is no longer employed by the appellant hospital, nor in any way connected with the appellant physicians was properly held not to be an adverse witness when appellees requested this status for him at trial. Knowing that they would clearly be bound by the testimony of this witness, appellees elicited from him his recollection that close monitoring of Mrs. Stack had taken place throughout the crucial time period of her labor, and further that her progress had been contemporaneously charted on a blackboard. In my opinion, the law applicable in these circumstances, requires a holding that appellees were bound by the testimony of Dr. Shuster. See Lott v. Peoples Natural Gas Co., 324 Pa. 516, 188 A. 537 (1936).
The majority Opinion extensively discusses my reliance upon Lott, Id. and my conclusion that in our Commonwealth a party is bound by the testimony of a witness he calls in litigation. While the majority makes several compelling philosophical arguments against that rule, and while I find it difficult to disagree with such arguments, I feel that the majority is incorrect in stating that the rule has been removed from our law. Although a rule of law may be termed anachronistic by our Court, we have no choice but to follow such rule when it is established in our law by the Supreme Court of Pennsylvania. . While courts and commentators have often criticized the rule that one must vouch for the credibility of his own witnesses, our Supreme Court has stopped short of abrogating it. Only months ago, the majority of our Supreme Court stated:
“Courts have long recognized, however, that a strict application of the ancient voucher rule under the conditions of modern jurisprudence can lead to injustice, and so they have articulated and developed a number *299of exceptions to the rule, usually without questioning whether the rule itself remains a valid one.”
See Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976). In footnote 4 of the Gee case, the Supreme Court further criticizes the rule. However, as the Dis-sending Opinion by Justice Roberts points out, the voucher rule is still viable in Pennsylvania, despite the nearly unanimous criticism to which it has been subjected. The initial sentence of Justice Robert’s Dissenting Opinion in Gee, supra, reads:
‘T believe that this case provides a good example (1) why we should abandon the ancient doctrine that the party producing a witness vouches for his truthfulness
I will not seek to justify the rule — I do believe however that our Court is constrained to follow such clear and recent precedent.
I also note no exception to this rule present in the instant case permitting the appellees to avoid the onus of Dr. Shuster’s testimony. Appellees did not claim surprise at the testimony when it was elicited. See Gee, supra. In light of these facts, I believe we are required by applicable precedent to hold that appellees are bound by the testimony of Dr. Shuster that monitoring was performed.
As discussed above, appellees offered a set of hospital charts which contained no notations of observations or treatment during several hours when observation or treatment was required. These records, in my view, constituted negative evidence, creating mere inferences which could not overcome Dr. Shuster’s testimony which was positive direct evidence to the contrary.1 See Wil*300liams v. Pittsburgh, 349 Pa. 430, 37 A.2d 540 (1944); Grimes v. Pennsylvania Railroad Company, 289 Pa. 320, 137 A. 451 (1927); Rapp v. Central Railroad of Pennsylvania, 269 Pa. 266, 112 A. 440 (1921).2 In view of this inconsistency in the appellees’ proof regarding monitoring, and the rule of law requiring that the positive testimonial proof be given greater weight, I believe it was error to allow the appellees to have their expert rely on a hypothesis of facts which included the negative proof encompassed in the hospital chart.
With regard to the expert’s testimony and the trial court’s handling of it, other error is apparent to me. As discussed above, the expert should not have been permitted to base any opinion on a hypothetical set of facts which included the negative evidence from the hospital chart. The record shows that the expert not only relied upon the chart, but continually refused to rely on the contrary evidence offered by the attending physicians. It is clear that an expert must rely upon all the facts set forth in the hypothetical question in rendering his opinion. McGarrity v. New York Life, 359 Pa. 308, 59 A.2d 47 (1948). Moreover, the expert in the instant case repetitively testified he could not rely on the version of facts offered by the physician witnesses because he speculated that they were not telling the truth. He offered the opinion that their testimony was not credible when measured against the absence of notations in the hospital chart. An expert witness may not base his opinion upon another opinion in this manner. Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968). Further, I believe the trial court should have granted appellant’s request and *301struck all such testimony by the expert. I do not believe the cautionary instruction in the court’s charge, as quoted above, was sufficient — he should not have permitted the expert’s testimony, based upon the negative evidence of the chart and the expert’s own credibility assessment, to be considered by the jury.
Last, I note that appellants sought either a new trial or judgment non obstante veredicto. The appellees alleged that several distinct physical problems were suffered by Mrs. Stack, including a ruptured uterus (with subsequent hysterectomy), hepatitis, and a hearing loss. While the appellees’ proof of causation relative to some of these problems was not strong, in reviewing it in light of a request for judgment non obstante veredicto, “[w]e must accept the whole body of evidence in the strongest way it can reasonably be interpreted in support of the verdict and reject any evidence to the contrary”. Geiger v. Schneyer, 398 Pa. 69, 71, 157 A.2d 56, 57 (1969). In such a review, appellees’ evidence would have to be considered sufficient, even without the expert’s improper testimony, to overcome the appellants’ request for judgment non obstante veredicto.
I would therefore grant a new trial.
WATKINS, P. J., joins in this dissenting opinion.. While appellee presented evidence of a hospital policy requiring that its charts contain a reference to all observations and treatment, the lack of entries could not create more than an inference that observations and treatment did not occur. For this reason, the charts constituted negative evidence. While not to be condoned in any case, there is no evidence that the lack of a complete chart could be considered a proximate cause of the medical problems which befell Mrs. Stack.
. While the majority contends that the negative evidence rule “was laid to rest”, I must respectfully disagree. Fallon v. Penn Central Transportation Company, 444 Pa. 148, 279 A.2d 164 (1971), cited by the Majority to support its position, merely indicated certain types of testimony would be considered to be positive, rather than negative. I believe Fallon supports my view that the positive versus negative evidence principle is still viable in our law.