process. He concluded that the infection which resulted from the puncture wound was the straw in this case that broke the camel's back, by which he meant the reason for the need for an amputation.
It is conceded that the infection which Dr. Waldow found on June 18, 1960 was a septic infection and that in Mr. Lewin it was sufficient cause for the amputation of the leg.
Dr. Waldow's opinion was of little use in proving plaintiff's case. His testimony does not support a finding that the insured's disability resulted solely from the accidental injury to the foot. All he said was that the infection was a sole and independent cause of the loss; he nowhere said that were it not for the arteriosclerosis and diabetes mellitus, the infection would have progressed to such a degree as it did or that any infection at all would have resulted from the puncture wound. These he must have especially eliminated since he had testified that infections are much more difficult to control than under ordinary circumstances in a man with both arteriosclerosis and diabetes mellitus; and that if a person has arteriosclerosis of the severity of Mr. Lewin and has diabetes of his duration, he is a prime candidate for problems if he cuts the skin or gets any infections and does not get proper care.
Dr. Sack's testimony that the infection was the sole cause of the amputation must be interpreted in light of his later testimony that the infection was the straw that broke the camel's back, reflecting his opinion that the poor blood flow to the foot precluded effective control of the infection.
Dr. Sacks did not say that the infection was or was not caused by the puncture wound and became a threat to Mr. Lewin's limbs without the reduced blood flow. He testified at one point indirectly that an abnormal blood flow to the foot may be sufficiently urgent to create the need for meticulous care of the foot to prevent breaks in the skin. Reduced blood flow would make likely the possibility that the most minor kind of injury, such as stubbing a toe, would be capable of breaking through the skin and introducing infection. It is the introduction of infection which produces the threat to life and limb in patients who have arteriosclerosis.
Plaintiff's argument that there was no testimony that either diabetes mellitus and/or arteriosclerosis can create infections of the kind described or contribute to the extent of the infection has no validity for two reasons. Both doctors testified that reduced blood flow in a person's legs which results from arteriosclerosis precludes effective destruction of bacteria. Secondly, there can be no recovery if the presence of these diseases merely makes the body less able to withstand infection.
Dr. Sacks was obviously unable to exclude any diseases as a cause of the amputation because he did not examine Mr. Lewin before or approximately near to the time of the amputation, and it is clear from Dr. Waldow's testimony, which is unrebutted and must be accepted by plaintiff, that Mr. Lewin did have reduced blood flow to his foot. It cannot be said that Mr. Lewin proved that if the arteriosclerosis and diabetes were not present, that the amputation and subsequent disability would ever have occurred.
We hold that under these facts, plaintiff did not sustain his burden of producing sufficient evidence so that a reasonable jury could find that the wound was the sole cause of the damages. Specifically, plaintiff did not produce any evidence to show that the arteriosclerosis and diabetes mellitus, which either singly or together created a poor blood flow to the foot, did not cause the infection or result in a condition where the body was totally unable to prevent the spread of infection. There is no testimony that the infection did not progress or remain viable because of the total occlusion of the popliteal artery.
While we agree entirely with plaintiff's proposition that insurance contracts of this nature have been too strictly construed in Pennsylvania, placing an almost impossible burden on an elderly insured, we are bound by the interpretations of the Pennsylvania appellate courts. The rule that the court should distinguish between legal and medical causes is not the law in Pennsylvania. Cf. Wolfangel v. Prudential Ins. Co., 209 Minn. 439, 296 N.W. 576 (1941).
Accordingly, the motion for judgment n.o.v. will be granted.
III. Motion for New Trial
Defendant's motion in the alternative for a new trial must also be granted. The verdict was against the evidence and the weight of the evidence.
The trial judge has a duty to grant a new trial when he is convinced that the judicial process has resulted in the working of an injustice upon any of the parties. Sokolowsky v. Roswell, C.A. No. 31762, 7/18/66.
There was no clear testimony from either witness excluding the effect of arteriosclerosis and diabetes mellitus on the infection. Dr. Sacks stated that it was his opinion that there was no significant evidence connecting diabetes as a factor in precluding the healing of infections and that the occlusion of the popliteal artery probably had no effect in this case. However, he was far removed from the actual event to know exactly how poor a condition Mr. Lewin's blood flow was in and was sufficiently impressed with his examination in September, 1964 to advise him to be extremely careful of infection.
Moreover, he himself left the court with the rather vague statement that the infection was the straw that broke the camel's back, which indicates to us that even Dr. Sacks felt that Mr. Lewin's leg was in very poor condition to resist an infection from a puncture wound.
Dr. Waldow's testimony in no way, either theoretically or practically, excluded the effect of previous diseases on the infection suffered by Mr. Lewin.
Finally, it does not seem to us that Mr. Lewin proved satisfactorily that he had suffered an accident. Dr. Waldow could not find a puncture wound on the sole when he examined him on June 18, 1960, and the hospital reports do not mention this. The physical examination disclosed an ulcer of the heel and gangrene of the toe.
And now, this day of August 8, 1966, it is ordered that:
1. The motion for judgment n.o.v. is granted.