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SCHULER v. BERGER

September 28, 1967

Gerald J. SCHULER, Administrator of the Estate of Betty Mae Carlier, Deceased, Plaintiff,
v.
Melvin M. BERGER, M.D., Defendant



The opinion of the court was delivered by: SHERIDAN

Plaintiff, Gerald J. Schuler, administrator of the estate of Betty Mae Carlier, deceased, brought a malpractice action against defendant, Melvin M. Berger, an obstetrician-gynecologist, under the Pennsylvania Wrongful Death Act, 12 P.S. § 1601 et seq. and Survival Act, 20 P.S. § 320.601 et seq. The jury returned a verdict for plaintiff and awarded damages under both acts. Defendant's motions for judgment notwithstanding the verdict (n.o.v.) and, in the alternative, for a new trial, are before the court.

 This is a diversity action. The court has jurisdiction under 28 U.S.C.A. § 1332. The substantive law of Pennsylvania applies.

 On August 14, Mrs. Carlier complained of cramping abdominal pains. On August 15, she complained of progressively severe pain in the left lower abdominal quadrant, aggravated by movement, with associated left shoulder and back pain. At 2:30 P.M. Dr. Sugden found voluntary guarding in all abdominal quadrants and reported his findings to Dr. Alexandrian, a resident who had relieved him. Dr. Alexandrian noted that Mrs. Carlier screamed occasionally, but after examination concluded she had a postpartum psychosis. He prescribed an intramuscular dose of Compazine, a tranquilizer. At about 5:00 P.M., in a telephone conversation, Dr. Alexandrian fully apprised defendant of Mrs. Carlier's condition. No diagnostic or evaluatory procedures were ordered, however. At 8:00 P.M., the severity of Mrs. Carlier's pain, which rendered her to be unable to walk, caused her husband to call defendant. Defendant attributed the symptoms to normal postpartum cramps as magnified by a low pain threshold. During the day of August 15, Mrs. Carlier received Librium, a tranquilizer, on four occasions; Compazine at 4:30 P.M.; Miltown, another tranquilizer, at 9:15 P.M.; two capsules of Darron Compound, an analgesic drug, at 2:00 A.M.; and two A.P.C. tablets, with a full grain of codeine, at 7:00 P.M. All orders were countersigned by defendant. Mrs. Carlier was reportedly asleep when the defendant called the maternity floor between 11:00 and 11:30 P.M. The hospital record showed that at 11:30 P.M. Mrs. Carlier was discovered in profound shock, with no pulse or blood pressure obtainable, cold and clammy, with abdomen distended. Dr. Lentz, an intern, and Dr. Chung were summoned. For the period from 11:30 P.M. to 1:00 A.M., no active or therapeutic measures are reported on the chart. Defendant, notified by telephone at 1:00 A.M. on August 16, ordered an intravenous infusion of glucose and water with Aramine, a vasopressor drug. Whether this was successfully started is disputed. Dr. Chung stated that all attempts to start the infusion were unsuccessful. Defendant, who arrived at about 1:15 A.M., testified that the intravenous was started but the needle came out of the vein; whether it was restarted is also disputed. No cutdown was performed. Following a physical examination by defendant, which was completed by 1:30 A.M., the diagnostic and therapeutic measures consisted merely of aspiration of vomitus, administration of oxygen, application of heat and elevation of the feet, other than the attempts to give intravenous fluids.

 Mrs. Carlier was pronounced dead at 3:30 A.M. on August 16, 1961. Defendant stated on the death certificate that the onset of Mrs. Carlier's condition had occurred four to six hours prior to her death.

 The autopsy findings were a diverticulitis of the sigmoid colon with an acute rupture of the diverticulum resulting in peritonitis. The medical witnesses all agreed that the symptoms of diverticulitis were obscure and that no doctor could have diagnosed it. The jury was instructed that they could not find negligence based on a failure to diagnose. Plaintiff claims defendant was negligent in failing to take the necessary and proper steps to detect and treat the peritonitis, which would have saved Mrs. Carlier's life.

 MOTION FOR JUDGMENT N.O.V.: Defendant argues that plaintiff failed to prove proximate cause because his expert witness never testified that "the result in question [Mrs. Carlier's death] came from the cause alleged [Dr. Berger's conduct]."

 Dr. Spelman, plaintiff's expert, testified on direct examination:

 
"Q Doctor, do you have an opinion as to whether or not the failure to render reasonable medical care during this period of time was a substantial factor in the production of her death?
 
"A I feel that there is good reason to believe that if this shock had been promptly treated and that she had come out of shock and had been successfully operated upon, that the colon could be repaired, that peritonitis drained, the infection treated with antibiotics, and she would have been alive today."

 On cross-examination, Dr. Spelman testified:

 
"Q Doctor, if the antibiotics, as you suggest should have been given had been given, and there had been a laparotomy, can you say with any certainty that Betty Mae Carlier would have survived that night?
 
"MR. BEASLEY: I object. He has already answered this question about four times.
 
"THE COURT: Overruled.
 
"A No. I feel that she would have, but I cannot state that with any degree of certainty."

 The argument is that "there is good reason to believe" and "I feel she would have" is tantamount to stating that death "might have" resulted, or "possibly" or "probably" did result from defendant's conduct and that such expressions are insufficient under Pennsylvania law. Dr. Spelman's responses were equivalent to saying that he believed that had certain specified therapeutic measures been taken, Mrs. Carlier would have survived. It is true that expert testimony must assert that it is the professional opinion of the witness that the result came from the cause alleged. Smail v. Flock, 1962, 407 Pa. 148, 180 A.2d 59. The use of "I believe" amounts to an assertion of an expert's professional opinion. Jones v. Philadelphia & Reading Coal & Iron Co., 1926, 285 Pa. 317, 132 A. 122. In Auerbach v. Philadelphia Transp. Co., 1966, 421 Pa. 594, at 604, 221 A.2d 163, at 171, a medical expert testified "Well, had she not had an amputation on one side, I feel quite certain she would not have fallen." This was held to be sufficient. While on cross-examination Dr. Spelman indicated that he could not state with certainty that Mrs. Carlier would have lived, he did state that in his opinion she would have lived. This was sufficient. McMinis v. Philadelphia Rapid Transit Co., 1927, 288 Pa. 377, 135 A. 722.

 Defendant also argues that Dr. Spelman listed six conditions as a prerequisite to his conclusion, which, apparently, make it conjectural. These were not, strictly speaking, "conditions" prerequisite to the conclusion; rather, they were an enumeration of the various steps which would have had to be taken, and which the testimony showed were not taken, to save Mrs. Carlier's life. The evidence of the absence of these steps was accepted by Dr. Spelman and formed part of the basis for his ultimate conclusion.

 In Hicks v. United States, 4 Cir. 1966, 368 F.2d 626, at page 632, the court stated:

 
"When a defendant's negligent action or inaction has effectively terminated a person's chance of survival, it does not lie in the defendant's mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing ...

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