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decided: December 29, 1971.


Appeal from judgment of Court of Common Pleas of Lehigh County, Jan. T., 1968, No. 406, in re Joseph T. Brennan, administrator of the estate of Rose Margaret D'Agostino, deceased v. St. Luke's Hospital, Ann Snyder and Francis J. McAndrews.


Frank S. Poswistilo, with him Brose, Poswistilo and LaBarr, for appellant.

James J. McConnell and Edward H. McGee, with them Snyder, Doll & Schantz, and Walker, Walker & Thomas, for appellees.

Bell, C. J., Jones, Eagen, O'Brien, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Barbieri. Mr. Justice Pomeroy concurs in the result. Mr. Justice Roberts took no part in the consideration or decision in this case. Dissenting Opinion by Mr. Justice O'Brien.

Author: Barbieri

[ 446 Pa. Page 341]

This is a trespass action brought by appellant as Administrator of the Estate of Rose Margaret D'Agostino, claiming damages on the ground that the decedent's death on December 29, 1966, was caused by medical malpractice. At the conclusion of the jury trial, a compulsory non-suit was entered by the trial judge in favor of the defendant, Dr. Francis J. McAndrews. The jury found in favor of the other two defendants, St. Luke's Hospital and Dr. Ann Snyder. Appellant's motions for a new trial and judgment n.o.v. were argued before a court en banc and denied, and judgment was entered on the jury's verdict. This appeal followed. We will affirm.

Rose Margaret D'Agostino became ill late in December of 1966. She was then 23 years of age and had been in apparent good health prior to the onset of what proved to be her terminal illness. Prior to December 25, she had had some slight temperature, but had been able to visit friends, returning home on the evening of December 25th. At that time she appeared to her mother and other lay persons to be acutely ill. Both of her legs were covered with black and blue blotches, she was coughing, moaning and was quite weak. In the

[ 446 Pa. Page 342]

    next two days her temperature dropped from a high of 104 degrees to a low of 93 degrees and her extremities became stiff and cold. At this point, on the advice of her family physician, she was transported to defendant hospital, being then in a condition described as semi-conscious. After examination by the defendant, Dr. Snyder, she was not admitted but was sent home with a diagnosis of "gastroenteritis". She remained in bed for the next 38 hours at the end of which time her death occurred. Upon autopsy the cause of death was certified to be "intestinal gastroenteritis" and "bilateral pneumonia".

We have examined the record with care in the light of appellant's contentions, and find all of them to be without merit. Some of these contentions, however, warrant some comment. Two of the contentions have to do with a changed autopsy report and are based upon the participation of Dr. J. W. Fisher in the autopsy examination and studies and the admissibility of the new report at the time of the trial.

Dr. Fisher, a consulting pathologist at the hospital was present with others at the autopsy ordered by the coroner and held on December 30, 1966. Dr. Fisher testified that tissue was removed from the body at the autopsy, placed in paraffin blocks, kept in bottles and stored in a cabinet in Dr. Fisher's laboratory. Four months later, after a microscopic examination of some of the tissue, Dr. Fisher identified the cause of death as nonspecific myocarditis and prepared his new autopsy report.

First, we find no error, as appellant contends that we should, based upon provisions of the Uniform Business Records as Evidence Act,*fn1 in the admission and

[ 446 Pa. Page 343]

    use of the final autopsy report. The pathologist who supervised the preparation of the autopsy, Dr. J. W. Fisher, actually testified at the trial as to the specific findings and conclusions in the report. The Act in question provides a practical procedure for avoiding the bar to proof of hearsay statements in so-called business records. Here, Dr. Fisher, the person responsible for the records was present and subjected to vigorous cross-examination as to the reliability of the method of preparation, as to the contents and as to the conclusions in the report. Moreover, because of the extent of Dr. Fisher's direct testimony, from which the jury could have reconstructed the entire report, the admission of the report was proper, or at most harmless error. See Woods v. National Life & Accident Ins. Co., 380 F. 2d 843 (3rd Cir. 1967).

Second, we find no merit in appellant's contention that the case should be retried on the ground that the trial court permitted unfair and prejudicial cross-examination of plaintiff's expert medical witness, particularly in allowing it to continue for too long a time. We are satisfied that the cross-examination of this expert witness as to the cause of death was within permissible limits as a test of the value of the witness' expert opinion. Admittedly, when the cross-examination finally appeared to be extended excessively as to the final autopsy report, the trial judge took steps to ...

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