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EASTER v. HANCOCK ET AL. (10/28/75)

decided: October 28, 1975.

EASTER
v.
HANCOCK ET AL., APPELLANTS



Appeals from judgment of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1970, No. 47, in case of Eleanor O. Easter, individually and as Executrix of the Estate of Elmer W. Easter, deceased v. Reginald A. Hancock, Jon G. Finkler, Thomas E. Hodgins, Lawrence D. Ellis and William M. Cooper, and Presbyterian University Hospital, a Pennsylvania corporation.

COUNSEL

Bernard J. McAuley, and Wayman, Irvin, Trushel & McAuley, submitted a brief for appellant, Presbyterian University Hospital, at No. 120.

Arthur G. Stein, with him Daniel B. Winters, and Stein and Winters, for appellant, Thomas E. Hodgins, at No. 127.

Bernard Markovitz, with him Ryan and Bowser, for appellant, Jon G. Finkler, at No. 128.

Frederick N. Egler, with him Robert J. Pfaff, and Egler & Reinstadtler, for appellant, Reginald A. Hancock, at No. 131.

Robert S. Daniels, with him Harold E. Harper, Robert E. Harper, and Alter, Wright & Barron, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Dissenting Opinion by Van der Voort, J. Price, J., joins in this dissenting opinion. Concurring and Dissenting Opinion by Spaeth, J.

Author: Jacobs

[ 237 Pa. Super. Page 34]

The action upon which this appeal is based concerns two hemostats left inside the body of plaintiff's decedent during an exploratory operation performed at Presbyterian University Hospital by appellant doctors. On appeal it was contended by three of the appellants that the plaintiff's remarks on the subject of punitive damages resulted in an incorrect and excessive verdict giving grounds for a new trial; two appellants assert that the surgeon in charge of the operation was the only responsible doctor and that his two assistants could not be held liable for the plaintiff's decedent's damages; and one appellant maintains that he was improperly served as a nonresident. We find all these arguments without merit and therefore affirm the judgment of the court below.

The following facts were established in the record of the present case. Elmer Easter was admitted to Presbyterian University Hospital on August 20, 1968, for surgery to correct a disorder of the internal male sex organs. This operation was cancelled, however, when further examination revealed a large mass, which was later determined to be a sarcoma, or malignant tumor, in the patient's pelvic area. Exploratory surgery was performed on August 26, 1968, by Dr. Hancock, assisted by Drs. Hodgins and Finkler, and a nurse employed by the hospital; it was determined that the mass could not be removed. It was understood that the inoperable malignancy would eventually result in the patient's death.

Numerous x-rays were taken of Mr. Easter after his operation until his death 11 months later. Many of the x-rays clearly revealed the presence of two scissor shaped foreign objects in Mr. Easter's left side. These objects proved to be hemostats, or clamps used to control bleeding during an operation, five and three-quarters inches in length and resting in a vertical position, pointed ends directed downward, against Mr. Easter's intestines. Although the presence of the two hemostats was evident

[ 237 Pa. Super. Page 35]

    from the x-rays, neither the three appellant doctors nor Drs. Cooper and Ellis, who attended to Mr. Easter after his operation until his death, advised Mr. or Mrs. Easter of the foreign objects left in his abdominal cavity. It was not until March 30, 1969, that a comment by an x-ray technician alerted Mr. Easter to the fact that the hemostats were present. It was decided at that time, however, that the patient's condition could not support further surgery, so no attempt at removal was made. Mr. Easter died on July 8, 1969, as a result of the sarcoma, with the hemostats still in his body.

Mrs. Easter brought suit against all the named defendants alleging negligence in leaving the hemostats in the patient and in failing either to note or disclose their presence. She further alleged that she was entitled to punitive damages due to the alleged conduct of the doctors responsible for Elmer Easter in intentionally not revealing their error to the patient or his family. At the trial, the plaintiff offered a medical expert who testified that, in his opinion, the presence of the hemostats could have caused the patient greater pain and discomfort than the sarcoma and that their removal would have eased Mr. Easter's suffering. The defendant doctors testified that in their opinion the patient's pain was due entirely to the sarcoma and the hemostats contributed nothing to his discomfort. The doctors further explained that their decision to conceal the error from the patient and his family arose not from a desire to protect themselves, but from the well recognized medical practice of keeping from the patient those facts of his condition which in the doctor's opinion might upset him. No excuse was given to explain why the information was not revealed to Mrs. Easter so that she might participate in the decision.

At the conclusion of the plaintiff's case the trial judge ruled that there was no basis on which to award punitive damages, and in his charge carefully emphasized to the jury that the damages they were to decide were to be

[ 237 Pa. Super. Page 36]

    compensatory only. The jury returned a verdict of $49,000.00 against the appellants, and a verdict in favor of defendant doctors Ellis and Cooper. Appellants now argue that the verdict was improper and excessive because the jury was influenced by the plaintiff's remarks in his opening statements in which he argued that exemplary damages were indicated to serve as a warning to these doctors and others. They urge us to grant a new trial to correct the trial judge's error in failing to grant a mistrial in light of these remarks.

The case of Brown v. Central Pa. Traction Co., 237 Pa. 324, 85 A. 362 (1912) has been cited in support of appellants' contention that remarks by the plaintiff regarding punitive damages constitute grounds for a mistrial. The court stated therein: "the verdict should be given by way of compensation to the plaintiff and not punishment or warning to the defendant. To urge these latter considerations upon the attention of a jury merely serves to divert their minds from the proper line of thought and counsel indulge in such tactics at their peril."*fn1 Id. at 327, 85 A. at 363. It is further noted that counsel cannot make arguments prejudicial to the opposing party which are not supported by facts in evidence, or which are inflammatory or beyond the limits of fair or sound argument, unduly influencing or distracting the jury. See, e.g., Girard Trust Corn Exchange Bank v. Philadelphia Transp. Co., 410 Pa. 530, 190 A.2d 293 (1963); Piwoz v. Iannacone, 406 Pa. ...


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