The opinion of the court was delivered by: BRODERICK
In this medical malpractice action which consumed 52 trial days, the jury, in answer to eight pages of special interrogatories, found that the plaintiff had failed to prove that the defendant's decedent, Dr. Robert A. Groff, was negligent in the preparation for surgery, in the performance of the surgery, and the aftercare of the plaintiff in connection with two prefrontal lobotomies performed on the plaintiff by Dr. Groff in 1967 and 1969. The jury also found that the plaintiff had not sustained his burden of proof in connection with his allegation that Dr. Groff had failed to obtain an informed consent before performing the two lobotomies. Plaintiff Stanley Chase has moved for a new trial and has alleged as the sole error the Court's ruling which limited the plaintiff's testimony pursuant to the Pennsylvania Dead Man's Act. After carefully considering this record and the arguments advanced by the plaintiff, the Court has determined that it must deny the motion for a new trial.
Plaintiff in this action alleged that Dr. Groff committed malpractice in connection with his preparation of the plaintiff for the 1967 and 1969 lobotomies; in his performance of the two lobotomies; and in his care of the plaintiff following the two surgical procedures. The plaintiff also alleged that Dr. Groff failed to obtain an informed consent in connection with both the 1967 and the 1969 prefrontal lobotomies. The Trustees of the University of Pennsylvania (HUP) were joined as defendants. Plaintiff alleged that HUP was negligent in that it permitted the lobotomies to be performed in the hospital and failed to properly supervise the care and treatment of the plaintiff in the hospital. The plaintiff also alleged that HUP failed to obtain an informed consent in connection with the two lobotomies.
The plaintiff's complaint against Dr. Groff and HUP was filed on August 23, 1974. Dr. Groff was deposed by the plaintiff on January 9, 1975, and on March 10, 1975. Dr. Groff was suffering from terminal cancer and the deposition was videotaped at his request for possible use at trial. Dr. Groff died on April 25, 1975, before the defendants conducted any discovery. Counsel for all parties were present and participated at Dr. Groff's deposition.
On August 13, 1975, and September 10, 1975, HUP took the deposition of the plaintiff, Stanley Chase, Counsel for the Estate of Dr. Groff attended the deposition on both dates, stating that he was there only as an observer, that he would not participate in the deposition, and that he did not intend to waive the Dead Man's Rule since Dr. Groff was deceased. Counsel for the plaintiff objected to the presence of counsel for the Estate at the plaintiff's deposition and stated that the plaintiff considered the presence of counsel for the Estate to be a waiver of whatever claim the Estate might have to the protection of the Dead Man's Act.
Counsel for the Estate did not participate in the deposition of the plaintiff, nor did he propound any pretrial interrogatories to the plaintiff or conduct any other pretrial discovery of the plaintiff.
Nor, where any party to a thing or contract in action is dead, or has been adjudged a lunatic and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record who represents his interest in the subject in controversy, shall any surviving or remaining party to such thing or contract, or any other person whose interest shall be adverse to the said right of such deceased or lunatic party, be a competent witness to any matter occurring before the death of said party or the adjudication of his lunacy . . . .
The Dead Man's Act makes a survivor incompetent to testify against a decedent if: (1) the deceased had an actual right or interest in the matter at issue; (2) the right of the deceased passed to a party of record who represents his interest; and (3) the interest of the survivor is adverse to that of the deceased.
Plaintiff never contested at trial that these three elements were present in this case but argued only that the estate had waived its asserted protection under the Dead Man's Act. It is clear therefore that absent a waiver by the Estate of Dr. Groff, the plaintiff was incompetent to testify against the Estate as to any events occurring prior to Dr. Groff's death.
At trial, counsel for the plaintiff stated that he intended to call the plaintiff to testify against the Estate as to events occurring prior to Dr. Groff's death. Counsel for the Estate argued that the plaintiff was incompetent under the Dead Man's Act. The Court asked all parties to submit memoranda of law in connection with the issue raised by the Dead Man's Act. After carefully considering the memoranda submitted by all parties,
the Court found no waiver by Dr. Groff or the Estate and ruled that Stanley Chase was incompetent to testify against the Estate of Dr. Groff as to anything occurring prior to Dr. Groff's death.
The Court stated:
I never ruled in connection with the Dead Man's Act and Mr. Hirsch has indicated that he is calling Stanley Chase and I would make it a finding that there has been no waiver by Dr. Groff's estate in connection with the Dead Man's Act, and I base this on my finding that Dr. Groff filed no interrogatories on the plaintiff and that Dr. -- (when I say Dr. Groff, the Groff estate) -- and the Groff estate did not depose the plaintiff, and that they did not offer Dr. Groff's deposition into evidence; that that was offered by the plaintiff.
So as a result of that ruling, I want to make it clear that Stanley will become competent to testify if the Estate introduces witnesses as to transactions between the surviving party and the decedent or as to something occurring in the presence of the surviving party, and this will not make Stanley competent generally, but only in rebuttal. He may rebut that.
Plaintiff contends that this ruling was error.
In Raesner v. Heinsius, 426 Pa. 166, 231 A.2d 144 (1967), the Supreme Court of Pennsylvania stated that where the deposition of the defendant's decedent (who was the original defendant in the lawsuit) was taken before she died in order to perpetuate her testimony for use at trial, and the deposition was offered into evidence by the plaintiff, there had been no waiver of the Dead Man's Act by the defendant, and the plaintiff was not competent to testify at trial. In a footnote, the Court explained this ruling as follows:
This ruling was correct inasmuch as decedent's depositions were offered in evidence by plaintiff rather than by defendant. In Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307, 81 A.L.R. 2d 377 (1959), we held that when the party who represents the interest of a decedent offers decedent's deposition in evidence, he has waived the Dead Man's Act and the surviving adverse party becomes competent to testify. We expressly cautioned practitioners therein that if the depositions of defendant-decedent were offered by plaintiff, that ...