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decided: September 27, 1976.



Charles Jay Bogdanoff, Philadelphia, for appellant, at No. 246.

Harry A. Short, Jr., Philadelphia, for appellants, at Nos. 262 and 279.

Albert S. Fein, Philadelphia, with him Fein, Criden, Johanson, Dolan & Morrissey, Philadelphia, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files a dissenting opinion in which Watkins, President Judge, joins. Price, J., notes his dissent.

Author: Spaeth

[ 244 Pa. Super. Page 281]

This is a medical malpractice case in which a jury returned a verdict in the amount of $40,000 against all of the appellants after an eight-day trial.*fn1 In a thorough and scholarly unreported opinion, Judge McDevitt denied appellants' motions for judgment n. o. v. or for a new trial. We affirm.

The evidence, which is fully summarized in the trial judge's opinion, showed that appellee*fn2 was admitted to the Albert Einstein Medical Center in Philadelphia on August 16, 1962, to give birth to her fourth child. At the time of her admission, she was under the care of appellants Wapner, Brownstein, and Arno, physicians associated in a medical partnership. The evidence was conflicting concerning whether appellant Brownstein, who was in charge of appellee's case, was present at the time appellee entered the hospital. The hospital records, however, do not indicate that any of appellant doctors were present before the delivery of appellee's child at 8:30 a. m. on August 17. The entries on appellee's labor room chart were made either by a nurse or by Eugene Shuster, a physician who had recently begun his gynecological residency at appellant hospital. Dr. Shuster's alleged negligence formed the basis on which the hospital was made a defendant.

[ 244 Pa. Super. Page 282]

Appellee's hospital chart indicates that at 2:45 a. m. she began to receive the drug Pitocin intravenously. Pitocin, the generic name of which is Oxytocin, is a drug employed by obstetricians to induce labor by causing contractions of the uterus. The labor room chart contains no notation that the administration of Pitocin was monitored, even though accepted medical practice calls for constant monitoring. Indeed, the chart is devoid of any indication that any check at all on appellee's condition was made between 2:30 a. m. and 5:15 a. m.; the latter entry is followed by one made at 7:05 a. m. The first reference on the chart to the presence of appellant Brownstein is as of 8:00 a. m., when he is noted as performing part of the delivery procedure.

Following the delivery, appellee began heavy intrauterine bleeding. When the attempted repair of a tear in appellee's uterus failed to stop the bleeding, appellant Arno was obliged to perform a total hysterectomy on appellee. In the course of the hysterectomy, appellee received a transfusion of six and one-half pints of blood.

Appellee was released from the hospital at the end of August, 1962, but was readmitted shortly thereafter suffering from severe infectious hepatitis. During her second hospitalization, appellee received medication that allegedly caused her to suffer partial hearing loss in both ears.

The theory of appellee's case was that the ruptured uterus, the hysterectomy, and all the ensuing medical misfortunes experienced by appellee, were caused by appellants' failure to monitor the administration of the Pitocin. This theory was supported by the expert testimony of Arthur Weinberg, a New York obstetrician and gynecologist. Dr. Weinberg testified that based on the absence of entries on appellee's labor room record, he was of the opinion that the medical care rendered appellee was not in conformity with accepted medical practice in Philadelphia in 1962. Appellants produced experts

[ 244 Pa. Super. Page 283]

    who testified that the governing medical standards had been complied with. In addition, appellant Brownstein, called by appellee as on cross-examination, testified that he was present during the relevant period and checked on the administration of the Pitocin throughout the night. This testimony was corroborated by Dr. Shuster, who testified that "as certain as I can be," either appellant Brownstein or he watched the Pitocin drip throughout the night (Record 307-308a). In other parts of his testimony, however, Dr. Shuster testified that he had no independent recollection of what had happened (Record 285a-287a).


Appellants contend that there was insufficient evidence to support a finding of negligence on their part. In support of this contention, they argue that appellee was bound by the testimony of appellant Brownstein and Dr. Shuster that appellant Brownstein had monitored the administration of Pitocin, and that even if appellee was not so bound, the "positive" evidence provided by the testimony of these two doctors could not be overcome by the "negative" evidence of the absence of entries on appellee's labor room chart.


Appellant Brownstein, called by appellee as on cross-examination, testified that he had been present at the hospital and had monitored the administration of Pitocin to appellee. The conclusiveness vel non of this testimony is governed by the Act of May 23, 1887, P.L. 158, § 7, 28 P.S. § 381, which provides, in part, as follows:

In any civil proceeding, whether or not it be brought or defended by a person representing the interests of a deceased or lunatic assignor of any thing or contract in action, a party to the record, or a person for whose immediate benefit such proceeding is prosecuted or defended

[ 244 Pa. Super. Page 284]

. . . or any other person whose interest is adverse to the party calling him as a witness, may be compelled by the adverse party to testify as if under cross-examination, subject to the rules of evidence applicable to witnesses under cross-examination, and the adverse party calling such witnesses shall not be concluded by his testimony, but such person so cross-examined shall become thereby a fully competent witness for the other party as to all relevant matters whether or not these matters were touched upon in his cross-examination . . .

Under this statute, appellant Brownstein's testimony concerning monitoring of the administration of Pitocin would be binding upon appellee unless contradicted by other testimony. The applicable rule was summarized in Piwoz v. Iannocone, 406 Pa. 588, 594-95, 178 A.2d 707, 710 (1962):

It is well established that where a litigant calls his adversary as for cross-examination pursuant to [28 P.S. § 381], that the testimony thus obtained is conclusively taken to be true if it is not rebutted by other evidence [citation omitted]. It may always be contradicted by other testimony and if this is accomplished all of the testimony and the truth thereof is for the jury's consideration . . . Again, this general rule that a party calling his opponent as for cross-examination is concluded by this testimony is subject to the exceptions that there may be such a degree of improbability in the statements themselves as to deprive them of credit, or that the circumstances themselves may constitute sufficient contradiction [citations omitted]. In short, it is not necessary that the contradiction be in the form of direct testimony [citations omitted]. (Emphasis in original)

Unlike appellant Brownstein, Dr. Shuster was neither a party defendant nor affiliated with appellant hospital at the time of trial. Consequently, Dr. Shuster testified

[ 244 Pa. Super. Page 285]

    as a witness for appellee without restriction. In support of the proposition that his testimony was therefore binding upon appellee, appellants cite Lott v. Peoples Natural Gas Co., 324 Pa. 517, 188 A. 582 (1936).

Lott, however, involved the doctrine of incontrovertible facts, and the doctrine that one is bound by one's own witnesses was long ago repudiated. The correct rule was stated by Mr. Justice MERCUR in Pennsylvania R.R. Co. v. Fortney, 90 Pa. 323, 328 (1879), and was repeated in Duffy v. National Janitorial Services, Inc., 429 Pa. 334, 336 n. 2, 240 A.2d 527, 528 n. 2 (1968):

It is true, as a general rule, a party cannot be permitted to impeach the veracity of his own witness, yet he may disprove the facts to which his witness has testified.

See also 3A J. Wigmore, Evidence § 907 (Chadbourn rev. 1970). Indeed, recent cases have articulated the even more expansive rule that a party may impeach the credibility of his own witness. See, e. g., Commonwealth v. Hill, 237 Pa. Super. 543, 553, 353 A.2d 870, 877 (1975), quoting Commonwealth v. Gomino, 200 Pa. Super. 160, 173, 188 A.2d 784, 791, cert. denied, 375 U.S. 865, 84 S.Ct. 136, 11 L.Ed.2d 92 (1963) (collecting cases); see also F.R. Evid. 607 ("[t]he credibility of a witness may be attacked by any party, including the party calling him"). The old rule that a party vouched for the credibility of a witness called by him has historical roots that are anachronistic in light of the realities of contemporary litigation. 3A J. Wigmore, Evidence § 896, at 658-659 (Chadbourn rev. 1970); McCormick on Evidence § 38 (2d ed. 1972). As the late Judge GOODRICH observed in Johnson v. Baltimore & O. R.R., 208 F.2d 633, 635 (3d Cir. 1953), cert. denied, 347 U.S. 943, 74 S.Ct. 639, 98 L.Ed. 1091 (1954),

[b]ut when witnesses are called, in some stranger's lawsuit, to tell about things they saw, heard, or did, there is no reason in logic or common sense or fairness

[ 244 Pa. Super. Page 286]

    why the party who calls them should have to vouch for ...

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