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DAVID MICHAEL FREED v. ROBERT M. PRIORE (04/19/77)

decided: April 19, 1977.

DAVID MICHAEL FREED, A MINOR, BY AGNES J. FREED, HIS GUARDIAN, APPELLANT,
v.
ROBERT M. PRIORE



Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Allegheny County, at No. 1459 July Term, 1973.

COUNSEL

John E. Evans, Jr., Evans, Ivory & Evans, Pittsburgh, for appellant.

Bruce R. Martin, Pittsburgh, for appellee.

Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs and Van der Voort, JJ., concur in the result. Spaeth, J., files a dissenting opinion. Watkins, President Judge, absent.

Author: Hoffman

[ 247 Pa. Super. Page 421]

Appellant contends that the lower court erred in denying his motion for a new trial which he based on after-discovered evidence and improper expert testimony. We affirm the order of the lower court.

Appellant, David Freed, a minor, through his mother, Agnes Freed, brought this action in trespass to recover damages for negligently inflicted injuries. Appellant suffered injuries during his delivery, at birth, by the appellee-obstetrician, Robert Priore, on May 25, 1971, in Pittsburgh, Allegheny County.

Appellant's theory for recovery, presented through his expert, Dr. Paxson, is based upon Dr. Priore's failure to realize that the baby was in a breech position*fn1 until one

[ 247 Pa. Super. Page 422]

    hour prior to his delivery. Appellant asserts that Dr. Priore's administration of the drug spartocin*fn2 to Mrs. Freed and use of a spinal anesthesia created an emergency situation in the delivery room. Appellant also contends that Dr. Priore erred by performing a total breech extraction rather than a partial breech extraction*fn3 and in improperly applying forceps to the child.

Appellee and his expert witness, Dr. Hayashi, presented a completely different statement of facts, and a different medical analysis. Appellee stated that it is very common to be unable to ascertain whether a child is in a vertex or breech presentation until after the amniotic sac bursts.*fn4 In the instant case the doctor made a breech diagnosis after the sac burst. Appellee stated that spartocin and spinal anesthesia are used without complication in partial breech extractions. Appellee and his expert testified that the Freed delivery was a partial breech extraction not a total extraction and that the use of forceps was required in order to deliver the child immediately. Appellee's expert also testified that the Freed baby was an intrauterine growth retarded (hereinafter IUGR) baby,*fn5 which complicated the delivery further.

[ 247 Pa. Super. Page 423]

The jury resolved the conflict in testimony in favor of appellee, Dr. Priore. On May 28, 1975, appellant filed timely motions for a new trial. On October 14, 1975, appellant filed supplemental reasons for a new trial and attached a copy of an article published in a medical journal in support of his motion. The court, en banc, denied the motion for a new trial. This appeal followed.

Appellant first contends that he was deprived of a fair trial because appellee's expert testified falsely. During the trial, appellant did not realize that Dr. Hayashi's testimony was inaccurate. After the trial, appellant found the article upon which Dr. Hayashi based his questioned testimony. As a result of this after-discovered evidence, appellant moved ...


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