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decided: April 28, 1978.



Joseph D. Shein, Philadelphia, for appellant.

Ralph L. Hose, Ardmore, for appellee, Lankenau Hospital.

John C. Bonner, Norristown, for appellees, Neal, M.D., and West, Jr., M.D., A. Grant Sprecher, Philadelphia, for appellee, Rex, M.D.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case. Van der Voort, J., files a dissenting opinion.

Author: Spaeth

[ 254 Pa. Super. Page 355]

This is a medical malpractice case. Appellant, who was plaintiff below, appeals from the lower court's refusal to take off nonsuits in favor of two of appellees, Dr. Clifton F. West, Jr. and Lankenau Hospital, and from the court's refusal to grant a new trial as to appellee Dr. Eugene B. Rex.

On Saturday evening, August 28, 1965, appellant, while attending a wedding reception, ate a roast beef sandwich. A large piece of the beef got stuck in the lower part of his throat, substantially blocking it, although liquids could get by. The next day, Sunday, August 29, at noon, appellant went to Lankenau Hospital, where he was examined by appellee Rex, an otolaryngologist and esophagoscopist. That afternoon the doctor performed an esophagoscopy, which was completed by 5:00 p. m. During the procedure, a screw on a forceps that the doctor was using somehow got loose, making the instrument unworkable. The doctor testified that after the operation he checked for a possible puncture of the wall of the esophagus, for a puncture would have presented a serious danger of infection, but that he found no indication of a puncture.

[ 254 Pa. Super. Page 356]

After awakening from anaesthesia, appellant had no complaints. By 6:30 p. m., however, he was suffering abdominal cramps, a symptom of, among other ailments, a punctured esophagus. Dr. Rex was notified; he telephoned a general surgeon, appellee West, who examined appellant and ordered X-rays. Dr. West was not told that the forceps had malfunctioned. He left the hospital at 11:00 p. m., having given orders that appellant's vital signs should be monitored, and that appellant should be transferred to the main surgical floor for observation. The transfer took place at 4:00 a. m. Monday. At that time appellant's temperature had risen from 100.4 degrees at 8:00 p. m. to 100.6 degrees. Dr. West examined appellant again at 7:00 a. m. Monday. Appellant's temperature was 101.6 or 101.8, and his condition had generally worsened. The doctor made a diagnosis of a perforated esophagus, and ordered antibiotics to be administered. The hospital records do not show the antibiotics being administered until 12:30 p. m. By then an infection had set in, from which appellant suffered lingering complications, including multiple operations, and a meningeal stroke, with severe disability following.

Appellant brought suit against Dr. Rex, Dr. West, a Dr. Hunter S. Neal, and Lankenau Hospital. At the conclusion of appellant's case nonsuits were granted in favor of Dr. West, Dr. Neal, and Lankenau Hospital. Later, in submitting the case against Dr. Rex to the jury, the trial judge refused to submit the issue of timely administration of the antibiotics. The jury returned a verdict in favor of Dr. Rex.

On this appeal, appellant does not challenge the grant of a non-suit in favor of Dr. Neal. He does, however, ask that we grant him a new trial against Dr. Rex, Dr. West, and Lankenau Hospital, and in support of this request he assigns several errors.*fn1

[ 254 Pa. Super. Page 3571]

Appellant's first argument concerns the composition of the jury. A prospective juror was the daughter of a deceased physician and initially indicated she liked doctors, "and I have never come against one that I don't like." N.T. at 49. She said that in a close case this attitude might tip her opinion. Upon further questioning, however, she said she could render a verdict that would be unbiased and based on the facts. Appellant's counsel challenged her for cause. When the trial judge denied the challenge, counsel used a peremptory challenge. Counsel used all his peremptory challenges, and was therefore unable to strike another juror whom he wished to strike peremptorily. The judge, however, moved that juror to second alternate, and the juror had no part in deciding upon the verdict.

Most of the argument to us has concerned whether the challenge to cause was properly denied. However, we need not decide that issue. If we assume that the challenge was improperly denied, still, appellant has shown no prejudice from the impropriety. There is nothing to suggest that the jury he had was not an impartial jury; and the juror he wished to strike but could not did not participate in the decision.*fn2

[ 254 Pa. Super. Page 3582]

Appellant's second argument concerns the trial judge's refusal to submit to the jury the issue of whether appellees Rex and West were negligent for their failure to administer antibiotics earlier.

Appellant called an expert witness, Dr. Charles M. Thompson, to testify as to the standard of care required under the circumstances. In response to questions by appellant's counsel, the doctor testified:

Q. Doctor, as of August of 1965 were you familiar, sir, in the Philadelphia area with the general standard of care, that is how a doctor, a reasonable doctor firstly, one who is an otolaryngologist, bronchoesophagologist, would conduct himself with regard to diagnosis and treatment of a ruptured esophagus?

A. Yes.

Q. Now Doctor, I'm going to ask you a hypothetical question and I want you to assume, sir, that every fact in my hypothetical question is true, if you will.

When I conclude that question, sir, I will ask you an opinion.

Now Doctor, I want you to assume that one defendant, Rex, as of August 29, 1965, had been an otolaryngologist and bronchoesophagologist for approximately thirteen (13) years. That on August 29, 1965, he performed an esophagoscopy at approximately 4:00 P.M. upon the plaintiff in this case, Stephen Brannan, during which procedure the forceps broke, otherwise described by him as a screw coming loose, while the forceps were in the esophagus. That the Doctor was not certain whether at that point the forceps touched the esophagus, that is the wall, but didn't think there was a puncture; that the operation was concluded somewhere before 5:00 P.M.; that initially all vital signs were normal; but that by 6:25 P.M. on that same day it was recorded in the postanesthesia observation record that the patient had severe abdominal cramps and muscle tightness; that by 8:00 or 8:30 P.M. Dr. Rex was notified of this condition and in his own words felt that

[ 254 Pa. Super. Page 359]

    quote there was a strong possibility of a perforation, end of quote; that he ordered the patient closely observed, nothing by mouth, telephoned a general surgeon to examine him, but at no time ordered any antibiotics despite his strong suspicion that he might have perforated the esophagus. Doctor, assuming these facts to be true, do you have an opinion as to whether or not the failure to order antibiotics was below the standard of care required of an individual of this man's experience and training having due regard to the advanced state of the profession at the time.

MR. SPRECHER [appellee Rex's counsel]: Objection

Q. Do you have an opinion, sir?

A. I do.

THE COURT: What is your objection?

MR. SPRECHER: All the facts in the hypothetical I don't believe, your Honor, are in evidence. And they also renew my objection as to this particular man's qualifications to testify as to the training and experience of an otolaryngologist and bronchoesophagologist.

THE COURT: Your objection is overruled.


Q. What is your opinion, ...

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