APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil No. 76-1196).
Seitz, Chief Judge, Aldisert, Circuit Judge, and Stern, District Judge.*fn*
The major questions presented in this appeal from an adverse jury verdict in a medical malpractice diversity case concern practices routinely followed by the district judge in his conduct of trials. While we hold that these practices, which relate to cross examination and bifurcation of trial, offend the Federal Rules of Evidence and Civil Procedure and by this opinion explicitly discourage their future use, we do not find reversible error in this case.
Jason Lis was born to appellants Debbie and Edwin Lis on May 18, 1974, at the defendant Robert Packer Hospital in Sayre, Pennsylvania. Dr. John Pacanowski, the infant's pediatrician, is an employee of the defendant Guthrie Clinic, a professional corporation of some 65 physicians who have privileges at the hospital.
On September 19, 1974, at the age of four months, Jason was taken to the hospital's emergency room with breathing difficulties following an episode of possible aspiration of food. He was examined by the defendant Wayne H. Allen, M.D., also a Guthrie employee, who was serving as the hospital's duty physician. Blood work performed at the time of admission revealed an exceptionally high blood sugar level of 367; a normal reading would have been in the 100-120 range. Dr. Allen made a tentative diagnosis of diabetes mellitus with diabetic acidosis and injected 15 units of regular insulin.
Dr. Allen's diagnosis was subsequently proven erroneous; Jason Lis is not diabetic. Shortly after the incorrect diagnosis and insulin injection, Jason began undergoing serious seizures which continued throughout his hospitalization. The child now suffers from severe brain damage and mental retardation, and probably from blindness. A claim was filed against the hospital, the clinic and Dr. Allen.
The trial court, as was its stated general practice, ordered that the case first go to the jury on the issue of negligence. No evidence of damages was permitted. The defense presented nine expert medical witnesses testifying that the seizures experienced by the child and the subsequent serious permanent malfunctions were not the result of the insulin injection but the result of a pre-existing congenital brain disorder. The jury found Dr. Allen to have been negligent, but that his negligence was not the proximate cause of Jason's condition.
Appellants contend that the court erred (1) in permitting cross examination of Dr. Pacanowski, one of their own witnesses, beyond the scope of direct examination; (2) in bifurcating the liability and damages aspects of the trial; (3) in excluding certain evidence; and (4) in interrupting the summation of plaintiffs' attorney to allow defense counsel time to consider whether to move for a mistrial on the basis of improper remarks in plaintiffs' closing argument. We will discuss only the first two assignments of error.*fn1
Appellants presented Dr. Pacanowski's testimony to describe their son's normal development during early pediatric care, his condition at the onset of seizure activity, and other details of Jason's stay at the hospital. Early in the cross examination, in response to an objection by plaintiffs' counsel that the cross examination was exceeding the scope of direct examination, the court stated:
I did rule, and this will be good for the whole trial - we will permit inquiry in this case into matters beyond the scope of the direct on cross examination as if it were on direct, and we will ...