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MARTHA S. HAMIL v. H. WOODROW BASHLINE (10/05/78)

decided: October 5, 1978.

MARTHA S. HAMIL, ADMINISTRATRIX OF THE ESTATE OF KENNETH C. HAMIL, APPELLANT,
v.
H. WOODROW BASHLINE, DON L. BASHLINE, WAYNE L. BASHLINE, VINCENT D. D'ANGELO, LESLIE A. MCCLIMANS, JOHN F. JOHNSTON AND ANTHONY LINFANTE, T/A THE BASHLINE HOSPITAL ASSOCIATION, LTD.



No. 97 March Term, 1977, Appeal from the Order of the Superior Court of Pennsylvania at No. 321 April Term, 1975, affirming the Judgment of the Court of Common Pleas, Civil Action--Law, of Mercer County at No. 189 March Term, 1969

COUNSEL

Stephen M. Feldman, Philadelphia, Henry S. Moore, Grove City, for appellant.

George Hardy Rowley, Voorhies, Dilley, Keck, Rowley & Wallace, Greenville, for appellee.

Francis E. Shields, Philadelphia, amicus curiae for Pennsylvania Medical Society.

Joseph J. Musto, Wilkes-Barre, amicus curiae, for Pennsylvania Defense Institute.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ.

Author: Pomeroy

[ 481 Pa. Page 262]

OPINION OF THE COURT

The present appeal involves the degree of certainty required of expert medical testimony to establish, in a medical malpractice case, the causal relation between the harm suffered by a plaintiff-patient and the alleged negligence of a doctor or hospital in failing properly to diagnose and treat the plaintiff's condition in a manner which might have prevented the harm. We believe that such causation may be founded upon expert opinion testimony to the effect that defendant failed to exercise reasonable care in performing an undertaking to render services to a patient which the defendant should recognize as necessary for the other's protection, that this failure increased the risk of physical harm to the patient, and that such harm did in fact result. Because the jury was not properly charged as to this standard, a new trial will be required.

A few minutes before midnight on May 31, 1968, Mrs. Martha S. Hamil telephoned defendant, Bashline Hospital Association, Ltd. (Bashline),*fn1 and told the night supervisor that her husband was suffering from severe chest pains. Mrs. Hamil was advised by the supervisor to bring Mr. Hamil to the hospital. Upon the Hamils' arrival, the Bashline doctor assigned to the emergency unit could not be located but another physician, Dr. J. F. Johnston, was present and ordered an electrocardiogram (EKG) to be taken. Due to a faulty electrical outlet, the EKG machine failed to function. Dr. Johnston then directed that another machine be used, and thereafter left the hospital. A second EKG machine could not be found and, upon receiving no further aid or treatment, Mrs. Hamil transported her husband

[ 481 Pa. Page 263]

    to the private office of a Dr. Saloom. Mr. Hamil died in Dr. Saloom's office while an EKG was being taken.

In 1969, Martha Hamil, in her capacity as administratrix of the estate of her husband, instituted this action in trespass under the Wrongful Death and Survival Acts. The basis of the complaint was that Bashline failed to employ recognized and available methods of treating decedent's malady, a myocardial infarction. In support of that theory, plaintiff called as its expert medical witness Dr. Cyril Wecht, who outlined the use of beds, oxygen and pain relieving drugs in the treatment of chest pains. Dr. Wecht then expressed his professional opinion that if Bashline had employed the methods and treatment which he had described, Mr. Hamil would have had a 75% chance of surviving the attack he was experiencing when admitted to the hospital. Dr. Wecht also gave it as his opinion that this substantial chance of recovery was terminated by defendant's failure to provide prompt treatment.*fn2 Defendant's expert witness, Dr. John B. Treadway, opined that death was imminent at the time of Hamil's arrival at the hospital and that the patient would have died regardless of any treatment Bashline might have provided. It was Dr. Treadway's opinion, accordingly, that any negligence of the hospital in the circumstances was immaterial.

Following the introduction of all the evidence, the trial court determined that Dr. Wecht's testimony had failed to establish, with the required degree of medical certainty, that the alleged negligence of the defendant was the proximate cause of plaintiff's harm. The court therefore directed a verdict in favor of the defendant. Upon appeal the Superior Court, relying largely on the Restatement (Second) of Torts (hereafter the "Restatement") ยง 323(a) (1965) concluded that plaintiff had in fact presented a prima facie case of negligence and accordingly reversed the trial court and granted a new trial. See Hamil v. Bashline, 224 Pa. Super. 407, 307 A.2d 57 (1976) -- (Bashline I).

[ 481 Pa. Page 264]

Upon retrial, substantially the same testimony was presented by the parties and the case was this time submitted to the jury. Following deliberation, the jury returned a verdict in favor of defendant and, by answers to special interrogatories, expressed its belief that although Bashline had acted in a negligent manner, plaintiff had failed to establish this negligence as a proximate cause of the decedent's death. A new appeal was taken to the Superior Court in which appellant asserted that the trial court's charge to the jury had failed to comply with the holding of Bashline I. Without resolving that issue, a divided Superior Court affirmed the entry of judgment for the defendant on the ground that it was mistaken in ordering the new trial at the time of the first appeal. See Hamil v. Bashline, 243 Pa. Super. 227, 364 A.2d 1366 (1976) -- (Bashline II).*fn3 This appeal followed.*fn4

I.

A proper resolution of the present controversy requires that it be viewed in the context of certain ...


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