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decided: October 20, 1978.


No. 2418 October Term, 1976, Appeal from the Order Dated July 29, 1976, of the Court of Common Pleas No. 5, Trial Division, Law, for the County of Philadelphia, at No. 998 June Term, 1965.


A. Grant Sprecher, Philadelphia, for appellant.

S. Robert Levant, Philadelphia, for appellee.

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

Author: Per Curiam

[ 259 Pa. Super. Page 338]

Appellant hospital seeks to overturn a jury verdict in appellee's favor in a medical malpractice action. In order to accomplish this purpose, appellant raises the following broad contentions for our consideration: (1) appellee did not introduce sufficient evidence to support the submission of alternative theories of negligence to the jury, (2) the lower court's charge misstated the law of proximate cause and burden of proof, distorted the evidence, and confused the jury, (3) the lower court thwarted appellant's presentation of its primary defense, and (4) the $800,000 jury verdict was excessive. We find these contentions unpersuasive.*fn1 Accordingly,

[ 259 Pa. Super. Page 339]

    we affirm the lower court's order denying appellant's post-verdict motions.

On June 18, 1965, appellee filed a complaint in trespass against appellant hospital and Dr. Richard J. Chodoff in the Philadelphia County Court of Common Pleas. Put simply, the complaint alleged that the defendants' negligence in performing a trans-thoracic vagatomy operation on appellee on November 4, 1963, and in rendering inadequate post-operative care resulted in serious brain damage to appellee. Over the next ten years, the parties engaged in an unremitting pleading and discovery battle. On May 21, 1975, a jury trial finally commenced before Judge CARSON, in the Philadelphia County Court of Common Pleas.

The following facts emerged at trial. On November 17, 1962, beset by a bleeding ulcer, appellee entered appellant hospital. Dr. Chodoff performed a partial gastrectomy in order to correct appellee's problem, and appellee left the hospital on December 22, 1962. However, massive bleeding from a marginal ulcer developed during the next year. Consequently, appellee reentered Jefferson Hospital on October 25, 1963. On the morning of November 4, 1963, Dr. Chodoff performed a trans-thoracic vagatomy; this elective operation entails cutting through the patient's chest and side in order to sever a vagus nerve, thus decreasing the acidity contained in the stomach. After removing the ulcer, Dr. Chodoff closed and sutured the incision.*fn2 After the operation, Dr. Chodoff issued 11 post-operative orders; one order required the checking and recording of the patient's vital signs -- including temperature, pulse, respiration rate, and blood pressure -- every 15 minutes for one hour and thereafter every hour for ten hours. Despite this order, appellee's temperature was recorded only four times on his graphic record dated November 4, 1963.

[ 259 Pa. Super. Page 340]

On the afternoon of November 4, 1963, appellee's mother-in-law and his wife visited appellee in his hospital room. According to these two witnesses, they found appellee in distress and desirous of having his blood-soaked bandage and bedclothing changed. After appellee's wife departed to locate a doctor, a nurse allegedly entered appellee's room. Appellee's mother-in-law informed the nurse of appellee's discomfort; in response, the nurse, apparently in a hurry to go to dinner, allegedly ". . . went to the window and took kleenex out of a box that was not his, and stuffed it down into the incision. . . ." Appellee's wife testified that upon her return to her husband's room, she observed a kleenex tissue protruding from his bandaged area. At some point in the later morning or early afternoon of November 5, 1963, Dr. Chodoff entered a progress note into the hospital record; he observed that appellee's blood pressure had unexpectedly fallen to 85 systolic, perhaps as a result of some bleeding from the ulcer. Also on November 5, 1963, Dr. Chodoff ordered that his patient receive an injection of penicillin and streptomycin as well as an aspirin suppository every four hours if his temperature exceeded 100 degrees. Dr. Chodoff specifically directed that appellee's temperature be taken every four hours. At trial, however, he stated that a nurse would not awaken a sleeping patient in order to check a temperature and to administer aspirin suppositories.*fn3

Appellee's graphic record indicates that his temperature was 102.2 at noon on November 5th. At 4:00 p. m., his temperature was 101.4. However, the graphic record does not contain entries of appellee's temperature at 8:00 p. m., on November 5th, midnight, or 4:00 a. m., on November 6th. At 8:00 a. m., on November 6th, a nurse registered appellee's temperature at 105.2 on the graphic record. During the 16 hour hiatus between 4:00 p. m., on November 5th, and 8:00 a. m., on November 6th, someone made multiple entries of appellee's pulse, respiration rate, and blood pressure in the

[ 259 Pa. Super. Page 341]

    graphic record. Appellee also received aspirin suppositories at 10:45 p. m., on November 6th, and 2:00 a. m., and 6:00 a. m., on November 6th.*fn4

Dr. Chodoff and Margaret Summers, for 20 years a head nurse at Jefferson and at the time of trial a supervisor of the hospital's staff development, testified that hospital procedure required that a nurse at Jefferson would take a patient's temperature and vital signs and then immediately record this information as well as any other pertinent observations in a nurse's notebook. According to Ms. Summers, immediate recording in this notebook protected against a memory lapse before the nurse transferred the information to the graphic record kept outside the nurse's station. According to Dr. Chodoff, transfer of the information contained in the nurse's notes to the central graphic record was essential because a doctor visiting a patient at Jefferson would first consult the centrally located chart to ascertain the patient's progress and current condition. At trial, neither appellant nor appellee could produce any nurse's notes containing a recording of appellee's temperature between 4:00 p. m., on November 5th, and 8:00 a. m., on November 6th. Furthermore, neither party produced a witness who could testify that appellee's temperature either was or was not taken during this time period.*fn5

At 8:00 a. m., on November 6th, a nurse took appellee's temperature and recorded it at 105.2 degrees in the graphic record. At 10:45 a. m., after the administration of aspirin, appellee's temperature registered 106 degrees. At this time,

[ 259 Pa. Super. Page 342]

    a resident named Gosin*fn6 examined appellee and made the following entry in the hospital progress notes: "Huge area of erythema [redness], marked induration [swelling] around chest wound and spreading up to left shoulder and down in left flank. Some crepitation [as a result of either gas bascillus infection or subcutaneous emphysema air gets underneath tissue and causes it to bubble] over this area. Foul-smelling bloody material aspirated. Sent for stat gram stain. Rapidly spreading cellulitis [infection of soft tissue under skin] and/or myositis [infection of muscle] appears to be present. The problem appears quite serious. Will await gram stain report [gram stain helps to determine the group of bacteria present]." The next entry in the progress notes, again made by Dr. Gosin, states: "Many gram positive rods and chains. Typical picture of clostridial cellulitis and myositis. [A clostridial infection is an anaerobic infection present in traumatic wounds where the tissue is devitalized.] Will begin treatment." Dr. Gosin's final entry on November 6th states: "At 1:00 p. m., patient became hypotensive. Levophed started. [Levophed, a drug, was employed to counteract appellee's plummeting blood pressure.] Skin test for gasgangrene antitoxin administered. If this is negative we will start the antitoxin. [Antitoxin is a serum used to combat clostridia-produced toxin.] The patient's condition appears very poor at this point."

Sometime after 1:00 p. m. and before 2:00 p. m., on November 6, Dr. Chodoff arrived at appellee's bedside and immediately observed that appellee's life was in danger. Within 30 seconds, Dr. Chodoff diagnosed the problem and began treatment. Because of the gravity of the situation, Dr. Chodoff operated in appellee's room instead of removing him to an operating room. The doctor administered local anesthetic, opened the patient's trans-thoracic incision, and then made new incisions above and below the trans-thoracic incision; this procedure allowed oxygen to reach the tissues. Dr. Chodoff also sutured catheters into place for the purpose

[ 259 Pa. Super. Page 343]

    of irrigating appellee's tissues with peroxide, thus bringing more oxygen into the critical area, and evacuated large amounts of gas and foul fluid. Dr. Chodoff's bedside operation saved appellee's life.*fn7

Appellee suffered through a turbulent recovery period after the emergency operation. He received antitoxins for gasgangrene, massive doses of penicillin to combat the fever and infection, and L'neosynephrine to maintain his blood pressure. On the fifth day after Dr. Chodoff's emergency surgery, appellee began to hallucinate,*fn8 and on the sixth day, his condition became semi-stuperous. Appellee's memory and recall became impaired, his thinking disjointed, and his perception of time disoriented. Thereafter, during the remaining four weeks of his hospitalization, hospital personnel gradually controlled appellee's infection and fever. On December 7, 1963, appellee left Jefferson Hospital.*fn9

After his discharge, appellee's personality and behavior underwent a gradual, but complete change. He became an introvert and an undependable employee in his job as a number one pumper at a Gulf Oil Company refinery in Philadelphia. When a company doctor attempted to induce appellee to return to work after a period of sickness, appellee concluded that his doctor was conspiring against him, and the doctor concluded that appellee was psychoneurotic. In June, 1965, appellee sought the assistance of the psychiatric service of the Veterans Administration Hospital; doctors at this institution concluded that appellee was schizophrenic. On June 21, 1965, appellee, only 47 years old at the time,

[ 259 Pa. Super. Page 344]

    quit his job for no apparent reason.*fn10 During the course of the next ten years, appellee's psychiatric condition continuously deteriorated; an addiction to Doriden, a drug prescribed after his 1963 hospitalization in order to tranquilize appellee, complicated his psychiatric problems, and required hospitalization at Lankenau Hospital in October, 1970. As appellee became increasingly more paranoid, he began locking his wife in their apartment, nailing the apartment windows shut, and arming himself with Japanese World War II souvenirs. He even accused his mother of attempting to poison him and finally turned on his wife, thus forcing her to leave him. When his wife refused to return unless appellee secured psychiatric assistance, appellee made an appointment to receive treatment. However, on January 22, 1973, the day of his appointment, appellee stuck a knife into his epigastrium; he received emergency treatment at Lankenau Hospital. On January 24, 1973, appellee was transferred to Philadelphia Psychiatric Center where he exhibited gross psychomotor retardation and experienced severe auditory hallucinations. Finally, in April, 1975, a battery of neurological tests, including an electroencephalogram and a CAT brain scan test, revealed that appellee definitely suffered from an irreversible organic brain syndrome.*fn11

While the parties at trial did not seriously dispute the severity of appellee's structural brain disease, they did vigorously contest the issues of the hospital's alleged negligence and the cause of appellee's present disability. Both sides presented several expert witnesses who offered the following opinion testimony.

[ 259 Pa. Super. Page 345]

Dr. William Ober, professor of pathology at the Sinai School of Medicine, assumed the truth of the testimony concerning the nurse's placement of the kleenex in appellee's wound. Calling this act a flagrant violation of the standard of care expected of a nurse, Dr. Ober concluded that the kleenex incident was the only rational medical explanation of the presence of the clostridia germs inside the incision.*fn12 While he believed that the kleenex incident caused the infection, Dr. Ober cautioned that the infection did not alone cause the ensuing brain damage. Instead, Dr. Ober testified that the infection caused high blood temperatures which, in turn, would cause brain damage in a significant number of patients if sustained over a two or three hour period. The longer the high temperature lasted, the more likely became the possibility of brain damage. Thus, Dr. Ober concluded that appellee could well have suffered brain damage as a result of the extended period of high body temperature between 8:00 a. m., and Dr. Chodoff's emergency operation.

Dr. Elliot Mancall, Chief of Neurology at Hahnemann Hospital in Philadelphia, opined that appellee's ". . . neurological problem dates initially to damage to the brain as a result of extremely high body temperature, coupled with a very low blood pressure, with, perhaps, in all likelihood, some intensification of his neurological problem as a result of a combination of later factors, including alcohol, possible Doriden, and some of the more recent tranquilizers which have been used." Specifically, Dr. Mancall testified that appellee's body temperature of 105 degrees or over on November 6, in conjunction with his perilously low blood pressure readings,*fn13 killed nerve cells in his brain, thus resulting in its shrinkage and in permanent damage.

[ 259 Pa. Super. Page 346]

Dr. Kenneth Kool, a psychiatrist, buttressed Dr. Mancall's testimony that appellee's brain-damaged condition stemmed from his elevated temperature and deflated blood pressure which, in turn, stemmed from clostridial infection. Furthermore, Dr. Kool testified that appellee's brain injuries had engendered serious psychiatric problems. These problems caused appellee to quit work in June, 1965, and made him unemployable thereafter. Finally, appellee's psychosis would require continuous treatment and medication in the future to allow appellee to endure life.

Appellant also presented an imposing array of expert witnesses who proffered a different explanation of appellee's brain disease. Dr. Joseph Slap, a clinical professor at Hahnemann Medical College and an expert in clinical pharmacology and psychosomatic diseases, testified that appellee's brain damage resulted from ". . . Wernicke-Korsakoff's Syndrome, . . . a disease which is seen almost exclusively in alcoholics."*fn14 In reaching this conclusion, Dr. Slap assumed that appellee had exhibited a past history of heavy drinking.*fn15 Dr. Slap also directly attacked Dr. Mancall's

[ 259 Pa. Super. Page 347]

    conclusions that the conjunction of hyperthermia and low blood pressure caused appellee's brain damage and pointed out that Dr. Mancall's original diagnosis named Wernicke-Korsakoff's Syndrome and appellee's alcoholic past as the likely culprits.*fn16

Dr. Herbert S. Heineman, Director of the Infectious Diseases Division of Hahnemann Medical College and Chief of the Clinical Microbiology Laboratory at Philadelphia General Hospital, also provided expert testimony for the defense. According to Dr. Heineman, even if a nurse did thrust a kleenex between appellee's wound and his bandage on the afternoon of November 4, 1963, this action could not have possibly caused appellee's clostridial cellulitis infection. Dr. Heineman emphasized that appellee's wound had been closed immediately after surgery and that a film of coagulated serum developing two to six hours later further sealed off the wound to outside sources of infection. Because clostridial cellulitis could not occur unless organisms were implanted deep into the tissue, Dr. Heineman surmised, without ascribing any fault to Dr. Chodoff, that the infection probably occurred in the operating room.*fn17 Finally, Dr. Heineman observed that temperatures do not go up or down gradually over a period of time; instead, temperatures "spike" or fluctuate rapidly. Thus, one could not assume that appellee's temperature gradually increased from 101.4 degrees at

[ 259 Pa. Super. Page 3484]

:00 p. m., on November 5, 1963, to 105.2 degrees at 8:00 a. m., the next morning.*fn18

On June 6, 1975, after more than two weeks of trial and 1200 pages of testimony, the lower court submitted the case to the jury, and the jury returned a verdict in appellee's favor in the amount of $800,000. Appellant thereupon filed extensive written post-verdict motions and developed its arguments in a brief filed of record. After hearing oral argument, the lower court, sitting en banc, denied appellant's motions on July 27, 1976. This appeal followed.


Appellant first contends that the lower court erred in submitting alternative theories of negligence to the jury. In its charge to the jury, the lower court submitted two alternative theories of negligence underpinning potential liability for the jury's consideration: (1) the negligence of the hospital nurse in allegedly stuffing a kleenex under the bandage covering the incision, thus allegedly causing appellee's clostridial cellulitis infection and leading to his subsequent fever and brain damage, and (2) even if the jury disbelieved the testimony concerning the alleged kleenex incident, the jury could still impose liability if the jury found that the hospital's agents*fn19 failed to render reasonable post-operative care and consequently caused the complained-of brain damage.*fn20

[ 259 Pa. Super. Page 349]

Appellant concedes, as it must, that the jury could have properly premised a verdict in appellee's favor on the evidence and expert opinion testimony concerning the kleenex issue. However, appellant disputes the sufficiency of the evidence to support a verdict in appellee's favor on the alternative theory of negligence. Because the jury may well have discredited the kleenex testimony and may have based its verdict solely on the alternative theory of negligence, appellant contends that a new trial is warranted. See, e. g., Hronis v. Wissinger, 412 Pa. 434, 194 A.2d 885 (1963). Accordingly, in order to dispel doubt about the propriety of the jury's verdict in the instant case, we will analyze the sufficiency of the evidence to support the imposition of liability based on the hospital's allegedly negligent post-operative care.

[ 259 Pa. Super. Page 350]

A hospital may be liable for inadequate post-operative care if a plaintiff can prove that (1) hospital agents contravened the standard of care required of them in rendering post-operative care, and (2) this violation of the appropriate standard of care proximately caused injury to the recuperating patient. See, e. g., Restatement 2d of Torts § 323 (1965); Tonsic v. Wagner, supra; Stack v. Wapner, 244 Pa. Super. 278, 368 A.2d 292 (1976); Ragan v. Steen, 229 Pa. Super. 515, 331 A.2d 724 (1974); Hamil v. Bashline, 224 Pa. Super. 407, 307 A.2d 57 (1973), allocatur denied, 224 Pa. Super. xxxvi (applying § 323 in a medical malpractice action); Hamil v. Bashline, 243 Pa. Super. 227, 364 A.2d 1366 (1976), allocatur granted, 243 Pa. Super. xxxvi (hereinafter Hamil v. Bashline II). In determining whether appellee has adduced sufficient proof of these elements of his cause of action, we must accept as true all facts which support appellee's claim, and we must give appellee the benefit of all reasonable inferences arising from these facts. Drew v. Laber, 477 Pa. 297, 383 A.2d 941 (1978); Collins v. Pennsylvania R. R., 358 Pa. 168, 56 A.2d 236 (1948).

In the case at bar, we have no trouble determining that a jury had sufficient evidence before it to find that hospital agents violated the appropriate standard of care and that this violation proximately caused appellee's extensive brain damage. In reaching this conclusion, we focus on the time period between 8:00 a. m., and sometime before 2:00 p. m., on November 6, 1963. In particular, we emphasize the failure of the hospital nurse and the hospital resident ...

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