No. 785 April Term, 1979, No. 786 April Term, 1979, Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Erie County at No. 2144 A 1976.
James T. Marnen, Erie, for appellant in No. 785 and for appellee in No. 786.
James D. McDonald, Jr., Erie, for appellant, in No. 786 and for appellee in No. 785.
Spaeth, Wickersham and Lipez, JJ. Lipez, J., concurs in the result.
[ 297 Pa. Super. Page 486]
Richard R. DeNardo filed a complaint in trespass against Doctors Osteopathic Hospital and Daniel C. Carneval, D.O., in the Court of Common Pleas of Erie County in which he alleged that on or about April 9, 1975 he was admitted to Doctors Osteopathic Hospital with a chief complaint of right hip pain, right lower back pain and right leg pain with radiation to the knee accompanied by chills and fever. He alleged further that on April 29, 1975, while so hospitalized, Daniel C. Carneval, D.O., an individual engaged in the practice of medicine and surgery, performed a right retroperitoneal exploration (in the psoas area) with intra-abdominal exploration resulting in drainage of an apparent retroperitoneal abscess. Plaintiff was discharged from Doctors Osteopathic Hospital on May 7, 1975.
He further alleged that his symptoms returned; he was readmitted to the hospital on June 7, 1975 and on June 9, Dr. Carneval again performed a retroperitoneal exploration on the right with re-exploration of the right psoas abscess and insertion of irrigating tubes and drains. He was discharged from the hospital on July 7, 1975 and admitted to a different medical facility, Hamot Medical Center in Erie, the same day. While there, complete gastrointestinal tract studies were performed which showed constrictive narrowing in the terminal ileum. An exploratory laparotomy was performed on July 14, 1975 including resection of the terminal ileum
[ 297 Pa. Super. Page 487]
and ascending colon and exploration of the retroperitoneal area with drainage of the abscess. He was discharged from Hamot Medical Center July 29, 1975.
The thrust of the complaint filed by Richard R. DeNardo is that while he was being treated by Dr. Carneval at Doctors Osteopathic Hospital, he was suffering from regional ileitis with abscess formation involving the terminal cecum and the ileum with the fistulous tract extending into the right ileopsoas space, which in turn created a right ileopsoas abscess. He alleges further that this problem was ultimately correctly diagnosed by the treating physicians at Hamot Medical Center during his hospitalization there from July 7 through August 21, 1975.
In Count I of his complaint he alleged that the negligence of Dr. Carneval consisted of failing to properly diagnose and treat his condition and of failing to secure a reliable evaluation of his condition including complete studies of his gastrointestinal tract. He set forth various medical expenses that he incurred in excess of $10,000.00 and lost wages from his occupation as a teacher in excess of $1,700.00. Count II of his complaint set forth similar allegations against the Doctors Osteopathic Hospital. The complaint was filed September 9, 1976.
An answer was filed on behalf of Daniel C. Carneval and Doctors Osteopathic Hospital filed a motion for summary judgment. By order dated April 18, 1978 the Honorable Lindley R. McClelland denied the motion for summary judgment. Subsequently, however, on October 31, 1978 all parties by stipulation agreed that Doctors Osteopathic Hospital be discharged from the suit and the court approved such stipulation.
The matter proceeded to trial, non-jury, before the Honorable James B. Dwyer, President Judge, Orphan's Court Division who on November 6, 1978 found "in favor of the plaintiff in the amount of $7,500.00." Exceptions were filed to the verdict by both Richard R. DeNardo and Daniel C. Carneval which exceptions were dismissed May 31, 1979 by the Erie County Court en banc including Judges Dwyer,
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McClelland and the Honorable William E. Pfadt. Judgment was duly entered on the verdict and both parties have appealed to our court.
I. IS EXPERT TESTIMONY THAT A FAILURE TO PERFORM CERTAIN DIAGNOSTIC PROCEDURES DEVIATES FROM THE ACCEPTED STANDARD OF CARE SUFFICIENT TO PROVE SUCH DEVIATION WHEN IT IS SHOWN THAT SUCH EXPERTS IN THEIR OWN PRACTICE EITHER DID NOT PERFORM SUCH PROCEDURES OR OBTAINED AN INCONCLUSIVE OR INCORRECT DIAGNOSIS OF THE PLAINTIFF'S ILLNESS BY PERFORMING SAME?
The thrust of the first question raised by Dr. Carneval in this appeal is that he was not negligent in his treatment of Mr. DeNardo and that plaintiff's evidence did not establish medical malpractice.
It would be instructive to determine the test before us and our scope of appellate review in this area. In Smith v. Yohe, 412 Pa. 94, 194 A.2d 167 (1963) our supreme court said:
In considering this contention certain well settled principles in this area of the law must be kept in mind: (a) in the absence of a special contract, a physician neither warrants a cure nor guarantees the result of his treatment . . .; (b) 'A physician who is not a specialist is required to possess and employ in the [diagnosis and] treatment of a patient the skill and knowledge usually possessed by physicians [of good standing] in the same or a similar locality giving due regard to the advanced state of the profession at the time of the treatment; and in employing the required skill and knowledge he is also required to exercise the care and judgment of a reasonable man' . . .; (c) the burden of proof is upon the plaintiff to prove either (1) that the physician did not possess and employ the required skill or knowledge or (2) that he did not exercise the care and ...