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filed: April 16, 1982.


Nos. 1824 & 1825 Philadelphia, 1980, (J-2042/80) (J-2043/80), Nos. 1861 & 2308 Philadelphia, 1980, (J-2044/80), No. 2307 Philadelphia, 1980, (J-2045/80), Appeal from the Order and Judgment of the Court of Common Pleas, Civil Division, of Philadelphia County, December Term, 1966, Nos. 1348 & 1541.


Thomas J. Burke, Philadelphia, for appellant in Nos. 1824 and 1825 and appellee in Nos. 1861, 2308 and 2307.

James E. Beasley, Philadelphia, for Pratt, appellee.

James L. Griffith, Philadelphia, for Albert Einstein, appellant in Nos. 1861 and 2308 and appellee in Nos. 1824, 1825, and 2307.

Tom P. Monteverde, Philadelphia, for Kambin, appellant in No. 2307 and appellee in Nos. 1824, 1825, 1861 and 2308.

Price, Watkins and Montgomery, JJ.

Author: Price

[ 298 Pa. Super. Page 102]

The instant appeals are from the orders of the court of common pleas denying motions for new trial and for judgment n. o. v. advanced by appellants, Raymond O. Stein, M.D., Parviz Kambin, M.D., and Albert Einstein Medical Center, individually, and entering judgment on the verdict for appellee, Preston Pratt, against appellants. For the reasons that follow, we affirm the orders entered below.

Appellee sustained neck and back injuries on July 13, 1964 when the automobile which he was operating was struck in the rear by a vehicle operated by Cheng Yu Deh Djen, a/k/a Edith Cheng. As a result of those injuries, appellee was hospitalized from July 13 to July 21, 1964, at the University of Pennsylvania Hospital. Thereafter, appellee's family physician referred him to Raymond O. Stein, M.D. and Parviz Kambin, M.D., associates specializing in orthopedic

[ 298 Pa. Super. Page 103]

    surgery. Dr. Kambin examined and treated Pratt on July 27, 1964 and throughout the months of August and September.

Dr. Stein examined Pratt on October 15, November 28, and December 28, 1964. At Stein's direction, appellee was admitted to Albert Einstein Medical Center*fn1 on December 28 and, on December 29, a myelogram was performed. On December 31, Dr. Stein performed a laminectomy with a discectomy and an interbody fusion between appellee's third and fourth and fourth and fifth lumbar vertebrae.

Post-operatively, appellee developed an infection at the operative site. Various antibiotics, including chloromycetin and neomycin, were administered to combat the infection. This treatment notwithstanding, Pratt's condition continued to worsen: renal problems developed, hearing loss and paraparesis (partial paralysis affecting the lower limbs) ensued and he was not expected to survive. (N.T. 5660). An operation to open and drain the infected wound and to remove the bones engrafted during the interbody fusion was performed by Dr. Kambin on January 26, 1965. By March 8, 1965, Pratt had recovered sufficiently to be discharged from appellant hospital. At the time of his discharge, however, Pratt was totally immobile and deaf. Through rehabilitation, appellee has learned to walk with the aid of crutches. His hearing, however, remains unimproved.

Alleging that the treatment which he received fell below the standard of reasonable medical care, appellee filed complaints in trespass and assumpsit against Drs. Stein and Kambin and the Albert Einstein Medical Center. A separate action was commenced in trespass against Edith Cheng. All three actions were consolidated for trial and tried before a jury in the Court of Common Pleas of Philadelphia County.*fn2 Appellee there sought to prove that the laminectomy performed in the lumbar region of his back was unnecessary.

[ 298 Pa. Super. Page 104]

If surgery was necessary, appellee argued, such surgery should have been confined to the cervical, and not the lumbar, area of his back. Appellee also sought to establish that appellants breached the standard of reasonable medical care in failing to open and drain the infected wound as soon as the first signs of infection manifested themselves and, in any event, earlier than the January 26 operation.*fn3 Finally, appellee introduced evidence to prove that appellants knowingly treated the wound infection with neomycin, a drug known to be highly toxic, even after they learned or should have learned of the availability of less toxic drugs to which the infection would have responded as well or better than it did to neomycin.*fn4

In their defense, appellants introduced evidence to establish that the December 31, 1964 operation was necessary to prevent paralysis and that prudent medical care dictated the direction of surgical attention to the lumbar discs prior to any such treatment of the cervical area. (N.T. 3836-37, 4444; 5530-32). Regarding the timeliness of the procedure to open and drain the wound, appellants sought to establish that such a procedure posed the risk of increased infection. In addition, appellants argued that a second operation would have destroyed the interbody fusion and thus negated the benefits derived from the initial operation. (N.T. 5654-56). Therefore, appellants contended that they had acted in

[ 298 Pa. Super. Page 105]

    accordance with proper medical procedure by attempting to treat the infection conservatively with antibiotics prior to taking any action involving surgery. (N.T. 3854-55; 5645).*fn5

As to the propriety of their use of neomycin, appellants sought to establish that: (1) no standards existed in 1964 or 1965 for the instillation or irrigation of neomycin, the methods allegedly used in the treatment of appellee;*fn6 (2) the only contraindications for the use of neomycin concerned the injection intramuscularly or the oral administration of neomycin; and (3) even assuming the applicability of neomycinuse-restrictions to the method and manner in which neomycin was utilized herein, the concentration of the neomycin administered was within the guidelines set forth in the Physicians' Desk Reference. (N.T. 3868; 5608; 5612; 5613; 5629-30; 5705). Finally, appellants attempted to prove that appellee was contributorily negligent in failing to fully disclose an alleged past history of back problems and/or treatment of same, since their diagnosis, manner of treatment, and surgical judgment would have been affected thereby. (N.T. 4435; 5004; 6226-28).

Following nearly eleven weeks of trial, the jury returned a verdict in favor of appellee and against Edith Cheng in the sum of ten thousand dollars ($10,000) and against doctors Stein and Kambin and the Albert Einstein Medical Center in the amount of one million dollars ($1,000,000). Motions for new trial and for judgment n. o. v. were denied and this appeal followed.

[ 298 Pa. Super. Page 106]


Both Drs. Stein and Kambin argue that they are entitled to judgment n. o. v. and that the trial court improperly denied their motions for same.

[I]n an appeal from the denial of a motion for a judgment n. o. v., the evidence must be viewed in a light most favorable to the verdict winner. Evidence supporting the verdict is considered and the rest is rejected. All conflicts in the testimony are resolved in favor of the verdict winner, the [appellee] herein. Rutter v. Morris, 212 Pa. Super. 466, 243 A.2d 140, 141 (1968).

Grubb v. Albert Einstein Medical Center, 255 Pa. Superior Ct. 381, 390-91, 387 A.2d 480, 484 (1978) (per curiam). Viewing the evidence in the above context and applying the evidence so viewed to the major issues presented to the jury, we cannot agree with appellants' argument.

Appellee sought to prove at trial that the laminectomy was unnecessary and that, if any surgery was required, it should have been performed in the cervical area. One of appellee's experts, Dr. J. David Hoffman, testified that the laminectomy was "inappropriate and misdirected," (N.T. 2811), because appellee

     was experiencing or presenting symptoms of cord compression . . . and that the location of that particular pressure was logically, and by all experimentation and judgment in this matter, in the cervical region, that the description of his pain or the lack of feeling, or the combination thereof, the burning paresthesia or the transmission of strange awarenesses into one or both legs, the findings of pathologic reflex or reflexes at one time or another in one or both legs, called a Babinski response, or a withdrawal response, or a Chaddock response, the hyperflexia, or the increased reflexes, the general overall pattern of his description of complaints, pre-dating and on his visits and eventual admission to the University of Pennsylvania Hospital, and thereafter, following subsequently with Dr. Stein or Dr. Kambin or both, to the time he was admitted at Einstein, and in particular thereafter, the

[ 298 Pa. Super. Page 107]

    presentation, in my opinion, could only be appropriately ascribed to and should have been confined to compression and cord pressure, and that the logical area for that, once again, was the cervical region.

(N.T. 2812-13).

Dr. Hoffman's opinion was buttressed by the testimony of Dr. Frank A. Elliott, a board certified neurologist who testified on behalf of appellant Stein. On cross-examination, for example, Dr. Elliott admitted that Pratt's "main incapacity" was located in the cervical spine, (N.T. 4677), and that "[n]ormally you attack the most serious part of a man's pathology [, in this case, the neck]." (N.T. 4753-54). Additionally, and perhaps most significantly, Dr. Elliott testified that surgery to the cervical region may have completely eliminated Pratt's neck and back problems without the need for lumbar surgery.

[COUNSEL FOR APPELLEE]: Q. Let me ask you this, Dr. Elliott: If the man's neck had been operated on at that time --

[DR. ELLIOTT]: A. Yes?

Q. -- would his symptoms -- wouldn't there have been a good possibility, a very good possibility, that all of this problem with his low back would have disappeared and he would have returned to work?

A. His incapacity and weakness of his legs and much of the numbness would have disappeared.

Q. And if the difficulty were, as you said, some thing that was of longstanding, coming in and out, as these discs have a tendency to do, that could have been handled at a much later time, if at all necessary?

A. That's true.

(N.T. 4751-52) (emphasis added). In view of these opinions and the other evidence offered in support thereof,*fn7 the jury

[ 298 Pa. Super. Page 108]

    could reasonably have concluded that the laminectomy performed on December 31, 1964 by Dr. Stein was inappropriate and thus below the standard of reasonable medical care.

Another contention advanced by appellee was that the wound infection was improperly managed in that it should have been opened and drained prior to the January 26, 1965 operation performed by Dr. Kambin. Dr. Hoffman testified that the wound should have been opened and drained by January 6th or 7th and certainly by the 13th of January since, on that date, the wound incision was bulging, there was some discharge and approximately one hundred (100) cubic centimeters of bloody fluid were aspirated. (N.T. 2876-78).*fn8 Dr. Blaker concurred in this result, based upon

[t]he clinical picture here -- and that includes the condition of the patient, the review of his temperature chart, review of his blood count, the overall picture of a complete change in his reflex pattern from upper motor neuron to an absence of reflexes suggest that there had been a very dramatic and a widespread problem introduced following operation. It is my opinion that the attempt to treat this by antibiotics only, without primarily evacuating the wound, was not effective. And this subsequent course of

[ 298 Pa. Super. Page 109]

    events and the finding at the time of the second operation verified this.

(N.T. 2646) (emphasis added).

Even appellant Stein admitted, in retrospect, that the wiser course would have been to have opened the wound earlier.

If I knew on the 13th or the 14th or the 15th or the 16th that we were not going to get a response to the antibiotics, if I knew on those days that the wound was going to go -- the infection was going to go all the way down to the area of the bone grafts, if I had known that as a positive fact on those days, Mr. Burke, I would have opened the wound on those days.

(N.T. 5650) (emphasis added). Obviously, Dr. Stein cannot be held accountable for the knowledge of facts not available to him at the time of his decision to treat the infection with antibiotics. There was evidence, however, that Pratt's back wound was draining as early as January 2, 1965. (N.T. 1667-68; 4074). Moreover, chloromycetin treatment was begun on January 5th. (N.T. 4833). Since chloromycetin was to be used only in the treatment of serious infections,*fn9 it can be assumed that appellants deemed Pratt's infection "serious" as of January 5th. Although the results of the first culture were allegedly not received until January 15th, moreover, appellants knew by that date that chloromycetin had been ineffective in arresting the infection (N.T. 5641). Additionally, as of January 19th, appellants suspected the presence of a fistula down to the area of the bone grafts. (N.T. 4877). They thus had reason to believe that the infection was growing worse. In spite of this evidence, appellants continued to treat the wound with antibiotics and refrained from opening the wound until January 26, 1965,

[ 298 Pa. Super. Page 110]

    twenty-one (21) days after they first suspected the presence of a serious infection and seven (7) days after they first suspected a deep wound, as opposed to a superficial, infection. In these circumstances, we cannot hold that the jury unreasonably concluded that appellants failed to exercise the appropriate degree of care in the management of the wound.

The evidence likewise supports the contention that appellants' use of neomycin was improper. For example, Dr. Kyu Lee, a second year resident in orthopedics at the time of appellee's hospitalization and an active participant in appellee's treatment, agreed that,

Although Neomycin is very effective, the clinical usefulness of this antibiotic is very sharply limited by the problem of a high incidence of toxicity, kidney and nerve damage occurring in a not insignificant number of patients. In view of these untoward effects, Neomycin should never be the first drug employed in the treatment of any infection, it should be reserved for those diseases in which no other antibiotic is effective and the situation threatens life. The magnitude of the risk of renal or auditory nerve damage must always be weighed against that of the untreated infection.*fn10

[ 298 Pa. Super. Page 111]

(N.T. 4905) (emphasis added).*fn11

Even accepting Dr. Lee's testimony that appellee's life was threatened, appellee established that there were other less toxic but equally effective antibiotics available with which to treat the infection.*fn12 Additionally, one of the organisms present in appellee's infection was found to be resistant to neomycin. (N.T. 827). Given the dangers of neomycin, the availability of other drugs, and the possibility that neomycin would be ineffective, the use of neomycin in appellee's treatment clearly violated the warning set forth above. Having heard this evidence, the jury could reasonably have concluded that appellants' conduct deviated from the standard of reasonable medical care.

Aside from the decision to use neomycin, appellee also averred and produced evidence to prove that the method, manner and duration of the drug's administration constituted a gross deviation from the standard of reasonable medical care. Neomycin was first administered to appellee by Dr. Lee, in consultation with Dr. Raymond Stein and Dr. Kambin, on January 17 or 18, 1965.*fn13 (N.T. 4816). The medical records produced at trial reported that appellee's wound was either instilled, injected or irrigated with five grams of neomycin daily, dissolved in 20 cc's of saline, from January

[ 298 Pa. Super. Page 11217]

    th to January 25th.*fn14 (N.T. 731; 783-86). Thereafter, from January 26, the date of the second operation, until January 28, 1965, both sides of the wound were irrigated with a solution containing five grams of neomycin per 1,000 cc's saline. (N.T. 785). On January 28, the use of neomycin was discontinued and bacitracin substituted because of the "possible ototoxic reaction" of neomycin. (N.T. 788).*fn15

It is undisputed that the Physicians' Desk Reference in use in January of 1965 warned that, "The maximum daily dosage [for the oral administration or the intramuscular injection of neomycin] should not exceed one gram." (N.T. 4110).*fn16 Although the five grams of neomycin administered daily to appellee was five times the daily amount recommended for oral or intramuscular use, (N.T. 4855), appellants argued that the one-gram-limitation was inapposite to appellee's case since neither instillation nor irrigation were included therein. In addition, appellants maintained that the rate

[ 298 Pa. Super. Page 113]

    at which a drug is absorbed when it is instilled is far below the rate of absorption when a drug is either injected or administered orally.*fn17 Appellants thus contended that, even if neomycin had been absorbed, not even one-fifth (1/5) of the five gram dosage would have entered appellee's system. (N.T. 4855).

However, one of appellant Stein's own witnesses, Dr. Herbert Stein,*fn18 testified that, if neomycin were placed in granulose or very vascular tissue, it would be equivalent to an intramuscular injection. (N.T. 5333; 6355). Another Stein witness, Dr. James E. Nixon, a board certified orthopedic surgeon, testified on cross-examination that appellee's wound was very vascular and that it contained a substantial amount of granulation tissue. (N.T. 5028-29). Together, the testimony of both witnesses corroborated the testimony of appellee's witness, Dr. Glauser. Dr. Glauser stated unequivocally that a systemic effect, i.e., a high absorbability rate, would result if a drug were instilled into a highly vascularized area. (N.T. 880). Since appellee's was a closed, highly vascularized, infected wound, therefore, Dr. Glauser opined that absorption was extremely likely, particularly because of the high concentration of neomycin placed into appellee's wound. (N.T. 1130). Even accepting appellants'

[ 298 Pa. Super. Page 114]

    contention that neomycin was instilled, therefore, the dosage warning contained in the Physicians' Desk Reference would have been applicable and the five gram daily dosage administered to appellee far exceeded the recommended amount.*fn19 Thus, in view of the unrebutted testimony that appellee's hearing loss was directly related to the use of neomycin, (N.T. 866; 2847; 5030-5659), the jury could reasonably have concluded that appellants' deviation from the standard of reasonable medical care proximately caused appellee's deafness.

Apart from their defense against appellee's averments, appellants sought to prove that appellee was contributorily

[ 298 Pa. Super. Page 115]

    negligent in failing to disclose a pre-existing back condition when his medical history was taken, by Dr. Kambin in July, 1964 and by a resident in December, 1964. Viewing the evidence favorably to appellee, however, there is ample support for the jury's conclusion that appellee was not contributorily negligent.

"Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiff's harm." Restatement (Second) of Torts ยง 463 (1965). Thus, appellee's negligence, if any, must have been both the legally contributing and the proximate cause of his injury. McCay v. Philadelphia Electric Co., 447 Pa. 490, 291 A.2d 759 (1972); Just v. Son's of Italy Hall, 240 Pa. Superior Ct. 416, 368 A.2d 308 (1976). Even Dr. Stein's witnesses testified, however, that that was not the case with appellee's alleged failure to disclose.

Q. [APPELLEE'S COUNSEL]: Well, what is the significance of the fact that the man may have had prior low back complaints? Did that change your physical examination in any way?

A. [DR. HERBERT STEIN]: It did not change my physical examination.

Q. Did it change your diagnosis in any way?

A. No it did not.

(N.T. 5286). A similar result occurred in the direct examination of Dr. Hal E. Snedden, also an orthopedic surgeon.

Q. [APPELLANT STEIN'S COUNSEL]: Doctor, if a patient in fact had a back condition prior to a particular date, date of injury, July 13, 1964, and in fact does not report to the treating physician that he had a previous back condition, including paresthesia of the anterior thighs, both legs, would this affect the method, perhaps, and treatment by a physician?

[ 298 Pa. Super. Page 116]

A. [DR. SNEDDEN]: I don't believe it would affect the method of treatment. I might wonder why he didn't tell me.

(N.T. 3871) (emphasis added).

Having carefully considered the four major issues presented to the jury in light of the more than seven thousand pages of testimony, we are convinced that the evidence clearly supports the jury's verdict. Consequently, unless there has been committed an error of law or an abuse of discretion, we will not interfere with that verdict. Grubb v. Albert Einstein Medical Center, 255 Pa. Superior Ct. 381, 390-91, 387 A.2d 480, 485 (1978) (per curiam); Simmons v. Mullen, 231 Pa. Superior Ct. 199, 331 A.2d 892 (1974); Scaife Co. v. Rockwell-Standard Corp., 446 Pa. 280, 285 A.2d 451 (1971), cert. denied, 407 U.S. 920, 92 S.Ct. 2459, 32 L.Ed.2d 806 (1972); Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968). We thus proceed to a consideration of the remaining allegations of error.


Appellants, Albert Einstein Medical Center [hereinafter "AEMC"] and Dr. Raymond Stein, advance seven major reasons to support their demand for a new trial.*fn20 First, appellants argue that the trial judge irrevocably prejudiced

[ 298 Pa. Super. Page 117]

    their case by participating in the examination of their expert witnesses. We do not agree.*fn21

"It is well settled that a trial court always has the right, and sometimes even the duty to interrogate witnesses, in order to clarify evidence," or to elicit new information that is necessary to ensure a fair trial. Commonwealth v. Hodge, 246 Pa. Superior Ct. 71, 79, 369 A.2d 815, 819 (1977). A new trial is required, therefore, only when the trial judge's questioning amounts to an abuse of discretion. Commonwealth v. Elmore, 241 Pa. Superior Ct. 470, 476, 362 A.2d 348, 351 (1976). Because a charge of this nature is of the most serious type, however, "'the record must clearly show prejudice, bias, capricious disbelief or prejudgment'" before such an abuse of discretion will be found. Kenworthy v. Burghart, 241 Pa. Superior Ct. 267, 271-72, 361 A.2d 335, 338 (1976). Having examined the three instances in which the trial judge is alleged to have abused his discretion, we conclude that the requisite prejudice, bias, prejudgment or capricious disbelief is absent.

Counsel for Edith Cheng asked Dr. Elliott whether his testimony was that the surgery on appellee's lower back was successful. (N.T. 4709). Dr. Elliott responded thus: "I have to give you a sentence. He had two lesions. Some of his symptoms were due to the low back problem. And those symptoms disappeared, leaving him with incapacity due to

[ 298 Pa. Super. Page 118]

    the neck problem." Id. Appellee's counsel interposed an objection that the answer was not responsive to the question. Thereafter, the following colloquy occurred.

Q. [BY THE COURT]: Can you give a better answer to that question, Doctor? Or do you find some problem with the question?

A. [DR. ELLIOTT]: I find it very difficult to get a better answer. That is in fact the truth as I see it.

Q. So, strictly speaking, can you answer, Doctor, whether or not in your opinion the surgery to the lumbar spine was successful or not? Or is that possible to answer?

A. All right, I'll say yes, it was, in its limited objectives.

Q. Which were what?

A. Well, as I have said in previous testimony, he had pain in the back, the positive Lasegue, the wasting, and those things ...

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