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filed: April 30, 1982.


No. 1270 Pittsburgh, 1980, No. 1271 Pittsburgh, 1980, Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Allegheny County at No. 3148 July Term, 1973.


Patrick R. Riley, Pittsburgh, for appellant (at No. 1270) and for appellee (at No. 1271).

John D. Rhodes, Pittsburgh, for appellant (at No. 1271) and for appellee (at No. 1270).

James F. Manley, Pittsburgh, for Dr. Tabbarah, appellee.

Neil Rosen, Pittsburgh, for Hoeke, appellees.

George M. Weis, Pittsburgh, for Mercy Hospital, appellee.

Wickersham, Wieand and Beck, JJ. Wieand, J., files a dissenting opinion.

Author: Wickersham

[ 299 Pa. Super. Page 49]

This is a professional negligence case filed by the appellees (plaintiffs) against the appellants (defendants) as a result of the care and treatment which was rendered to the woman plaintiff in June of 1971 and thereafter. The essence of this case was that as a result of the negligent performance of an abdominal hysterectomy and negligent postoperative care, Mrs. Hoeke sustained the loss of her right kidney and an above-the-knee amputation of her right leg. The case was tried in the Court of Common Pleas of Allegheny County before the Honorable Marion K. Finkelhor and a jury.

After 19 days of trial during which multiple expert witnesses testified, a verdict was rendered in favor of Maria Hoeke in the amount of $500,000 and Jonathan Hoeke, her husband, in the amount of $50,000 and against defendants

[ 299 Pa. Super. Page 50]

Kairys, an obstetrician/gynecologist, and Cushing, a cardiovascular surgeon. The Mercy Hospital, original defendant, and Dr. Hassan Jamil Tabbarah, additional defendant, were exonerated by the jury.

During the course of the trial, plaintiffs testified in their own behalf and called as witnesses in their case Doctors Kairys and Cushing (for cross-examination); Dr. William Stewart, the anesthesiologist at the time the operation was performed; Dr. Jerry S. Wolkoff, a vascular surgeon and expert witness; Dr. I. Biskind, an obstetrician/gynecologist, and expert witness; Dr. John R. Perri, the orthopedic surgeon who amputated plaintiff's leg; Dr. Martin Cohen, a pathologist at Mercy Hospital; and additional defendant Dr. Hassan Jamil Tabbarah. On the side of the defendants, there was the direct testimony of Drs. Kairys, Cushing and Tabbarah; Dr. Terry Hayashi, an obstetrician/gynecologist and expert witness for the defendant Kairys; Dr. Douglas McDonald, a surgical resident at Mercy Hospital who was present during the operation; Dr. Jessica Lewis, a hematologist; and Dr. Mitchell Webster, a cardiovascular surgeon and expert witness. From this complex record, only the testimony of Drs. Kairys, Cushing and Tabbarah and an excerpt from the testimony of Dr. Wolkoff have been transcribed and reviewed by this court of defendants' issues on appeal is accordingly limited.*fn1

Mrs. Maria Hoeke, a citizen of the Netherlands and presently a resident of the United States for the past fourteen years, was a patient of Dr. Leo R. Kairys and had used the services of Dr. Kairys in the birth of her child on September 13, 1966. On or about April 28, 1971, Mrs. Hoeke consulted Dr. Kairys with complaints of excessive bleeding and, after discussion, it was his recommendation that Mrs. Hoeke undergo a hysterectomy.

[ 299 Pa. Super. Page 51]

Mrs. Hoeke entered the hospital in June, 1971, for the operation which was performed by Dr. Kairys on June 25, 1971. He was assisted by Dr. McDonald, an obstetrical resident of Mercy Hospital at that time.

The allegations and proof of negligence in these proceedings divide between operative and postoperative procedures.

During the operation itself, excessive and profuse bleeding occurred in the operative area and, in the middle of the operation, Dr. Kairys sent for Dr. Cushing, a cardiovascular surgeon. Drs. Kairys and Cushing attempted to ligate the arteries involved to stop the massive bleeding and a right hypogastric artery ligation was performed. Some damage apparently occurred to the ureter and kidney in the course of surgery. The cause of the bleeding was at issue at the trial and Drs. Kairys and Cushing presented diverse testimony on the cause of injury to the ureter and kidney. It was conceded by all parties that damage to the ureter and the kidney were related to the operative procedure. There was no testimony on postoperative negligence on this issue.

It was the testimony of plaintiffs' experts that other operative procedures could have reduced the risk of harm to the leg. After surgery, plaintiff was placed in an intensive care unit. The blood supply was diminished to her right leg and, subsequently, the leg was amputated. Dr. Cushing, who had performed the cardiovascular surgery, left for vacation at the end of June (30th) and Dr. Tabbarah, his associate, was not alerted by Dr. Cushing or called on the case by Dr. Kairys until, in the opinion of Dr. Tabbarah, irreversible damage had already occurred. There was considerable controversy in the testimony as to the symptoms exhibited by the leg and when diagnosis of the diminished blood supply was possible. At issue in the postoperative care of Mrs. Hoeke was whether the leg was properly monitored and procedures taken to determine the status of the blood supply. The kidney, which appeared to be perforated, was removed at a later date.

[ 299 Pa. Super. Page 52]


The single issue raised by William J. Cushing, appellant, relates to the court's charge to the jury and whether or not the court, in effect, directed a verdict in favor of the plaintiff and against himself.*fn2

In his brief Dr. Cushing concedes that having been charged with negligent performance of an undertaking to render services to another, the law set forth by the Restatement, Second, Torts, § 323(a) applies:

§ 323. Negligent Performance of Undertaking to Render Services

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such

     harm . . .

The theory under Section 323(a) against Dr. Cushing in this case is that his failure to act in the postoperative period was a proximate cause of the plaintiff's harm. The court's charge on this aspect of the case is contained on ...

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