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MARA REICHMAN v. EDWARD WALLACH (10/29/82)

filed: October 29, 1982.

MARA REICHMAN, APPELLANT AT NO. 2261 PHILA. 1980,
v.
EDWARD WALLACH, M.D. AND THE PENNSYLVANIA HOSPITAL. APPEAL OF EDWARD WALLACH, M.D., AT NO. 2198 PHILA. 1980 AND NO. 450 PHILA. 1981



No. 2198 Philadelphia, 1980, No. 2261 Philadelphia, 1980, No. 450 Philadelphia, 1981, Appeals from Order dated August 22, 1980 (2198) and from the Judgment entered February 17, 1981 (450) of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 5090 May Term, 1975.

COUNSEL

William F. Sullivan, Jr., Philadelphia, for Wallach.

James E. Beasley, Philadelphia, for Reichman.

Wickersham, Wieand and McEwen, JJ. Wickersham, J., files a concurring & dissenting statement.

Author: Wieand

[ 306 Pa. Super. Page 180]

In this medical malpractice case Mara Reichman sought damages for ulcerative colitis and neuroses, which she contended had been caused by stress resulting from a failure of a gynecologist and agents of a hospital to prevent and/or correct promptly internal bleeding which followed the performance of a hysterectomy. A jury returned a verdict for $429,960 against the gynecologist, Dr. Edward E. Wallach, and also against The Pennsylvania Hospital. The trial court subsequently set aside the verdict against the hospital and entered judgment n.o.v. in its favor. Dr. Wallach's post verdict motions were denied, however, and he appealed from the judgment entered on the verdict. Mrs. Reichman appealed

[ 306 Pa. Super. Page 181]

    from the order entering judgment n.o.v. in favor of The Pennsylvania Hospital.

Mara Reichman consulted Dr. Wallach in October, 1973, after a routine physical examination had disclosed the presence of a pelvic mass. Dr. Wallach's examination confirmed the presence of the mass, but it was not possible by examination to determine the precise nature of the tumor or whether it was malignant. This was explained to Mrs. Reichman. Dr. Wallach recommended that she undergo a laparotomy, with removal of the uterus, fallopian tubes and ovaries. Mrs. Reichman hesitated, but by November 13, 1973, the mass had increased in size and was palpable abdominally. Dr. Wallach again recommended a total hysterectomy. Still Mrs. Reichman hesitated. After consulting further with Dr. Viner, her internist, who made a separate examination, Mrs. Reichman consented to surgery. According to her testimony, she instructed Dr. Wallach not to remove her ovaries unless they were diseased and "life-threatening." Mrs. Reichman was admitted to The Pennsylvania Hospital on December 4, 1973, and on December 7 a total abdominal hysterectomy and bilateral salpingo-oophorectomy was performed.

Because Mrs. Reichman had a history of hypertension and high blood pressure, Dr. Viner requested that Dr. Troncelliti, chairman of the hospital's anesthesia department and supervisor of the recovery room, administer a spinal anesthetic. Surgery began at 8:00 o'clock, A.M., and was completed without observed complications by 10:00 o'clock, A.M. Because the natural tendency of the spinal anesthesia administered to Mrs. Reichman was to paralyze the sympathetic nerves and dilate the vessels, thus lowering the patient's blood pressure, her blood pressure was artificially elevated during and following surgery by the use of neo-synephrine. When its use was discontinued in the recovery room at or about 1:00 o'clock, P.M., Mrs. Reichman's blood pressure fell precipitously. Consequently, the use of neo-synephrine was resumed, and Mrs. Reichman was monitored closely for signs that a normal blood pressure was returning. Because of the

[ 306 Pa. Super. Page 182]

    blood pressure condition, Mrs. Reichman was kept in the recovery room until it was closed at 6:00 o'clock, P.M. It was then unknown whether her inability to maintain normal blood pressure was attributable to the anesthesia or to internal bleeding. Dr. Troncelliti believed that the patient required continued careful monitoring, and he contacted Dr. Wallach, who, together with Dr. Viner, examined Mrs. Reichman. Because her failure to respond adequately to drugs, plasma, fluids and whole blood intended to stabilize her blood pressure suggested the possibility of internal bleeding, Drs. Viner and Wallach caused her to be placed in an intensive care unit. After Mrs. Reichman had spent a restless night in intensive care, surgery was performed to correct what was then believed to be internal bleeding. The source of the bleeding was determined to be a branch of the ovarian artery, approximately two inches above the site of the original dissection of the ovarian bundle, and it was doubly ligated to arrest the bleeding. A retroperitoneal hematoma, which had formed as a result of the bleeding, was also removed. Surgery was completed at 9:20 o'clock, A.M., and Mrs. Reichman was returned to her hospital room in what appeared to be satisfactory condition after one hour in the recovery room.

Post operatively, Mrs. Reichman developed abdominal pain, vomiting, nausea, diarrhea, and an inability to eat solid foods. She also lost weight, and an abnormality of her liver enzymes was discovered. These symptoms, she testified, continued after her discharge from the hospital on January 18, 1974. There followed a series of four hospitalizations during the next seven months, none of which disclosed the etiology of Mrs. Reichman's symptoms. In February, she returned to Pennsylvania Hospital for five days with the same complaints. On March 6, she was readmitted, only to be discharged on March 11 without diagnosis. Her symptoms persisted, however, and she also developed a temporary swelling of the face and legs and hemorrhagic cystitis. On April 7, she was admitted to the Hospital of the University of Pennsylvania and remained there for nine weeks, during

[ 306 Pa. Super. Page 183]

    which numerous tests failed to disclose a physiological explanation. Mrs. Reichman testified, however, that her treating physicians suspected a hidden malignancy, which caused her to be placed in a "cancer ward." Finally, on June 14, 1974, she entered Mt. Sinai Hospital in New York under the care of Dr. Zimmerman, a gastroenterologist. Here, an eleven week hospitalization, an exploratory operation and myriad tests also failed to disclose the cause of Mrs. Reichman's symptomology, and she was discharged on August 19.

Mrs. Reichman continued thereafter under the care of Dr. Zimmerman and, on September 20, 1974, a sigmoidoscopic examination disclosed the presence of ulcerative colitis, a chronic, debilitating disease of the large intestine. Dr. Zimmerman and Dr. Rieger, an expert witness employed on Mrs. Reichman's behalf, testified that there is no cure for ulcerative colitis, that persons suffering from the disease require medical care for the remainder of their lives, and that in some cases a colostomy is required during the later stages of the disease.

I. THE MOTIONS FOR JUDGMENT N.O.V.

In order to establish the liability of the defendants, appellee was required to establish by competent evidence that the conduct of Dr. Wallach and the agents or employees of The Pennsylvania Hospital had fallen below the standards of reasonable medical practice, and that her injuries had been caused by their failure to provide such medical care. Brannan v. Lankenau Hospital, 490 Pa. 588, 595, 417 A.2d 196, 199 (1980); Hamil v. Bashline, 481 Pa. 256, 265, 392 A.2d 1280, 1285 (1978); Collins v. Hand, 431 Pa. 378, 383, 246 A.2d 398, 401 (1968); Richmond v. A. F. of L. Medical Service Plan of Philadelphia, 421 Pa. 269, 270-271, 218 A.2d 303, 304 (1966); Donaldson v. Maffucci, 397 Pa. 548, 554, 156 A.2d 835, 838 (1959); Pratt v. Stein, 298 Pa. Super. 92, 120 n. 23, 444 A.2d 674, 689 n. 23 (1982); Ragan v. Steen, 229 Pa. Super. 515, 521, 331 A.2d 724, 727-728 (1974).

However, appellee was not required to establish that the negligent acts or omissions of the defendants were the

[ 306 Pa. Super. Page 184]

    sole cause of her injuries. It is now well settled that in a medical malpractice action to which Section 323(a) of the Restatement (Second) of Torts*fn1 is applicable, once a plaintiff has established a prima facie case of professional negligence through the introduction of expert testimony, which negligence has increased the risk of harm, the issue of proximate cause is to be determined by the jury. "Once a plaintiff has introduced evidence that a defendant's negligent act or omission increased the risk of harm to a person in plaintiff's position, and that the harm was in fact sustained, it becomes a question for the jury as to whether or not that increased risk was a substantial factor in producing the harm." Hamil v. Bashline, supra, 481 Pa. at 269, 392 A.2d at 1286. A prima facie case of professional negligence under Section 323(a) can be established by "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." Gradel v. Inouye, 491 Pa. 534, 541, 421 A.2d 674, 677 (1980) quoting Hamil v. Bashline, supra, 481 Pa. at 262, 392 A.2d at 1283. Accord: Jones v. Montefiore Hospital, 494 Pa. 410, 416-417, 431 A.2d 920, 924 (1981); Hoeke v. Mercy Hospital of Pittsburgh, 299 Pa. Super. 47, 54, 445 A.2d 140, 144 (1982).

"[In] 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

[ 306 Pa. Super. Page 185]

    in the testimony are resolved in favor of the verdict winner, [Mrs. Reichman] herein. Rutter v. Morris, 212 Pa. Super. 466, 243 A.2d 140, 141 (1968)." Pratt v. Stein, 298 Pa. Super. 92, 105, 444 A.2d 674, 681 (1982), quoting Grubb v. Albert Einstein Medical Center, 255 Pa. Super. 381, 390-391, 387 A.2d 480, 484 (1978). Accord: Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 351, 414 A.2d 100, 103 (1980); Broxie v. Household Finance Company, 472 Pa. 373, 380, 372 A.2d 741, 745 (1977); Metts v. Griglak, 438 Pa. 392, 395, 264 A.2d 684, 686 (1970); Dawejko v. Jorgensen Steel Co., 290 Pa. Super. 15, 27, 434 A.2d 106, 112 (1981).

In determining the sufficiency of the evidence, we consider the evidence actually received, whether the trial rulings thereon were correct or not. Jones v. Treegoob, 433 Pa. 225, 229, 249 A.2d 352, 354 (1969); Carney v. Pennsylvania Railroad Company, 428 Pa. 489, 497, 240 A.2d 71, 75 (1968); Brandon v. Peoples Natural Gas Co., 417 Pa. 128, 134-135, 207 A.2d 843, 847 (1965); Rosche v. McCoy, 397 Pa. 615, 619, 156 A.2d 307, 309 (1959); Rodgers v. Sun Oil Company, 189 Pa. Super. 559, 563, 151 A.2d 673, 676 (1959); Hughes v. Hanna, 187 Pa. Super. 466, 469, 144 A.2d 617, 619 (1958). "However, where the evidence is insufficient to sustain a verdict against the losing party, a court will enter judgment n.o.v. in favor of the appellant despite a verdict to the contrary." Szumski v. Lehman Homes, ...


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