No. 834 Pittsburgh, 1980, Appeal from the Final Judgment of the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 77-12564
Kenneth Behrend, Pittsburgh, for appellant.
Ronald H. Heck, Pittsburgh, for appellee.
Price, Brosky and Montemuro, JJ.*fn*
[ 324 Pa. Super. Page 502]
In an action to recover damages for the alleged negligence of Dr. Friday, appellee, in treating James Berry, the late husband of the appellant, the Court of Common Pleas on July 24, 1980 entered judgment on the verdict for Dr. Friday. A new trial was denied by order of the court on April 9, 1980. Mrs. Berry appeals from the judgment raising one allegation of error.
Appellant's husband, James Berry was feeling ill and checked into a hospital on June 8, 1975 complaining of a severe pain in his chest, nausea and a shortness of breath. He was placed under the care of Dr. Friday, and Mr. Berry was found to have several problems including congestive heart failure, bronchial asthma, diabetes and emphysema. He was treated for asthma and the fluid was reduced in his lungs and heart. On June 15, 1975, Mr. Berry was discharged from the hospital by Dr. Friday, who advised him that since he had a heart condition, he should refrain from smoking and drinking alcohol and should attempt to lose weight. At the time Mr. Berry weighed approximately 275 pounds and smoked between two and three packs of cigarettes a day. Dr. Friday also informed Mr. Berry that he could return to work on June 23, 1975 and that he should begin consultation with another doctor.
Mr. Berry returned to work on June 23, 1975 and suffered a crippling heart attack that same day. Mr. Berry never returned to work and died in March of 1978 from another heart attack. He was found in a wrecked motor vehicle with a high level of alcohol in his blood. This malpractice action was begun by Mr. Berry before he died and a videotaped deposition of his testimony was used at trial. Two theories of negligence were raised at trial, the first being simply that Dr. Friday's treatment was not proper. The second allegation concerned the fact that Dr. Friday permitted Mr. Berry to return to work shortly after his hospital stay without inquiring into the nature of his
[ 324 Pa. Super. Page 503]
employment. Dr. Friday was aware that Mr. Berry was a cement truck driver but failed to inquire about his duties which required the lifting of very heavy materials into the truck.
Besides Mr. Berry's videotaped deposition, appellants offered the testimony of two expert witnesses, as well as that of his estranged wife and sister. Dr. Friday testified on his own behalf and also provided expert witnesses. At the end of the testimony, the Honorable Ralph Smith, Jr. charged the jury and specific objections were made by the appellant's attorney. One of these objections concerned the judge's remarks on the possible contributory negligence of Mr. Berry. The jury returned a verdict for the appellee and appellant challenges this verdict on the basis of the allegedly improper jury charge.
Essentially, appellant raises two separate theories as to the alleged impropriety of the charge. The first argument concerns the ability of the trial judge to make the charge without any request from the appellee and the second argument concerns whether there was evidence to support such a charge.
Where the accuracy of a charge is in issue, an appellate court must look to the charge in its entirety against the background of evidence in order to determine whether or not error was committed and whether ...