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THOMAS J. FUREY v. THOMAS JEFFERSON UNIVERSITY HOSPITAL AND GERALD MARKS (02/10/84)

filed: February 10, 1984.

THOMAS J. FUREY
v.
THOMAS JEFFERSON UNIVERSITY HOSPITAL AND GERALD MARKS, M.D., AND MELVIN MOSES, M.D.; APPEAL OF GERALD MARKS, M.D.



No. 1119 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas, Civil Trial Division, Philadelphia County, No. 5611 October Term, 1972

COUNSEL

Allan H. Starr, Philadelphia, for appellant.

Gustine J. Pelagatti, Philadelphia, for appellee.

Cavanaugh, Montemuro and Hester, JJ.

Author: Montemuro

[ 325 Pa. Super. Page 215]

This matter is before the court on the appeal of Gerald Marks, M.D., the defendant/appellant in this malpractice action. Thomas J. Furey, the plaintiff/appellee, was admitted to the emergency room of Thomas Jefferson University Hospital on November 9, 1970, with complaints of severe abdominal pain. Dr. Marks operated on appellee several hours later. While appellee concedes that Dr. Marks' operative performance was proper, he contends that the operation itself was not indicated. The case was tried before a jury from March 24, 1981, through March 31, 1981. A verdict was returned for appellee in the amount of $75,000.00. Motions for a judgment n.o.v. and a new trial were filed by appellant and denied by the lower court. This appeal followed from the denial of the post-trial motions.

[ 325 Pa. Super. Page 216]

While appellant has asserted several grounds of error, we find that the first two assignments of error are crucial and prove to be dispositive. We reverse and remand for a new trial.

I. IMPROPER ADMISSION OF TESTIMONY.

The first contention which we address involves the trial court's allowance of testimony by appellee's medical expert. Specifically, appellee's medical expert testified, over objection, that a handwritten result on a laboratory slip was "460" units. Appellant further complains that this error was exacerbated rather than cured by the ensuing judicial comments.

Careful review of the record compels us to agree. An examination of the parties' respective theories of the case reveals that the jury's resolution of whether the disputed result was "460" or "Appellee's theory of the case was presented through one expert witness, Dr. Robert P. Bass, Jr.*fn1 Dr. Bass is an osteopathic, Board Certified family practitioner who had practiced for twenty-five years at the time of trial.*fn2 Dr. Bass testified that appellee entered the hospital suffering from acute pancreatitis, an inflammation of the pancreas. Dr. Bass based his diagnosis of pancreatitis on the results obtained from a laboratory test for serum amylase. He opined that an elevated amylase result was the "hallmark" of pancreatitis. Furthermore, he declared that the laboratory

[ 325 Pa. Super. Page 217]

    slip indicated that appellee's amylase was "460" units, which represented an elevation from a normal range of 60 to 200 units.

Given this "cardinal" sign of pancreatitis, Dr. Bass stated that the recognized treatment for appellee's condition was non-surgical. He testified that in ninety-five percent of all pancreatitis cases, the symptoms resolved almost "spontaneously" within forty-eight to seventy-two hours, with only close observation and supportive treatment including hydration, intravenous fluids, and possible antibiotics to prevent infection.*fn3

In response to inquiries regarding appellee's documented bacterial infection, Dr. Bass testified that the bacterial infection could not have been significant because appellee did not have an accompanying fever. Laboratory results from a blood sample taken before the operation showed the presence of Escherichia coli (E. Coli) bacteria. Dr. Bass admitted that the existence of E. Coli in the body outside of the digestive system signified an infection in the body, and if the infection reached the blood stream it could possibly become a life-threatening situation. Dr. Bass testified, however, that even in instances of overwhelming infection, treatment should be restricted to antibiotic therapy.

It was Dr. Bass' ultimate opinion, therefore, that appellee had pancreatitis and a mild bacterial infection, neither of which required surgical intervention. This being so, appellant did not, according to Dr. Bass, conform to reasonable standards of the medical profession in that he exposed appellee to the unnecessary risk of surgery and the complications which followed thereafter.

The defense presented three expert witnesses, including the defendant/appellant, to substantiate their position that surgery was not only a proper course of treatment, but an essential one. The defense experts were Dr. Charles C. Wolferth, a Board Certified general surgeon who has practiced

[ 325 Pa. Super. Page 218]

    since 1954; Dr. George P. Rosemond, a Board Certified general and thoracic surgeon who was retired at the time of trial, having practiced from 1934; and the appellant, a Board Certified general, colon and rectal surgeon who has practiced since 1951.*fn4 The testimony of these three medical experts was that at the time appellee was admitted to the hospital, he was in a state of shock from an overwhelming and life-threatening bacterial infection. Because of this infection and irrespective of its source, the defense experts testified that emergency surgery was required.

While the cause of the infection was not located during the exploratory surgery, the defense experts were adamant that there were no indications of pancreatitis. The appellant, Dr. Marks, suspected that the infection was caused by a perforated diverticulitis,*fn5 and Dr. Wolferth suggested that the infection originated from inflammation and leakage of the sigmoid colon. Both of these diagnoses accounted for the appearance of E. Coli bacteria in the abdominal cavity. A lavage of the abdominal cavity was performed to cleanse out the abnormal, infectious fluid, and then drains were inserted and the incision packed closed.

The defense countered Dr. Bass' diagnosis of pancreatitis by attacking the serum amylase result which Dr. Bass claimed to be "460". Dr. Bass had professed no knowledge of the clinical procedures for serum amylase testing at Thomas Jefferson University Hospital in 1970. The defense presented Dr. Schwartz, Director of the Clinical Laboratory of Thomas Jefferson University Hospital. Dr. Schwartz testified that ...


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