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filed: April 2, 1987.


Appeal from Judgment of the Court of Common Pleas, Civil Division, of Dauphin County, No. 4122 S 1982.


James W. Evans, Harrisburg, for appellants.

Alan Schwartz, Philadelphia, for appellees.

Wieand, Beck and Watkins, JJ. Beck, J., files a concurring and dissenting opinion.

Author: Wieand

[ 362 Pa. Super. Page 591]

Sharon Clark died on January 1, 1981. The cause of death was pneumonia. Her parents filed wrongful death and survival actions against Dr. Oscar Hoerner and his employer, the Harrisburg Hospital, alleging that Hoerner had failed to detect and correctly diagnose Sharon's condition in adequate time to save her life.

The evidence offered at trial showed that Sharon had been examined for the first time by Dr. Hoerner on December 26, 1980. He diagnosed the malady of the fifteen year old girl as influenza and prescribed antihistamines and Tylenol. He gave Sharon permission to travel with her parents to New York. Dr. Hoerner saw Sharon a second time on December 29, when she complained of a sore throat, a swelling of the cervical glands, chest pains and a general malaise. He refused a request for an antibiotic. He again diagnosed Sharon's condition as the flu and prescribed medicine for the sore throat. He also performed a strep screen for throat bacteria which was negative. However, he took no x-rays. Sharon and her mother were instructed to call Dr. Hoerner if Sharon's condition became worse. However, Sharon's parents were dissatisfied with Dr. Hoerner's services and decided that they would not return.

Sharon's condition did become worse. At or about 8:00 p.m. on December 29, Sharon began vomiting blood. Ice was applied to her throat during the night. At 8:30 a.m. on December 30, Sharon's mother took her to the emergency room at Holy Spirit Hospital. A chest x-ray disclosed a rapidly progressing, fulminating pneumonia of the right lung. Sharon was admitted to the hospital, and antibiotics were administered. When Sharon suffered respiratory failure and kidney dysfunction, she was transferred to the Harrisburg Hospital, where she died. Dr. Sullivan, who treated her at both hospitals, diagnosed her condition and

[ 362 Pa. Super. Page 592]

    testified that it was a rare and rapidly progressive pulmonary disease not often seen in the young.

A jury awarded damages of $650,000.00 against both defendants. The trial court added delay damages; post-trial motions were denied, and judgment was entered on the molded verdict. On appeal, Dr. Hoerner and Harrisburg Hospital contend: (1) that the evidence failed to establish a causal connection between the failure to make an immediate diagnosis and Sharon's death; (2) that the trial court erred when it declined to instruct the jury regarding the possible negligence of Sharon's parents; (3) that the trial court should have granted a motion for mistrial after an outburst by Sharon's mother while being cross-examined; and (4) that the trial court erred by allowing appellee-plaintiffs to call in rebuttal an expert witness not previously disclosed. Although we perceive no merit in defendant-appellants' first three arguments, we find their fourth and final contention to be well taken. The trial court abused its discretion when it permitted plaintiff-appellees to call a surprise expert witness, whose identity had not previously been disclosed. Accordingly, we vacate the judgment entered for plaintiff-appellees and remand for a new trial.

Although the medical testimony was in dispute, there was expert testimony attributing negligence to Dr. Hoerner because he had not ordered Sharon to rest following her first visit to the doctor's office and also because he had failed to use available diagnostic techniques, with a resulting erroneous diagnosis and treatment, on December 29. One of the experts called by the plaintiff-appellees, Dr. Hymen Kanoff, testified that the sooner Sharon had been properly diagnosed and treated, "the better the chances she had of survival." Another expert, Dr. Barry Singer, testified that if Sharon had been correctly diagnosed and treated on December 29, her chances of survival would have been "much better." Dr. Atkinson, who was the surprise witness, gave similar testimony. However, none of the experts were willing to say with reasonable medical certainty that Sharon's life could have been saved if Dr. Hoerner had

[ 362 Pa. Super. Page 593]

    diagnosed and correctly treated her when she visited his office. Appellants contend that this was insufficient as a matter of law to establish that Dr. Hoerner's failure to diagnose and properly treat Sharon on the occasions when he saw her was the cause of her death.

A similar question was presented to the Supreme Court of Pennsylvania in Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978). The Court held:

Such cases by their very nature elude the degree of certainty one would prefer and upon which the law normally insists before a person may be held liable. Nevertheless, in order that an actor is not completely insulated because of uncertainties as to the consequences of his negligent conduct, Section 323(a) [of the Restatement (Second) of Torts] tacitly acknowledges this difficulty and permits the issue to go to the jury upon a less than normal threshold of proof. The Fourth Circuit in a case similar to the one at bar, has well stated the justification for this deviation from the normal requirements of proof. In Hicks v. United States, 368 F.2d 626, 632 (4th Cir. 1966), the court stated:

"When a defendant's negligent action or inaction has effectively terminated a person's chance of survival, it does not lie in the defendants mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly."

[ 362 Pa. Super. Page 594]

We agree with this statement of the law and hold that once a plaintiff has demonstrated that defendant's acts or omissions, in a situation to which Section 323(a) applies, have increased the risk of harm to another, Page 594} such evidence furnishes a basis for the fact-finder to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm; the necessary proximate cause will have been made out if the jury sees fit to find cause in fact.

In light of our interpretation of Section 323(a), it follows that where medical causation is a factor in a case coming within that Section, it is not necessary that the plaintiff introduce medical evidence -- in addition to that already adduced to prove defendant's conduct increased the risk of harm -- to establish that the negligence asserted resulted in plaintiff's injury. Rather, once the jury is apprised of the likelihood that defendant's conduct resulted in plaintiff's harm, that Section leaves to the jury, and not the medical expert, the task of balancing probabilities. In so saying we do not intend to undermine the well-established standard of "reasonable degree of medical certainty" as the accepted norm for medical opinions on causation. But we think it would be unreasonable and unrealistic in this type of case to expect a physician to state with a "reasonable degree of medical certainty" what might have happened when the law (Section 323(a)) recognizes the contingencies involved. See generally D. Danner and E. Segall, Mediocolegal Causation: A Source of Professional Misunderstanding, 3 Am.J.L. & Med. 303 (1978). Where there is at issue the adequacy of medical services rendered in a fact situation to which Section 323(a) applies, therefore, a prima facie case of liability is established where expert medical testimony is presented to the effect that defendant's conduct did, with a reasonable degree of medical certainty, increase the risk that the harm sustained by plaintiff would occur.

Id., 481 Pa. at 271-273, 392 A.2d at 1287-1289 (footnotes omitted). In the instant case, the causation issue was properly submitted to the jury. Appellants were not entitled to judgment n.o.v.

[ 362 Pa. Super. Page 595]

Defendant-appellants contended in support of their motion for a new trial that the court had erred by refusing to instruct the jury regarding the possible negligence of Sharon and her parents in failing to follow Dr. Hoerner's instructions. Our review of the record confirms the trial court's response that "there was absolutely no evidence to support a charge to the jury on Sharon Clark's contributory negligence." Trial court opinion, p. 16. Similarly, there was insufficient evidence to require a jury to determine whether the parents had been negligent in a way which contributed to their daughter's death. Indeed, as the trial court observed, the parents had not been joined as parties in the survival action*fn1 and, in response to plaintiff's interrogatories, the defense had denied that they would contend that another person or persons had been responsible for Sharon's death.

During the cross-examination of Sharon's mother, the following colloquy took place:

Q. And you didn't call him [Dr. Hoerner] when you first saw the blood?

[Mrs. Clark]

A. It was just a little streak of blood, sir. It was nothing to alarm anybody. I have seen it before on different people, myself.

Q. But she threw up --

A. If Sharon threw up a clot or if Sharon -- as soon as I saw any kind of significant amount of blood, that's when we were gone to the hospital. I think you are trying to infer I sat there and watched her bleed and did nothing and I didn't do that. I wish to God she did, then I would have had her in the hospital sooner and she might be alive now. (Tr. 538-539; R. 501a; Sup.R. 502b.) (Emphasis added.)

[ 362 Pa. Super. Page 596]

The witness' response, we are told, was emotionally delivered in a loud voice as the witness rose from her seat. The trial court recessed the trial to permit the witness to compose herself, but denied a defense motion for mistrial. Appellants contend that it was error to deny the motion for mistrial.

A trial judge is in the best position to observe the atmosphere in which a trial is being conducted and to determine whether a statement in the heat of trial by counsel or a witness has had a prejudicial effect on the jury. Whether to grant or deny a motion for mistrial, therefore, must necessarily rest primarily in the discretion of the trial court. Narciso v. Mauch Chunk Township, 369 Pa. 549, 552, 87 A.2d 233, 234 (1952). Absent a clear abuse of that discretion, an appellate court will not disturb the trial court's ruling. Abrams v. Philadelphia Suburban Transportation Co., 438 Pa. 115, 119, 264 A.2d 702, 704 (1970); Speer v. Barry, 349 Pa. Super. 365, 372, 503 A.2d 409, 413 (1985). Whether a court has abused its discretion in refusing a motion for mistrial must be determined by the circumstances under ...

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