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EVELYN MORGANSTEIN v. BENJAMIN HOUSE (04/07/88)

submitted: April 7, 1988.

EVELYN MORGANSTEIN, EXECUTRIX OF THE LAST WILL AND TESTAMENT OF MORTON MORGANSTEIN, DECEASED, APPELLANT,
v.
BENJAMIN HOUSE, M.D., APPELLEE



Appeal from Judgment of the Court of Common Pleas, Civil Division of Philadelphia County, No. 844 Oct. Term, 1981.

COUNSEL

Keith S. Erbstein, Philadelphia, for appellant.

Stanley P. Stahl, Philadelphia, for appellee.

Wieand, Beck and Hoffman, JJ.

Author: Wieand

[ 377 Pa. Super. Page 514]

In this appeal from the judgment entered following a defense verdict in a medical malpractice action, the principal issue is whether the trial court erred by instructing the jury on the "two schools of medicine" doctrine.

On June 24, 1980, Morton Morganstein made a professional visit to Benjamin House, M.D., who had been his physician for almost twenty years. Morganstein complained of pain in his left armpit, which radiated down his left arm. Dr. House was a primary care or family physician. Morganstein was overweight and had a history of hypertension; and Dr. House had been treating him regularly since 1962 for asthmatic bronchitis. On June 24, 1980, the doctor made a routine examination of his patient, took a history, found his blood pressure to be 140 over 80, and administered an electrocardiogram (EKG). House interpreted the EKG as being normal, observed that Morganstein was not in pain, diagnosed his patient's condition as presumptive coronary artery disease, and prescribed nitroglycerine as a therapeutic trial. Dr. House also advised Morganstein to restrict his activity, not to go to work, to return for additional evaluation on July 1, 1980, and to contact him immediately in the event of subsequent pains. Morganstein immediately returned to work. Two days later Mrs. Morganstein called and expressed concern for her husband's condition. Dr. House told her to have her husband call him. On the evening of June 26, 1980, Morganstein called Dr. House, inquired about test results, and said that he felt fine. He also reported that he had suffered left axillary pain for a few minutes the night before, for which he had taken nitroglycerine. Dr. House again recommended that Morganstein restrict his activity, told him to call immediately if the symptoms worsened, and said he would see him in a few days at the time of their scheduled appointment. On June 29, 1980, after a late night of socializing, Morganstein began to experience pain and placed a nitroglycerine tablet under his tongue. When the pain persisted, his wife called a nearby hospital, which agreed to see him immediately.

[ 377 Pa. Super. Page 515]

As he was leaving home about 2:00 a.m., Morganstein collapsed and died of a heart attack.

Letters testamentary were issued to Evelyn Morganstein, and she commenced an action to recover for her husband's death in which she alleged that Dr. House had been guilty of medical malpractice. At trial, Michael Barrett, M.D., a cardiologist, opined that the June 24th EKG had disclosed significant changes which suggested that the decedent had been suffering from unstable angina, a condition which required immediate hospitalization, in addition to nitroglycerine. However, defendant's cardiologist, Dr. Norman Makous, testified that his examination of decedent's EKG revealed no significant heart changes and that Dr. House's treatment under the circumstances had been in accordance with accepted medical practice. Dr. House also testified that neither the EKG nor any of his patient's symptoms had indicated unstable angina and that hospitalization had not been warranted. Following a four day trial, the jury returned a verdict in favor of the defendant physician.

After defining negligence and instructing the jury on causation, the trial court charged the jury as follows:

There was testimony here as to the proper or improper methods used or utilized by physicians in regard to cardiac problems. One expert testified one way, another expert testified differently. So that you will have to decide whether the manner followed by either or the other expert was proper or the method employed was proper. In assisting you in doing this, I wish to advise you that "a physician may rightfully choose to practice his profession in accordance with a school of thought which differs in its concepts and procedures from another school of thought, even though the school that he follows is a minority one. He will not be deemed to be negligent or practicing improperly so long as it is representable and respected by reasonable medical experts."

At the conclusion of the trial court's instructions, appellant's counsel recorded ...


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