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ANGELO JISTARRI v. DOMINIC NAPPI (10/21/88)

filed: October 21, 1988.

ANGELO JISTARRI, ADMINISTRATOR OF THE ESTATE OF ADELINE JISTARRI, DECEASED, APPELLANT,
v.
DOMINIC NAPPI, M.D., FRANK MATTEI, M.D., RONALD ANTHONY CODARIO, M.D., SAINT AGNES MEDICAL CENTER, WILLIAM MANGINO, M.D.



Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 7077 August Term, 1982.

COUNSEL

Robert F. Morris, Norristown, for appellant.

Albert J. Schell, Jr., Philadelphia, for Nappi, appellee.

Richard A. Kolb, Philadelphia, for Saint Agnes, appellee.

Charles E. McClafferty, Philadelphia, for Mangino, appellee.

Rowley, Wieand and Montemuro, JJ. Wieand, J., files a concurring and dissenting opinion.

Author: Rowley

[ 378 Pa. Super. Page 586]

In this wrongful death and survival action, plaintiff/appellant, Angelo Jistarri, administrator of the estate of his mother, Adeline Jistarri, appeals timely from the judgment entered in favor of defendants/appellees on June 29, 1987.

Appellant instituted the present action against Doctors Dominic Nappi, Frank Mattei, Ronald Codario, and the Saint Agnes Medical Center (hereinafter "Saint Agnes"). He alleged that Doctors Nappi and Codario had been negligent in their treatment of Mrs. Jistarri and that Saint Agnes, the hospital in which Mrs. Jistarri was treated, was liable on a theory of ostensible or apparent agency. The alleged liability of Dr. Mattei was premised solely on his position as Dr.

[ 378 Pa. Super. Page 587]

Nappi's partner. Saint Agnes subsequently joined Dr. Mangino as an additional defendant.

The facts giving rise to the present action, as alleged by appellant, are that Dr. Mangino, an orthopedic resident, negligently applied a cast to Mrs. Jistarri's broken wrist without adequate padding, thereby causing an ulcer to develop beneath the cast; Dr. Nappi, an orthopedist, negligently failed to remove the cast and to diagnose the infection; the ulcer allowed a staphylococcus aureus infection to enter Mrs. Jistarri's bloodstream; and the infection spread to and damaged Mrs. Jistarri's heart, thereby weakening her and rendering her susceptible to the complications that eventually caused her death.

The case was tried before a jury. Dr. Codario, an internist and the primary physician in charge of the treatment of Mrs. Jistarri's staph aureus infection, was granted a compulsory non-suit at the close of the presentation of plaintiff's case. On September 25, 1986, the jury returned a verdict in favor of the remaining defendants, who are now before us as appellees. Post-trial motions were filed and denied, and judgment was entered in favor of defendants/appellees.

In this appeal appellant contends that the trial court erred in 1) instructing the jury on the standard of care of an orthopedic resident; 2) instructing the jury that a physician does not warrant a cure or guarantee the result of treatment; and 3) denying appellant the right to read certain portions of the deposition of Dr. Codario, an adverse party. For the reasons set forth below, we affirm.

The events at issue herein began on September 13, 1980, when Mrs. Jistarri, who was eighty-five years old, suffered a fall in her home. X-rays taken two days later at Saint Agnes revealed an acute fresh fracture of the left wrist. On September 19, 1980, Dr. Mangino applied a cast to Mrs. Jistarri's left wrist in the emergency room at St. Agnes. She was told to return to the St. Agnes orthopedic clinic at a later date in order to have the cast checked by Dr. Nappi. On September 23, 1980, Mrs. Jistarri came to the clinic and was examined by Dr. Nappi, who reported no signs of

[ 378 Pa. Super. Page 588]

    discomfort with the cast. At trial, however, appellant testified that at that time his mother had swollen, purple fingers and was complaining of pain. On September 24, 1980, Mrs. Jistarri was brought to the St. Agnes emergency room complaining of chest pain and was admitted into the care of Dr. Codario. Blood cultures revealed the presence of a staphylococcus aureus infection. On September 29, 1980, the cast was removed, revealing an area of redness with exudate. Several days later an ulcer was found in the same area. A culture taken from the ulcer revealed staph aureus. The infection responded well to treatment, and by mid-November Mrs. Jistarri appeared well enough to leave the hospital. She did not do so, however, owing to the inability of her children to care for her at home. On December 15, 1980, she became ill again. A number of complications developed, and she died on December 27, 1980.

Appellant challenges two aspects of the trial court's instructions to the jury. To determine whether the trial court erred in instructing the jury, as claimed by appellant, we must read the jury instructions in their entirety. Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 576, 475 A.2d 1314, 1316 (1984); Spearing v. Starcher, 367 Pa. Super. 22, 29-31, 532 A.2d 36, 40 (1987). To constitute reversible error, a jury instruction must be shown to have been not only erroneous, but also harmful to appellant. Anderson v. Hughes, 417 Pa. 87, 92, 208 A.2d 789, 791 (1965); Spearing v. Starcher, supra. If a charge is wholly inadequate or unclear, or if it has a tendency to mislead and confuse rather than to clarify issues, a new trial will be granted. Spearing v. Starcher, supra.

Appellant first challenges the trial court's instruction concerning the standard of care to which Dr. Mangino, an orthopedic resident, should be held. The trial court explained that:

A resident is a licensed physician receiving training in a specialty in a hospital. Now, he was not a fully-trained

[ 378 Pa. Super. Page 589]

    orthopedist nor was he a general practitioner without any specialized training.

He is, therefore, held to exercise that degree of skill, learning and care normally possessed by an orthopedic resident in the circumstances of Dr. Mangino.

Under this professional standard of care, a physician must also keep informed of the contemporary developments in the medical profession and his specialty and he must use these current skills and knowledge.

N.T., 9/24/86, at 197. Appellant contends that the trial court erred in instructing the jury that Dr. Mangino should be held to exercise the same degree of skill, learning, and care normally possessed by orthopedic residents in the same circumstances. Relying on this Court's holding in Pratt v. Stein, 298 Pa. Super. 92, 444 A.2d 674 (1982), appellant asserts that an orthopedic resident must be held to the same standard of care as an orthopedic specialist.*fn1

In Pratt v. Stein, supra, the defendant/appellant hospital argued on appeal that the trial court had erred in instructing the jury that the hospital's residents were to be held to the standard of an "ordinary physician." The basis of the hospital's objection was that while there had been extensive testimony concerning the standard of care for a specialist, there had been none concerning the standard of care for a nonspecialist.*fn2 It was noted that the courts of this Commonwealth had never directly addressed the question whether a resident should be held to the standard of a

[ 378 Pa. Super. Page 590]

    general practitioner or of a specialist. The Court described as "a sound conclusion" the ruling of the United States District Court in Harrigan v. United States, 408 F.Supp. 177 (E.D.Pa.1976), that a resident should be held to the standard of a specialist when the resident is acting within his field of specialty. Pratt v. Stein, 298 Pa. Super. at 157, 444 A.2d at 708. "It belies logic to assert that a resident authorized to practice his specialty on patients requiring and expecting the services of a specialist should, for some inexplicable reason, be judged against the standard used to appraise the reasonableness of a non-specialist's conduct." Id. (footnote omitted; emphasis added). While agreeing "that the trial judge erred in instructing the jury to use the less exacting standard of care applicable to a non-specialist," id., we concluded that since the error inured to the benefit of the defendant hospital, a new trial was unnecessary.

In the present case, unlike Pratt v. Stein, the jury was not instructed to use the "less exacting standard of care applicable to a non-specialist." Such an instruction would clearly have been error under Pratt v. Stein. To the contrary, the trial court in the present case explicitly informed the jury that Dr. Mangino was not a general practitioner without any specialized training. The court explained to the jury exactly what Dr. Mangino was: "a licensed physician receiving training in a specialty in a hospital" (emphasis added). Further, the court went on to say that Dr. Mangino was required to "keep informed of the contemporary developments in the medical profession and his specialty. . ." (emphasis added).

Whether a resident should be held to an intermediate standard of care, such as that which the trial court instructed the jury to apply in the present case, is an issue that was not before us ...


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