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LUCILLE CORBETT v. I. DAVID WEISBAND (11/17/88)

filed: November 17, 1988.

LUCILLE CORBETT
v.
I. DAVID WEISBAND, D.O. AND REGIONAL ORTHOPEDIC PROFESSIONAL ASSOCIATION, APPELLANTS. LUCILLE CORBETT, APPELLANT, V. I. DAVID WEISBAND, D.O., AND REGIONAL ORTHOPEDIC PROFESSIONAL ASSOCIATES. LUCILLE CORBETT, APPELLANT, V. JAMILIO DEMOURA, M.D. AND ST. JOSEPH'S HOSPITAL. LUCILLE CORBETT V. JAMILIO DEMOURA, M.D. AND ST. JOSEPH'S HOSPITAL. APPEAL OF I. DAVID WEISBAND, D.O. AND REGIONAL ORTHOPEDIC PROFESSIONAL ASSOCIATES



Appeal from the Judgment entered March 20, 1987, in the Court of Common Pleas, Civil Division, of Philadelphia County, No. 1512 Sept. 1983. Appeal from the Judgment entered April 10, 1987, in the Court of Common Pleas, Civil Division, of Philadelphia County, No. 1329 January Term, 1981.

COUNSEL

Allan Molotsky, Philadelphia, for appellants (at 00975 and 01167 Philadelphia 1987).

Lawrence D. Finney, Philadelphia, for appellant (at 01105, 01106 and 01107 Philadelphia 1987) and for appellee (at 00975 and 01167 Philadelphia 1987).

Jan E. DuBois, Philadelphia, for appellee (at 01106, 01107 and 01167 Philadelphia 1987).

Rowley, Wieand and Olszewski, JJ.

Author: Rowley

[ 380 Pa. Super. Page 297]

These are five consolidated appeals and cross-appeals from judgments entered in two medical malpractice actions filed by Lucille Corbett against two doctors, a hospital, and an orthopedic association. The physicians treated her in succession: Dr. DeMoura from July through October 1978 and Dr. Weisband from December 1978 through August 1981. The plaintiff, Lucille Corbett, alleged in both actions that the defendants had been negligent in the care and treatment of a post-operative infection in her left knee, which ultimately led to the amputation of her leg in July of 1983.

I. PROCEDURE

The first of plaintiff's actions, docketed in the trial court at 1329 January, 1981, was brought against Jamilio DeMoura, M.D. and St. Joseph's Hospital. Prior to trial, Ms. Corbett withdrew her claim against St. Joseph's Hospital,*fn1

[ 380 Pa. Super. Page 298]

    leaving Dr. DeMoura as the only defendant in that action. The second action, docketed at 1512 September, 1983, was brought against I. David Weisband, D.O. and Regional Orthopedic Professional Association ("ROPA").*fn2 The two actions were consolidated for trial. The trial, however, was bifurcated in terms of liability and damages.

At the liability trial, after the close of plaintiff's case, the trial court entered a compulsory non-suit in favor of defendant Dr. DeMoura. The trial proceeded against Dr. Weisband and ROPA. At the close of trial, on December 16, 1985, the jury retired for deliberations. The jury concluded its deliberations on December 18, 1985, and entered its verdict in favor of the plaintiff and against Dr. Weisband and ROPA.*fn3 The damage aspect of the case was tried the following morning, and the jury, after due deliberations, returned a verdict of $150,000 in the afternoon. Post-trial motions were filed by Ms. Corbett, and collectively by Dr. Weisband and ROPA. Subsequently, the post-trial motions of all parties were denied. Judgments were entered on the verdict and these appeals followed.

Plaintiff Corbett filed three appeals. Two (1106 and 1107 Philadelphia, 1987) are from the judgment entered against her in favor of Dr. DeMoura. Ms. Corbett's third appeal (1105 Philadelphia, 1987) is from the judgment in her favor against Dr. Weisband and ROPA.

The defendants, Dr. Weisband and ROPA, filed two appeals. One (975 Philadelphia, 1987) is from the judgment in Ms. Corbett's case against them. The other appeal (1167 Philadelphia, 1987) was taken by Dr. Weisband and ROPA from the judgment entered in favor of Dr. DeMoura in Ms. Corbett's suit against Dr. DeMoura. In that appeal appellants

[ 380 Pa. Super. Page 299]

    argue that the trial court erred in denying Ms. Corbett's motion to remove the compulsory non-suit against her.

We will quash the appeal by Ms. Corbett at 1107 Philadelphia, 1987. It is identical to and, therefore, duplicative of the appeal at 1106 Philadelphia, 1987. We will also quash, for lack of standing, the appeal at 1167 Philadelphia, 1987, by Dr. Weisband and ROPA from the judgment entered upon the order refusing to remove the compulsory non-suit in favor of Dr. DeMoura. This Court has held that "[w]hen separate actions are consolidated for trial, each action retains its separate character. Each has its separate docket entries, and each produces its own verdict and judgment." Roznowski v. Pennsylvania National Mutual Casualty Insurance Co., 343 Pa. Super. 7, 12, 493 A.2d 775, 777-78 (1985). Because Dr. Weisband and ROPA were not parties to the action by Ms. Corbett against Dr. DeMoura, they do not have standing to appeal the trial court's order in that case irrespective of the fact that the case was consolidated by the trial court with Ms. Corbett's suit against them.*fn4

Three appeals remain. Ms. Corbett contends, in her appeal at 1106 Philadelphia, 1987, that the trial court erred in granting the compulsory non-suit against her in favor of Dr. DeMoura and requests that the case be remanded for a new trial against him.

Dr. Weisband and ROPA, in their appeal at 975 Philadelphia, 1987, contend that they are entitled to judgment n.o.v. on the ground that the statute of limitations bars Ms. Corbett's claim against them. In the alternative, they seek a new trial due to alleged trial errors.

Finally, in her appeal at 1105 Philadelphia, 1987, Ms. Corbett contends that as a result of certain erroneous trial

[ 380 Pa. Super. Page 300]

    rulings the verdict in her favor is inadequate and her case should be remanded for a new trial against Dr. Weisband and ROPA as to damages only.

We will consider these appeals and the parties' contentions after a summary of the facts.

II. SUMMARY OF FACTS

At the time of trial, Ms. Corbett was sixty-eight (68) years old. She had been employed as a domestic throughout her working life, and first developed knee sores while scrubbing floors in Philadelphia during the late 1930's and early 1940's. These problems recurred during the late 1950's and early 1960's. In 1969 Ms. Corbett suffered an additional injury to her knee, for which she received treatment. In October 1971, surgery was performed on her left knee to have cartilage removed. This was the first time that surgery was performed on her knee. In 1973, Ms. Corbett came under the care of Dr. DeMoura. Dr. DeMoura performed surgery on her spine in 1974 and on her right knee in 1975 or 1976. Thus, it is evident from the record that Ms. Corbett has a long history of medical problems, primarily involving her knees.

The events giving rise to these lawsuits commenced in July 1978 with the operation by Dr. DeMoura on Ms. Corbett's left knee. Following the operation, Dr. DeMoura continued to treat Ms. Corbett through October 1978. In December 1978, she came under the care of Dr. Weisband, for treatment of a knee infection. He treated her through August 1981. During that time, in October 1980, she had a left knee fusion performed by Dr. Weisband at Metropolitan Hospital. According to Dr. Greene,*fn5 who began treating her in September 1981, the left knee fusion was not successful. Ms. Corbett was hospitalized in December 1981 at which time Dr. Greene performed a total knee replacement on her left knee. From January 5 through 30, 1982, Ms. Corbett was readmitted to the hospital under Dr. Greene's care because the wound in front of her left knee joint had

[ 380 Pa. Super. Page 301]

    opened. She was discharged once the wound began to heal. In March, Ms. Corbett again was admitted to the hospital under Dr. Greene's care because the wound had not yet healed.

Ms. Corbett was not hospitalized again until November, 1982, when she broke her left leg as she was climbing out of bed. She remained in the hospital for nine months following this admission. During this time period, in April 1983, the knee implant was removed because it had become infected. Several months later, in July 1983, Ms. Corbett's leg was amputated above the knee because it was Dr. Greene's belief that the infection would never clear. The aforementioned legal actions followed.

III. CORBETT vs. DeMOURA

Ms. Corbett has appealed from the judgment entered by the trial court in favor of Dr. DeMoura. All of the events which are the subject of this appeal occurred between July and October, 1978.

Ms. Corbett argues that the trial court erred in granting Dr. DeMoura's motion for a compulsory non-suit which was made at the conclusion of plaintiff's liability case against Dr. DeMoura. Dr. DeMoura contends that the testimony of Ms. Corbett's expert, Dr. Starks, contained irreconcilable conflicts, and thus was not sufficient to present an issue to the jury. Ms. Corbett responds that the testimony of her expert, Dr. Starks, was not contradictory, but rather was sufficient to create a question for the jury concerning Dr. DeMoura's alleged negligence. Therefore, she argues that she is entitled to a new trial. We agree.

"A non-suit may not be granted unless the jury, viewing all the evidence and all reasonable inferences arising from it, in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause of action have been established." Mazza v. Mattiace, 284 Pa. Super. 273, 277, 425 A.2d 809, 811-12 (1981). To establish a prima facie case of professional medical negligence, Ms. Corbett must prove by competent evidence that the

[ 380 Pa. Super. Page 302]

    conduct of Dr. DeMoura fell "below the standards of reasonable medical practice, and that her injuries [were] caused by [his] failure to provide such medical care." Reichman v. Wallach, 306 Pa. Super. 177, 183, 452 A.2d 501, 504 (1982).

Before addressing the legal arguments on this issue, we must expand our summary of the facts listed above. Ms. Corbett was admitted to the hospital on July 11, 1978. Dr. DeMoura operated on her knee the following day, July 12, 1978. She was discharged on July 19th. Ms. Corbett was readmitted to the hospital on July 25, 1978, where she remained until August 26, 1978, due to a post-operative infection. She remained under Dr. DeMoura's care until October 10, 1978. Her expert witness, Dr. Starks, was critical of Dr. DeMoura's treatment on two counts: (1) that a different antibiotic should have been utilized; and (2) that debridement of the left knee should have been performed in the operating room under general anesthesia.

Dr. Starks was the only expert to testify against Dr. DeMoura. He took the witness stand and was duly qualified as an expert in orthopedic surgery. The gravamen of Dr. Starks' theory was that an enterobacter organism, existing dormant in the wound from Ms. Corbett's prior difficulties, caused her later infection. After outlining the course of treatment which Ms. Corbett received while under the care of Dr. DeMoura, Dr. Starks specifically testified that in his opinion, based upon a reasonable degree of medical certainty, the wound should have been debrided in the operating room and gentamicin should have been administered with close monitoring. This opinion was offered during the following exchange:

BY MR. FINNEY [Ms. Corbett's counsel]:

Q. Doctor, based upon all the facts in the record that we have reviewed this morning, and that appear in the chart for the St. Joseph's Hospital, do you have an opinion, based upon a reasonable degree of medical certainty, as to whether the medical treatment for this patient met the standard of reasonable care as it existed in 1978?

A. My opinion is that it did not.

[ 380 Pa. Super. Page 303]

Q. Would you please explain your opinion, sir?

A. I feel that according to the standards of good and reasonable care, the wound should have been debrided more widely in the operating room under an anesthetic so that all of the necrotic tissue could have been removed to normal, healthy tissue. And I believe that the gentamicin should have been administered with the blood urea nitrogen level being monitored very closely.

Trial transcript, December 9, 1985 at 39-40 (emphasis added). Further, Dr. Starks opined that the keflex prescribed by Dr. DeMoura failed to kill the enterobacter organism. He explained his position, stating:

It's my opinion that the infection that was originally treated subsided, but was not cured or eliminated and that it did lie dormant or quiescent in the tissues and was then -- then again became active at the time of the Metropolitan Hospital admission, producing a recurrence of infection.

T.T., December 9, 1985 at 52. Thus, there can be no doubt that on direct examination Ms. Corbett's expert witness unequivocally stated that in his opinion, Dr. DeMoura's treatment fell below the standard of good and reasonable care.

On cross-examination, defense counsel attempted to get Dr. Starks to recant his testimony. With regard to the debridement issue, the following testimony was elicited:

[BY MR. DuBOIS, attorney for Dr. DeMoura:]

Q. Would you agree with me that it is important to debride away or to cut away all of the dead or necrosed tissue?

A. Yes, sir.

Q. And if in the judgment of the treating physician that could be done at a hospital bedside, you would have to agree with that type of treatment; would you not?

A. Yes, sir.

Q. And by the way, . . . you have talked in your testimony about going to the operating room and going through a debridement under general anesthesia; is that right?

[ 380 Pa. Super. Page 304]

A. Yes, sir.

Q. Is it correct that there are risks associated with general anesthesia?

A. Yes, sir.

Q. Is it correct that patients can die as a result of general anesthesia?

A. Yes, sir.

Q. If you can avoid using general anesthesia in a case, Dr. Starks, will you avoid it?

A. Yes, sir.

Q. All right. Would you agree with me that you would try to avoid general anesthesia in cases because it is risky and dangerous?

A. Yes, sir.

T.T., December 9, 1985 at 72-73 (emphasis added). Although Dr. Starks testified generally concerning dangers which possibly can occur in the use of general anesthesia, defense counsel did not elicit from the witness testimony that under the facts of the case at bar, the dangers of anesthesia outweighed the danger posed by not being able to fully debride the wound such that in this instance the treatment fell below the standards of good and reasonable care. In other words, cross-examination focused on generalities, rather than on the specifics of this case.

It was not contradictory, therefore, that on redirect testimony, Dr. Starks reiterated his position by stating that, in his opinion, the infection that was present in 1978 never went away:

[By Mr. Finney:]

Q. [D]o you have an opinion, doctor, whether the infection which is seen in December of '78 at Metropolitan, whether or not that is the same infection that we ...


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