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JOHN R. HREHA v. JUDITH L. BENSCOTER (01/24/89)

filed: January 24, 1989.

JOHN R. HREHA
v.
JUDITH L. BENSCOTER, D.O. AND METROPOLITAN HOSPITAL-SPRINGFIELD DIVISION. APPEAL OF METROPOLITAN HOSPITAL-SPRINGFIELD DIVISION. JOHN R. HREHA, APPELLANT, V. JUDITH L. BENSCOTER, D.O. AND METROPOLITAN HOSPITAL-SPRINGFIELD DIVISION, APPELLEES



Appeal from Judgment of the Court of Common Pleas, Civil Division, of Delaware County, No. 84-10438.

COUNSEL

Andrew F. Napoli, Philadelphia, for appellant in No. 983, and appellee in No. 1031.

Herbert Monheit, Philadelphia, for appellant in No. 1031, and appellee in No. 983.

Wieand, McEwen and Melinson, JJ.

Author: Wieand

[ 381 Pa. Super. Page 559]

In this medical malpractice action, John R. Hreha sought to recover damages against Dr. Judith L. Benscoter and the Metropolitan Hospital, Springfield Division, for complications following the surgical replacement of his hip. The jury before whom the action was tried found that the causal negligence of the hospital was fifty (50%) percent, the causal negligence of Dr. Benscoter fifteen (15%) percent, and the causal negligence of Hreha thirty-five (35%) percent. The same jury found that Hreha's damages were in the amount of $350,000. A motion for post-trial relief was filed by the hospital and denied by the trial court; and Hreha's petition for delay damages was also denied.*fn1 Both parties appealed.

As a result of a biopsy performed on August 8, 1983, plaintiff was diagnosed as having vascular necrosis with degenerative arthritis of the right hip. Therefore, on August 23, 1983, hip replacement surgery was performed by Dr. Benscoter at the Metropolitan Hospital. Following surgery, plaintiff was put on complete bed rest, and side rails were placed on his bed. Plaintiff made an unsuccessful attempt to get out of bed on August 27, and on the following day, August 28, he was found standing beside his bed by an intern. Because of this, x-rays were taken and disclosed that a hip prosthesis had become dislocated. This made necessary a second operation, which was performed by Dr. Benscoter on August 30, 1983. On September 1, 1983, plaintiff again got out of bed and was found lying on the floor by a nurse. Thereafter, Dr. Benscoter ordered that posey restraints be employed to keep plaintiff in bed. Cultures taken during the second operation disclosed that an infection had developed, and plaintiff was subsequently

[ 381 Pa. Super. Page 560]

    transferred to the University of Pennsylvania Hospital for further treatment. This treatment included additional surgery to remove the head of the femur (known as a girdlestone procedure) and entailed a lengthy hospitalization. Plaintiff claimed that as a result of this procedure, his right leg was permanently shortened. He contended at trial that Metropolitan Hospital and Dr. Benscoter had failed to provide adequate post-operative care and that the hospital and operating surgeon had failed to observe proper surgical procedures which enabled the infection to invade his body.

The hospital contends on appeal that the trial court should have entered judgment n.o.v. in its favor because Dr. Herbert Swindell, plaintiff's only medical expert, gave conflicting testimony and failed to express an opinion to the required degree of medical certainty regarding the cause of plaintiff's complications following surgery. The required degree of medical certainty necessary to prove causation was reviewed by the Superior Court in Kravinsky v. Glover, 263 Pa. Super. 8, 396 A.2d 1349 (1979). The Court there said:

When a party must prove causation through expert testimony the expert must testify with "reasonable certainty" that "in his 'professional opinion, the result in question did come from the cause alleged.'" McCrosson v. Philadelphia Rapid Transit Co., 283 Pa. 492, 496, 129 A. 568, 569 (1925). See Hamil v. Bashline, supra. An expert fails this standard of certainty if he testifies "'that the alleged cause "possibly", or "could have" led to the result, that it "could very properly account" for the result, or even that it was "very highly probable" that it caused the result.' Niggel v. Sears, Roebuck & Co., 219 Pa. Super. 353, 354, 355, 281 A.2d 718, 719 (1971); Menarde v. Philadelphia Trans. Co., 376 Pa. 497, 103 A.2d 681 (1954); Vorbnoff v. Mesta Machine Co., 286 Pa. 199, 133 A. 256 (1926); Moyer v. Ford Motor Co., 205 Pa. Super. 384, 209 A.2d 43 (1965)." Albert v. Alter, 252 Pa. Super. 203, 225, 381 A.2d 459, 470 (1977).

[ 381 Pa. Super. Page 561]

"The issue is not merely one of semantics. There is a logical reason for the rule. The opinion of a[n] . . . expert is evidence. If the fact finder chooses to believe it, he can find as fact what the expert gave as an opinion. For a fact finder to award damages for a particular condition to a plaintiff it must find as a fact that the condition was legally caused by the defendant's conduct . . . . [I]t is the intent of our law that if the plaintiff's . . . expert cannot form an opinion with sufficient certainty so as to make a [professional] judgment, there is nothing on the record with which a [factfinder] can make a decision with sufficient certainty so as to make a legal judgment." McMahon v. Young, 442 Pa. 484, 486, 276 A.2d 534, 535 (1971). However, to make an admissible statement on causation, an expert need not testify with absolute certainty or rule out all possible causes of a condition. Bialek v. Pittsburgh Brewing Company, 430 Pa. 176, 242 A.2d 231 (1968); Ritson v. Don Allen Chevrolet, supra [233 Pa. Super. 112, 336 A.2d 359 (1975)]. Expert testimony is admissible when, taken in its entirety, it expresses reasonable certainty that the accident was a substantial factor in bringing about the injury. Hussey v. May Department Stores, Inc., supra, 238 Pa. Super. [431] at 437, 357 A.2d [635] at 638 [(1976)]. The expert need not express his opinion in precisely the same language we use to enunciate the legal standard. See In re Jones, 432 Pa. 44, 246 A.2d 356 (1968) (medical testimony need not conform to precise statutory definitions). That an expert may, at some point during his testimony, qualify his assertion does not necessarily render his opinion inadmissibly speculative. Woods v. Pleasant Hills Motor Company, 454 Pa. 224, 309 A.2d 698 (1973); Commonwealth v. Joseph, 451 Pa. 440, 304 A.2d 163 (1973).

Id., 263 Pa. Superior Ct. at 21-22, 396 A.2d at 1355-1356 (emphasis added) (footnotes omitted). See also: Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978); Pirches v. General Accident Insurance Co., 354 Pa. Super. 303, 511 A.2d 1349 (1986); Williams v. Dulaney, 331 Pa. Super. 373,

[ 381 Pa. Super. Page 562480]

A.2d 1080 (1984); Walsh v. Snyder, 295 Pa. Super. 94, 441 A.2d 365 (1981); Smialek v. Chrysler Motors Corp., 290 Pa. Super. 496, 434 A.2d 1253 (1981); Sears, Roebuck & Co. v. Workmen's Compensation ...


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