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GEORGE D'ANGELIS v. ALAN S. ZAKUTO (03/29/89)

filed: March 29, 1989.

GEORGE D'ANGELIS, JR. AND ANDREA J. D'ANGELIS, CO-ADMINISTRATORS OF THE ESTATE OF GEORGE D'ANGELIS, III, DECEASED APPELLANTS,
v.
ALAN S. ZAKUTO, M.D. AND BENSALEM PEDIATRIC ASSOCIATES, INC., APPELLEES



Appeal from the Judgment of the Court of Common Pleas of Philadelphia County, Civil at No. 2476 November Term 1982

COUNSEL

Donald E. Matusow, Philadelphia, for appellants.

Thomas W. Smith, Philadelphia, for appellees.

McEwen, Montemuro and Kelly, JJ. Kelly, J., files a concurring opinion.

Author: Montemuro

[ 383 Pa. Super. Page 67]

This is an appeal from a judgment entered pursuant to a jury determination that appellants' decedent was not the victim of appellee's medical malpractice.

On Dec. 5, 1981, appellants brought their twenty-six month old son, Georgie, to appellee for examination. The child had been febrile for several days; he was coughing up mucus, his nose was running, the gland on one side of his neck was swollen, and he was suffering from diarrhea. The diagnosis was purulent rhinitis, and an upper respiratory infection, for which appellant prescribed erythromycin, a broad spectrum antibiotic, and Dimetapp, a cough syrup. On Dec. 19, appellants telephoned appellant's office to report the persistence of their son's cough. Appellee was not available, and one of his associates prescribed a stronger cough medication. On Dec. 25, Georgie's fever, which had abated, reappeared, and he was again brought in for examination. The chart entry for this visit indicates that the child's temperature was 104 degrees, the glands on both sides of his neck were swollen, his throat was red, and his chest was congested with rhonchi. Appellee treated these symptoms with a change of both antibiotic and cough syrup, this time prescribing oral penicillin and Ambenyl.

Since Georgie's fever had subsided, appellants decided that despite the persistence of his cough, he could be left with his aunt on New Year's Eve. Georgie slept during most of the night, awakening only when his aunt roused him to administer medication, and to move him to another room. The next morning, however, the child went into cardiopulmonary arrest. Despite efforts at resuscitation, Georgie died at 2:30 that afternoon.

Post mortem examination, without specifying cause of death, revealed that Georgie had suffered from acute and chronic pneumonia of the left lung. No culture was obtained, and no etiology for the pneumonia was given.

Appellants filed the instant suit, alleging medical incompetence on appellee's part for having failed adequately to examine, test, diagnose and monitor the baby's illness. At

[ 383 Pa. Super. Page 68]

    trial, the deposition testimony of the pathologist who had performed the autopsy, Dr. Jane Chatten, revealed that based on her microscopic examination of the lung tissue, the pneumonia had been in existence many days and probably at least a week. Appellants' pediatric expert, Dr. William Bason, opined that the pneumonia had been present from the time of the Dec. 5 visit, and could have been detected by any one of a number of tests. More specifically, he noted that given the results of the autopsy, an X-ray would certainly have demonstrated the presence of pneumonia on Dec. 25. The post mortem absence of a specific pathogen was explained by the effects of the antibiotics administered. Both doctors attributed the infant's death to the pneumonia.

Neither of appellee's experts. Drs. Caroline Hall and Gerald Fendrick, were able to isolate cause of death, both testifying that the degree of pneumonia was insufficient to bring on cardiopulmonary arrest. Although both physicians agreed that pneumonia might be present despite the absence of rales, Dr. Hall testified that she believed appellee to have considered pneumonia as a possible diagnosis, but that the lack of signs justified his discarding it to explain the illness. Appellee indicated his view that the child had not presented symptoms serious enough to warrant testing, and that despite the persistence of the cough the two visits to his office represented two episodes of unrelated disease. Dr. Fendrick, in supporting this assessment posited viral infection as responsible for the cough. Despite his testimony that antibiotics were not useful in combating viral illnesses, it was stated that the two courses of treatment prescribed did operate to decrease the child's fever, and that because of the course of Georgie's illness, there was nothing further appellee could or should have done. Despite the autopsy findings, Dr. Fendrick, disagreed that the child had pneumonia on Dec. 25, reasoning that the boy was not sick enough. Both appellee's experts suggested that testing, inclusive of radiography, would have revealed nothing, and would not have resulted in treatment any different than that prescribed. The jury found that appellee had not been negligent.

[ 383 Pa. Super. Page 69]

Appellants have presented us with three issues, which we will address seriatim.

It is first argued that the trial court erred in its charge on the "two schools of thought doctrine." Appellants do not contend that the charge should not have been given, but that its presentation was unclear, and failed to conform to Pennsylvania law.

The doctrine referred to has a secure place in our jurisprudence. See Duckworth v. Bennett, 320 Pa. 47, 181 A. 558 (1935); Remley v. Plummer, 79 Pa. Super. 117 (1922). It directs that "a lay jury is not to be put in a position of choosing one respected body of medical opinion over another, when each has a reasonable following among the members of the medical community." Trent v. Trotman, 352 Pa. ...


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