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BONNIE B. LIRA AND JOSE LIRA v. ALBERT EINSTEIN MEDICAL CENTER. APPEAL JOSE LIRA HIS OWN RIGHT AND AS ADMINISTRATOR ESTATE BONNIE B. LIRA. BONNIE B. LIRA AND JOSE LIRA (05/25/89)

filed: May 25, 1989.

BONNIE B. LIRA AND JOSE LIRA, H/W
v.
ALBERT EINSTEIN MEDICAL CENTER. APPEAL OF JOSE LIRA IN HIS OWN RIGHT AND AS ADMINISTRATOR OF THE ESTATE OF BONNIE B. LIRA. BONNIE B. LIRA AND JOSE LIRA, H/W V. GARY PEARLSTEIN, M.D. APPEAL OF JOSE LIRA. BONNIE B. LIRA AND JOSE LIRA, H/W, APPELLEES, V. GARY PEARLSTEIN, M.D., APPELLANT



For Case Nos. 2090 Philadelphia, 1988 and 2339 Philadelphia, 1988, Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 7423 May Term, 1982. For Case Nos. 2091 Philadelphia, 1988 and 2338 Philadelphia, 1988, Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 6955 April Term, 1983.

COUNSEL

Jayne A. Piarulli, Philadelphia, for appellant (at Nos. 2090 and 2091) and appellee (at No. 2338).

Charles A. Fitzpatrick, III, Philadelphia, for appellee (at Nos. 2090 and 2091) and appellant (at No. 2338).

Cavanaugh, Wieand and Melinson, JJ.

Author: Wieand

[ 384 Pa. Super. Page 507]

In this medical malpractice action, the trial court awarded a new trial on motion of the defendant-health care providers because of an erroneous evidentiary ruling which permitted a witness to testify that when the plaintiff-patient was examined by a non-testifying physician, the physician asked, "Who's the butcher who [did] this?" On appeal, the plaintiffs argue that the physician's declaration was properly received and did not warrant a new trial. In a cross-appeal, the defendant-health care providers argue that the trial court should have entered a judgment n.o.v. in their favor. We affirm the order awarding a new trial.

In January, 1981, Bonnie Lira, a young homemaker and professional singer, was admitted to the Albert Einstein Medical Center (AEMC) with complaints of abdominal pain. Exploratory surgery was performed, and Lira was diagnosed as having Crohn's disease, an acute gastrointestinal illness. During this hospital stay, which lasted approximately a month, a nasogastric tube was inserted through Mrs. Lira's nose to suction fluids from her stomach, and two surgical procedures were performed by which the patient was intubated with endotracheal tubes.

On May 13, 1981, Mrs. Lira was taken to the emergency room at AEMC because of diarrhea, abdominal pain, and distension. Dr. Stanton Carroll was on duty at that time and was assisted by Dr. Gary Pearlstein, a surgical resident. Pearlstein inserted a nasogastric tube into the patient's throat via the right nostril in order to make use of a suction machine. Mrs. Lira testified in a deposition*fn1 that she felt the tube become stuck in the area of her Adam's Apple while it was being inserted and that she then experienced a jabbing, cutting pain. By the time the insertion had been completed she began spitting up blood and experienced severe pain. The tube remained in place until Mrs. Lira was discharged, following which she continued to experience pain and discomfort of the throat. Early in 1982, she

[ 384 Pa. Super. Page 508]

    suffered respiratory distress, and an emergency tracheotomy was performed. She remained dependent upon her tracheotomy tube until she died three and a half years later.

During her lifetime, Mrs. Lira and her husband, Jose, commenced actions against AEMC, Dr. Carroll, Dr. Pearlstein and several other physicians. Ultimately, however, the other physicians were removed as party defendants, and the consolidated action went to trial against AEMC and Drs. Carroll and Pearlstein. The trial court directed a verdict in favor of Dr. Carroll, and the jury returned a verdict against AEMC and Dr. Pearlstein in favor of Bonnie Lira (deceased) for $150,000.00 and in favor of Jose Lira, her husband, for loss of consortium in the amount of $125,000.00.

A judgment n.o.v. may be entered only in a clear case where the facts are such that no two reasonable persons can fail to agree that the verdict is improper. Fleck v. Durawood, Inc., 365 Pa. Super. 123, 127, 529 A.2d 3, 5 (1987); Northwest Savings Ass'n. v. Distler, 354 Pa. Super. 187, 191, 511 A.2d 824, 825 (1986). In ruling upon a defendant's motion for judgment n.o.v., the trial court is required to consider the evidence, as well as all reasonable inferences which may be drawn therefrom, in the light most favorable to the plaintiff who won the verdict. Vernon v. Stash, 367 Pa. Super. 36, 45-46, 532 A.2d 441, 445-446 (1987), quoting Maravich v. Aetna Life & Casualty Co., 350 Pa. Super. 392, 396, 504 A.2d 896, 898 (1986) and Kearns v. Clark, 343 Pa. Super. 30, 34-35, 493 A.2d 1358, 1360 (1985). In determining whether the evidence is sufficient to support the verdict, a reviewing court must consider all the evidence received, whether the trial court's evidentiary rulings thereon were correct or incorrect. See: Niles v. Fall Creek Hunting Club, Inc., 376 Pa. Super. 260, 265, 545 A.2d 926, 929 (1988); Dorn v. Stanhope Steel, Inc., 368 Pa. Super. 557, 565, 534 A.2d 798, 802 (1987).

To establish a case of professional negligence, the plaintiffs were required to show that the professional conduct of Dr. Pearlstein fell below the standards of reasonable ...


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