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November 25, 1997


Appeal from the JUDGMENT ENTERED February 27, 1997, in the Court of Common Pleas of COLUMBIA County, CIVIL, No. 942 CV 1992. Before KELLER, J.

Before: Cirillo, P.j.e., Saylor* and Olszewski, JJ.

The opinion of the court was delivered by: Olszewski


Filed November 25, 1997

This is an appeal of a judgment entered upon a jury verdict in a medical malpractice action finding appellees Dr. Kenneth M. Baker and Dr. Lauriano Manuel not negligent.

Samuel M. Romeo, Sr. experienced cardiac difficulties for many years and was cared for by Dr. Manuel. On Dr. Manuel's recommendation, Romeo visited Dr. Baker on August 13, 1991, regarding a cardiac catheterization. According to Dr. Baker's testimony, Romeo adamantly refused to undergo this invasive procedure. As an alternative, Dr. Baker prescribed enhanced medical management.

On September 23, 1991, Romeo experienced chest pain. He went to work the next morning and had his daughter call the doctor's office regarding his condition. His daughter called Dr. Baker's office and told a secretary of her father's difficulties. After visiting Dr. Manuel during a prearranged appointment, Romeo went home, and following dinner, suffered a fatal cardiac episode.

Following testimony, the jury responded to specific interrogatories finding that neither Dr. Baker nor Dr. Manuel were negligent. Appellant, Estate of Romeo, filed and argued a motion for post-trial relief. The lower court denied this motion and affirmed the jury verdict in favor of appellees. Appellant claims that the trial court erred in denying a new trial based upon: 1) the admission of testimony regarding "two schools of thought" of medical treatment, 2) the exclusion of testimony by Romeo's wife, and 3) the exclusion of notes made by Romeo's daughter.

For this Court to find that the lower court's evidentiary rulings constituted reversible error, such rulings must not only have been erroneous but must also have been harmful to the complaining party. Bessemer Stores, Inc. v. Reed Shaw Stenhouse, Inc., 344 Pa. Super. 218, 224, 496 A.2d 762, 765 (1985). Appellant must therefore show error in the evidentiary ruling and resulting prejudice, thus constituting an abuse of discretion by the lower court. See id. Based on such showing, this Court's only remedy is to grant a new trial. See id. In the instant case, however, appellant has failed to show that the evidentiary rulings of the lower court were erroneous.

First, appellant contends that the lower court improperly admitted testimony regarding "two schools of thought" as to appropriate medical treatment. Dr. Baker testified that he believed that cardiac catheterization was the best course to follow. Upon Romeo's refusal to undergo that procedure, Dr. Baker prescribed enhanced medical management. Dr. Baker testified that while he believes in cardiac catheterization, there was a second school of thought that considers enhanced medical management to be the best course of action. Appellee's expert witness also testified as to both schools of thought and that each was an appropriate and recognized course of action. Appellant, however, argues that the testimony regarding the enhanced medical management was irrelevant because Dr. Baker admitted not belonging to this school of thought. Appellant contends that the testimony should have been excluded because the jury should have determined whether Dr. Baker's course of care was negligent given the standard prescribed by the school of thought to which he belonged, namely, cardiac catheterization.

"Evidence is relevant if it tends to make a fact at issue more or less probable." Martin v. Soblotney, 502 Pa. 418, 422, 466 A.2d 1022, 1024 (1983). Determinations of the relevancy of evidence are within the sound discretion of the trial court. Sprague v. Walter, 441 Pa. Super. 1, 36, 656 A.2d 890, 907, allocatur denied, 543 Pa. 695, 670 A.2d 142 (1995). Such rulings will not be overturned absent an abuse of discretion. Henery v Shadle, 443 Pa. Super. 331, 341, 661 A.2d 439, 444, allocatur denied, 542 Pa. 670, 668 A.2d 1133 (1995).

Appellant's main contention in arguing Dr. Baker's negligence was Dr. Baker's failure to conduct a cardiac catheterization of Romeo. The proper standard of medical care was therefore a central issue at trial. Consequently, the acceptability of enhanced medical management, which was the course of action ultimately pursued due to Romeo's refusal to undergo catheterization, was an issue to be determined by the jury in deciding whether Dr. Baker was negligent. In Jones v. Chidester, 531 Pa. 31, 610 A.2d 964 (1992), the Pennsylvania Supreme Court held that the "two schools of thought doctrine" is a defense to malpractice because "a physician will not be held responsible if in the exercise of his judgment he followed a course of treatment advocated by a considerable number of recognized and respected professionals in his given area of expertise." Id. at 40, 610 A.2d at 969. Thus, the acceptability of the course of action ultimately pursued is of extreme importance to the final determination of negligence. Therefore, the trial court was correct in ruling that the testimony regarding the second school of thought was relevant and admissible.

Next, appellant argues that the lower court erred in excluding testimony from decedent's wife regarding statements made by the decedent following his consultation with Dr. Baker. Appellant claims that after consulting with Dr. Baker, Romeo had a conversation with his wife wherein he stated that he was taking medication because the doctor told him to do so. Appellant argues that this testimony could show that Romeo was not adamantly opposed to the cardiac catheterization, as claimed by appellee Dr. Baker. Appellant contends that the testimony of Romeo's wife as to what her husband said was offered to show the decedent's state of mind and not for the truth of the matter asserted in the statements.

"In order to preserve an objection to the exclusion of testimony the party seeking to have the testimony admitted must make an offer as to what the testimony is going to establish." Watson v. Philadelphia, 162 Pa. Commw. 340, 346, 638 A.2d 489, 491 (1994). An appellate court cannot determine whether the proffered testimony was properly excluded without an offer of proof at trial. Williamson v. Philadelphia Transp. Co, 244 Pa. Super. 492, 500, 368 A.2d 1292, 1296 (1976). Reviewing the record, we find that appellant never made an offer of proof as to the ...

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