Wednesday, December 18, 2013

Lira v. Albert Einstein Medical Center case brief

Lira v. Albert Einstein Medical Center case brief summary
559 A.2d 550 (Pa. Super. 1989)

Plaintiff patient appealed and defendant health care providers cross-appealed a judgment from the Court of Common Pleas, Philadelphia County (Pennsylvania) awarding a new trial in plaintiff's medical malpractice action because of an erroneous evidentiary ruling which permitted a witness to testify that when plaintiff was examined by a non-testifying physician, the physician asked, "Who's the butcher who did this?"

Defendant health care providers were granted a new trial in plaintiffs', patient and her husband, medical malpractice case. Plaintiffs argued a hearsay declaration reporting a doctor's statement, "what butcher did this to you?" was admissible as a present sense impression or excited utterance, and did not warrant a new trial.


  • On appeal, the court held physician's declaration was not so admissible as an exception to the hearsay rule, that the trial court correctly realized that it had given conflicting signals on the admissibility of this statement and the jury had heard incompetent and prejudicial evidence, and because that evidence could have influenced the jury's decision, a new trial was necessary. 
  • Defendant health care providers argued the trial court should have entered a judgment notwithstanding the verdict because no expert surgeon testified. 
  • The court held that the testimony of plaintiff patient and her neurologist was sufficient, however, to establish defendant surgeon's professional negligence and the neurologist had sufficient skill, knowledge, and experience and his opinion aided the jury. 
  • The trial court's ruling was not an abuse of discretion.

The judgment awarding a new trial was affirmed. The trial court properly denied defendants' motion for judgment notwithstanding the verdict even though plaintiff did not produce expert testimony from a surgeon. The extrajudicial statement uttered by an examining physician, offered to prove the truth of the matter asserted, was not an excited utterance or present sense impression.

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