LIRA V. ALBERT EINSTEIN MEDICAL CENTER, 384 Pa.Super 503, 559 A.2d 550 (1989) CASE BRIEF

LIRA V. ALBERT EINSTEIN MEDICAL CENTER

384 Pa.Super 503, 559 A.2d 550 (1989)

NATURE OF THE CASE: This was a medical malpractice action. Appealed. Lira (P) patient appealed and Albert (D) health care providers cross-appealed a judgment awarding a new trial in P's medical malpractice action because of an erroneous evidentiary ruling which permitted a witness to testify that when P was examined by a non-testifying physician, the physician asked, 'Who's the butcher who did this?'

FACTS: P was taken to the emergency room at D because of diarrhea, abdominal pain, and distension. A doctor inserted a nasogastric tube into her throat. P 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. After the removal of the tube she continued to experience pain and discomfort of the throat. Early in 1982, P 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. Mrs. Lira (P) alleged that she was injured when a doctor inserted a nasogastric tube. At trial, P's husband testified that he was present when P was examined by an ear, nose and throat specialist after the incident. When the second doctor examined P, P's husband testified that he exclaimed, 'Who's the butcher who did this?' D objected to this evidence but the court admitted the statement. Ps got the verdict for $275,000 in total damages. D then moved for a new trial contending that the statement was hearsay. The trial court awarded a new trial because the statement was erroneously admitted. Both P and D appealed. Ps arguing that the statement falls under the excited utterance or present sense impression exceptions to the hearsay rule.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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