                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-23-1999

Alexander v. Univ Pgh Med Ctr Sys
Precedential or Non-Precedential:

Docket 98-3402,98-3501




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Recommended Citation
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Filed July 23, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 98-3402 and 98-3501

MARY JO ALEXANDER, as personal
representative of the Estate of Alyssa J. Alexander;
MARY JO ALEXANDER; JOHN F. ALEXANDER,
individually and as legal heirs of Alyssa J. Al exander

v.

UNIVERSITY OF PITTSBURGH MEDICAL CENTER
SYSTEM, a corporation; CHILDREN'S HOSPITAL OF
PITTSBURGH, a corporation; SUSAN ORENSTEIN, M.D.;
DEBORAH NEIGUT, M.D.; PHILIP E. PUTNAM, M.D.

       Susan Orenstein, M.D.; Deborah Neigut,
       M.D.; Philip Putnam, M.D.,
       Appellants in No. 98-3402

MARY JO ALEXANDER, as personal
representative of the Estate of Alyssa J. Alexander;
MARY JO ALEXANDER; JOHN F. ALEXANDER,
individually and as legal heirs of Alyssa J. Al exander

v.

UNIVERSITY OF PITTSBURGH MEDICAL CENTER
SYSTEM, a corporation; CHILDREN'S HOSPITAL OF
PITTSBURGH, a corporation; SUSAN ORENSTEIN, M.D.;
DEBORAH NEIGUT, M.D.; PHILIP E. PUTNAM, M.D.

       John F. Alexander; Mary Jo Alexander,
       Appellants in No. 98-3501
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 94-00089)
District Judge: Honorable Maurice B. Cohill, Jr.

Argued May 26, 1999

BEFORE: GREENBERG and ALITO, Circuit Judges,
and DOWD,* District Judge

(Filed: July 23, 1999)

       Patrick S. Casey (argued)
       Thomas E. Johnston
       Flaherty, Sensabaugh & Bonasso
       1031 National Road
       Echo Manor, Suite 200,
        P.O. Box 6545
       Wheeling, WV 26003

        Attorneys for Appellants
        in No. 98-3501

       Larry A. Silverman (argued)
       Marcelle M. Theis
       Dickie, McCamey & Chilcote
       Two PPG Place
       Suite 400
       Pittsburgh, PA 15222-5402

        Attorneys for Appellants
        in No. 98-3402
_________________________________________________________________

*Honorable David D. Dowd, Jr., Senior Judge of the United States
District Court for the Northern District of Ohio, sitting by designation.
                                2
OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

A. Facts

This matter is before the court on the defendants' appeal
and the plaintiffs' cross-appeal in this medical malpractice
case. Ordinarily, following a jury verdict we set forth the
facts from the perspective most favorable to the verdict
winner. In this case, however, to the extent that the appeal
challenges the verdict, we are affirming and thus we need
not follow that practice. On the other hand, we are
reversing with respect to the district court's refusal to
charge contributory negligence and thus we set forth the
facts in a neutral manner, as the defendants were entitled
to that charge if there was any evidence to support it.

In February 1992, 17-year old Alyssa Alexander became
seriously ill, and her father took her to Wetzel County
Hospital in New Martinsville, West Virginia. After only a few
hours, Alyssa was transferred to Ohio Valley Medical
Center in Wheeling, West Virginia. On February 16, 1992,
after four days and no diagnosis, Alyssa's parents insisted
that she be transferred to Children's Hospital of Pittsburgh.

Shortly after Alyssa was admitted to Children's Hospital,
Dr. Susan Orenstein diagnosed her as having Wilson's
Disease, a rare disorder of the liver that allows excessive
amounts of copper to accumulate in various organs. Dr.
Orenstein immediately consulted with Dr. Jorge Reyes,
head of the liver transplant team at Children's Hospital. Dr.
Reyes opined that a liver transplant was probably the only
way to save Alyssa. Dr. Orenstein also consulted with Dr.
Israel Scheinberg, a New York expert in Wilson's Disease.
Dr. Scheinberg opined that Alyssa first could receive an
alternate treatment to remove copper from the body
(chelation), but that her chances of survival on this therapy
were only about 25%. Dr. Scheinberg also stated that if
Alyssa's liver function continued to deteriorate on chelation

                               3
therapy in the first few days, her chances of survival
without a transplant were very slim. According to Dr.
Orenstein, she relayed all this information to the
Alexanders. Dr. Reyes also relayed to the Alexanders his
belief that a transplant was necessary. In the meantime,
Dr. Orenstein initiated the chelation therapy, and Alyssa's
condition stabilized.

On February 27, 1992, Dr. Reyes offered Alyssa a liver
for transplant and discussed his opinion with her and her
parents. Dr. Orenstein testified that she discussed with the
family the possibility that another liver might not become
available before Alyssa's condition deteriorated, as well as
the option of continuing chelation therapy. Alyssa and her
parents decided not to accept the liver for transplant.

On March 2, 1992, Dr. Deborah Neigut assumed the
primary care of Alyssa. Dr. Neigut saw Mrs. Alexander
daily, and often discussed with her and Alyssa the risks
and complications of their options. At one point, Mrs.
Alexander told Dr. Neigut that she did not want Alyssa on
the waiting list for a liver, but Dr. Neigut convinced her that
it would not be a good idea to take Alyssa off the waiting
list. While Alyssa was under Dr. Neigut's care, Dr. Reyes
offered her a second liver on March 17, 1992. At that time,
Alyssa's condition was stable. Dr. Neigut again discussed
with the family the two options available, along with the
risks and complications of each. The family refused the
second liver.

Dr. Neigut then consulted with Dr. James Malatack, a
pediatrician with experience in treating children with
Wilson's Disease. Dr. Malatack testified that he told Mr.
Alexander that the chelation therapy might work but
probably would not, and that the family should accept the
next available liver for a transplant. Mr. and Mrs.
Alexander, however, testified that they did not learn of Dr.
Malatack's recommendation until after Alyssa's death.

From March 25 to March 29 or 30, Dr. Philip Putnam
assumed primary care of Alyssa. During those five days, he
made no recommendations regarding transplantation, nor
did he discuss with the family Alyssa's chances of survival
with or without transplantation.

                               4
On April 1, Dr. Neigut again resumed primary care of
Alyssa. On that date, Dr. Reyes offered a third liver to
Alyssa. Dr. Reyes reiterated to the family his opinion that
Alyssa should receive a liver transplant. Mrs. Alexander
testified that Dr. Neigut recommended that the family turn
down the third liver. The family did so.

On April 6, Dr. Putnam resumed primary care of Alyssa.
The next day, Alyssa had a reaction to a blood transfusion
which caused lung injury and sudden systemic
deterioration. At Dr. Putnam's recommendation, Alyssa
underwent an emergency liver transplant on April 9. She
developed respiratory distress syndrome and died on April
21, 1992.

B. Procedural Background

On January 18, 1994, Mr. and Mrs. Alexander, on their
own behalf and on behalf of Alyssa's estate, filed in the
district court a complaint setting forth a wrongful death
and survival action against the University of Pittsburgh
Medical Center System ("UPMCS"), Children's Hospital, Dr.
Orenstein, Dr. Neigut, and Dr. Putnam. The Alexanders
alleged that the three doctors: (1) lacked the knowledge to
treat and advise Alyssa; (2) failed to evaluate and interpret
the diagnostic information; (3) failed to report information
to the family to permit them to make informed choices; (4)
misled the family as to Alyssa's true condition and
prognosis; (5) failed to recommend appropriate treatment
(transplant); and (6) failed to follow the recommendations of
the liver transplant experts. The Alexanders sued Children's
Hospital and the UPMCS as principals of the three doctors.

On December 21, 1995, the district court granted the
UPMCS's motion for summary judgment. On April 20,
1998, upon stipulation of the parties, the district court
dismissed Children's Hospital. The case proceeded to a jury
trial as to the claims against the doctors. The doctors
requested that the district court submit the issue of the
Alexanders' contributory negligence to the jury but the
district court denied this request.

On May 4, 1998, the jury found that each of the three
doctors was negligent in advising the Alexanders regarding
Alyssa's treatment, and that the negligence of each doctor

                                5
was a substantial factor in causing Alyssa's death. The jury
determined that 25% of the negligence was attributable to
Dr. Orenstein, 50% was attributable to Dr. Neigut, and 25%
was attributable to Dr. Putnam. The jury awarded
 905<!>substantial damages for pain and suffering, medical

expenses, funeral expenses, and loss of services. The
expenses incurred at Alyssa's stays at Wetzel County
Hospital and Ohio Valley Medical Center, both of which
occurred prior to Alyssa's transfer to Children's Hospital,
were included in the award for medical expenses.

On May 8, 1998, the doctors filed a Fed. R. Civ. P. 50
motion for judgment as a matter of law and a Fed. R. Civ.
P. 59 motion for a new trial. On May 15, 1998, the district
court denied the doctors' Rule 50 motion, and on July 1,
1998, denied their Rule 59 motion. The doctors filed a
timely notice of appeal on July 17. On August 25, 1998, the
district court entered a final judgment in favor of the
Alexanders, but reduced the amount of medical expenses
awarded by $8,943.96, the expenses they incurred at the
two hospitals that treated Alyssa before she was transferred
to Children's Hospital. Subsequently, the doctors amended
their notice of appeal to include the August 25, 1998 order.
The Alexanders filed a timely notice of cross-appeal,
contesting the district court's reduction of damages for
medical expenses.

II. CONTENTIONS ON APPEAL

The doctors on their appeal contend that the Alexanders
were guilty of contributory negligence because they rejected
livers available to Alyssa during her stay at Children's
Hospital. They also argue that statements by the
Alexanders' counsel during closing argument were
prejudicial. If we accept either of these two points, we
would remand for a new trial. Dr. Putnam argues that he
was entitled to a judgment as a matter of law as he was not
involved in Alyssa's care when the livers were offered. On
the cross-appeal, the Alexanders contend that the court
erred by reducing the verdict for the medical expenses by
$8,943.96 incurred at the two hospitals before she was
transferred to Children's Hospital.

                               6
III. STANDARDS OF REVIEW

To the extent the doctors argue that the district court
erred by refusing to submit the issue of contributory
negligence to the jury, our review is plenary. See Woodson
v. AMF Leisureland Ctrs., Inc., 842 F.2d 699, 701 (3d Cir.
1988). Similarly, we exercise plenary review with respect to
Dr. Putnam's argument that the district court erred by
denying his Rule 50 motion for a judgment as a matter of
law. See Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153,
1166 (3d Cir. 1993). Moreover, a motion for judgment as a
matter of law should be granted only if viewing all the
evidence in the light most favorable to the party opposing
the motion, no jury could decide in that party's favor. Id.
We also exercise plenary review on the cross-appeal, as the
effect of the district court's action in reducing the verdict
was to grant the defendants a judgment as a matter of law
with respect to the expenses involved.

IV. DISCUSSION

A. Contributory Negligence

The doctors first argue that the district court erred in
refusing to allow the jury to consider whether the
Alexanders were contributorily negligent in rejecting Dr.
Reyes' three offers for a liver transplant. The doctors assert
that evidence exists from which the jury could have
concluded that the Alexanders were informed fully and
completely of the risks to Alyssa in rejecting these livers
and thus were negligent in doing so, and that the
Alexanders' negligence contributed to Alyssa's death. Thus,
the doctors contend they are entitled to a new trial.

Under Pennsylvania law, which is applicable here, if there
is any evidence of contributory negligence in a medical
malpractice case, the court must submit the issue to the
jury, even if the evidence to the contrary is strong. Althaus
v. Cohen, 710 A.2d 1147, 1157 (Pa. Super. Ct. 1998);
Pascal v. Carter, 647 A.2d 231, 233 (Pa. Super. Ct. 1994);
Levine v. Rosen, 575 A.2d 579, 580-81 (Pa. Super. Ct.
1990); see also Ayoub v. Spencer, 550 F.2d 164, 167 (3d
Cir. 1977) (recognizing Pennsylvania law in submitting
issue of contributory negligence to jury). In addition, the

                               7
plaintiff's negligent conduct must be a proximate cause of
her injury; if there is no evidence of causation between the
plaintiff's negligence and her injuries, the trial court
properly may refuse to instruct the jury on contributory
negligence. Althaus, 710 A.2d at 1157-58. Of course, in
Pennsylvania contributory negligence if established will be
an aspect of a comparative negligence analysis. See
Ferguson v. Panzarella, 700 A.2d 927, 930 (Pa. 1997).

Here, the district court erred in refusing to submit the
question of the Alexanders' contributory negligence to the
jury. We set forth in detail the evidence which leads us to
this conclusion.

1. Dr. Reyes' Testimony

Dr. Reyes testified that he told the Alexanders that Alyssa
needed a transplant. App. at 513. He testified that he spoke
directly to the Alexanders because he was concerned about
Alyssa and her family and wanted to make sure they knew
"the risks for and against transplantation." App. at 522. Dr.
Reyes testified that he told Alyssa and her parents that
"Alyssa had a better chance of recovery with a liver
transplant." App. at 530. He testified that Alyssa and Mrs.
Alexander "did not want a liver transplant." Id. Dr. Reyes
testified that he provided the Alexanders with all the
appropriate information concerning a transplant, including
the risks in transplantation and in refusing
transplantation, because he "felt that there was going to be
a bad outcome without a transplant," but that he never
directly stated that Alyssa must have a transplant. App. at
534. Dr. Reyes also testified that when Alyssa was in
intensive care, Mr. Alexander told him that they (the
Alexanders) "had made a mistake and a bad decision" in
refusing the livers. App. at 536.

2. Dr. Orenstein's Testimony

Dr. Orenstein testified that she told the Alexanders about
the note Dr. Scheinberg (the New York expert in Wilson's
Disease) wrote, in which Dr. Scheinberg opined that
survival without a liver transplant was unlikely. App. at
406, 438, 1080. Dr. Orenstein testified that when the first
liver was offered, she and the Alexanders "had a very
detailed discussion about the significant risks of

                               8
deterioration abruptly without being able to get another
liver." App. at 440. Dr. Orenstein remembered specifically
communicating the risks involved in rejecting a liver. App.
at 1075. She also testified that the Alexanders were
"provided with all relevant medical information concerning
treatment options and concerning risks, benefits and
possible complications, available treatment options," during
the period of time in which Alyssa was under Dr.
Orenstein's care, and that the Alexanders "were very clear
about the treatment options." App. at 446. Dr. Orenstein
testified that although she did not "advocate transplant,"
she never advised against it. App. at 1103.

3. Dr. Neigut's Testimony

Dr. Neigut testified that she considered a transplant an
option throughout the period when she was Alyssa's
primary care physician, and that the family was aware of
that option. App. at 338. Dr. Neigut testified that when the
second liver was offered, she discussed with Mrs. Alexander
and Alyssa the risks and complications of their options.
App. at 349-50. She also testified that each time a liver was
offered, she discussed several times with Mrs. Alexander
and Alyssa the "risks of acute problems developing" if they
rejected the liver. App. at 366, 1594. Dr. Neigut testified
that Mrs. Alexander said that she wanted to take Alyssa off
the waiting list for a liver, but that Dr. Neigut recommended
that Alyssa stay on the list. App. at 1617, 1618. Dr. Neigut
testified that she never advised against a transplant. App.
at 1630, 1646.

4. Dr. Malatack's Deposition

Dr. Malatack (an outside consultant) testified that after
he examined Alyssa, he told Mr. Alexander that it was
possible that chelation therapy would work, but that he
suggested transplantation. App. at 1360, 1364. Dr.
Malatack testified that he told Mr. Alexander that they
should accept the next available liver. App. at 1371.

5. Mr. Alexander's Testimony

Mr. Alexander testified that the transplant team told him
that Alyssa needed a transplant. App. at 810. Mr.
Alexander testified that he wrote in his journal that Dr.

                               9
Reyes told him that a transplant was probably the only
thing that would help Alyssa. App. at 841. Mr. Alexander
testified that on a "couple different occasions," Dr. Reyes
told him he wanted to perform transplant surgery. App. at
847, 866, 882. Mr. Alexander testified that Drs. Orenstein
and Neigut told them about the options of transplant and
chelation. App. at 843. Mr. Alexander also testified that he
made the ultimate decision to reject the first liver. App. at
869-70. He also testified that he, his wife, and Alyssa made
the decision to reject the second and third livers. App. at
873-75.

6. Mrs. Alexander's Testimony

Mrs. Alexander testified that the transplant team
advocated performing transplant surgery. App. at 899. Mrs.
Alexander testified that Dr. Reyes and the transplant team
came to Alyssa's room to check on her "at least a couple of
times a week." App. at 908. Mrs. Alexander testified that
Dr. Reyes continually recommended that they accept the
next available liver for transplant. App. at 929-30. In
particular she said "Well, they always said, you know, she
needed the transplant."

Based on this evidence, a jury could have concluded that
the Alexanders were negligent in rejecting the three offers
for a liver transplant, and that their negligence was a
substantial factor in causing Alyssa's death. While the
Alexanders counter that they cannot be negligent for
following the negligent advice of the three doctors, they
concede that they shared responsibility in the decision-
making process and, in any event, the record fully supports
a conclusion that they did so. Still, they contend that the
doctors adduced no independent evidence that they acted
negligently.

We reject the Alexanders' contentions because the
doctors are correct that evidence exists from which the jury
could have concluded that they were informed fully of the
risks involved in treating Alyssa through chelation therapy
and through transplantation. Clearly, evidence also exists
from which the jury could have concluded that the
Alexanders' decisions to reject three offers for a liver
transplant substantially contributed to Alyssa's death.

                                10
Inasmuch as there was such evidence, the district court
erred by refusing to submit the issue of the Alexanders'
contributory negligence to the jury. Thus, a new trial is
necessary.

In reaching our result we have taken note of Judge Alito's
statement in his dissent that "[t]he negligent advice
provided by the defendant physicians was found by the jury
to have caused a young woman's death." Conc. Op. at 18.
Nevertheless, Dr. Orenstein pointed out that the one year
survival rate following liver transplants was from 65% to
85% and was lower thereafter. App. at 407. Thus, even if
the Alexanders had elected the transplant they had no
assurance that Alyssa would survive. In the circumstances
it is entirely possible that regardless of what the doctors
had advised, Alyssa would have died. The unfortunate fact
is that the Alexanders did not have a good choice and may
have been negligent in making the choice they did.

Finally, with respect to contributory negligence, the
doctors correctly point out that this case is both a survival
and wrongful death action and in a footnote in their brief
they address the ramifications of a contributory negligence
defense in this situation. Br. at 19 n.6. The Alexanders
have not addressed the point in their brief. In the
circumstances, we leave the resolution as to how to deal
with the contributory negligence defense to the district
court on remand.

B. Improper remarks during closing

Alternatively, the doctors argue that counsel for the
Alexanders made improper and prejudicial statements
during his closing argument that were so blatant that a
new trial is warranted. In view of our result, we need not
consider this point but we observe that the Alexanders'
attorney was close to, if not over, the edge of what is
acceptable.

C. Denial of Dr. Putnam's Rule 50 Motion

Dr. Putnam argues that the district court erred in
denying his Rule 50 motion for a judgment as a matter of
law because he was not negligent, and even if he was
negligent, there is no evidence that his negligence was a

                                11
proximate cause of Alyssa's injuries and death. In
particular, while Dr. Putnam concedes that he was Alyssa's
primary care provider from March 25 through March 29, he
correctly points out that no livers became available during
those few days. He also correctly notes that no evidence
suggests that he ever advised the Alexanders to reject a
liver transplant. He alternatively argues that if he was
negligent in giving advice during those few days, his
negligence was not a factor in causing Alyssa's death.

The Alexanders respond that the evidence shows that at
the time Dr. Putnam assumed primary care of Alyssa on
March 25, he knew that Dr. Reyes had concluded that a
transplant was the only way to save Alyssa. Dr. Putnam
also knew that Dr. Reyes already twice had offered Alyssa
a liver and that she was still on the waiting list. Dr. Putnam
also knew that Drs. Neigut and Orenstein were reluctant to
make such an assertive recommendation.

Additionally, one of the Alexanders' expert witnesses, Dr.
Brewer, testified that in mid-March, a "very, very ominous
turn of events" occurred. App. at 571. According to Dr.
Brewer, tests in mid-March showed a reduction in the
production of certain enzymes, an indicator that Alyssa's
liver was failing and was so damaged that it never would
recover. Id. If Dr. Putnam had reviewed Alyssa's chart
properly and recognized these warning signs, the
Alexanders argue, he would have recommended
transplantation. He did not, and on April 1, the Alexanders
rejected the third liver.

It is true that Dr. Putnam was no longer Alyssa's primary
care provider on April 1. Nonetheless, the third liver
became available just a day or two after his primary care of
Alyssa ended. In this regard, the record is unclear whether
Dr. Putnam's primary care of Alyssa ended on March 29 or
March 30. Thus, it was reasonable for a jury to conclude
that Dr. Putnam was negligent in not informing the
Alexanders about Alyssa's deterioration in mid-March and
in not recommending that they accept the next available
liver. The evidence suggests that Dr. Putnam's negligence
was less than Dr. Neigut's or Dr. Orenstein's, and the
Alexanders recognize as much. Nevertheless, record
evidence supports the jury's finding that Dr. Putnam was

                               12
negligent and that his negligence contributed to Alyssa's
death. Thus, the district court did not err in denying his
Rule 50 motion for a judgment as a matter of law.

D. The Cross-Appeal

On cross-appeal, the Alexanders argue that the district
court erred by reducing the jury's award for medical
expenses by $8,943.96, the amount of expenses incurred at
the two hospitals where Alyssa was taken before being
transferred to Children's Hospital. The Alexanders assert
that they should be reimbursed for the expenses incurred
at the other two hospitals because the doctors' negligence
rendered those expenses futile. Plainly, this argument lacks
merit and requires little discussion.

In fact, the Alexanders recognize that they are entitled to
"damages that reasonably flow from the tortious act." Br. at
20. Here, the doctors' only possible tortious act was failing
to recognize and recommend to the Alexanders that a liver
transplant was the only way to save Alyssa's life. Obviously,
the medical expenses the Alexanders incurred before Alyssa
ever came under the care of these doctors did not
reasonably flow from the negligence of these doctors.

V. CONCLUSION

For the foregoing reasons, to the extent that the doctors,
i.e., Dr. Putnam, appeal from the order denying the motion
for a judgment as a matter of law in its order of May 15,
1998, we will affirm. To the extent that the doctors appeal
from the order of July 1, 1998, denying their motion for a
new trial, we will reverse. We also will reverse the order of
August 25, 1998, entering a final judgment for the
Alexanders but will affirm the order to the extent that it
denied the Alexanders a recovery of $8,943.96 for expenses
before Alyssa was transferred to Children's Hospital. We
will remand the case for a new trial and for such other
proceedings as may be appropriate consistent with this
opinion. The parties will bear their own costs on this
appeal.

                                13
DOWD, District Judge, concurring:

Although I concur completely in Judge Greenberg's
opinion, I write separately merely to clarify some points
which I believe may provide additional guidance to district
courts.

This case, involving a young girl who lost her life, is
naturally laden with emotion. It is no surprise that Alyssa's
parents want to place responsibility for her death
somewhere. What parent would not long to find a reason
for the untimely death of a child? Unfortunately, the
extremely sympathetic and sensitive nature of this case
puts it squarely in a category of cases that can be difficult
to deal with because ultimate resolution of the issues may
not be particularly satisfying to any of the parties involved.
Nonetheless, courts of law are often asked to resolve just
such controversies. In doing so, a court must attempt to set
aside raw emotion and/or personal preferences and simply
apply the law.

An important issue in this appeal is whether the district
court erred in refusing to instruct the jury on the defense
of contributory negligence. As properly pointed out by
Judge Greenberg, "under Pennsylvania law, which is
applicable here, if there is any evidence of contributory
negligence in a medical malpractice case, the court must
submit the issue to the jury, even if the evidence to the
contrary is strong." Maj. Op. at 7 (citing cases). One case
not cited by Judge Greenberg is even stronger in its
requirement that the issue go to the jury. In Berry v.
Friday, 472 A.2d 191 (Pa. Super. Ct. 1984), 1 the appellant
argued that the contributory negligence charge given by the
trial court constituted error because the facts of the case
did not allow for an inference of contributory negligence.2
The court stated:
_________________________________________________________________

1. In Berry, malpractice was alleged where a treating physician permitted
his patient with a heart condition to return to work without first
inquiring as to the specific nature of the patient's work duties which, as
it turned out, entailed heavy lifting.

2. In instructing the jury on contributory negligence, the trial court
"[tied] in the law with its possible application to the facts,
specifically
mentioning Mr. Berry's weight and smoking problems." Berry, 472 A.2d
at 194 (footnote omitted).

                               14
       While we agree that the evidence in the case does not
       strongly favor a finding of contributory negligence, we
       cannot ignore the slim possibility. As stated by our
       Supreme Court, "where there is any evidence which
       alone would justify an inference of the disputed fact, it
       must go to the jury, no matter how strong or
       persuasive may be the countervailing proof."

Id. at 194 (quoting Heffernan v. Rosser , 419 Pa. 550, 554-
55, 215 A.2d 655, 657 (1966)). Like it or not, Pennsylvania
law gives very little discretion to the trial judge 3 and
requires a contributory negligence charge even when
contributory negligence is only a slim possibility. 4

Judge Alito is troubled by the fact that, in his view, the
Alexanders cannot be found to have acted unreasonably in
following the advice of their primary care physicians. Dis.
Op. at 21. Maybe that is true; but that is precisely the issue
which a jury, not a trial judge, must decide under
Pennsylvania law. The trial judge's role is to ascertain
whether there is "any evidence" which might support a
finding of contributory negligence. If, as in the instant case,
there is such evidence, it is for the jury to decide whether
there was contributory negligence. To resolve that question,
the jury, not this court, will have to decide whether the
Alexanders' conduct was reasonable under the
circumstances. If their conduct was not reasonable, they
may be found contributorily negligent if that conduct is also
found to be a proximate cause of Alyssa's death.

My thoughts on this matter are somewhat influenced by
Fish v. Gosnell, 463 A.2d 1042 (Pa. Super. Ct. 1983). In
that case, Fish was plowing snow out of his driveway,
_________________________________________________________________

3. Often a trial judge has the duty and the discretion to determine
whether there is sufficient evidence for an issue to go to the jury. Under
Pennsylvania law, however, it appears that even a scintilla of evidence on
the issue of contributory negligence is sufficient to constitute a jury
issue.

4. The Berry court further noted that"a party's negligence must be
submitted to the jury unless there is no evidence from which an
affirmative finding could be made without resort to speculation." Berry,
472 A.2d at 194 n.4 (emphasis added) (quoting Yandrich v. Radic, 435
A.2d 226, 228 (Pa. Super. Ct. 1981)).

                               15
operating his garden tractor plow near the berm of the
highway. As Gosnell drove by in his automobile, he struck
Fish, resulting in severe and permanent injuries. A jury
found Gosnell 80% negligent and Fish 20% negligent,
awarding Fish a net verdict of $64,000. The trial court later
added 10% per annum in pre-award delay damages under
Pa.R.Civ.P. 238. On appeal, Fish's argument that the trial
court erred in refusing to instruct on the defense of
assumption of the risk was rejected.

In the instant case, there has apparently never been an
argument relating to assumption of the risk. However, the
Fish court's discussion of that issue throws some light on
the concept of contributory negligence in a situation where,
as here, great loss has been suffered by the persons against
whom the defense is leveled. On the theory that these
persons have suffered enough, a trial judge might be
reluctant to permit the contributory negligence defense.
Fish, however, illuminates:

       Prosser explains that the negligent encountering of
       traffic is not assumption of the risk by this example, "A
       pedestrian who walks across the street in the middle of
       a block, through a stream of traffic travelling at high
       speed, cannot by any stretch of the imagination be
       found to consent that the drivers shall not use care to
       avoid running him down." W. Prosser, [Law of Torts] at
       445. Accord Hildebrand v. Minyard, 16 Ariz.App. 583,
       494 P.2d 1238 (1972).

       . . . [Fish] may have been foolhardy and negligent, but
       he cannot be said to have consented that oncoming
       drivers abandon their duty of care to keep their
       vehicles under sufficient control in the snowy
       conditions to avoid a collision. . . . [Fish's] entire
       course of conduct is properly analyzed as possible
       negligence, and was thus correctly submitted to the
       jury as possible comparative negligence. . . .

Fish v. Gosnell, 463 A.2d at 579.

A properly instructed jury might ultimately conclude that
the Alexanders acted unreasonably, precisely because the
advice of Alyssa's primary care physicians and consulting
specialists was in stark conflict, that the Alexanders were

                               16
fully informed regarding the risks of chelation as opposed
to transplantation, and that they were contributorily
negligent for having chosen to pursue the less aggressive
therapy in the face of the very real risk of Alyssa's death
absent a liver transplant. On the other hand, a properly
instructed jury might also find that the Alexanders acted
entirely reasonably precisely because even the doctors
could not agree on what should be done. The jury might
conclude, exactly as Judge Alito would, that the physicians
should not "escape all or part of the liability for their
malpractice because the young woman and her parents
were foolish to have followed their bad advice." Dis. Op. at
18.

In addition, as in Fish, supra, a reasonable jury could
find that the Alexanders were negligent to ignore the advice
of specialists (which made clear that Alyssa would probably
die without a liver transplant) in favor of the advice of non-
specialists (who recommended less aggressive treatment),
while at the same time finding (as the jury did in this case)
that the defendants had abandoned their duty of care. The
Alexanders, like people stepping out into traffic, could still
reasonably expect that their doctors, like the drivers, would
exercise due care under the circumstances. It is possible for
a jury to find negligence on both sides, in which case
damages must be apportioned under Pennsylvania's
Comparative Negligence Act. 42 Pa.C.S.A. S 7102.

No matter how strong might be this court's opinion or
preference as to how this case should turn out, no matter
how troubling this court might find the notion that the
Alexanders, who have already suffered a great loss,
somehow contributed to that loss, the issue of contributory
negligence is not a determination for the court. The issue
should have been submitted to the jury.

                               17
ALITO, Circuit Judge, dissenting:

The negligent advice provided by the defendant
physicians was found by the jury to have caused a young
woman's death,5 and the defendants do not contest the
sufficiency of the evidence supporting that finding. They
now argue, however, that they should escape all or part of
the liability for their malpractice because the young woman
and her parents were foolish to have followed their bad
advice. The majority holds that the trial judge should have
charged the jury on this defense. In my view, however,
there is no evidence that the girl and her parents were
negligent. Their only mistake was to trust the defendants'
advice, which, although negligent, was not so implausible
on its face that lay people should have known better than
to have followed it. I therefore dissent.

I.

It is important to keep in mind that the jury found that
the defendants "were negligent in advising [the Alexanders]
regarding options for the treatment of her condition," see
app. at 1860, and that the defendants do not dispute the
fact that there was sufficient evidence to support this
finding. The defendants, contrary to the advice of the
experts who were consulted regarding Alyssa's condition,
never recommended a liver transplant but instead
advocated the use of chelation therapy.

1. Dr. Scheinberg

Dr. Scheinberg, an expert on Wilson's disease, testified
that when the livers became available, chelation therapy
was not a reasonable option. See App. at 686-87. By failing
to recommend strongly in favor of a transplant, Dr.
Scheinberg testified, the defendants violated the applicable
standard of care. See id. at 687.
_________________________________________________________________

5. See App. 1861 (verdict sheet showing jury found defendants'
negligence was "a substantial factor in causing Alyssa Alexander's
death").

                               18
2. Dr. Neigut

Dr. Neigut, one of the defendants, testified that when the
second liver became available, she advised the Alexanders
that "there was no clear-cut indication that[a liver
transplant] would be imperative . . . to avoid death" and
that the transplant was not "the only option." Id. at 349.
Dr. Neigut stated that when the third liver became
available, she told Mrs. Alexander that she "did not see an
urgent need at that point to pursue the transplant." Id. at
359. She also testified that she advocated chelation therapy
and explained to the Alexanders that Alyssa would be in a
better condition in the long-term if they avoided a
transplant. See id. at 360.

Dr. Neigut also said that it was "reasonable" for the
Alexanders to rely on her advice because she was their
primary care physician. See id. at 373-74. She testified
that, as Alyssa's primary care physician, she had daily
contact with Alyssa and was "primarily responsible for
collating all [of the] information, for reasoning through all
[of the] information, and making recommendations to the
family." Id. at 373.

3. Dr. Orenstein

Dr. Orenstein, another defendant, testified that when the
first liver became available, she "agreed with" the
Alexanders that chelation therapy was a reasonable way to
proceed. See id. at 408. Dr. Orenstein also testified that she
discussed the risks of electing to continue chelation therapy
but stressed that chelation therapy was the "preferred"
method of treatment. See id. at 440. Dr. Orenstein did not
dispute that she told the Alexanders that it would be
appropriate for them to reject the livers. See id. at 425-26.
Dr. Orenstein further testified that her recommendations
were reasonable, despite Dr. Reyes's contrary suggestions,
because she "was examining Alyssa everyday (sic) and going
through things in more detail than . . . Dr. Reyes had the
time to do . . . ." Id. at 414.

4. Mr. Alexander

Mr. Alexander testified that the defendants persuaded the
family to reject the liver transplant option in favor of

                               19
chelation therapy. For instance, Mr. Alexander testified that
Dr. Neigut recommended that they should "pass" on the
livers. See id. at 885. He testified that Dr. Neigut told the
Alexanders that Alyssa had a good chance of survival
without a transplant and that the chelation therapy was
improving Alyssa's condition. See id. Mr. Alexander also
testified that Dr. Orenstein stated that "everything looks
great" and that "she doesn't see any need at all for a
transplant." Id. at 818.

5. Mrs. Alexander

Mrs. Alexander testified that Dr. Neigut stated that a liver
transplant was not necessary. See id. at 904. She further
testified that Dr. Orenstein recommended that they should
continue chelation therapy because Alyssa's lab reports
were improving. See id. at 901.

II.

The majority notes that, according to the testimony of
Drs. Orenstein and Neigut, they never advised against a
transplant. See Maj. Op. at 9. However, it is undisputed
that they never advised in favor of a transplant until it was
too late and that they instead consistently recommended
chelation therapy. It is obvious, therefore, that the jury
inferred that the defendants implicitly advised against a
transplant (by instead recommending an alternative method
of treatment) and that this implicit recommendation was
negligent and was the proximate cause of Alyssa's death.
And, as previously noted, the sufficiency of the evidence to
support the jury's finding is not contested on appeal.

Therefore, the defendants are essentially arguing that,
although they negligently steered the family in a direction
that proved fatal, they should not be held fully responsible
for their actions because other doctors provided non-
negligent information. The real question before us, then, is
the following: in view of the fact that the defendants
implicitly advised against a transplant and that this advice
constituted medical malpractice, was there evidence that
Alyssa, a young woman hospitalized with a life-threatening
disease, and her parents, neither of whom had any medical
background, were contributorily negligent in heeding the

                               20
defendants' implicit advice rather than that of the
consultants who strongly recommended in favor of the
transplant? I do not think so.

The defendants have cited no Pennsylvania case, and I
have uncovered none, that requires a contributory
negligence charge under the circumstances presented here.
Indeed, the only cases even remotely similar held that the
instructions on contributory negligence were proper
because the plaintiffs failed to follow the advice of their
primary care physicians. See Ferguson v. Panzarella, 700
A.2d 927, 930 (Pa. Super. 1997) (holding contributory
negligence charge proper where plaintiff failed to attend
scheduled doctor's appointments); Morganstein v. House,
547 A.2d 1180, 1184 (Pa. Super. 1988) (holding
contributory negligence charge proper where plaintiff
disregarded physician's instructions about working and
taking medication).

Here, the Alexanders followed the advice of their primary
care physicians, and I fail to see how this can be deemed
unreasonable. Indeed, Dr. Neigut conceded at trial that the
Alexanders decision to rely upon her advice to forego the
livers and continue with chelation therapy was "reasonable"
because she was Alyssa's primary care physician. See App.
at 373-74. And, as their primary defense at trial, the
defendants argued that their decision to recommend
chelation therapy over liver transplantation was medically
reasonable. See Defendants' Closing Arg., App. at 1714
("[C]helation, [the] medical approach, was a reasonable one
. . . .").

I suppose that I can imagine an extreme case in which a
physician's advice is so transparently wrong that a
reasonable lay person would be negligent in heeding it.
Here, however, the defendants' advice was not so obviously
bad on its face that it fell into this category, and I do not
think that the Supreme Court of Pennsylvania would allow
them to escape all or part of their liability on contributory
negligence grounds. Except perhaps in truly extreme cases,
it is not negligent for a patient such as Alyssa or her
parents to follow the advice of primary care physicians. To
hold otherwise puts patients in an impossible position,
undermines the relationship between patients and their

                               21
primary care physicians, and gives grossly negligent
physicians an unwarranted way to escape malpractice
liability. I therefore dissent.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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