APPEAL FROM FINAL JUDGMENT ENTERED BY THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, AND FROM THE ORDER OF THE LOWER COURT DENYING PLAINTIFFS' MOTION FOR NEW TRIAL.
Rosenn, Forman and Garth, Circuit Judges.
This is an appeal from a denial of a motion for new trial of a medical malpractice action brought by Hanna Ayoub and his wife, Margaret, to recover damages for permanent paraplegia allegedly sustained by Mr. Ayoub as a result of the negligence of Dr. H. N. Spencer, the defendant physician. The complaint of the Ayoubs alleged that they were subjects of a foreign nation*fn1 and Dr. Spencer was a citizen of Philadelphia, Pennsylvania, thus furnishing diversity jurisdiction. The case went to trial in the United States District Court for the Eastern District of Pennsylvania to a jury, which returned a verdict for Dr. Spencer. The trial Judge subsequently entered a final judgment, after denying the Ayoubs' motion for a new trial.
Mr. Ayoub was employed by his brother, Naim Ayoub, as a furniture refinisher, and had fallen on November 5, 1971, while handling a dresser at work. He allegedly injured his back, for later that day he began experiencing pain between his shoulders that radiated bilaterally from his back around to the front of his chest. Mr. Ayoub was unable to return to work and saw three doctors before being referred by an agent of the workmen's compensation carrier to the appellee, Dr. H. N. Spencer, an orthopedic specialist. Dr. Spencer saw Mr. Ayoub and his wife*fn2 on December 14, 1971, at which time he conducted a short examination, took X-rays and prescribed a back brace, pain medication and muscle relaxants. Additionally, Dr. Spencer scheduled another appointment for December 27, 1971, during which he performed no examination other than ascertaining if the brace fitted properly. There was sharply conflicting testimony concerning whether Dr. Spencer scheduled another appointment for January 10, 1972 for Mr. Ayoub, and whether he told Mr. Ayoub that he would be able to return to light work on January 15, 1972. It is agreed, however, that Mr. Ayoub never returned to see Dr. Spencer and did go back to work on approximately January 15.
In early August 1972, Mr. Ayoub saw a general practitioner who referred him to a neurosurgeon, Dr. Haft. On August 10, 1972, while driving to see Dr. Haft, Mr. Ayoub became permanently paralyzed.
Appellants, the Ayoubs, raise three issues. First, they contend that the District Judge failed to instruct the jury properly on contributory negligence. Second, they argue that the District Judge erred in his charge on the issue of proper diagnostic testing. Third, they urge that the District Judge erred in permitting defense counsel to attack plaintiffs' credibility on the basis of a document not received in evidence.
At the close of evidence, the trial judge instructed the jury on the issue of contributory negligence as follows:
"Let me read that again: An injury may be said to be proximately caused by an act or a failure to act whenever it appears from the evidence in the case that the act or the omission played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the act or omission.
"In that respect in a case such as this, because of what I have mentioned to you, the testimony we have heard about this kind of condition and its consequences generally, you should consider the following: In determining whether the acts of the defendant were the proximate cause of the injury of which the plaintiffs complain you may also consider whether the husband-plaintiff, that is, Mr. Ayoub's failure to take subsequent medical care and treatment was a substantial factor in bringing about those injuries. The defendant in this case has raised the issue of what we call contributory negligence. That is, if you should find that what was a cause of this was the plaintiff's own conduct, failure to go get other medical treatment, then you may conclude that he is barred from recovery because his own conduct was a substantial factor in bringing about the injury, and in Pennsylvania a person who is what we say contributorily negligent is barred from recovery if their conduct was a substantial factor in bringing about the injury." (Tr. 8-22 to 8-23).
"The second factor if you conclude that is so and Dr. Spencer was negligent is the item I mentioned about contributory negligence. Even though Dr. Spencer was negligent, and even though what he did was a proximate cause of Mr. Ayoub's injury, you may now take up the question as to whether or not Mr. Ayoub himself was contributorily negligent. If you conclude that he contributed to his own injury by the same standard that was a proximate cause, that is a substantial factor, as I defined it to you, then the plaintiff is not entitled to recover and the verdict should be in favor of Dr. Spencer." (Tr. 8-23 to 8-24).
"The plaintiff will be entitled to recover if you believe under the rules that I have given you he has made out his case in the standards that I have mentioned showing that Dr. Spencer was negligent and that was a proximate cause and also that he has not been contributorily negligent." (Tr. 8-35 to 8-36).
Appellants' attorney took exception on the ground that the charge to the jury inextricably intertwined the issue of contributory negligence with that of proximate cause.
Diversity of citizenship being the sole basis for federal jurisdiction here, Pennsylvania substantive law is applicable. McNello v. John B. Kelly, Inc., 283 F.2d 96, 99 (3d Cir. 1960). Under Pennsylvania law, Dr. Spencer had presented sufficient evidence to warrant ...