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WASFI v. CHADDHA3/26/1991
an application of this standard practice. In addition, Riccio's counsel elicited expert testimony to the effect that the timing of the CAT scan - before carbogen therapy or after carbogen therapy - was a matter of professional opinion as to which physicians differed. Finally, both defendants offered evidence that by the time Wasfi came to Riccio for treatment, no CAT scan would have made a difference, for the damage had already been done.
The trial court included in its charge to the jury specific instructions on (1) "intervening cause" and (2) "schools of thought" as they affect the standard of care. After the charge was given, court adjourned for the weekend.
When court resumed, the parties presented their exceptions to the charge. Wasfi excepted to the "schools of thought" charge as unwarranted by the
evidence, and all parties excepted to the instruction on intervening cause. Persuaded by some of the exceptions, the trial court gave a revised instruction on the subject of proximate cause in an attempt to eliminate the problems with the earlier charge on intervening cause. It did not revise or delete the instruction on "schools of thought." It explained the verdict forms, which provided for a general verdict as to each defendant, but no special interrogatories were submitted. The jury began deliberating that day.
The next day the jury requested clarification of the intervening cause instruction. In response, the court told the jury to disregard the second instruction and issued a third and final instruction on intervening cause. Introducing the third charge, the judge said "I'm going to go back in part to my original charge." Wasfi's and Riccio's counsel both took exception to that statement as well as to other parts of the charge. After deliberating another day, the jury returned general verdicts in favor of Riccio and Chaddha. On appeal, Wasfi challenges the trial court's charges on (1) "schools of thought" and (2) intervening cause.
I
Wasfi contends that the trial court improperly gave an instruction on "schools of thought" when there was no evidence that Riccio had adhered to and acted according to the dictates of a particular school of medical thought distinct from that followed by her own expert witnesses.
The trial court included the disputed instruction in its first charge to the jury, and did not revise it in giving the subsequent curative instructions. The disputed instruction followed a lengthy general instruction on medical malpractice, including the applicable standard
of care. After this instruction, the trial court discussed the claims against each doctor. As to Wasfi's claims against Riccio, the trial court stated:
"Now as to Dr. Riccio who undertook treatment of Mrs. Wasfi in his capacity as otolaryngologist, it is his alleged failure to properly diagnose and order proper follow-up studies when he saw Mrs. Wasfi in his office on October 29th, 1982, which is the gravamen of their claim against him. In essence, however, this claim is substantially the same as that presented against Dr. Chaddha. That is the failure to timely and skillfully diagnose her ailment. Consequently the same principles of law that apply to Dr. Chaddha relating to a physician's duty to properly diagnose a patient's ailment apply with equal force to Dr. Riccio."
The court then gave the challenged instruction.
"There is, however, one specification of negligence that is peculiar to Dr. Riccio. That specification appears in paragraph 8e of the third count of the complaint and is in essence a claim that Dr. Riccio prescribed a course of treatment that was u
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