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Is this the topic of the next Jerry Springer show or the question in a recent Pennsylvania Superior Court case: “Was an erroneous syphilis diagnosis the proximate cause of the breakdown of a marriage, physical violence and loss of employment?” It’s not clear what Springer would say about the issue, but a three-judge Pennsylvania Superior Court panel recently decided that a hospital cannot be blamed for the demise of the plaintiffs’ marriage just because it mistakenly told them their newborn daughter had syphilis. The court in Brown v. Philadelphia College of Osteopathic Medicine focused on causation. Led by Judge Debra Todd, it said there were substantial reasons for the split other than the hospital’s negligence, such as the husband’s unfaithfulness. According to Todd’s 18-page opinion, Yvette and Gerald Brown’s daughter tested positive for syphilis soon after her delivery in August 1991 at the Philadelphia College of Osteopathic Medicine. A PCOM physician allegedly told Yvette that the baby could only have contracted the disease from her. According to Yvette’s testimony, when Gerald arrived at the hospital, she told him about the diagnosis and asked if he had been faithful to her. Gerald admitted to having an affair with a co-worker since the last trimester of Yvette’s pregnancy. Todd said the affair did not end until sometime after the child’s birth. The baby remained in the hospital, where she received injections to treat the syphilis. Yvette received one injection to treat her syphilis. In October 1991, Yvette asked that her daughter be tested for syphilis again. This time, the Browns learned that neither the child nor the mother actually had the disease. Test results received that December showed that Gerald did not have syphilis either. Yvette testified that “after the diagnosis the couple experienced ‘a lot of arguing, a lot of accusations, distrust’ which they had not previously experienced in their marriage.” Todd said Gerald eventually became physically abusive to Yvette. Todd said an episode in November 1991 was central to the Browns’ damage claims. Yvette was a police officer for the City of Philadelphia at that time. One night, Gerald became suspicious when Yvette’s male partner called her on the telephone at home. Yvette said Gerald hit her several times. She then grabbed her service revolver and chased him out of the house. Yvette testified that she fired several bullets after Gerald, and that they started to scream at each other. Both Yvette and Gerald were arrested. Yvette was later terminated from her job for conduct unbecoming a police officer. She said she believed she could never work as a police officer again anywhere. The Browns separated after the November incident, but Gerald returned to the marital home in February 1992. The parties separated again in 1994 and have remained separated. Todd said they have not yet divorced. The Browns sued PCOM alleging that “as a direct and proximate result” of its negligence, Yvette suffered severe physical and psychological damage and loss of earning capacity. Gerald claimed he was deprived of consortium, conjugal services and the companionship of Yvette. After a six-day trial, a jury decided PCOM had committed negligence and negligent infliction of emotional distress, awarding $500,000 in damages to Yvette and $10,000 to Gerald. Philadelphia Common Pleas Court Judge Sandra Mazer Moss denied post-trial motions and granted the Browns’ motion for delay damages. Todd said the award totaled $666,983 after the addition of delay damages. On appeal to the Superior Court, PCOM argued the Browns had not proved the causation between its alleged negligence and the Browns alleged injuries. Todd agreed causation was the main issue in the case, having already determined that PCOM owed a duty to the Browns, that the duty was breached, and that its conduct was an actual cause to the harm they suffered. Todd said even if actual causation has been proved, there still remains the issue of proximate, or legal, cause. Todd then launched into an explanation of the differences between actual cause and proximate cause, which she said are “often hopelessly confused.” A finding of proximate cause asks a court to find “an actor’s conduct the legal cause of harm ‘when it appears to the court highly extraordinary that [the actor's conduct] should have brought about the harm,’ ” the opinion said. Proximate cause must be established before actual cause comes before the jury. “As a threshold issue, therefore, the trial judge must determine whether the alleged tortfeasor’s conduct could have been the proximate, or legal, cause of the complainant’s injury before sending the case to the jury,” Todd said. “In the present case, the learned trial judge made no such threshold determination at any of the appropriate junctures for him to have done so. “Instead, the trial court denied PCOM’s motions for a nonsuit, a directed verdict and judgment notwithstanding the verdict. This was an error of law that controlled the outcome of the present case, and on this basis we are constrained to reverse.” The state Supreme Court made a statement that the question in a determination of proximate cause is “whether the defendant’s conduct was a ‘substantial factor’ in producing the injury,” in the 1983 case Vattimo v. Lower Bucks Hosp. Inc. And Todd said many of the commonwealth’s courts have relied on Section 433 of the Restatement (Second) of Torts when considering proximate cause. The statute says three factors are key in deciding when an actor’s conduct was a substantial cause of harm to another: � The number of other factors that contributed to the harm and to what extent they did so. � Whether the actor’s conduct has created a force that was in continuous and active operation up until the time of harm, or created that situation that would be harmless unless others acted on it. � Lapse of time. Using those guidelines, Todd said it was “abundantly clear” that factors other than PCOM’s negligence had a more substantial effect on causing the Browns’ harm. “Mr. Brown conducted an extramarital affair and confessed this to this wife at a time when the affair was still ongoing. It is this affair and his confession to it, together with Mr. Brown’s suspicions that his wife was having an affair herself, not the false diagnosis of syphilis, that had the greatest effect in bringing about the marital discord and eventual breakdown for which the couple seeks compensation,” Todd said. Todd said it was even clearer that the false test results were not the proximate cause of Yvette’s loss of earning capacity. Yvette’s independent act of shooting her service revolver in the direction of her husband and her employer’s determination about that conduct caused her unemployment, the judge said. Todd said Yvette could not recover for any alleged emotional distress because she did not present any evidence that the distress was accompanied by a physical impact, as required by law. The court rejected Yvette’s argument that she was impacted physically though evidence of anger, rage and weight gain. The court decided it was also bound by a decision made earlier this year in Doe v. Philadelphia Community Health Alternatives AIDS Task Force that there is no recovery for erroneous diagnosis of a disease unless there has been a physical impact. “Accordingly, we recognize that in this case the erroneous diagnosis alone certainly and foreseeably caused an emotional upset, absent the legally requisite physical impact,” Todd said.

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