# Hamil v. Bashline

> Superior Court of Pennsylvania · September 27, 1976 · 243 Pa. Super. 227

URL: https://www.frixlaw.com/law-library/cases/9766333

## Case

- **Full name:** Martha S. HAMIL, Administratrix of the Estate of Kenneth C. Hamil, Appellant, v. H. Woodrow BASHLINE, Et Al.
- **Court:** Superior Court of Pennsylvania
- **Decided:** September 27, 1976
- **Citations:** 243 Pa. Super. 227; 364 A.2d 1366; 1976 Pa. Super. LEXIS 2832
- **Precedential status:** Published
- **Opinion:** Concurrence by Hoffman
- **Judges:** Watkins, Jacobs, Hoffman, Cercone, Price, Van Voort Spaeth, Spaeth
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated by Hamil v. Bashline, 481 Pa. 256 (1978).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9766333

## Opinion text

*237 HOFFMAN, Judge
(concurring):
Appellant, plaintiff in- a medical malpractice action, contends that the lower court erred when it instructed the jury on the issue of proximate cause. This case comes to us after a second trial which was ordered by our Court. Hamil v. Bashline, 224 Pa.Super. 407 , 307 A.2d 57 (1973), allocatur denied, 224 Pa.Super. xxxvi . The Majority overrules Bashline I, While I agree with the reasoning of the Dissenting Opinion by CERCONE, J., which reaffirms and clarifies the holding of Bashline I, I do not agree that the charge of the lower court considered in its entirety was defective that we should reverse the judgment of the lower court.
The facts leading to the instant suit were developed at both trials and were summarized in the previous opinion of this Court: “[Pjlaintiff called the Bashline Hospital around 11:40 p. m. on May 31, 1968, advising the night supervisor, Margaret Montgomery, that plaintiff’s husband, the deceased, aged 41, was suffering from severe chest pains. Plaintiff was told by Mrs. Montgomery to bring him to the hospital, and that a doctor was there. The deceased was taken to the hospital at approximately 12:15 a. m. June 1, 1968. The doctor assigned to emergency duty was not there and could not be located. Doctor Johnston, one of the defendants, was present and although informed by the night supervisor of the deceased’s condition did nothing more than order an EKG 1 taken. The EKG machine did not function, apparently as a result of being plugged into a defective outlet. Its malfunction was confirmed by Dr. Johnston who ordered another machine be used and then he left the hospital. Another EKG machine was not located and the decedent, receiving no treatment, was taken immediately by the plaintiff to the office of Dr. Saloom in Harrisville, Penn *238 sylvania. A short time after his arrival and during the process of taking an EKG, the deceased died.” 224 Pa.Super, at 408, 307 A.2d at 58 . Although the Bashline Hospital did not have a coronary care unit, testimony at trial established that it had available beds, oxygen, pain relieving drugs, and equipment to effect defibrillation, all of which are recognized as useful in the treatment of myocardial infarction. 2 Appellant’s expert witness, Dr. Cyril H. Wecht, testified that, in his opinion, given proper medical care, Mr. Hamil would have had a 75% chance of survival. He testified that, in his opinion, the substantial chances that the deceased would have had for survival were terminated by the failure of the hospital to render the kind of examination which would have diagnosed the heart attack and by the consequent failure to provide prompt treatment. The appellees’ expert, Dr. John B. Treadway, on the other hand, testified that nothing that the appellees could have done would have prevented the death of Mr. Hamil.
At the conclusion of the first trial, the court concluded that Dr. Wecht’s testimony did not meet the standard of reasonable medical certainty required of medical expert testimony in establishing proximate cause. See Houston v. Canon Bowl, Inc., 443 Pa. 383, 386 , 278 A.2d 908, 910 (1971); McMahon v. Young, 442 Pa. 484 , 276 A.2d 534 (1971); Menarde v. Philadelphia Transportation Company, 376 Pa. 497 , 103 A.2d 681 (1954); Hodgdon v. Kerr Salt Company, 176 Pa.Super. 177 , 106 A.2d 621 (1954). Because the court reasoned that the jury would be left to conjecture and surmise on the issue of proximate cause, it struck the testimony of Dr. Wecht and directed a verdict for the appellees. This Court reversed and held that the evidence of causation was sufficient to allow the case to go to the jury. We, therefore, awarded a new trial. Upon retrial, Dr. Wecht gave substantially the same tes *239 timony; the defense witnesses also testified as they had at the first trial. The jury returned a verdict for the defendant; and, by special interrogatories, indicated that they found appellees negligent but found no proximate cause.
The Majority interprets our opinion in Bashline I to allow proof of a causal connection between a defendant’s conduct and a plaintiff’s injury solely by evidence that the defendant’s conduct increased the risk of harm: “Thus, the opinion indicates that after receiving evidence that the negligent conduct increased the risk of harm, the jury may conclude that the negligent conduct caused the harm. The problem with this theory is that an expert’s testimony that is less than certain leaves the jury with insufficient evidence to make that conclusion.” (243 Pa.Super. at 233, at 1369.) The Majority holds that Bashline I misinterpreted § 323 of the Restatement (Second) of Torts (1965) to mean that evidence of an increased risk of harm may be equated with proof that the defendant’s negligence proximately caused the harm. The Majority concludes that the holding of Bashline I violated the established principle that expert testimony must conform to a prescribed standard of certainty because Bashline I would allow a jury to infer from proof of an increased risk of harm caused by the defendant’s negligence that, in fact, the harm was proximately caused by defendant’s negligence: “The crux of appellant’s position is that the decedent died because appellees unreasonably failed to save him. Appellant is not attempting to show that the decedent’s death was affirmatively caused by appellees, but rather that his life was not saved as a result of appellee’s negligent conduct. In this context, an expert would have to testify that, given proper medical treatment, Mr. Hamil would have survived. Dr. Wecht did not so testify.
“It may be that no expert can ever testify that a person would have survived a heart attack. If it is wrong *240 to forbid recovery under such circumstances, then the fault lies .not within the requirement that expert testimony be certain, but within the requirement that there be a causal link between defendant’s conduct and plaintiff’s harm. If causation is to be regarded as an element of a cause of action for negligence, then expert testimony must meet a standard of certainty. The expert testimony in this case did not meet that standard and was properly stricken.” (243 Pa.Super. at 236, at 1370) (Emphasis supplied). Therefore, the Majority would overrule Bashline I.
I believe that the problem created by the Majority opinion lies not with the requirement that there be a causal link between the allegedly negligent conduct of the defendant and the harm to the plaintiff, but rather with the application of a requirement of certainty for expert medical testimony which is poorly adapted to cases such as the one at bar. I do not agree that Bashline I must be overruled. It should be clarified. However, I agree that we should affirm the judgment of the lower court because I believe that the charge of the lower court on the issue of causation taken as a whole was adequate.
I. Medical Expert Testimony of Proximate Causation
Contrary to the view expressed by the Majority, Bash-line I did not eliminate the requirement that a plaintiff in a medical malpractice case must prove negligence, proximate causation, and injury. Cohen v. Kalodner, 236 Pa.Super. 124 , 345 A.2d 235 (1975), interpreting Bashline I, held that a jury instruction tendered by an unsuccessful plaintiff was properly refused because it fostered the erroneous impression that the appellant could have recovered by proving only negligence and increased risk of harm and because it did not adequately address the necessity of proving causation in case proceeding on the theory of negligence enunciated in Bash-line I. Although some language in Bashline I might give *241 rise to some misinterpretation the issue is not, as the Majority suggests, whether proximate cause must be proven when the plaintiff proceeds under § 323 of the Restatement (Second) of Torts (1965). It is clear that § 323 implicitly requires that the plaintiff establish a causal connection between the failure of a person to exercise reasonable care in the performance of services and the injury to the plaintiff if such harm results: “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increased the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking.” Restatement (Second), Torts § 323 (1965) (Emphasis supplied). We must decide, therefore, not whether, but how the plaintiff who proceeds under § 323 must prove the required causal relationship.
The Majority states the general rule that medical expert testimony on the issue of proximate cause must conform to a standard of certainty: “[A]n expert witness [must] testify not that the injury in question might have been or even probably was caused by the alleged negligence, but . . . that in his professional opinion the result in question came from the cause alleged.” Houston v. Canon Bowl, Inc., 443 Pa. 383, 386 , 278 A.2d 908, 910 (1971). See also McMahon v. Young, supra; Menarde v. Philadelphia Transportation Co., supra; Mudano v. Philadelphia Rapid Transit Co., 289 Pa. 51 , 137 A. 104 (1927); Vorbnoff v. Mesta Machine Co., 286 Pa. 199 , 133 A. 256 (1926); Moyer v. Ford Motor Co., 205 Pa.Super. 384 , 209 A.2d 43 (1965); DeMarco v. Fromyer Brick Co., 203 Pa.Super. 486 , 201 A.2d 234 (1964); Steiner v. Ostroff, 197 Pa.Super. 461 , 178 A.2d 799 (1962); Schwartz v. Feldman, 196 Pa.Super. 492 , 175 A.2d 153 *242 (1961); Hodgdon v. Kerr Salt Company, supra. Such a restrictive standard is not appropriate for cases like the instant one. In such cases we should only require that medical expert testimony establish to a reasonable degree of medical certainty that the increased risk of harm led to plaintiff’s injury.
The plaintiff in Menarde v. Philadelphia Transportation Company, supra, was injured when defendant’s streetcar started up before the plaintiff had alighted from the car. She sought to prove that the accident caused her to develop breast cancer. Her expert testified that he believed that the accident caused the breast cancer. The Court held that plaintiff’s expert medical testimony was sufficiently certain to be admitted and considered by the jury on the issue of proximate cause.
In Mudano v. Philadelphia Rapid Transit Co., supra, plaintiff was repairing a street when a car operated by the defendant struck a manhole cover plaintiff was carrying, which then fell to the ground injuring plaintiff’s right heel. Sixteen months after the accident, an ulcer formed on plaintiff’s injured heel. The plaintiff’s expert testified that the infection was probably caused by the injury rather than some other cause. This testimony was deemed too equivocal to pass muster under the general rule requiring certainty when it was considered in combination with the testimony of the defense expert categorically denying a causal connection.
The common thread running through these cases is the plaintiff’s reliance on medical expert testimony to link defendant’s negligence to remote, sometimes unlikely results. In cases dealing with causal factors on such a gross scale, the court’s insistence on certainty is hardly unreasonable. See also, Houston v. Canon Bowl, Inc., supra; Vorbnoff v. Mesta Machine Co., supra; Moyer v. Ford Motor Co., supra; DeMarco v. Fromyer Brick Co., *243 supra; Steiner v. Ostroff, supra; Schwartz v. Feldman, supra.
The facts of the instant case do not involve the operation of such large-scale forces and events; it involves the poorly understood activities of the human body. I do not believe that it is wise or necessary to apply the strict standard for admissibility and sufficiency of expert testimony, which has been applied in cases involving personal injury due to accident, to medical malpractice cases brought under § 323 of the Restatement. When the plaintiff has sustained injury, and that injury is preventable in a statistically definable percentage of cases if the patient receives prompt, competent treatment, it is unjust for our courts to deny recovery from one who has effectively terminated those chances of avoiding injury simply because the most that a medical scientist can truthfully say is that delay in diagnosis and treatment would probably lead to the poor result. While there is no way of determining within the realm of reasonable medical certainty whether or not the delay in diagnosis and treatment in any particular case was significant, an expert can truthfully testify to the effect that, in his opinion, the treatment employed fell below the level of acceptable community standards of medical practice, and increased the risk of harm, and that this deviation from acceptable methods of diagnosis and treatment was a substantial factor in the overall prognosis of the disease. See Zaslow, “Proof of Proximate Cause in Cancer Cases Alleging Delay in Diagnosis”, 44 Pa.Bar Assn.Q. 574. This testimony should be sufficient to get to the jury on the issues of defendant’s negligence and of proximate cause.
While the rule I propose admittedly falls below the standard of certainty required of expert testimony appropriate to the class of personal injury cases discussed above, I do not believe that it is a departure from estab *244 lished rules of tort liability generally. It is well-settled that no presumption or inference of negligence arises merely because medical treatment or a surgical operation terminates in an unfortunate result which might have occurred even though proper care and skill had been exercised. Lambert v. Soltis, 422 Pa. 304 , 221 A.2d 173 (1966); Smith v. Yohe, 412 Pa. 94 , 194 A.2d 167 (1963). In medical malpractice cases which involve an appraisal of the care and skill of a physician, a lay jury must be guided by the testimony of experts because the jury lacks the necessary knowledge and experience to render an intelligent decision without it. Denneny v. Siegel, 276 F.Supp. 281 (E.D.Pa.1967) (applying Pennsylvania law); Lambert v. Soltis, supra; Smith v. Yohe, supra. Although a physician ordinarily warrants neither a cure nor favorable results, and a physician will not be held liable for a mere mistake in judgment, a physician’s failure to employ recognized diagnostic techniques in order to form a plausible differential diagnosis can constitute actionable negligence. Smith v. Yohe, supra.
As noted, supra, it is obvious that a plaintiff must prove legal cause. See Cohen v. Kalodner, supra; Hamil v. Bashline, supra; Restatement (Second), Torts § 323 (1965); Cf. Noon v. Knavel, 234 Pa.Super. 198, 208 , 339 A.2d 545, 550 (1975). “It is well established in Pennsylvania that in order to find that defendant proximately caused an injury it must be found that his allegedly wrongful conduct was a substantial factor in bringing about plaintiff’s injury even though it need not be the only factor. Diakolios v. Sears, Roebuck & Co., 387 Pa. 184 , 127 A.2d 603 (1956); Simon v. Hudson Coal Co., 350 Pa. 82 , 38 A.2d 259 (1944); Krauss v. Greenbarg, 137 F.2d 569 (3rd Cir. 1943), cert. den. 320 U.S. 791 , 64 S.Ct. 207 , 88 L.Ed. 477 , rehearing denied 320 U.S. 815 , 64 S.Ct. 368 , 88 L.Ed. 492 ; Jenkins v. Nicholson, 162 F.Supp. 167 (E.D.Pa.1958). It is equally well established that defendant’s negligent conduct is not a substantial *245 factor in bringing about plaintiff’s injury if [the injury] would have been sustained even if the actor had not been negligent. Restatement of Torts, § 432; De Angelis v. Burns, 404 Pa. 230 , 171 A.2d 762 (1961); Simon v. Hudson Coal Co., supra.” Majors v. Brodhead Hotel, 416 Pa. 265, 271-72 , 205 A.2d 873, 877 (1965). Thus, the fact that some other cause concurs with the negligence of the defendant in producing an injury does not relieve the defendant from liability unless he can show that such other cause would have produced the injury independent of his negligence. Majors v. Brodhead Hotel, supra; Carlson v. A. & P. Corrugated Box Corporation, 364 Pa. 216, 223 , 72 A.2d 290 (1950).
The law is well settled that where negligent conduct concurs with an act of nature, the defendant is liable unless he can show that the other cause would have produced the injury independent of his negligent conduct. Bodick v. Harcliff Mining Co., 208 Pa.Super. 471, 474 , 222 A.2d 615 (1966). Accord, Duffy v. York Haven Water & Power Company, 233 Pa. 107 , 81 A. 908 (1911). Thus, a defendant’s negligence need not be the sole proximate cause only a proximate cause of plaintiff’s injuries. See also Bender v. Dingwerth, 425 F.2d 378, 380-81 (5th Cir. 1970); Rosario v. American Export-Isbrandtsen Lines, Inc., 395 F.Supp. 1192 (E.D.Pa.1975); Agnew v. City of Los Angeles, 134 Cal.App.2d 433 , 286 P.2d 556, 559 (1955).
I would, therefore, conclude that the problem lies not with the requirement that a plaintiff proceeding under § 323 of the Restatement (Second) establish the existence of proximate cause, but rather from the imposition of a standard of certainty upon expert testimony that is impossible to meet in situations where the concurrence of forces precludes anything but a statement of probabilities. 3 If we require such a standard of certain *246 ty, we bar recovery by plaintiffs who can prove that the defendant was negligent because he failed to adopt diagnostic or treatment procedures which in the medical community are recognized as indispensible in preventing precisely the type of harm which flows with statistical certainty from the absence of timely or proper medical intervention. If the plaintiff’s expert owns up to the limitations of medical knowledge, the Majority would put the plaintiff out of court. If he retains an expert who is willing to perjure himself in order to meet the legally required omniscience which the Majority imposes, then he recovers. The honest victim bears the loss; the less *247 scrupulous recover. Our system of law should not tolerate such a rule.
The rule I propose is not without support in a growing number of jurisdictions. In Hicks v. United States, 368 F.2d 626 (4th Cir. 1966), the administrator of the estate of a young, deceased woman proceeded against a government hospital and physician on the theory of negligence. The doctor on duty failed to use appropriate diagnostic techniques which would have determined whether or not symptoms presenting as a gastroenteritis were, in fact, an intestinal obstruction. The former problem indicated relatively minor medicinal treatment and bed rest; the latter required immediate surgery to prevent the death of the young woman. The district court, applying Virginia law, dismissed the complaint because the evidence was insufficient to establish that the doctor was negligent or that his erroneous diagnosis and treatment was the proximate cause of the plaintiff’s deceased’s death. The 4th Circuit reversed and concluded that because there was no dispute that the doctor failed to use established diagnostic techniques, he was negligent, and that because there was no dispute that an operation would have saved the patient’s life, proximate cause was established. Judge SOBELOFF further stated in well-reasoned, persuasive dicta: “When a defendant’s negligent action or inaction has effectively terminated a person’s chance of survival, it does not lie in the defendant’s mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on prompt *248 ly. Harvey v. Silber, 300 Mich. 510 , 2 N.W.2d 483 (1942).” Hicks v. United States, supra at 632. See also Schuler v. Berger, 395 F.2d 212 (3rd Cir. 1968) (Construing Pennsylvania law to be in accord with the 4th Circuit Court of Appeals in Hicks v. United States, supra).
In Rewis v. United States, 369 F.2d 595 (5th Cir. 1966), the Court adopted the requirement that the plaintiff established by expert testimony to a reasonable degree of medical certainty that an increased risk of harm was the cause of his child’s death when the plaintiff sought to recover for the child’s fatal, misdiagnosed aspirin poisoning: “The ultimate burden of proof is, of course, on the plaintiff, who, to recover, must show both failure to give proper diagnosis or treatment and proximate causation. However, plaintiff’s burden of going forward with evidence as to causation is satisfied and a prima facie case on causation is made out once he introduces evidence that the condition was one which would respond to medical treatment seasonably given and that there was a reasonable medical probability that had treatment been seasonably given the child would have continued to live. The question of reasonable medical probability. is, of course, normally the subject of expert testimony.” 369 F.2d at 603 .
The Eighth Circuit Court of Appeals, applying Arkansas law, in Jeanes v. Milner, 428 F.2d 598 (8th Cir. 1970), held a doctor liable for failing to diagnose seasonably a particularly virulent form of throat cancer in an 11 year old patient. Expert testimony established that the treating physician had negligently diagnosed the growth as benign and had negligently failed to forward biopsy slides to a back-up laboratory for further study. During the period of delay, the cancer progressed from a stage I cancer (in which the cancer is still localized) to a stage II cancer (in which the cancer has spread to adjacent areas). Expert testimony established that the delay *249 resulted in a reduction in chances for survival from 35% to 24%. The Court held: “[W]e cannot agree with the District Court’s holding that ‘there is no evidence from which the jury could find that the delay of approximately one month in the transmission of [the] slides could have been the proximate cause of [Tommy’s] failure to recover from his cancer, or to increase his pain and suffering or to shorten his life.’ Nor can we agree that the jury could ‘only find a verdict for the plaintiff based on speculation and conjecture.’ ” 428 F.2d at 604 . The Court, thus, directly adopted the dicta of Hicks and construed it to be in accord with Arkansas law. See also Stahlin v. Hilton Hotels Corp., 484 F.2d 580 (7th Cir. 1973) (Action for injury exacerbated by late diagnosis of a subdural hematoma was sustained on the basis of the Hicks case and on basis of Illinois law); Reeves v. North Broward Hospital District, 191 So.2d 307 (Fla.App.1966) (Action for wrongful death of plaintiff’s adult son from subdural hematoma twelve hours after discharge from hospital operated by defendant).
The growing number of jurisdictions which have either expressly or impliedly followed the Hicks decision suggest that, if an exception to the general rule requiring absolute certainty of medical expert testimony on the issue of proximate cause in cases involving the negligent failure to diagnose properly and to treat progressively harmful or fatal medical conditions must be created in order to permit recovery, we should create that exception now. See, e. g., McBride v. United States, 462 F.2d 72 (9th Cir. 1972) (fatal heart attack, Court construing Hawaii law); O’Brien v. Stover, 443 F.2d 1013 (8th Cir. 1971) (Jaw cancer, Court construing Iowa law); Bender v. Dingwerth, supra (myocardial infarction, Court applying Texas law); Brown v. United States, 419 F.2d 337 (8th Cir. 1969) (myocardial infarction, Court applying Missouri law); Clark v. United States, 402 F.2d 950 (4th Cir. 1968) (blocked ureter, Court applying Virginia *250 law); Watson v. United States, 346 F.2d 52 (5th Cir. 1965) (arteriosclerotic condition of the leg, Court construing Georgia law); Rosario v. American Export-Isbrandtsen Lines, Inc., supra (Court applying Pennsylvania law); Cooper v. United States, 313 F.Supp. 1207 (D.C.Neb.) (brucellosis, Court construing Nebraska law); Steeves v. United States, 294 F.Supp. 446 (D.C.S.Car.1968) (appendicitis, Court applying South Carolina law); Thomas v. Corso, 265 Md. 84 , 288 A.2d 379 (1972) (auto accident victim abandoned in emergency room); Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio St.2d 242 , 272 N.E.2d 97, 103 (1971) (requiring that testimony establish that survival rate be better than 50%); Walden v. Jones, 439 S.W.2d 571 (Ky.1968) (spinal injury); Johnson v. Vaughn, 370 S.W.2d 591 (Ky.1963) (gunshot wound to the neck); Agnew v. City of Los Angeles, supra (requiring a showing of reasonable medical probability).
I would hold that the testimony of the appellant’s expert in the instant case was sufficient to permit the issue of whether the appellee’s alleged negligence was a substantial factor in causing the death of Mr. Hamil to go to the jury. The testimony of appellant’s expert in the instant case, if believed would permit the inference that the appellee’s negligence was a substantial factor, and, therefore, the proximate cause of Mr. Hamil’s death. The testimony of Dr. Wecht, if believed, would have established to a reasonable degree of medical certainty that the failure to use an EKG resulted in the failure of the hospital to render prompt treatment, thus depriving the deceased of a substantial chance for life. When expert testimony establishes to a reasonable degree of medical certainty that the defendant’s conduct was a substantial factor in causing harm to the plaintiff, I would permit that testimony to go to the jury.
*251
II. The Jury Charge
Because I have concluded that the Majority places unwise and unnecessary restrictions upon the medical malpractice victim’s right to recover by requiring more certainty of medical expert testimony than medical science can afford, I do not join in the Majority’s opinion. However, I concur in the result because I believe that the lower court’s charge on the issue of proximate cause was adequate.
The appellant contends that the following point for charge should not have been given: “Unless Mr. Hamil would have died without treatment, his chances for life were not terminated by any failure of the defendants to treat him and such failure cannot be considered a proximate cause of his death.” The jury returned a special verdict which established that the jury had found the appellees negligent but had concluded that the negligence was not the proximate cause of Mr. Hamil’s death. The appellant contends that the jury’s verdict clearly indicates that it was confused by the court’s instruction.
In determining whether a court’s instructions to a jury are so erroneous as to require the grant of a new trial, we must consider the charge as a whole. If the charge as a whole is not misleading or inaccurate, then we should not reverse despite some isolated misstatements or inaccuracies. Black v. A. E. Troutman Co., 385 Pa. 138, 140 , 122 A.2d 201 .(1956).
The court below charged the jury on the issue of proximate cause as follows:
“Now, so much for negligence, let’s turn to the next thing that the plaintiff must prove.
“The plaintiff must prove that the negligence, if you find there was negligence, and I might say, if you don’t find any negligence then the case ends there. You don’t need to worry about anything else because the plaintiff *252 must prove negligence in order to recover. The next thing she must prove is that the negligence was a proximate cause in the death of Kenneth Hamil.
“What do I mean by proximate cause? In order that the defendants be liable for the harm to Mr. Hamil, it is necessary not only that the defendants be negligent, and I have discussed that, but that the negligence of the defendants to be a legal cause of Mr. Hamil’s death.
“The defendants negligent conduct is a legal cause of harm to the plaintiff or to Mr. Hamil if its conduct is a substantial factor in bringing about the death. The word, substantial, is used to denote the fact that the defendants’ conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause of his death.
“Now along the line of proximate cause I want to charge you on Doctor Wecht’s testimony, because Doctor Wecht, as I recall, testified that, in his opinion, had Mr. Hamil been given — admitted and put to bed and given the various drugs and other things that were available, in his opinion his chances of survival were 75% distinguished from 25%. If you accept Doctor Wecht’s testimony and I say that because as I have indicated to you, you have the right to accept or reject anybody’s testimony including Doctor Wecht’s but not limited to his, if you accept Doctor Wecht’s testimony that the risk of death was increased by the defendants’ failure to exercise reasonable care, you are then permitted to use that testimony in determining whether or not death was in fact caused by the defendant’s lack of reasonable care. I would point out to you that the defendant, the hospital and the doctors, is not liable merely for having increased the risk of death but the evidence of the increased risk of death is for your consideration along with all of the other evidence in the case on the factual issues of whether the death of Mr. Hamil was caused by the defendant’s failure to use due care.
*253 “In other words, did the hospital fail to use due care and, if they did, was it a substantial factor in causing Mr. Hamil’s death. Now again, the plaintiff says, yes, and the plaintiff offers Doctor Wecht’s testimony which you may consider along with all of the other testimony that death was the result of the failure to use due care.
“The defendant produces Doctor Treadway and, as I recall, Doctor Uberti. Doctor Treadway testified that this man would have died even if they had followed Doctor Wecht’s method of putting him to bed and giving him treatment; that his death was caused by an electrical break down of the heart and he would have died anyhow.
“Now if you find that his death was caused, or a substantial factor in his death was the failure to give him care at the Bashline Hospital and that the failure was unreasonable then there would be liability on the part of the hospital. But on the other hand, if you find that the hospital was negligent but if you find that that was not a substantial factor in his death then there can be no recovery even if the hospital is negligent. The plaintiff must prove negligence and that the negligence was a substantial factor in causing death.”
In addition to the foregoing charge, the court also granted the following points for charge tendered by the appellee which relate to the issue of proximate cause. (Points for charge are numbered in accordance with the appellee’s tendered points for charge).
“Twelve, no liability — affirmed—no liability can be imposed upon these defendants for any acts of omission on either Doctor Saloom or Doctor Burke since although they were on the hospital staff there is no evidence that they were members of or agents of the hospital association. .
“Fourteen, in order for any of the defendants to be liable for Mr. Hamil’s death it is necessary not only that the defendants have been negligent toward Mr. Hamil *254 but also that such negligence be a substantial factor in bringing about his death. .
“Seventeen is affirmed. You cannot find for the plaintiff unless you find the fact that Mr. Hamil’s death was caused by lack of care at the Bashline Hospital. In this connection you may consider the testimony of Doctor Wecht, but you should remember that Doctor Wecht is not able to state that Mr. Hamil would have lived had he been given certain treatment but only that his chances for life would have been better with such treatment and that is evidence, Doctor Wecht’s testimony, if you accept is as evidence for you to consider in reaching the ultimate decision.”
Finally, the court concluded its charge with:
“Now the plaintiff’s position is that this man died as a result of the negligence of the Bashline Hospital Association and that he is entitled to damages as a result of that.
“The defendants’ position is, (1) that there was no negligence bearing in mind that the size of the hospital. (2) That if there was negligence, negligence was not the proximate cause of his death, he would have died anyhow. Therefore there should be no remuneration. And that in a nut shell is the position of the parties.”
Reviewing the charge of the court in its entirety I would hold that the issue of proximate cause was fully and fairly framed to the jury under the standards set forth in Part I of this opinion. Dr. Wecht testified that the decedent had a 75% chance of survival and that these chances were effectively terminated by the hospital’s negligence. Because the testimony, if believed, established to a reasonable degree of medical certainty that appellees’ failure to give prompt and proper treatment was a substantial factor causing the deceased’s death, the jury could properly conclude that the appellees’ negligence caused the death. Accordingly, it was proper for *255 the court to permit Dr. Wecht’s testimony to go to the jury. If on the other hand, the jury believed appellees’ expert that Mr. Hamil would have died anyway, then they were instructed to find for the appellees. Despite the fact that the court gave the somewhat confusing charge contained in appellees’ point for charge number “sixteen”, I do not believe that it was so misleading as to detract from the lengthy, substantially accurate explication of the law of proximate cause.
Because I would hold that the plaintiff’s expert’s testimony conformed to a standard of reasonable medical certainty, I cannot join with the Majority in overruling Bashline I. However, because I believe that the testimony of the appellant’s expert was properly submitted to the jury and that the charge to the jury considered as a whole was adequate, I would concur in affirming the judgment of the lower court.
. An electrocardiogram (EKG) is a tracing showing the changes in electrical potential produced by heart contractions and is an important tool in diagnosing disruption of normal heart function.
. Necrosis or death of heart muscular tissue caused by a decrease in flow of blood to the muscle cells.
. In Bialek v. Pittsburgh Brewing Co., 430 Pa. 176 , 242 A.2d 231 (1968), the plaintiff instituted an action to recover for personal *246 injuries he suffered when a bottle of beer allegedly exploded. The suit was based in part on the theory of Section 402A of the Restatement (Second), Torts. See Webb v. Zern, 422 Pa. 424 , 220 A.2d 853 (1966). Plaintiff’s testimony was that the bottle spontaneously exploded in his hand. The defendant bottle manufacturer sought to establish that the bottle had exploded due to an external impact. Plaintiff’s expert, a physicist with experience in glass science, testified that he had examined the bottle fragments and concluded from the wide variation in thickness that the bottle was defective. He admitted that he could not positively determine the actual cause of the fracture because vital pieces of evidence were missing, and admitted that he could not exclude the possibility that the bottle fractured because of application of an external force. The trial court barred further testimony by plaintiff’s expert on the cause of the fracture. The Supreme Court reversed and awarded a new trial saying: “Dr. Anderson testified only that he was unable to give a positive opinion on the cause of the bottle’s fracture. This is not inconsistent with his ability to form an opinion based on less than certain evidence. A precise scientist who bases his opinion on an appraisal of probabilities is nonetheless an expert. In our view his opinion deserves jury consideration. Thus the trial judge did err in depriving plaintiff of the opportunity to have his expert express a full opinion on the cause of the bottle’s failure.” Bialek v. Pittsburgh Brewing Co., supra, 430 Pa. at 181 , 242 A.2d at 233 . The testimony of the plaintiff’s expert, the Supreme Court noted, suggested that the fracture of a glass bottle usually results from a concurrence of several causes, and that a slight external blow might be the proverbial straw that broke the camel’s back. Thus, the Supreme Court recognized implicitly that when a scientific expert is attempting to deduce the cause of an accident he will necessarily reflect on probabilities. The Court seemed reluctant to require an expert to know the unknowable or to profess omniscience.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9766333. Public record. Not legal advice.