## Facts

- Bonnie Lira was hospitalized at Albert Einstein Medical Center (AEMC) in January 1981, diagnosed with Crohn’s disease, and underwent procedures involving nasogastric tubing and endotracheal intubation.
- On May 13, 1981, she returned to AEMC’s emergency room with gastrointestinal complaints; Dr. Stanton Carroll treated her and Dr. Gary Pearlstein (a surgical resident) inserted a nasogastric tube.
- Lira (by deposition) described the tube becoming stuck near her throat, causing sharp pain, bleeding, and continuing throat pain after discharge.
- In early 1982, Lira developed respiratory distress requiring an emergency tracheotomy.
- During a later evaluation, a non-party throat specialist allegedly examined Lira and remarked, “Who’s the butcher who did this?”
- The specialist did not testify; Jose Lira testified to the remark over a hearsay objection.
- Plaintiffs alleged negligent placement of the tube into the trachea and institutional negligence by AEMC, causing permanent airway injury and the need for tracheotomy.
- The trial court directed a verdict for Dr. Carroll, and a jury found against AEMC and Pearlstein, awarding damages to Bonnie Lira and Jose Lira (loss of consortium).
- The trial court later granted AEMC and Pearlstein a new trial, concluding it had erroneously admitted the “butcher” statement and that it was prejudicial.

## Issues

1. Whether the trial court abused its discretion by granting a new trial based on admission of a non-testifying physician’s “butcher” remark, and whether the remark was admissible under a hearsay exception (excited utterance or present sense impression).
2. Whether AEMC and Pearlstein were entitled to judgment notwithstanding the verdict because the evidence was legally insufficient to prove professional negligence and causation.

## Decision

- The appellate court affirmed the order granting a new trial.
- The court held the “butcher” remark was inadmissible hearsay offered to prove negligent prior medical care and did not qualify as an excited utterance or present sense impression.
- The court concluded the trial judge acted within discretion in determining the remark’s inflammatory character could have affected the verdict.
- The court denied defendants’ request for J.N.O.V., holding the non-hearsay evidence, including expert testimony, was sufficient for the case to go to the jury.

## Legal Principles

- An out-of-court statement by a non-testifying physician that conveys a professional judgment about prior medical treatment is hearsay when offered to prove negligence and is generally inadmissible without cross-examination.
- Excited utterance and present sense impression exceptions do not ordinarily admit medical opinions formed through clinical examination and professional training rather than spontaneous reaction or immediate sensory description.
- A new trial is an appropriate remedy for prejudicial evidentiary error when the case otherwise presents issues for the jury.
- J.N.O.V. is improper where the evidentiary record (excluding the challenged evidence) permits reasonable jurors to find negligence and causation.
- Expert qualification is based on relevant knowledge, training, and experience tied to the subject matter, not solely on formal specialty labels.

## Conclusion

The court ordered a new trial because the jury heard an inadmissible, highly charged hearsay medical opinion from a non-testifying doctor, but it refused to enter judgment for the defense because the remaining evidence was sufficient to support jury findings of negligence and causation.


Lira v. Albert Einstein Med. Ctr., 559 A.2d 550 (Pa. Super. Ct. 1989)