Cherry v. Schwindt

A charge on hindsight was appropriate where the evidence raised an issue as to whether the decedent's presenting symptoms gave the defendant doctors sufficient indication that the ultimate cause of death was one of the most likely possibilities.

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In this medical malpractice case arising out of Thomas W. Cherry’s death, the jury returned a verdict in favor of the physicians and their professional corporation. Molly Smith Cherry, Mr. Cherry’s representative, now appeals, enumerating as error one evidentiary ruling and one jury charge ruling. Because we find no error, we affirm. Mr. Cherry died from a heart condition called aortic dissection. During his care over the course of almost six days, Mr. Cherry was treated by several doctors, including cardiologists Dr. Richard Schwindt and Dr. Stephen Ross Cherry, through their professional corporation Cardiovascular Disease Specialist, P. C. The primary issue at trial was whether Dr. Schwindt and Dr. Cherry were negligent because they failed to diagnose Mr. Cherry’s condition. Dr. Lawrence S. Cohen of the Yale University School of Medicine —author of a chapter entitled “The Disease of the Aorta” in Cecil’s Textbook of Medicine, a widely recognized textbook within the medical community —testified as an expert on behalf of Mr. Cherry. Dr. John Douglas testified as an expert cardiologist on behalf of the defendant cardiologists.

Both Dr. Schwindt and Dr. Cherry testified that aortic dissection was contained in their differential diagnosis when they each became involved in Mr. Cherry’s care. Both defendants and both experts testified that a differential diagnosis is a list of possibilities that a physician comes up with when presented with a clinical picture. Based on Mr. Cherry’s original symptoms, the differential diagnosis for Mr. Cherry included toothache, myocardial infarction, myocardial ischemia, unstable angina, esophageal problems, gall stones, pulmonary embolus, aortic dissection, stomach ulcer, pneumonia, pneumothorax, pericarditis, mediastinosis, esophageal rupture or disease, atypical migraine, and ruptured diaphragm.

Cherry v. Schwindt

A charge on hindsight was appropriate where the evidence raised an issue as to whether the decedent's presenting symptoms gave the defendant doctors sufficient indication that the ultimate cause of death was one of the most likely possibilities.

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