Donaldson v. MaffucciDonaldson v. Maffucci
Opinion by
Dorothy Donaldson, the wife-appellant, was injured in an automobile accident in the late evening of July
Dr. Maffucci then performed a “closed reduction”
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of the fractured wrist, under anesthesia, sutured the lip, directed another X-ray examination and applied a cast to the left arm from the elbow down to the tips of the fingers. Later on the same morning Dr. Maffucci removed the cast and manipulated the fracture, without anesthesia. An X-ray examination then made indicated that the overriding of the bones had been corrected, that there was “about 5mm posterior displacement of the distal fragment . . . now rotated posteriorly for only 15 degrees” and that the position was improved over that shown in the previous film. The east was then reapplied. Dr. Sipes, the senior surgeon of the hospital was called into consultation by Dr. Maffucci; on July 22nd Dr. Sipes recommended an “open reduction”
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which never took place. Another X-ray examination was made on July 23rd which indi
On July 28th Mrs. Donaldson consulted a Dr. Palin, who, upon examination, found some deformity in the wrist and some stiffness in the finger joints. Mrs. Donaldson was readmitted on July 28th to the hospital Avhere a further examination by X-ray and fluoroscope revealed the existence of the same conditions as noted in the X-ray examination of July 2Srd. Dr. Palin then attempted another “closed reduction” on July 29th. Mrs. Donaldson left the hospital on July 31st and remained thereafter under Dr. Palin’s care. She was readmitted to the hospital on September 20th, it having been discovered that, despite Dr. Palin’s attempt at a “closed reduction”, a non-union of the bones existed. While at the hospital two “open reductions” were performed by Dr. Palin Avhich included the insertion first of wires, then later of a bone plate. At a subsequent time, at Dr. Palin’s suggestion, Mrs. Donaldson consulted a Dr. White in Pittsburgh Avho performed further operations on the wrist.
On June 30, 1956 in the Court of Common Pleas of Bedford County Mr. and Mrs. Donaldson instituted a trespass action against Dr. Maffucci alleging that he had been guilty of malpractice. The matter came on for trial and, at the close of appellant’s testimony, the court below entered a compulsory nonsuit. Prom the refusal to take off this nonsuit this appeal was taken.
The reason assigned for the entry of the nonsuit by the court beloAV was: “. . . plaintiffs had clearly failed to meet the burden of proof required in malpractice
Appellants urge four reasons why the nonsuit should be lifted: first, under the instant factual situation expert testimony was unnecessary; second, even if such expert testimony were necessary, it was supplied by appellant’s medical evidence; third, evidence that appellee was in a state of intoxication when he attempted the “closed reduction” of the wrist was improperly excluded; fourth, assuming, arguendo, the insufficiency of appellants’ medical evidence to establish the requisite negligence as the cause of the injury, the court below erroneously excluded certain testimony through the medium of which negligence would have been established.
In our disposition of this appeal “plaintiffs must be given the benefit of all the favorable testimony and every reasonable inference of fact arising therefrom; and all conflicts therein must be resolved in their favor: [citing cases]
Finnin v. Neubert,
The standard of care required of a physician or surgeon is well-settled. In the absence of a special contract, a physician or surgeon is neither a warrantor of a cure nor a guarantor of the result of his treatment:
McCandless v. McWha,
The burden of proof in a malpractice action is upon the plaintiff to prove either (1) that the physician or surgeon did not
%possess
and
employ
the required skill and knowledge or (2) that he did not exercise the care and judgment of a reasonable man in like circumstances;
and
that the injury complained of either (1) resulted from the failure on the part of the physician or surgeon to possess and employ the required amount of skill and knowledge or (2) resulted from his failure to exercise the care and judgment of a reasonable man in like circumstances. Furthermore, a plaintiff is bound by the
expert testimony rule
so well expressed by Chief Justice Stern in
Robinson v. Wirts,
Appellants initially argue that the
expert testimony rule
has no present application because of the factual situation. They urge that a “layman is equally competent [equally to an expert] in determining whether a steady hand had been used in approximating the bone fragments and
toheiher the bones in this very common type of fracture were properly
approximated”. In short, the appellants argue: we have proven a poor result from the treatment for a very common wrist fracture and, since a steady hand on the part of the doctor was all that was required to make a proper “closed reduction” and secure a good result, a jury, particularly with evidence of intoxication before it, would be equally as competent as any expert to find whether the doctor’s hand was or was not unsteady. Such argument entirely ignores the absence of any evidence of record to indicate
why
Mrs. Donaldson’s wrist was deformed and her fingers stiff and the complete lack of proof of any causal relationship between any act or omission to act on Dr. Maffucci’s part and the condition of the wrist and fingers. The record shows that Dr. Palin performed exactly the same operation on the wrist as did Dr. Maffucci and he, too, was unable to secure a mainvtainable proper bone position. Whether or not Dr. Maffucci exercised skill and diligence in his treatment of Mrs. Donaldson and whether or not the condition of her wrist and fingers was attributable to any failure to exercise skill and diligence on Dr. Maffucci’s part required the production of expert testimony which the
Appellants’ next contention is that, even though expert testimony were required, their witness Dr. Palin supplied such testimony. The court below well answered this contention: “At no time did [Dr. Palin] state that the defendant deviated from proper practices in his treatment of the plaintiff. In fact, the testimony discloses that when the plaintiff first came to Dr. Palin, he used the same method of treatment used by the defendant, that is, manipulation by closed reduction. Subsequently, he attempted to secure a proper alignment by an open reduction which had been
At trial appellants offered to prove by witnesses that at the hospital Dr. Maffucci by his actions and behavior gave the appearance of being in an intoxicated condition. The trial court properly rejected such evidence under the circumstances. Until the appellants first submitted evidence that the condition of Mrs. Donaldson’s wrist and fingers resulted from a lack of exercise of skill and knowledge on Dr. Maffucci’s part any evidence of intoxication was irrelevant. Had the appellants shown that, because of some act or omission
Lastly, appellants complain of the trial court’s refusal to permit appellants’ counsel to ask Dr. Palin certain questions. Each of these questions has been examined by us. Each question was a hypothetical question and was addressed to Dr. Palin in the capacity of an expert witness. A
sine qua, non
of this type of examination is that the witness be first qualified of record as an expert. It was appellants’ counsel’s duty to so qualify, if he could, Dr. Palin: however, even though appellee’s counsel promptly objected upon the ground that Dr. Palin had not been properly qualified, even then no effort whatsoever was made to qualify him. The opinion of an expert witness may be excluded with propriety where no attempt has been made to qualify such witness as an expert in the disputed field:
Smith v. Penn Federal Corporation,
Order affirmed.
Notes
A manipulation of the bones for the purpose of securing a proper alignment without cutting.
A manipulation of the bones for the purpose of securing a proper alignment by cutting open the area, obtaining a visual picture of the bones and attempting to secure alignment by the placement of foreign objects, such as wires, plates, screws, etc., for that purpose.
In the MoCandless case, supra, Ohief Justice Woodward stated: “The implied contract of a physician or surgeon is not to cure —to restore a fractured limb to its natural perfectness but to treat the case with diligence and skill”. In the Tyson case, supra, Judge Oih.ady said: “A physician or surgeon is not an insurer of Ms patient’s health, nor of a recovery from an abnormal condition”.
Authorities in support of this well-established principle are set forth in footnote, p. 294, in RoMnson case, supra.