23 A.2d 743 | Pa. | 1941
This is an appeal by the above defendants from an order granting a new trial after the jury in an action of trespass had returned verdicts in their favor. They claim that the evidence against them was so inconclusive that binding instructions should have been given and that the setting aside of the jury's verdicts was an abuse of discretion.
The plaintiff was treated professionally on October 5th, 1937, by the additional defendant. He described the treatment as follows: "He (the doctor) took an alcohol bottle and washed my back, then something with iodine on it, and rubbed my back and then took a bottle about *603 two inches deep, stuck a needle and pushed it in my back. He inserted the needle through the cork." He added: "I went home . . . I felt pain in the shoulder and arm. Then I couldn't move my arm or shoulder and I went down to the doctor and asked him what he had done to me. . . . Two days later I started to swell up; my shoulders went in an abscess". A little later Dr. Grahn "lanced the abscess". Treatments were continued for several days. A month later a more serious condition developed. He testified: "Back of my heart it raised up about the size of a quarter. I couldn't walk; I was bent over and the lump back of my heart was bigger than my head." He was taken to a hospital and was operated on. Three days later he was taken home and there confined to his bed for seven weeks, with "tubes draining from the back". He "had pains nearly a year before they started to leave" him. He had never before had any trouble with his back and "as a result of the abscess" he was incapacitated from work from October 5, 1937, to January 17, 1938, and also lost 16 days after January 17th. Plaintiff charges that Dr. Grahn, on or about October 5th and 7th, 1937, injected into the former's body "two injections of liver extract" which had been "made and sold and delivered to Dr. Grahn by the original defendant, The National Drug Company, either directly or through retailers or distributors" and that "this extract was impure, unsterile and unfit for use" and caused the bodily injuries stated. It is pleaded that the Drug Company "failed to use care to see that the drug was safe and fit for the intended use".
In bringing the additional defendant on the record, the Drug Company charged him with being "careless and negligent in the following particulars: (a) In the use of an unsterile or infected needle; (b) In the use of too great a quantity or dose of said liver extract; (c) In negligently and carelessly using and administering said liver extract to the said plaintiff."
Dr. Grahn when called as for cross-examination testified that he found the plaintiff on October 5th, 1937, *604 suffering from "secondary anemia" and that for his relief he injected into him "a concentrate from food liver, dispensed by The National Drug Company". The bottle "was bought through their representative". Its wrapper contained the following: "This preparation should be used only by a physician, and care must be taken to make aseptic injections. We assume full responsibility and guarantee the accurate preparation, careful testing and safety of this product. We do not assume responsibility for untoward conditions that may develop since such are invariably due to sensitivity of the patient or to indiscriminate use." The doctor described the sterilization by his technician with alcohol and iodine of the small area about the point of the injection. He described the bottle containing the liver concentrate used by him as follows: a "little metal container in which there is a small felt top which is impregnated with tr-cresol, which protects the cap — it is an excellent model with an excellent top. It sterilizes automatically as you put it in." His testimony as to the swelling on the patient's back and his other symptoms, after the injection, and as to the treatment in the hospital were substantially in accord with the patient's. He incised the patient's back and "pus came out". The back was again incised at the hospital. In the doctor's opinion the cause of the patient's abscess was "an irritant in the ampoule". He admitted that "it may be caused also by an unsterile hypodermic". He testified that "prior to Mr. Henderson's injection he had given an injection to a Mrs. Caldwell and "an abscess formed in due course at the site of the injection". He had previously given nineteen similar injections to Mrs. Caldwell and no abscesses followed, thus proving that she was not hyper-sensitive to this substance. From the same bottle the doctor had given two injections to a Mr. Hartnet late in September 1937 and this patient "developed two abscesses at the site of the injections". Hartnet had had "twenty-nine injections previously" of liver concentrate from other drug companies' bottles and no abscesses *605 followed. After Hartnet's two abscesses "cleared up", he received "eleven or twelve injections of the liver concentrate of another producer of this substance and no abscesses developed". The doctor injected a Mrs. Landen with the liver concentrate from the same National Drug Company bottle on September 27, 1937, and "she developed an abscess at the site of the injection, with the same clinical course". It was her first injection of this substance, but subsequently she received twenty-seven injections of this substance produced by other drug companies, and no ill effects followed. The doctor then testified that he had "given about three or four thousand injections of liver extract" and that "the only abscesses following" these injections were in the cases indicated. The abscesses were all sterile.
Dr. Lynn M. Rankin, who operated on the plaintiff for the abscess on his back testified that in his opinion the cause of that abscess was "the material that was injected" by Dr. Grahan. Dr. Patrick J. Kennedy, a pathologist, testified to the same effect. Dr. Abraham Cantarow, who had specialized in internal medicine and bio-chemistry, testified in answer to a hypothetical question that plaintiff's abscess "was due to some irritating material in the injected solution". Dr. L. S. Carey gave similar testimony. The foregoing constituted plaintiff's proof against The National Drug Company.
It is settled that a druggist or a manufacturer of drugs or medicines who negligently delivers a deleterious drug when a harmless one is called for is responsible for the harmful consequences to the user of that drug or medicine as being guilty of a breach of duty imposed on him by law to avoid acts dangerous to the lives or health of others. See 28 C.J.S., p. 515, sec. 9a (2). In Hruska v. Parke, Davis Co.,
But negligence whenever alleged must be proved by legal evidence, either direct or circumstantial, unless the rule of res ipsa loquitur applies and that rule does not apply in this case. To support his charge of negligence against the Drug Company, plaintiff relies on the expert opinion of Dr. Grahn as to the "irritant in the injection" and on the facts that following the injection plaintiff developed the abscess, and abscesses followed injections from the same bottle administered to three other persons.
The conclusion plaintiff contends for against the Drug Company is based on this succession of inferences: (1) Dr. Grahn's inference that "there must have been an irritant in the injection I gave him". (2) The inference that this irritant was not an over-dose of the liver concentrate. (3) The inference from the testimony of Dr. Grahn and his technician, Miss Purnell, in respect to the sterilization of the syringe and needle used on the plaintiff that these were thoroughly sterile. (4) The inference that this sterilization eliminated the presence in the instruments of either a chemicalor a mechanical irritant. (5) The inference that this irritant got into the concentrate before it came into Dr. Grahn's possession. (6) If all the preceding inferences are accepted, then the inference is to be drawn that the defendant Drug Company "negligently [as charged] failed to use care to see that the drug was safe and fit for the intended purpose".
It is the duty of the trial judge to decide in a case like this whether plaintiff's proofs are of such cogency that they should be permitted to go to the jury to effect the *607 intended persuasion. The test is whether there is proof on which the verdict plaintiff is seeking can reasonably be based. See Metropolitan Ry. Co. v. Wright, 11 App. Case 152. Thayer in his "Preliminary Treatise on Evidence" (p. 208) says that it is the function of the trial judge to "keep the jury within the bounds of reason".
Some courts have laid down the rule that "an inference upon an inference will not be permitted" and that a case based solely upon such reasoning must not be submitted to a jury. This court rejected that doctrine in Neely et al. v. TheProvident Life and Accident Ins. Co.,
The following statement by Judge LOCKWOOD in New York LifeIns. Co. v. McNeely (Arizona),
The ultimate inference that plaintiff's injuries were due to the Drug Company's failure to use due care in the preparation of the liver concentrate is based on so many weak intermediate influences which do not exclude other equally reasonable inferences that it cannot be accepted as meeting the required measure of proof. The inference that the Drug Company failed to exercise due care in the preparation of the liver concentrate is not so compelling as to exclude the equally reasonable inference that Dr. Grahn did not exercise due care in its use. While claiming that he properly sterilized his needle before inserting it into the plaintiff, Dr. Grahn admitted that "an abscess may be caused by an unsterile hypodermic". In answer to the question: "When you take a needle and push it through [the skin] it is perfectly possible there may be some bacteria or something lurking in the skin at the time?" He replied: "It was remotely possible." While it is true that three other patients who received injections by the same physician from the same ampoule of liver concentrate which was used on the plaintiff developed abscesses like the plaintiff's, even this fact is as consistent with the theory of the negligence of Dr. Grahn as it is with that of the Drug Company.
The claim is not that the liver concentrate was unsterile, but that there was "an irritant" in it. An irritant may be either chemical or mechanical. When it is considered that before the liver concentrate got into plaintiff's system it had to pass through Dr. Grahn's syringe and needle and through plaintiff's skin, an inference cannot be reasonably drawn tothe exclusion of all other inferences that the presence of thisirritant in the injection was due to the negligence of TheNational Drug Company.
In the recent case of Whigham v. Metropolitan Life InsuranceCo.,
In Tremaine, Exrx., v. H. K. Mulford Co.,
In the instant case, the facts were more favorable to the plaintiff than in the case just cited because here three other persons injected with the liver concentrate from the same ampoule also developed abscesses. But the fact that in all three cases the same physician administered *610 the injection makes the hypothesis of his culpability as plausible as that of the Drug Company's culpability. The latter hypothesis derives added plausibility from the fact that ten days before the doctor injected this liver concentrate into the plaintiff he injected the same substance into three other patients, who quickly thereafter developed abscesses. After these experiences Dr. Grahn did not exhibit even elementary caution when he later administered to the plaintiff an injection of the same substance.
In holding that this record does not reveal a case of sufficient probative value against the National Drug Company to warrant its submission to the jury we are not unmindful that the public interest requires the holding of companies which make and sell drugs and medicines for use in the human body to a high degree of responsibility under both the criminal and the civil law for any failure to exercise vigilance commensurate with the harm which would be likely to result from relaxing it. This consideration, however, does not justify the courts in lowering the standards of proof in tort cases of this kind. If we did so the public interest would be ill served. If those who make and compound drugs and medicines in packages or bottles, under the strict conditions prescribed by the National Food and Drug Act (U.S. Code Annotated, Title 21) and the Public Health Act (Ibid, Title 42) for use by the public, can be mulcted in damages every time some person uses such drugs or medicines with harmful results, the making and selling of such products would be a most peculiarily hazardous enterprise. That a lowering of the standard of proof in such cases would open the door to colossal fraud is obvious.2
Appellee claims further that "even if the Drug Company was not negligent and the liver extract became *611
impure or contaminated without negligence on its part, it was a direct breach of its warranty in that its product was not safe and therefore on the proof of breach of warranty alone the plaintiff would be entitled to a verdict against The National Drug Company". The answer is: This action is not founded on a breach of warranty. "An action against a druggist to recover for personal injuries should be ex delicto and not ex contractu except where the suit is based on an express warranty": 28 C.J.S., p. 517, sec. 10. It is, of course, not necessary to plead a warranty in cases like this, for the action is based upon a breach of duty imposed by law. "We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law.": Judge CARDOZO in MacPherson v. Buick Motor Co.,
Appellee cites the case of Campbell v. G. C. Murphy Co.,
In reaching our conclusion as to the inadequacy of proof against the Drug Company we do not intend to depart from the rulings in those cases (supra) wherein the sales of food alleged to be diseased or otherwise unfit for human use a prima facie case was made out upon proof that illness or death traceable to it quickly followed its consumption. See alsoCatani v. Swift Co.,
In a situation like this the question whether or not a prima facie case against the alleged tortfeasor is made out is sometimes difficult to decide. (See the leading case ofDavis v. Van Camp Packing Co., above cited.) In the *613 instant case, our conclusion is that the responsibility which plaintiff seeks to fasten upon the defendant Drug Company rests chiefly on conjecture. When under the evidence there is a cause other than the one plaintiff charges to which it would beequally reasonable to attribute the injury complained of, the jury will not be permitted to capriciously choose between them. A decision by chance can never be accepted as an act of judgment. "In admitting evidence in our law, it is always assumed to be logically probative, i. e., probative in its own nature, — according to the rules that govern the process of reasoning. . . . Bad reasoning in the law of evidence like bad reasoning in all other parts of the law is simply bad reasoning; and it is never good law".3 The Drug Company was entitled to the binding instructions it asked for.
As to the additional defendant, Dr. Henry V. Grahn, a prima facie case was made out in support of the allegation that he "negligently and carelessly used and administered said liver extract to the said plaintiff". Whether the "irritant" which caused plaintiff's abscess was in the concentrate itself or in the dosage or in the doctor's syringe or in the needle or was due to the doctor's technique does not appear, but in any of these contingencies this defendant would be liable if he hadnotice that harm to the plaintiff would be likely to follow theinjection. He was put on such notice by the abscesses which had developed in his three other patients. One of these injections was given seven days before Henderson's was given and another one was given ten days before. If they developed "the same clinical course" as the Henderson injection, the symptoms of abscess must have appeared at the end of two days. These were ample cautionary signals and if in the face of them the doctor injected the same substance in the same way into the plaintiff his action could reasonably be characterized as negligent. *614 "Most liabilities in tort . . . are founded on the infliction of harm which the defendant had a reasonable opportunity to avoid at the time of the acts or omissions which were its proximate cause": Holmes: "The Common Law", p. 145.
The trial judge's instructions to the jury in the case against Dr. Grahn were that "if he made the plaintiff's skin and the instruments sterile and administered the proper dose of liver extract and the method used by him was the standard method used by physicians" the jury "may well find that he was not guilty of negligence in administering the liver extract in this case". These instructions ignored the alleged negligence of Dr. Grahn in injecting into the plaintiff a substance which he knew or had reason to believe had recently caused abscesses in three other patients. In the case against Dr. Grahn the binding instructions asked for were properly refused, but the court's charge was inadequate and to the plaintiff prejudicial.
The judgment of the court below in granting a new trial in the case of Donald Henderson v. The National Drug Company is reversed.
The judgment of the court below in granting a new trial4 in the case of Donald Henderson v. Dr. Henry V. Grahn is affirmed.
