*1 Appellant, v. Yohe. Smith, Gailey. Appellant, Smith,
95' *2 C. Before Mus- J., 1963. Argued May 27, Bell, Roberts, O’Brien manno, Eagen, Jones, Cohen, JJ. *3 appel- B.
Frank him Donald for with Boyle, Yost, lants. & Kagen
Arthur him Markowitz, with Markowitz, appellee. for Dr. William C. Griffith, Yohe, Liverant, Robert J. him R. Spencer with Stewart, A. Gailey, Liverant and & for Dr. Herman Stewart, appellee. Jr., by
Opinion Benjamin Octo- Mr. R. Justice Jones, ber 9, 1963: ac- appeals challenge
These the propriety compul- tion the court below to remove refusing malpractice entered at the trial two sory nonsuits actions. Joseph
On March Smith (Mr. Smith), and from a had age convalescing stroke which years spastic him paralysis right side, with left fell his home. Mr. Dr. W. C. slipped Yohe, Smith’s family made was summoned he physician, an examination of Mr. Smith according during which, to his he found an testimony, increased tightening spasm of the Dr. handstring muscles on right side. Yohe gave Mr. Smith an injection and medication to reduce pain and prescribed bed rest. After several visits, Yohe recommended Mr. given Smith be physical therapy1 and muscle consisting massage exercises to relieve spastic condition.
On March after days fall, family’s Mr. Smith insistence, was admitted to York Hospital, where he was York, Pa., X-rayed the first time. At leg Mr. Smith’s time, right was turned outward and The completely paralyzed. revealed asceptic fracture the right femur, necrosis and a generalized demineralization pelvic bones. At hospital Mr. pa- Smith became tient of Dr. II. A. orthopedic Gailey, Jr., surgeon. Dr. Gailey twice tried to insert a nail Smith-Petersen in the hip to hold the fracture occasion, each and, the device became dislocated and his efforts unsuccess- ful. Dr. then inserted Gailey a Steinman in the pin tibia to enable the to be held in leg posi- an immobile tion. It is claimed reason of that, by Dr. Yohe’s Dr. Gailey’s injuries treatment, aggravated were periods requiring long of hospitalization and resultant severe permanent pain, disability disfigurement.
Malpractice actions were later instituted *4 Court of Common Pleas of York Smith Mr. County by Drs. against Yohe and con- Gailey;2 both were actions solidated and tried. At the conclusion of testi- presented on mony behalf of the court entered Smith, testimony conflicting The is as to whether ordered Dr. Yohe family any walking. Mr. Smith’s to have him do 2 During pendency actions, of these Mr. and Smith died personal representative, (Smith), son Allen Smith was sub plaintiff in both actions. as stituted re- in Motions to nonsuits both actions. compulsory appeals move these were refused and these nonsuits taken. were
Smith Dr. Yohe Dr. Yohe is alleged against The negligence rea- injuries by he Mr. Smith’s erroneously diagnosed in to discovering son of his failure use On hip. to fractured turned out be a treating what erred contended that the court below these appeals rule respects: in the court failed to the following (a) negligence take Dr. Yohe’s failure to since that, court ruled law; as matter (b) testimony, medical expert failed to produce any Smith in re- erred the court jury issue; (c) there was to locality from permit physician another fusing efforts the court ruled that certain (d) testify; inadmis- obtain local were expert testimony Smith to sible in evidence.
A. The Failure to Use X-rays factual in view of Smith’s contention is that, failed that Dr. Yohe presented, proof situation Smith’s Mr. aid employ X-rays negligence prima facie case presented condition court should have submitted the trial jury- well settled contention certain considering kept this area law must
principles special contract, in the absence of a (a) mind: a cure nor guarantees neither warrants (Donaldson Maffucci, treatment of his result 2d cited therein); cases 156 A. Pa. required a specialist who is not “A physician .(b) treatment in the [diagnosis possess employ and] possessed usually and knowledge the skill a patient the same good standing] physicians [of advanced due to the regard locality, giving similar treatment; the time of the profession state
99
required
employing
knowledge
and in
he
skill and
required
judgment of
is also
exercise
care and
(Donaldson
supra,
man”
553,
reasonable
v. Maffucci,
554)
proof
upon
plaintiff
(c)
;
the burden of
is
prove
possess
(1)
physician
either
that
did
employ
required
knowledge
(2)
and
or
or
skill
judgment
he did not
reason-
exercise the
of a
care
(Donaldson
able man in like circumstances
v. Maffuc-
554);
ipsa loquitur
supra,
(d)
ci,
doctrines
res
applicable
and exclusive control
are not
in this area
(Demchuk
the law
v.
404
Bralow,
105,
Pa. 100, 104,
With these we turn principles mind, Dr. in challenging tion the case at bar. not Smith, Yohe, Dr. Yohe’s contends that general qualifications, use the condition of Mr. did diagnosing in Smith, care in at such judgment requisite arriving in taken, that have he failed take, Mr. of X-rays. Such failure to have taken X-rays presents a situation Smith, is wherein urged, use expert testimony required the failure under presents instant situation factual of facie of lack prima case negligence diag- judgment care of Yohe at his arriving understanding, so nosis is obvious as to be within the comprehension jury. and common laya knowledge
In
some
courts have held that
jurisdictions,
on the
part
failure
of a
take
aid to
such X-rays
may
when
diagnosis,
are available,
per
prima
se
facie case
James
present
negligence:
114
Kan.
220 P.
Jack-
Howell v.
Grigsby,
627,
267;
App.
65 Ga.
101 make use failure thereof such a case amounts to a degree diligence ordinarily used use care and by physicians good standing practicing in com this munity. expert testimony The court in the absence of may judicial [citing take notice this Cali fact, other (Emphasis supplied) ef cases].” fornia To the same fect: Wilson v. 41 241 Ia. N.W. 2d 702. Corbin, 593, See 480; also: Whitson v. 55 N.D. 215 N.W. Hillis, Flock v. J. C. Palumbo Fruit Idaho 220, Co., P. 2d 2d 707; Peterson v. 84 P. Hunt, Wash. 255, (Ky.), 999. In Butts v. Watts 2d 290 S.W. day the Court “In use stated: and time X-ray apparatus ordinarily . . . and use what its *7 reveals are so well to common known as be within knowledge experience frequent laymen. . . . of In jury the circumstances be the could shown, well X-rays] lieve that to to be [failure use a factor was question postop taken into on account overall of the expert negligence having erative without them an tell By way analogy, might so.” of it the noted Court in Corn v. 71 Nev. 289 2d French, 173, P. 280, expert held that: “. . . testi without medical mony, jury knowledge might a from its common own recognize patho experience, biopsy the use of or logical microscopic analysis examination and of tissue accepted diagnostic practice as a common and de termining presence or the absence of cancer.” jurisdictions
On the other courts other hand, physician may negligent have held that a be held failing X-rays diagnosis only, to take an aid as to if “according under the it is evidence, shown tenets the physician’s school of usual medicine, practice presented locality, in the circumstances require physician were such as ... resort X-ray to an examination”: 162 1295 cases A.L.R. For therein collected. been instance, has held that the failure to use is not “of itself” of evidence 102 (Shumacher Murray Hospital, Mont.
negligence 58 v. negli 397); necessarily nor evidence of 193 P. 369); nor (Wright Conway, Wyo. gence 241 34 P. v. layman negligence” to enable a “such obvious departure ordinary care find from standards 455) does (Boyce Ariz. 2d and; 77 P. Brown, negligence (Snearly Mc not raise inference 108). Carthy, Tbe courts N.W. Iowa 81, expert require production testi hold this view prove mony to use failure judgment of the standard of care and accordance with good standing in the same or a similar locality. subject Pennsylvania, leading
In case supra. six- is Duckworth v. Bennett, Duckworth, prior year history boy, rheumatism, teen old with physician, days later, fell; who examined him two diagnosed his condition as knee arthritis swelling prescribed bed rest as of which the result improved; much and inflammation of the on a knee leg, physician, manipulating later visit, the while discovered a lack of full movement and then—nine X-ray examination; after weeks the fall—advised an X-ray findings disputed, doctor were on behalf boy testifying they femur revealed a fracture of the *8 defendant-physician of while doctors on behalf the stat- separation they epiphysis fe- ed revealed a of the of the appeal judgments physician, it mur. On from for the physician’s contended that the take was to failure negligence. affirming judgments was for physician, (p. 50) Court the this said : think “We negligence not could be held to be treat- unskillful immediately X-ray employ ment for doctor not to the patient’s investigation of a in whether condition; inquiry of another method this or shall be resorted judgment, a matter of and a failure to one is use the negligence. not be said to or the other could be Where
108 judg is an error the most that the case discloses Wil ment on no liability: the there is surgeon’s part, liams 141 Pa. 159.”7 149, v. LeBar, Pa.
Four in v. 335 years later, Hodgson Bigelow, seemingly A. 2d Court 7 the majority (p. 518) in Duckworth : implication restricted an mistake “The rule in not that Tor a Pennsylvania in ‘for there no but it is that diagnosis liability’, in were ob- symptoms mistake where scure’ . . . there is liability, [citing Duckworth].” Duckworth from at bar. differs the case
Factually, While both plaintiffs cases the had sustained falls, plaintiff in Duckworth was a 16 old whose year boy bone structure was much than prone less to fracture Mr. Smith, elderly by whose bones reason man, age would brittle. In Duck- naturally somewhat worth, chief complaint patient the physi- cian was his knee not taken hip; measurements by the physician revealed no fact disparity length, which would tend to contraindicate frac- bone any ture; pain hip area could be attributable the knee condition; after treatment knee, six weeks by showed physician, steady improvement; it was not until two months after the fall physician for first time discovered a restriction of movement of the patient’s leg and at he time ordered immediately an X-ray examination. In Duck- there worth, nothing place the doctor on notice, save the boy’s fall, any injury the hip area might suggest any possibility fracture that area. In the case at patient bar, was an elderly man, awith paralyzed right who fell side, in so and, doing, approval Duckworth lias been cited with this Court on (Ward Garvin, propositions supra; other Bier Whitman, stein v. 843; Risser, 2d Pa. 62 A. Powell v. 375 Pa. A. 2d Maffucci, supra). 454; However, question Donaldson has been failure to use raised since Duckworth. *9 by became his fall was attended right leg flexed; area but in knee pain only severe and constant the physi- hip; also the the the upper part the leg al- patient’s cian made leg, no measurement the patient hospitalized, when the finally was though, ma- found to shorter than the right left; was be leg “crunching” a nipulation of the the nurse leg right by leg in noted and the hip right noise the area was any that Duckworth turned It is clear in outward. hip of a fracture of the obscure symptoms were contraindicat- the examinations of the doctor pre-X-ray bar, hip fracture; ed in the case any possibility a the in mind and health of the bearing age patient, the possibil- rather the symptoms pointed, emphatically, in area. hip if not of a fracture probability, ity, that Hodgson (p. 518) It noted be failure to take physician’s Court classified from “departure aid to established as an circumstantially practice” standards of unless which, negli- out facie case of prima make might justified, gence against physician. clearly
In our instant factual situation view, man fall elderly of this possibility raised cir- have resulted in bone under such fracture; might to take physician’s duty was the cumstances, bone or nonexistence of any the existence determine excep- here fractures. The circumstances command an requires rule which the production tion to general it is matter common knowl- for expert testimony person due to fall of an edge elderly may structure accompanied a fracture bony subsequent fall, when to such furthermore, the body; noise suffers severe pain, “crunching” patient pain the severe outward where hip centered, and other leg symptoms of the such turning symptoms, point necessity use, diag- to the at a arriving accepted method of commonly fracture de- nosis, *10 X-ray. wheth- of the i.e., Resolution issue tection, physician, under the er, instant this circumstances, X-rays aid should of as an have resorted to the use expert arriving requires diagnosis, in testi- his mony; every layman. can within It it is the ken of presumed jury knowledge in areas that a has some though superior knowl- such as even this have doctors edge. day age, average In a member of jury general X-rays knowledge efficiency has a of of diagnosis together ability as an aid to to evalu- with X-rays, physician ate whether the failure of the to take presented judg- under of evidenced lack facts, part arriving diagnosis ment and in care at a on the physician. of the urges
Dr. Yohe even if he should have and that, judg- X-rays, did not take of such constituted an error opinion, for ment not there which he is liable. In our judgment is a vast difference between an of error negligence securing in the collection factual arriving proper data essential to or at a conclusion judgment. physician, diagnosis, If a as an aid to his judgment, his does i.e., not avail himself of scien- open tific means facilities to him for the collection upon of the best factual data which to arrive at his diagnosis, judgment the result is not an error of but negligence failing adequate an secure factual upon support diagnosis judgment. basis which to or expert testimony, Even without Smith has shown picture presents prima factual facie case negligence. permitted jury The court should have pass upon the issue under circum- whether, resorting Yohe stances, not failed, use diagnosis, as aid to exercise the requisite judgment and care. pass of our upon view we need conclusion, questions presented by
the other Smith. ofAll these go questions necessity either to the expert testi- proffered expert qualifications mony, testi- testimony. mony We to secure such Smith’s efforts testimony, expert opinion even without that, are made out on the here Smith has presented, facts compulsory prima negligence non- facie and a case entered. suit not have been should every in this case not that Our conclusion failure of a to use situation the presents prima neg- facie an aid to case theory judicial adopt ligence notice nor do we supra. expounded Agnew, Our conclusion *11 pre- the to under as Dr. Yohe’s failure use facts presents prima neg- facie sented in this case a case ligence. order is reversed. to Dr. the Yohe,
As Gailey Dr. Smith v. Operation Performed An Unauthorized
A. Was Gailey? by Dr. Gailey performed charges un- an Dr.
Smith inserting (Mr. operation Smith) by authorized on pin in tibia. Steinman phase principles applicable to this
The law (a) principles litigation are: clear. the are Such mentally physically patient to con able is where emer in the an absence condition, sult about his “ ‘ “ patient prerequisite gency, is consent ’ ” by physician” operation surgical and an patient’s operation technical consent is a without Superior (Moscicki Pa. Ct. 107 Shor, assault 340 Pa. A. Dicenzo 341; Berg, plaintiff prove 15); (b) on burden is A. 2d performed, substantially operation “that by operation, not authorized him”: Dicenzo v. was supra, Berg, 307. entry upholding compulsory of a nonsuit Gailey to Dr.
against the court Smith below well procedures alleges “. . stated: . that the last [Smith] performed patient by Gailey an constituted manipu- operation. unauthorized of a These consisted prosthesis ap- place, lation of the dislocated back into plication of a and the insertion of Steinman cast, pin leg. Although failed establish [Smith] proof dispute pin there that a Steinman pin long a metallic several inches and a fraction of perpendicular inch in diameter which is inserted leg through the shin bone knee and between the the ankle. It is used as a device to which to attach weights apparatus purpose traction or other for the holding particular leg position, in a re- and is purpose. moved after it has served con- Its [Smith] patient tends that on behalf of the authorized he had Gailey] only manipulate prosthesis [Dr. back place, pin into and that the insertion of the Steinman operation constituted an unauthorized [Dr. Gailey] respond damages. must place,
“In the first when Mr. Smith first ad- hospital, signed mitted to following [Smith] statement which was admitted in evidence: ‘This tois *12 certify (we) undersigned any that I the consent to treatment or to the administration anes- whatever performing thetic operation and the of whatever or procedure medical necessary deemed advisable patient.’ and treatment of this This would complete seem to a furnish answer to claim [Smith’s] authority. lack “However, [Smith] infers that the conversation prior Gailey] him and [Dr. between questioned to procedure constituted a withdrawal or limitation prior blanket and authorization, that Gailey] [Dr. agreed then to limitations which he thereafter exceed- described ed: this [Smith] conversation as ‘I follows: manipulations? is it with “What these said, What are sodium little He a “Very painless; like?” they said, to try and limbs and pentothal patient’s we pull I “Is place.” back into ... snap prosthesis said, said, And he manipulation?” all are to a you going do, and other I looked each “Yes.” brother and My ’ that.” go “We will with along said, Steinman fail to see insertion of the “We that pin limitations procedure exceeding any was a [Smith] not he was imposed. have admitted that may [Smith] ‘used in not competent say apparatus to that was in order to hip the relocation a dislocated fracture pull place into as- manipulate leg then, in place.’ Dicenzo, hold it Under cast, sisted establish the burden was to supra, clearly [Smith] to Dr. Cushner’s prerequisite recovery, this as [a after was recommendation consultation consultant] of hip relocation ‘and prosthesis application rota- spica prevent cast and Steinman to external pin tion.’ The implication [Smith], therefore contrary insertion part that of the Steinman pin of, parts completion and a process of, relocating position. pro- them Such holding permanently cedure would on a analogous clamp placing wound or a drain inserting following incision special for which surgical authorization operation, If the in such required. medical clearly practice eases is to the prove failed to it. contrary, [Smith]
“There being evidence Dr. was neg- Gailey nor that he procedure used ligent, any pro- which was hibited or there was no for the unauthorized, jury issue the nonsuit was pass upon, entered as properly claim him.” against [Smith’s] of the record study clearly
Our indicates entered very properly court below non- compulsory action against Gailey. in the suit refusing remove Order compulsory nonsuit in the *13 (No. Dr. Yohe against action May Term re- 1963) to abide event. Costs versed. refusing compulsory
Order to remove nonsuit in against (No. Gailey May 1963) action Term af- firmed. Costs Smith.
Dissenting by Concurring Opinion Chief Mr. Justice Bell: agree principles I with the ma- enunciated jority Opinion disagree in the case Dr. Yohe but application ruling with their to Yohe’s case and the expert testimony particularly that no necessary. I disagree part Opinion with that of the states average general jury “the member of a has a knowledge efficiency X-rays diag- of the as an aid to together ability nosis with the to evaluate whether pre- failure of X-rays, to take under the judgment sented evidenced a lack of facts, and care arriving part physician.” at a on the For these I judgment reasons would affirm the of non- suit in Allen Smith, Administrator v. Yohe. judgment
I affirm would of nonsuit in the case of Allen Gailey. Administrator Smith,
Commonwealth ex rel. Appellant, Wilson,
Rundle.