274 Pa. 228 | Pa. | 1922
Opinion by
Defendant is an osteopathic physician; plaintiff was his patient. In the endeavor to diagnose the latter’s complaint, the former took a number of X-ray photographs of the affected region of plaintiff’s body, at which point a burn thereafter developed, causing him much pain and suffering, requiring him to spend a considerable period of time in hospitals for treatment, and to undergo surgical operations; to recover damages therefor this action was brought, plaintiff alleging they were caused by the negligent application of the X-ray to his body. The trial of the issue brought a verdict for plaintiff, from the judgment on which we have this appeal by defendant.
In his statement of claim, plaintiff, after reciting that the defendant had subjected his body to the X-ray, thus stated the duty of care which the defendant was required to use. in so doing: “it became and was his [defendant’s] duty to do so with the skill reasonably required in the same and [in the] proper use of such practice and treatment.” As will be demonstrated hereafter, the court in its charge instructed the jury that they could apply an entirely different and higher rule of duty and care to defendant than appellee thus invoked in stating his cause of action. It is noteworthy also, in connection with the allegations in plaintiff’s pleading, that he avers as the only basis of recovery that “contrary to his duty in the
The court in its general charge announced still another rule, inapplicable to cases of this character, by saying (fifth and sixth assignments of error): “All of the physicians and the X-ray specialists agree that by a proper and careful use of a certain accepted and well-recognized formula by the profession, which formula has been described and which you will recall, an X-ray burn could not occur. The defendant says that he used a formula of even less intensity than that. Obviously, therefore, if the defendant did use the formula which he
A careful reading of the charge shows, that the case was submitted to the jury upon substantially one ground, did defendant tell the truth when he said he used less dosage of the X-ray than that which was safe under a well-known formula, and in effect instructed them that they could draw the inference that he did not because injury resulted; this is not in harmony with the law as it has existed with us since we were first called upon to define it as applied to the relation of physician and patient. The rule announced leaves out of account the idiosyncrasy of certain persons to the X-ray. That there is such idiosyncrasy and that it cannot be known until after the X-ray has been used, was shown at the trial.
The court unduly stressed the fact (eighth assignment of error) that the X-ray is a dangerous instrumentality. So is a surgeon’s knife. If human ills are to be cured, such instrumentalities must be used. To put upon the medical profession, which must use them, such a burden as financial responsibility for damages, if injury or death results, without proof of specific negligence, would drive from the profession many of the very men who should remain in it, because unwilling to assume the financial risks.
Appellant presented points (eleventh and twelfth assignments of error) which in substance, requested instructions that negligence could not be inferred from the mere fact of the injury. While these points were affirmed, instead of the affirmance being unqualified, as appellant was entitled to have it, the court added the statement, that the jury was referred to his general charge on the subject. In the general charge he had said that the inference of negligence did arise from the injury resulting to plaintiff.
The appellate courts in the several jurisdictions throughout the country, where the question has arisen,
As the case goes back for another trial, one further matter should be disposed of, so that errors appearing in the record before us shall not be repeated. In direct examination of an X-ray expert, plaintiff’s counsel put to him a hypothetical question, intended to elicit the answer that, if the facts assumed in the interrogatory were true, the defendant was negligent. On cross-examination of this witness, defendant’s counsel asked whether his answer to the hypothetical question was based on the failure to use certain enumerated appliances in connection with the X-ray machine (twenty-first and twenty - seeond assignments of error) to which plaintiff’s counsel objected, on the ground that, in direct examination, on defendant’s objection, he had been denied the right to inquire as to the use of these appliances. The court sus
The fourth, fifth, sixth, seventh, eighth, eleventh, twelfth, twenty-first and twenty-second assignments of error are sustained and the judgment is reversed with a new venire.