Lead Opinion
In а medical malpractice action, a jury awarded Kevin Toogood (Appellee or Mr. Toogood) the sum of $465,000.00. This Court granted allowance of appeal to decide whether the Court of Common Pleas of Philadelphia County (trial court) erred in failing to grant the Motions of Appellants
FACTS AND PROCEDURAL HISTORY
Mr. Toogood was involved in two automobile accidents. The first occurred in 1989 and the second in 1992. In the 1992 accident, he sustained injuries to his head, jaw, back, and shoulder. By August of 1993, the residual pain from his injuries
On December 13, 1993, Mr. Toogood received four paravertebral nerve block injections from Dr. Stone. After receiving the final injection, Mr. Toogood felt pain, experienced difficulty breathing, and remained at The Pain Center for a short time before driving himself home. While at home, he collapsed and was taken to The Chester County Hospital complaining of breathing difficulties. At the hospital, he was treated by William Dellevigne, M.D. (Dr. Dellevigne), who diagnosed and repaired a pneumothorax.
Mr. Toogood filed a complaint against Dr. Stone and the Rogal Defendants on February 21, 1996. The complaint alleged claims of negligence and battery against Dr. Stone and asserted direct and vicarious liability claims against the Rogal Defendants. Prior to trial, Mr. Toogood withdrew the claims of direct liability and proceeded against the Rogal Defendants solely on the basis of vicarious liability.
On February 23, 1996, two days after the filing of the instant action and before he could be deposed, Dr. Stone died and Appellant, Thomas Stone, the executor of Dr. Stone’s estate, was substituted as a defendant. The only other person in the room at the time of the nerve block injection was Dr. Stone’s son, Richard Stone, a nurse anesthetist. He also died before his deposition could be taken.
The trial judge precluded Appellee from presenting expert medical testimony at trial because he failed to submit the report of his medical expert in a timely manner. Appellants then verbally requested a grant of summary judgment due to the absence of expert medical testimony. However, because Appellee asserted that he could establish a prima fame case by application of the doctrine of res ipsa loquitur, he was allowed to proceed to trial only on that basis.
Further, as a result of the deaths of Dr. Stone and his son, Dr. Stone’s estate filed a motion for summary judgment asserting that, pursuant to the Dead Man’s Act, 42 Pa.C.S. § 5930, no adverse testimony could be offered against Dr. Stone and that, because Appellee failed to provide expert testimony necessary to establish a prima facie case of medical negligence, Appellee would be unable to succeed. This motion was uncontested and, by Order dated September 2, 1997, the trial judge granted the motion and dismissed all claims against Dr. Stone, except the cross-claim of the
At trial, testimony was received from Appellee and Dr. Rogal, and video deposition testimony from Dr. Dellevigne was presented. The trial court then allowed the case to go to the jury with a res ipsa loquitur instruction without expert testimony as to the standard of care, over the objection of the Rogal Defendants.
On October 23, 1998, the jury rendered a verdict in favоr of Mr. Toogood and against the Rogal Defendants in the amount of $465,000.00. Appellants filed timely post trial motions for a new trial, remittitur, and judgment non obstante veredicto, which the trial judge denied.
The Superior Court affirmed the decision of the trial court in a published opinion. Toogood v. Rogal,
The Superior Court found that the trial judge properly granted summary judgment in favor of Dr. Stone based on the Dead Man’s Act. The court outlined the elements of a prima facie case of medical malpractice, but concluded that the doctrine of res ipsa loquitur permits a jury to infer the existence of negligence and causation where the injury at issue is one that does not ordinarily occur in the absence of negligence. Citing to this Court’s recent decision in Hightower-Warren v. Silk,
Finally, the Superior Court rejected the claim of the Rogal Defendants that they should have been dismissed from the case upon Dr. Stone’s dismissal and concluded that the Rogal Defendants had confused a valid defense of immunity with the defense of release and satisfaction and “evidence[d] a profound misapprehension of the nature of the vicarious liability of a principal for the tortious acts of his agent.” Toogood,
DISCUSSION
Medical Malpractice
“Two traditional cornerstones of tort law—liability based on fault and trial by jury—have been incorporated into the law of medical negligence.” Malpractice and Medical Testimony, 77 Harv. L.Rev. 333, 334 (1963). Suits by patients against their doctors have been brought in this Commonwealth for over a century
The expert testimony requirement in a medical malpractice action means that a plaintiff must present medical expert testimony to establish that the care and treatment of the plaintiff by the defendant fell short of the required standard of care and that the breach proximately caused the plaintiffs injury. Hence, causation is also a matter generally requiring expert testimony. A very narrow exception to the requirement of expert testimony in medical malpractice actions applies “where the matter is so simple or the lack of skill or care so obvious as to be within the range of experience and comprehension of even non-professional persons,” Hightower-Warren,
Res Ipsa Loquitur
The res ipsa loquitur doctrine originated in English courts in the nineteenth century. The now infamous 1863 case of Byrne v. Boadle, 159 Eng. Rep. 299 (Ex. 1863), involved an injury to a passerby when a barrel of flour rolled from the defendant’s shop window above and struck the plaintiff in the head. The issue at trial involved the necessity that plaintiff prove that the defendant was, in fact, negligent. In determining that the falling barrel was prima Jude evidence of negligence, Chief Baron Pollock casually stated that the occurrence of the accident spoke for itself, coining the phrase “res ipsa loquitur.” Two years later, in
There must be reasonable evidence of negligence. But where the thing is shewn to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant that the accident arose from want of care.
D’Ardenne by D Ardenne v. Strawbridge & Clothier, Inc.,
Res ipsa loquitur reflects a common sense understanding that an inference of negligence may be raised without direct evidence of the negligent act if three conditions exist: (1) the injury must be of a type not ordinarily occurring absent negligence; (2) the defendant must have had exclusive control of the instrumentality effecting the injury; and (3) the plaintiff must not have contributed to the injury. See, e.g., Greathouse v. Horowitz,
Res ipsa loquitur is neither a doctrine of substantive law nor a theory of recovery; rather, it is a rule of circumstantial evidence. Nor is this doctrine to be employed simply because the treatment caused injury or failed to yield the expected result. Courts have continually stated that an injury alone is insufficient to prove negligence in medical malpractice cases.
The doctrine of res ipsa loquitur allows plaintiffs, without direct evidence of the elements of negligence, to present their case to the jury based on an inference of negligence. The key to the doctrine is that a sufficient fund of common knowledge exists within a jury of laypersons to justify raising the inference. Instead of directly proving the elements of ordinary negligence, the plaintiff provides evidence of facts and circumstances surrounding his injury that make the inference of the defendant’s negligence reasonable. “The gist of res ipsa loquitur ... is the inference, or process of reasoning by which the conclusion is reached. This must be based upon the evidence given, together with a sufficient background of human experience to justify the conclusion. It is not enough that plaintiffs counsel can suggest a possibility of negligence.” Prosser & Keeton, The Law of Torts § 39, p. 243 (5th ed.1995). This theory relieves the plaintiff of having to prove causation directly.
Res ipsa loquitur in Medical Malpractice Actions
Historically, res ipsa loquitur has had a limited role in medical malpractice cases and the application of the doctrine to those cases is a comparatively recent development. Previously, the fact that medicine is not an exact science, that the human body is not susceptible to precise understanding, that the care required of a medical professional is the degree of learning
An unfortunate result such as death or infectiоn could not, by itself, establish liability and, when an injurious result was a common side effect of the treatment that could occur without negligence, courts refused to allow patients to use res ipsa loquitur;
Prior to the decision of this Court in Jones v. Harrisburg Polyclinic Hosp.,
Restatement (Second) Torts § 328D
In Gilbert v. Korvette, Inc.,
In Jones, the patient emerged from gynecolоgical surgery with permanent damage to her ulna nerve. Both parties presented expert medical testimony as to the standard of care, but expert testimony was deficient as to causation. Thus, in Jones we said:
We are satisfied that expert testimony should no longer be a per se requirement in proof of negligence in all cases of alleged medical malpractice. Expert medical testimony only becomes necessary when there is no fund of common knowledge from which laymen can reasonably draw the inference or conclusion of negligence. Even where there is no fund of common knowledge, the inference of negligence should be permitted where it can be establishеd from expert medical testimony that such an event would not ordinarily occur absent negligence. Restated, section 328D provides two avenues to avoid the production of direct medical evidence of the facts establishing liability: one being the reliance upon common lay knowledge that the event would not have occurred without negligence, and the second, the rebanee upon [expert] medical knowledge that the event would not have occurred without negbgence.
Jones,
d. Basis of conclusion. In the usual case the basis of past experience from which this conclusion may be drawn is common to the community, and is a matter of generаl knowledge, which the court recognizes • on much the same basis as when it takes judicial notice of facts [that] everyone knows. It may, however, be supplied by the evidence of the parties; and expert testimony that such an event usually does not occur without negligence may be essential to the plaintiffs case where, as for example in some actions for medical malpractice, there is no fund of common knowledge which may permit laymen reasonably to draw the conclusion. On the other hand there are other kinds of medical malpractice, as where a sponge is left in the plaintiffs abdomen after an operation, where no expert is needed to tell the jury that such events do not usuaby occur in the absence of negbgence.
Restatement (Second) of Torts § 328D, emt. d (1965) (emphasis added). We concluded that “[t]he need for an inference of negbgence is especially obvious in the situation where a patient submits himself or herself to the care and custody of doctors and nurses, is rendered unconscious, and receives some injury from instrumentalities used or procedures employed in his or her treatment.” Jones,
Courts sitting in medical malpractice cases require detailed expert testimony because a jury of laypersons generally lacks the knowledge to determine the factual issues of medical causation; the degree of skill, knowledge, and experience required of the physician; and the breach of the medical standard of care. In contrast, plaintiffs in res ipsa loquitur cases rely on the jury to fill in the missing pieces of causation and negligence, inherent in their cases, with the jury’s common experience. Determining whether there was a breach of duty, however, involves a two-step process: the court must first determine the standard of care; it then must examine whether the defendant’s conduct measured up to that standard. Not only does the plaintiff have the burden of proving that the defendant did not possess and employ the required skill and knowledge, or did not exercise the care and judgment of a reasonable professional, he or she must also prove that the injury was caused by the failure to employ that requisite skill and knowledge. We have previously concluded that this must be accomplished with expert medical testimony presented at trial by doctors testifying as expert witnesses.
Res ipsa loquitur must be carefully limited, for to say whether a particular error on the part of a physician reflects negligence demands a complete understanding of the procedure the doctor is performing and the responsibilities upon him at the moment of injury. Thus, in evaluating a doctor’s decision to administer a nerve block injection in a particular location, an intelligent jury analysis requires some understanding of the results of giving the injection in various places; the skill required in pinpointing a specific location; and the likelihood of giving the injection in an unintended site. We reaffirm our earlier conclusion, set forth in numerous decisions of this Court
It follows that, pursuant to Section 328D, three conditions must be met
Appellee, in the instant action, sought to recast his cause of action as something other than a medical malpractice claim to avoid the requirement of expert medical testimony. His theory was that, in the absence of negligence, a punctured lung ordinarily would not result from an injection of cortisone. We conclude that his theory was too simplistic and not an accurate reflection of the procedure in this case. A more appropriate characterization is whether, in the absence of negligence, the injection of a paravertebral nerve block results in a pneumothorax.
A physician owes his patient a duty to employ that degree of knowledge, skill, and care ordinarily possessed by members of the medical profession. Hodgson. There is no requirement that he be infallible, and making a mistake is not negligence as a matter of law. In order to hold a physician liable, the burden is upon the plaintiff to show that the physician failed to employ the requisite degree of care and skill. Braman v. Lankenau Hosp.,
CONCLUSION
The art of healing frequently calls for a balancing of risks and dangers to a patient. Consequently, if injury results from the course adopted, where no negligence or fault is present, liability should not be imposed upon the institution or agency actually seeking to assist the patient. In addition, medical uncertainties exist because each patient is unique, and undesirable results occur even whеn the diagnosis
A physician is not a warrantor of cures. If the maxim, “Res ipsa loquitur” were applicable to a case like this, and a failure to cure were held to be evidence, however slight, of negligence on the part of the physician or surgeon causing the bad result, few would be courageous enough to practice the healing art, for they would have to assume financial liability for nearly all the “fils that flesh is heir to.”
Ewing v. Goode,
Public policy reasons exist for protecting physicians by limiting res ipsa loquitur inferences in medical cases, which must be weighed against the policy concerns of protecting the general public. First, doctors hold an important place in our society due to the role that they play in the health and even survival of the peoples of this nation. For that reason, society should not allow a doctor’s actions to be second-guessed at trial without a clear understanding of the standards required. Second, medicine is not an exact science. Much discretion exists in a doctor’s praсtice of medicine that should not be condemned in hindsight. Third, the practice of medicine is a complex and experimental field. Therefore, expert testimony is necessary to prevent a finding of liability for a simple mistake of judgment, failure of treatment, or an accidental occurrence. See generally Karyn K. Ablin, Res Ipsa Loquitur and Expert Opinion Evidence in Medical Malpractice Cases: Strange Bedfellows, 82 Va. L.Rev. 325, 353-55 (March 1996).
Relaxing the burden of proof in medical malpractice cases might correct a perceived unfairness to some plaintiffs who could prove the possibility that medical malpractice caused an injury but could not prove its probability. However, health care providers might then find themselves defending cases simply because a patient failed to improve or when serious disease processes were not arrested and where another course of action might possibly have brought a better result. No other professional malpractice defendant carries this burden of liability without the requirement that plaintiffs prove the alleged negligence probably, rather than possibly, caused the injury. Thus, we cannot approve the substitution of such an obvious inequity for a perceived one.
The Order of the Superior Court is reversed.
Notes
. Appellants in this case are Owen J. Rogal, D.D.S. (Dr. Rogal), individually and doing business as The Pain Center, and Hrant Stone, M.D. (Dr. Stоne), by Thomas Stone, Executor of the Estate of Hrant Stone, M.D. Dr. Rogal and The Pain Center are identified individually and collectively referred to as the "Rogal Defendants.”
. A paravertebral nerve block is an injection of a substance into a nerve along the vertebral column to arrest the passage of the nervous impulse. See Stedman’s Medical Dictionary, 178, 1031 (26th ed.1995).
. A pneumothorax, commonly called a collapsed lung, involves the "presence of air or gas in the pleural cavity,” which can impair respiratory function. Id. at 1111.
. In Hightower-Warren, a plaintiff who suffered injury to his vocal cords during thyroid surgery was deemed to have properly invoked the doctrine of res ipsa loquitur.
. See Bardessono v. Michels,
. See, e.g., Bemus v. Howard,
. See, e.g., Shaw v. Irvin,
. See, e.g., Miller v. Delaware Co. Mem'l Hosp.,
. See, e.g., Chism v. Campbell,
. Hodgson v. Bigelow, supra; Duckworth v. Bennett,
. Gilbert involved liability of a storeowner and escalator manufacturer for injuries sustained by a toddler whose foot became caught in one of the escalator steps. The child suffered the loss of part of his left great toe and general disfiguration and deformity of his foot.
. Section 328D states:
(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant's duty to the plaintiff.
(2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.
(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.
. Those theories comprised "one еntitled 'res ipsa loquitur,’ the second entitled 'exclusive control,' and the third was an untitled simple circumstantial evidence theory.” Jones,
. In Chandler v. Cook,
. See note 14, supra.
. See note 3, infra, and accompanying text.
Dissenting Opinion
dissenting.
Under the doctrine of res ipsa loquitur as adopted by this Court, a medical malpractice plaintiff can proceed on a theory of negligence without expert testimony as to the standard of care or causation where:
(a) the event is of the kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated nеgligence is within the scope of the defendant’s duty to the plaintiff.
At trial, Toogood presented evidence that Dr. Stone had punctured his lung with a needle while giving him a routine nerve block injection in his back and that the puncture caused his lung to collapse. These facts, in my view, clearly satisfy the first prong of the res ipsa test because it is generally understood that in the absence of negligence, such an injection does not ordinarily рuncture a lung and cause it to collapse.
The majority nevertheless concludes that Toogood cannot proceed on a res ipsa loquitur theory, reasоning that laypersons cannot draw on their common knowledge to conclude that such events do not ordinarily occur .in the absence of negligence, because the injection “involved complex issues of anatomy, medical science, invasive procedures, and precision performance.” Op. at 263,
. The injection at issue in this case was the fourth such injection that Toogood had received in Dr. Stone’s office that very day.