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July 3, 1947

AUDET et al.

The opinion of the court was delivered by: MURPHY

Plaintiff sought damages for alleged malpractice resulting in the death of Helen C. McHugh, plaintiff's deceased spouse and mother of five minor children.

Jurisdiction arose from diversity of citizenship and from a claim for damages in excess of $ 3,000. Plaintiff was a resident of New Jersey Defendants, Dr. Lewis E. Audet and Dr. William E. Delaney, were Doctors of Medicine practicing their profession in the City of Williamsport, Pennsylvania.

 Plaintiff's decedent being ill, Dr. Audet, the family physician, was called to her home. Being of the opinion that a surgical problem was involved, Dr. Delaney, a surgeon, was called into consultation. From the history of the case and based upon the professional judgment of the defendants, the condition was diagnoses as a left tubo ovarian abscess which should be drained. The patient was removed to the Williamsport Hospital.

 After the patient was strengthened an operation -- a posterior colpotomy -- was performed. The operative findings indicated that the colpotomy did not reach and remove the cause of the patient's disorder. Following the operation there was profuse bleeding and severe shock necessitating several blood transfusions. Dr. Delaney thereupon called Dr. Marc W. Bodine, a surgeon, into consultation. It was then decided not to proceed immediately with any further operative action but to wait, watch developments, and build up the patient.

 Some days later, pursuant to previous plans, Dr. Delaney left to attend the annual meeting of the American College of Surgeons in Chicago During his absence Dr. Bodine performed an abdominal operation known as a laporotomy and removed the right Fallopian tube. Within two weeks thereafter the patient died. The principal cause of death and related causes of importance were an ectopic pregnancy with thrombosis and infection of the left broad ligament, a mass hemorrhage from the left broad ligament and a pelvic peritonitis.

 Dr. Bodine's opinion was that death was caused primarily by a ruptured ectopic pregnancy; secondary cause, diffused peritonitis.

 Dr. Sidney B. Jacobson, the plaintiff's expert, stated that in his judgment death was caused by peritonitis.

 The defendants stated that the evidence as to the existence of an ectopic pregnancy was not clear; that no recto vaginal fistula was found. Dr. Delaney stated that death was caused by paralytic ileus due to peritonitis.

 Plaintiff's contention was that the defendants used improper diagnostic procedure, made an incorrect diagnosis, improperly performed the colpotomy, failed to complete the colpotomy, failed to properly treat the post-operative condition of bleeding and shock, alleging that the measures taken were only temporary and not corrective; further that the defendants failed to use proper care, skill and diligence in not proceeding immediately to enter the abdomen to discover and remove the real actual underlying cause of the patient's trouble.

 Plaintiff's position was that because decedent was a female of child bearing age, certain tests referred to as the 'Needle', Freedman and/or Ascham Zondek tests for pregnancy should have been made. If, said plaintiff, such tests were made they would have revealed the existence of an ectopic pregnancy which could have been corrected only by proceeding through abdomen, i.e., by a laporotomy. Plaintiff argues that if the condition was actually that of a tubo ovarian abscess there was also present a recto vaginal fistula which exuded dangerous and infectious germs through the vaginal area; that the defendants failed to take proper steps to cleanse the operative area. Furthermore, that in view of the danger of infection a colpotomy operation such as performed by the defendants was not proper surgical procedure. Finally plaintiff contended that the defendants in court misstated their findings in failing to disclose that they knew about the existence of a recto vaginal fistula.

 Defendants replied that there was no fistula in so far as their findings revealed; that if there was, the procedure for cleansing the vaginal area prior to the colpotomy was proper and in accordance with good surgical standards and requirements. Furthermore, that if there was a fistula the danger outlined by plaintiff's witness of infection and probable fatal results was not in accordance with common every day operating room experience.

 Defendants admitted not using the 'Needle' test, stating that it was not required under the circumstances in view of the operation as conducted by Dr. Delaney. Further that since Mrs. McHugh stated in answer to a question from Dr. Delaney that she had not had sexual intercourse with any one since the birth of her last child there was no need for any pregnancy test.

 Defendants stated that the post-operative condition of bleeding and shock was arrested and corrected shortly after the operation and that it would have been fatal to have immediately proceeded through the abdomen; that good surgical practice required a building-up period be first pursued before any additional surgery be performed.

 In support of plaintiff's position there were placed in the record the depositions of Dr. Bodine, statements of Dr. William A. Cooper, and finally the testimony of Dr. Sidney B. Jacobson, the latter two of New York City.

 Defendants testified as under cross-examination and in their own behalf on direct examination. Thereafter defendants called Dr. R. L. Foss, head surgeon of Geisinger Memorial Hospital, Danville; Dr. Albert F. Hardt and Dr. John B. Nutt of Williamsport; Dr. Lloyd G. Cole of Blossburg State Hospital, Blossburg, all of whom testified that in their professional judgment the procedure adopted by the defendants in diagnosis, the diagnosis actually made, the operation performed and the post-operative treatment administered, as well as the delay in performing a further operation, were all in accordance with good medical and surgical practice, taking into consideration the state of the art as of that time and the practice and procedure generally followed in the Williamsport area They agreed with the defendants' position that under the circumstances it was not necessary to perform any of the tests outlined by plaintiff's expert; that the colpotomy was a proper operation under the circumstances; that it would have been dangerous to the life of the patient to proceed with further surgery immediately following the colpotomy, and generally that the defendants used proper care, skill and diligence in the diagnosis and treatment of decedent's condition.

 The foregoing outlines the factual situation with which the trial judge and jury were confronted at the close of the testimony. The defendants contended that in view of the record the matter should have been disposed of by the trial judge by a directed verdict for the defendants; that the questions involved were those which could be passed upon only by physicians and surgeons and that there was no fact situation in dispute which should be submitted to the jury. The trial judge submitted the entire problem to the jury for their determination.

 This being a case where damages were claimed for alleged malpractice, jurisdiction resting upon diversity of citizenship, the principles of law applicable to the question of liability are to be determined by the laws of Pennsylvania. Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487.

 Malpractice consists of a negligent or unskillful performance by a physician of the duties which are devolved and incumbent upon him on account of his relations with his patients or of a want of proper care and skill in the performance of a professional act. Hodgson v. Bigelow, 335 Pa. 497, at page 504, 7 A.2d 338, citing Wharton and Stille's 'Medical Jurisprudence', 5th Ed., Vol. 3, Section 499.

 The duty imposed on a physician or surgeon is to employ such reasonable skill and diligence as is ordinarily exercised in his profession in the same general neighborhood having due regard to the advanced state of the profession at the time of the treatment. McCandless v. McWha, 22 Pa. 261; English v. Free, 205 Pa. 624, 55 . 777; Stemons v. Turner, 274 Pa. 228, 117 A. 922, 26 A.L.R. 727; Wohlert v. Seibert, 23 Pa. Super. 213; Duckworth et al. v. Bennett, 320 Pa. 47, 181 A. 558.

 This duty applies in diagnosing a patient's malady. The physician must use such ordinary skill and diligence and apply the means and methods generally used by physicians and surgeons or ordinary skill and learning in the practice of the profession, i.e., in the same general line of practice in like cases to determine the nature of the ailment and to act upon his honest opinion and conclusions. Ward v. Garvin, 328 Pa. 395, 195 A. 885.

 Where a physician or surgeon exercises such ordinary care and skill keeping within recognized and approved methods he is not liable for the result of a mere mistake or error of enlightened judgment. There is no responsibility for an error of judgment unless it be so gross as to be inconsistent with the degree of skill which it is the duty of every physician to possess. Hodgson v. Bigelow, supra; Williams v. Le Bar, 141 Pa. 149, 159, 21A. 525; 2 Shearman and Redfield on Negligence, Section 612, 5th Ed.; 5 Thompson on Negligence, Section 6719; 21 R.C.L. 391. If he failed to bring to the diagnosis the proper degree of skill and care and makes an incorrect diagnosis, or if he failed to apply the means and methods generally used by physicians and surgeons of ordinary skill and learning in the practice of the profession to determine the nature of the ailment and to act upon his honest opinion and conclusion, he would be liable in damages. Ibid.

 Where the symptoms are obscure there is no liability for a mistake in diagnosis. Duckworth v. Bennett, supra; Hodgson v. Bigelow, supra.

 A departure from established standards of practice, unless justified by circumstances, may constitute a prima facie case of malpractice Hodgson v. Bigelow, supra, 335 Pa. at page 518, 7 A.2d 338; Moscicki et ux. v. Shor, 107 Pa. Super. 192, 163 A. 341. The physician is entitled to have his treatment of his patient tested by the rules and principles of the school of medicine to which he belongs. Ibid.

 Where only one course of treatment would be approved by physicians of ordinary skill the adoption of any other course may establish liability but this does not limit him to the most generally used of several modes and the use of another mode known and approved by the profession is an exercise of care. Practitioners of a reputable school of medicine are not to be harassed by litigation and mulcted in damages because the course of treatment prescribed by that school differs from that adopted by another school. ...

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