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POWELL v. RISSER (10/05/53)


October 5, 1953


Appeal, No. 83, Jan. T., 1953, from judgment of Court of Common Pleas of Lehigh County, April T., 1948, No. 88, in case of Reynold F. Powell v. Mark Risser, Norman Daley and Harry F. Hoffman. Judgment reversed.


Harold A. Butz, with him Kenneth H. Koch, Philip H. Strubing, Butz, Steckel, Hudders & Rupp, and Evans, Bayard & Frick, for appellants.

Samuel D. Frederick, with him Milton J. Goodman, Henry L. Snyder and Snyder, Wert & Wilcox, for appellee.

O. Jacob Tallman, with him H. J. Woodward, Deputy Attorney General, and Robert E. Woodside, Attorney General, for Commonwealth of Pennsylvania, under Rule 46.

Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.

Author: Arnold

[ 375 Pa. Page 61]


The plaintiff, Powell, brought this action of trespass to recover damages for personal injuries to his hands, alleged to have been sustained by reason of the

[ 375 Pa. Page 62]

    improper conduct of Dr. Mark Risser, Dr. Norman Daley and Dr. Harry F. Hoffman. The court below entered a non-suit as to Dr. Hoffman, who was superintendent of the Allentown State Hospital. The plaintiff did not appeal from the refusal to take off the non-suit. A verdict was returned against Dr. Risser and Dr. Daley, on which judgment was entered, and the defendants appealed from the refusal of their motion for judgment n.o.v.

The plaintiff was admitted as a patient to the Allentown State Hospital (for the insane) in September, 1943, suffering from a mental illness, to wit manic depressive psychosis. He was about 19 years of age and physically sound. About May 1, 1946, the plaintiff escaped from the hospital and was returned by the police on the following day. He was brought to the hospital in a manic state, violent, threatening to run away and liable to injure himself and others. His physical condition was good.

The illness from which plaintiff was suffering is characterized by fluctuations from periods of depression, worry, loss of weight, to periods of over-activity, lack of restraint and excitability. Part of the time the patient may seem entirely normal. His emergence from one mood to another may occur suddenly. During the over-active period the patient, in common language, is a raving maniac. Plaintiff's record at the hospital was one of furloughs in the charge of his family, stealing and wrecking of automobiles, and return from such escapades to the hospital by the police. On May 2, 1946, when the plaintiff was brought back to the hospital by the police, Dr. Risser directed the supervisor of nurses, Buck, to administer a wet pack. Having done so, the supervisor of nurses reported to Dr. Risser that the plaintiff's physical condition was all right, but that he was violent and threatening, and

[ 375 Pa. Page 63]

    that there was no way of keeping him except in the pack. Thereupon Dr. Risser ordered a second wet pack. Later the supervising nurse reported to Dr. Risser that the plaintiff was still violent and threatening, but that his physical condition was good. Dr. Risser ordered the wet pack treatment continued so long as the patient was violent and maniacal, providing his physical condition remained good. All told three wet packs were administered by the nursing personnel and the attendant, the last pack being administered on May 3. These wet pack treatments differed in no way from the accepted and standard practice, not only in the Allentown State Hospital but in all other mental institutions operated and maintained by the Commonwealth. Such treatments are the most modern and humane method yet devised for the restraint of violent, raving and desperate patients.

Following the administration of the wet pack treatments the plaintiff's hands were considerably affected, so that he now has a 60% impairment of their use.

The wet pack treatment is administered to patients whose mental condition renders them violent, and is both a means of calming them emotionally through the therapeutic effects of warm water and of restraining them from violence. Such treatment is administered in the following manner: Sheets numbering usually six are immersed in water. They are then wrung dry, the arms are separately wrapped, and the sheets then wrapped around the body and the arms and legs, so that the patient is completely swathed in sheets from his head to the tips of his toes. Two sheets are used as ties, one placed about the body and arms in the region of the elbows and tied, and the other is tied above and below the knees. The patient is able to move his limbs but he cannot free himself. He is then immersed in a tub of water, the temperature of which

[ 375 Pa. Page 64]

    is controlled by a thermostat at about 94 to 96 degrees. He is kept in the water for a period of approximately six hours. He is then taken out, the sheets are removed, and he is bathed and the body rubbed with oil or grease. Fresh sheets are then applied and he is again immersed in the water. Generally the patient receives a series of these treatments, the number and duration of which depend upon his mental and physical condition.

During the time of the wet pack treatment proper practice requires the nursing personnel to note the temperature of the patient, the pulse rate and respiration, and make report to the physician of the patient's condition if anything unusual occurs. While the treatments are given only on order of the physician, their administration, -- that is, wrapping of the patient in sheets, the immersion in water, check of water temperature, pulse, respiration, and observation of the patient and reporting thereon to the physician, -- is strictly a nursing procedure, and is performed only by the nurses and attendants. At no time are physicians present or required to be present unless the reports from the nurses and attendants indicate a necessity therefor.

About 24,000 of the wet pack treatments are administered in the Allentown State Hospital every year without any injurious effect.

Dr. Goshorn was plaintiff's expert on the subject of the method of administering wet packs. Both on direct and cross-examination he reiterated that it is entirely a nursing procedure, and that the physician is never present or required to be, does not observe the patient, but relies on reports from the nurses. He testified that the mental condition of the plaintiff might require continuing the treatment without regard to the physical condition. His opinions were based on

[ 375 Pa. Page 6523]

years of experience. Not a single person, physician or layman, appeared to contradict the evidence, or to deny that it was the standard practice, or to state that it was improper and not in accordance with the best practices of the profession.

The duties imposed by law on the defendant physicians are to employ such reasonable skill and diligence as is ordinarily exercised in their profession, giving due regard to the advanced state of the profession at the time of treatment: Wohlert v. Seibert, 23 Pa. Superior Ct. 213, 218; English v. Free, 205 Pa. 624, 625, 55 A. 777; Stemons v. Turner, 274 Pa. 228, 231, 117 A. 922; Duckworth v. Bennett, 320 Pa. 47, 51, 181 A. 558.

It has been uniformly held that expert testimony is necessary to establish negligent practice in any profession: Wohlert v. Seibert, 23 Pa. Superior Ct. 213, 216; Bierstein v. Whitman, 360 Pa. 537, 541, 62 A.2d 843. What the lower court decided and what was determined by the jury was not whether the defendants had been guilty of negligence in following the well-recognized and established mode of treatment, but rather whether the mode of treatment was proper. This, in the face of testimony produced by the plaintiff's own experts showing that the treatment and methods employed were of long standing both in the Allentown State Hospital and elsewhere. Thus, the court permitted the jury of laymen, without knowledge of these practices, to say that a treatment was improper which expert witnesses said was in accordance with the accepted practice.

In Bierstein v. Whitman, 360 Pa. 537, 541, 542, 62 A.2d 843, the action was for malpractice of a dentist in fracturing the jaw of a patient during the extraction of a tooth. This Court said: "'All that is shown is that the defendant did certain things and

[ 375 Pa. Page 66]

    failed to do other things. But whether a careful, skilful, and diligent practitioner would have done otherwise, we do not know'. The plaintiff concedes the accuracy of the principle of law thus applied. It is argued, however, that a jury of laymen under the present facts could find negligence in the same manner as in any other tort action. It is urged that a lay jury might find that plaintiff's jaw was found to have been broken, and from this fact might conclude that defendant had used unwarranted force and was therefore negligent. We disagree with such doctrine... Negligence may not be inferred by laymen merely because the jaw was found to have been broken. A jaw could be broken even though there was no lack of care or skill by the dentist. Expert testimony is necessary to establish negligent practice in any profession: ... Wigmore on Evidence, Third Edition, Vol. VII, Sec. 2090, p. 453. As plaintiff failed to offer any expert witness to establish the measure of professional skill required of a dentist in extracting a tooth, she did not meet the burden of establishing, by the weight of the evidence, that defendant failed to treat her with reasonable and ordinary professional skill: [citing cases]... The record discloses no testimony as to the standard of care required under the circumstances and such burden was therefore not met by plaintiff."

In the instant case the plaintiff failed to show by any expert testimony just what Dr. Risser should have done or refrained from doing. From the circumstances that a verdict was recovered the inference is that Dr. Risser should have been present, that he should have examined the plaintiff between each pack and during the course of them. The testimony of all the experts called on either side of the case was that this requirement was not a part of the standard and accepted practice.

[ 375 Pa. Page 67]

It is also the general rule that a physician is not liable for injury to a patient where such occurs as a result of nursing procedures: Shull v. Schwartz, 364 Pa. 554, 556, 73 A.2d 402, in which case the defendant surgeon performed an operation on the wife-plaintiff. Later a hospital intern was directed by the surgeon to remove the stitches and in doing so failed to remove two of them. This Court on appeal affirmed the principle that the liability of the defendant does not apply to treatment administered by floor nurses and interns in the regular course of service furnished by a hospital, and that as to all such care and attention the nurses and interns would clearly be acting exclusively on behalf of the hospital and not as assistants to the surgeon.

In Stewart v. Manasses, 244 Pa. 221, 90 A. 574, the defendant was a family physician and procured the admission of the plaintiff to a hospital and assisted the chief surgeon in the operation. After the operation plaintiff was removed from the operating room to the recovery room where nurses had prepared a bed and negligently left in it a hot water bottle. When the plaintiff was placed in the bed she was burned or scalded. This Court held that the plaintiff's case was without any support, and that the injury was caused by the negligence of the hospital nurses whose work the defendant was under no duty to supervise, and for whose negligence he was not responsible. See also Hohenthal v. Smith, 114 F. 2d 494.

Since, to make out a case, the plaintiff must show by expert testimony that there was a deviation from proper practices in the administration of the wet packs, and since he failed to do so, the doctrine of exclusive control is not in this case. Cf. Kelly v. Yount, 135 Pa. Superior Ct. 528, 531, 7 A.2d 582; Bierstein v. Whitman, 360 Pa. 537, 62 A.2d 843.

[ 375 Pa. Page 68]

The lower court therefore erred in imposing such a duty upon him in the face of the evidence in the case. There was also a wide variation in the opinions of plaintiff's experts as to what caused the plaintiff's injuries. Cf. Mudano v. Phila. Rapid Transit Co., 289 Pa. 51, 137 A. 104.

As to the defendant, Dr. Norman Daley, the allegation was made that after the plaintiff had undergone the wet pack treatments his hands were in bad shape from blisters, some of which had opened and some of which had to be opened. Dr. Daley first saw the plaintiff at least four days*fn1 after the last wet pack was administered. Dr. Daley is alleged by the plaintiff to have opened several blisters with a pocket knife taken from his pocket. Assuming this to be true, there is no evidence that the use of the non-sterile knife could have produced the injuries to the plaintiff, or indeed contributed to them. The plaintiff's only expert on this phase of the case, Dr. Marcks, stated that he did not "believe that infection had a thing to do to contribute to the development of the deformity [of the plaintiff's hands]"; and testified that "the use of unsterile instrument... to open blisters as mentioned, might contribute or be a contributing cause to infection, but not a contributing cause to the deformity this man has." (Italics supplied). The testimony of Dr. Marcks was plainly insufficient to charge Dr. Daley with negligence in that it failed to show the connection between the injury resulting from the negligent act and a later condition. In Monahan v. Seeds & Durham, 336 Pa. 67, 71, 6 A.2d 889, this Court said: "When, in cases of this class, expert testimony is relied on to show the connection between an alleged cause and a certain result, it is not enough for the doctors to say simply that

[ 375 Pa. Page 69]

    the ailment in question might have resulted or 'most probably' came from the assigned cause, or that the one could have brought about the other; they must go further and testify at least that, taking into consideration all the attending data, it is their professional opinion the result in question came from the cause alleged: Vorbnoff v. Mesta Machine Co., 286 Pa. 199; Elonis v. Lytle Coal Co., 134 Pa. Superior Ct. 264." It therefore follows that a verdict cannot be sustained against Dr. Daley.*fn2

The judgment is reversed and judgment is hereby entered for Dr. Mark Risser and Dr. Norman Daley notwithstanding the verdict.


The judgment is reversed and judgment is hereby entered for Dr. Mark Risser and Dr. Norman Daley notwithstanding the verdict.


The assumed therapeutics administered to the plaintiff is this case read like the chronicle of a medieval torture. This does not say that the plaintiff's condition might not have warranted such treatment. The

[ 375 Pa. Page 70]

    care of mental patients sometimes requires the application of physical restraint which must seem cruel and brutal to those unfamiliar with the routine of mental institutions. However, the unnecessary or reckless use of violent measures which steal away physical assets from one already robbed of the treasures of a sound mind constitutes a misdeed which humanity abhors, justice condemns and the law should correct.

Reynold F. Powell, now 29 years of age, apparently enjoyed good health -- physical and mental -- until he enlisted in the United States Army at the age of 18. After being honorably discharged from the military service for medical reasons, he returned home and obtained employment at the Bethlehem Steel Company as a chemical analyst in the testing of metal. As an infant, Powell showed aptitude in music, and in youth and young manhood learned to play, repair and tune pianos and play the trumpet. Prior to entering the Allentown State Hospital his hands were without defect or blemish and responded faithfully to the demands of his vocation and avocations of chemical analyst, musician, piano tuner, typist and carpenter. Today those hands are in ruins. Scarred, gnarled, crippled and deformed, they have lost 60% of their normal functions. The inevitable tools he needed in earning his livelihood have been practically destroyed.

This catastrophic loss was caused by the event which is the subject of the lawsuit appealed to us for final judgment.

Reading the court record in the light most favorable to the plaintiff, as we are required to do in considering an appeal for judgment non obstante veredicto,*fn* the following narrative of events is indicated. In the early part of May, 1946, Reynold Powell was

[ 375 Pa. Page 71]

    returned to the Allentown State Hospital from which he had escaped after having reportedly been beaten by an attendant. On the evening of his readmittance to the hospital Dr. Mark Risser, without examining him, ordered him to be prepared for wet packs. Powell was undressed and placed on a table. A wet sheet went tightly around each arm. Both arms were pinned to his sides, and four other enveloping sheets encased his body from chin to toe. Two more wet sheets, folded into ropes, were thrown about his waist and legs and knotted tightly, maximum tautness being achieved by one of the attendants placing a foot against his body and pulling against the middle. In this mummified form Powell was now tied to his bed and complete immobilization was secure.

As the sheets began to dry, constriction set in, which impinged on Powell's breathing and shot pains through his chest. Powell complained but his complaints were ignored. After six hours he was released from his sheeted imprisonment but another wet-sheeted straitjacket was prepared. Powell protested but the attendant said: "We have orders to put you in another pack." Powell was calm, weak and cooperative, but under orders of Dr. Risser the attendants again bound him tightly and again tugged at the roped sheets to achieve the last inch of adhesive closeness. No one took his pulse, no one ascertained his temperature. He was placed into a tub of warm water which soon became hot. Again Powell's resulting protestations fell on deaf ears. Agonizing with pain, running with perspiration and tormented with unquenched thirst he screamed for relief which brought from the night supervisor the reproof: "... if you don't shut your... mouth, you'll stay in pack six hours later." Shortly after this, Powell fainted. When he revived, it was early morning.

[ 375 Pa. Page 72]

It was apparent that the hermetically tight wrappings were interfering with the patient's blood circulation but neither of the defendant-doctors appeared upon the scene to examine, to inquire, to probe or investigate. At the end of the first pack, one of Powell's arms was in pain. At the end of the second pack, both arms were swollen and numb; his hands, which apparently received the full impact of the constriction, had "puffed" to twice their normal size. Again no doctor or nurse examined Powell at this juncture; again neither his pulse nor temperature was taken; again he was swathed in the binding sheets and again he was placed in the tub of hot water, in which he remained this time for five hours. When the vise-like sheets were removed at 2 o'clock in the afternoon, his hands were scarcely recognizable as hands.

Mrs. Norma Berg, the plaintiff's sister, in describing her brother's condition, said: "His hands were swollen two and half to three times their normal size and resembled two raw steaks. There were blisters in the center of both palms, about the size of a half-dollar, and other blisters over his hand and fingers."

One day Dr. Norman Daley opened some of the blisters on Powell's left hand with a pen knife taken from his pocket, and the swelling, which had started to recede, flared into aggravated size and color. The patient felt "drawing pains," "like electrical current going through, like my fingers were going to be drawn up." The fingers began to curl toward the palm.

Dr. Kerwin M. Marcks, a plastic surgeon, testified: "From my examination, I am definitely convinced that this deformity this man has was produced by some form of trauma." He further was of the opinion that the condition was caused by the impeded circulation of blood followed by infection resulting from the use of an unsterilized pocket knife.

[ 375 Pa. Page 73]

Dr. Robert L. Schaeffer, chief surgeon of the Allentown Hospital, testified that in his expert opinion the deformity in Powell's hands "was caused by a cutting off of the blood supply to his hands."

The fear has been expressed by appellants that to allow a recovery in this case would be to subject doctors to vexatious and frequent litigation. This is a cloak of argument worn to confuse the unwary. The criticism of an individual member of a class does not condemn the whole class. Doctors have appeared in court before and some have won and some have lost the lawsuits in which they have been involved, but the medical profession did not, because of that litigation, lose dignity or prestige. Infact, down through the years the medical profession has continued to advance and progress until today it is recognized and respected as the greatest benefactor of mankind since the days of the Divine Physician who healed the sick and the weary, gave sight to the blind and lifted the dead from their graves. We are concerned here only with the alleged negligence of two particular men of medicine, and not the whole field of healing in which the disciples of Aesculapius plant the seeds of health, sanity and well-being. No gardener objects to the uprooting of toxic weeds; no doctor, including the two who are defendants in this civil case, will or should object to discarding methods and practices proved more disposed to break down vital tissue than to weave it into healthy and substantial muscle and flesh.

In caring for his patient, Reynold Powell, Dr. Risser failed to measure up to the medical standards legally expected of him. Although he testified he saw the plaintiff when he was in the first pack he did not note pulse or temperature, or see to it that they were recorded. Dr. H. F. Hoffman, superintendent of the Allentown State Hospital, testified that a patient's

[ 375 Pa. Page 74]

    temperature and pulse, while undergoing wet pack treatment, should be taken every 30 minutes. Dr. Risser did not meet the requirement of having this regulation observed.

It was not enough for Dr. Risser to look at a patient once, and then commit him to the machinery of an insane asylum without some periodical supervision to assure that the patient was not being torn between grinding gears of inattention or misbehavior. Although Dr. Risser had ordered the continuation of a very drastic treatment, he ignored the recipient of that treatment until he was brought before him for surgery after the third application of a therapeutic violence he himself had prescribed. Had he examined Powell after the second pack it is reasonable to assume he would have ordered either the discontinuation or modification of the treatment because the patient was displaying at that time vivid symptoms of distress and breakdown from the harsh measures being employed. Dr. Risser did not even know that Reynold Powell had fainted during the ordeal of the second pack, but it was within the periphery of his responsibility to ascertain what untoward results, if any, had followed the severe course of action he had dictated. He allowed Powell to go through the third crushing pack as a simple matter of routine: "Q. How did he get in the third pack? A. We consulted about this thing during the late evening, and I told Mr. Buck, 'If this young man's physical condition remains good and he is still violent and maniacal, you can go on with pack treatments until the following morning."

This testimony clearly establishes that Dr. Risser had prescribed a long range consuming treatment without providing for check-ups to assure himself that the continuation of that grim and painful cure might not achieve a result worse than the disease. He testified:

[ 375 Pa. Page 75]

"Q. Before he went into the third pack, did someone report to you that he was still violent? A. I don't recall that. Q. Then why did you order the third pack? A. We know from experience the kind of treatment required in these cases."

Dr. Daley, the co-defendant stated that the question as to whether a third pack should be prescribed was "a question of judgment, and at times pretty keen judgment." In spite of the high standard of wisdom needed to determine whether the harsh scouring regimen should be continued, neither one of the defendants made any effort to apply that wisdom. The fate of a helpless young man entrusted to their safekeeping was left in the hands of one without the capacity or responsibility to make the momentous decision: "Q. In this particular case, that judgment, which you say must be pretty keen, was left to the attendants? A. It was left to Mr. Buck, the night supervisor."

Dr. H. F. Hoffman, Superintendent of the Hospital, testified with regard to the packs: "Q. Do you agree that, before a doctor prescribes a wet pack, he should assure himself of the physical condition of the patient? A. I believe that a doctor would not prescribe a pack unless he felt it was the indicated treatment for the patient, which means the patient is in condition to take it."

Dr. Risser cannot shift his responsibility for Powell's condition to the night supervisor Buck. In the case of Davis v. Kerr, 239 Pa. 351, the defendant-doctor there attempted to escape accountability for a sponge left in the abdominal cavity of a surgical patient by blaming the fault on the nurse, but this Court said: "Neither does the defendant, nor a single witness in his behalf, undertake to give any explanation of the fact that here a sponge which the defendant should

[ 375 Pa. Page 76]

    have removed was allowed to remain, except to say that the nurses failed to keep accurate court...For all that appears in the case the retained sponges might readily have been discovered by the surgeon, and reasonable prudence and care on his part would have avoided the accident." (Emphasis supplied)

Had Dr. Risser here done his full duty toward the plaintiff, the third packing would not have taken place and the resulting injury would have been avoided, just as Dr. Kerr in the cited case would have avoided a lawsuit had he done his duty in making certain that no sponge had been left in his patient.

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