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ROBINSON v. WIRTS. (12/29/56)

December 29, 1956

ROBINSON, APPELLANT,
v.
WIRTS.



Appeal, No. 260, Jan. T., 1956, from order of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1954, No. 3273, in case of Hannah Robinson v. Charles Wilmer Wirts. Order affirmed.

COUNSEL

Martin J. Cunningham, Jr., for appellant.

Philip H. Strubing, for appellee.

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

Author: Stern

[ 387 Pa. Page 292]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

The law in this State as to the nature of the evidence required to sustain an action against a physician or surgeon for malpractice has been thoroughly charted. Its application to the facts in the present case fully supports the action of the court below in entering a non-suit.

Plaintiff, Hannah Robinson, a woman 45 years of age, visited Jefferson Hospital in Philadelphia in February, 1953, for a gastroscopic examination for the detection of possible cancer. The examination was made by defendant, Dr. Charles Wilmer Wirts, Associate Professor of Medicine and Head of the Division of Gastro-enterology at the Hospital, who, as a specialist, had been regularly performing such examinations for many years. While it was an operation that would normally take but a few minutes, it was apparently more than of a merely casual or routine nature, as is somewhat evidenced by the fact that the patient received prior medication of demerol and a hypodermic injection of atrophine sulfate, - sedatives given to induce

[ 387 Pa. Page 293]

    relaxation of the muscles of the esophagus and stomach during the course of the examination. The operation itself consisted of the insertion into the esophagus of a gastroscope, which is a flexible tube approximately three feet in length and three-eighths of an inch in diameter, with a soft rubber tip to guide the instrument downward and with a light at the end to permit of a visual examination of the interior of the stomach for cancerous or other diseased conditions.

In this instance the gastroscope was passed along with ease until the cardia or esophageal orifice of the stomach was reached; there an obstruction was encountered, apparently due to spasm. Dr. Wirts explained that such spasm occurred at times because of the natural tendency of the esophagus to repel a foreign object. He testified that he applied gentle pressure and insufflation aimed to distend the walls of the stomach and esophagus so as to clear the passage for the tube, which he stated was the normal and recognized method in such cases of overcoming the obstacle created by the spasm. The patient, however, showed signs of distress, and an emphysema of the upper abdomen, neck and cheek occurred which made the doctor suspect a possible puncture of the wall of the esophagus; accordingly he immediately removed the tube and had the plaintiff taken to the surgical ward where it was discovered that there was in fact a puncture approximately an inch to an inch and a quarter in size, requiring a thoracotomy for the removal of a rib and the suturing of the puncture.

The present action was instituted by plaintiff to recover damages for pain and suffering, the disfigurement caused by the incisional scar across her body, and her expenditures for medicines and medical treatment. At the trial the only evidence produced by her, in addition

[ 387 Pa. Page 294]

    to her own testimony as to what occurred, was that of defendant, called as for cross-examination.*fn1 The trial judge entered a non-suit which the court en banc subsequently refused to remove.

The reason for the entry of the non-suit was that plaintiff had not offered any expert medical testimony to prove that defendant had inserted or manipulated the gastroscope improperly or had done anything else contrary to standard practice in treating the patient. Plaintiff contends that the jury should have been allowed to infer negligence on his part from the mere fact of the happening of the occurrence and that there was applicable the so-called exclusive control doctrine, namely, that where the thing which causes the injury is under the management of the defendant and something untoward happens that ordinarily would not occur if the one having the management used proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the happening arose from a want of care, and the burden is placed upon the defendant to establish freedom from fault.

Unfortunately for plaintiff the law is definitely to the contrary. Three very recent cases on the subject are Bierstein v. Whitman, 360 Pa. 537, 62 A.2d 843; Scacchi, Admr. v. Montgomery, 365 Pa. 377, 75 A.2d 535; and Powell v. Risser, 375 Pa. 60, 99 A.2d 454. They merely follow a long train of authorities in this Commonwealth*fn2 to the same effect, holding that no

[ 387 Pa. Page 295]

    presumption or inference of negligence arises merely because the medical care or surgical operation terminated in an unfortunate result which might have occurred even though proper care and skill had been exercised, and where the common knowledge or experience of laymen is not sufficient to warrant their passing of judgment. In such cases the doctrine of res ipsa loquitur or of exclusive control may not be invoked, and expert testimony in support of the plaintiff's claim is an indispensable requisite to establish a right of action.

In the Bierstein case, which was an action against a dentist to recover damages because of alleged negligent treatment in extracting the plaintiff's tooth, resulting in the fracture of her jaw, the court pointed out, in an opinion by the late Mr. Justice ALLEN M. STEARNE (pp. 541, 542, A. pp. 844, 845), that all that had been shown was that the defendant did certain things and failed to do other things, but that there was no evidence as to whether a careful and competent practitioner would have done otherwise. Accordingly the opinion proceeded to state that "It is argued ... 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

[ 387 Pa. Page 296]

    in any profession. ... 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. ... In all such malpractice cases this Court has uniformly applied the above principles:" [citing many cases]. Accordingly, the court affirmed the entry of a compulsory non-suit by the trial court.

In the Scacchi case, which was an action against a surgeon for alleged negligence in the performance of an operation to remove the patient's right tube and ovary because of an ovarian cyst, it was alleged that the ligature was not properly placed and tied after the operation so as to prevent hemorrhages, whereby a second operation was required from which the patient died. The court affirmed the action of the lower court in entering a non-suit. It was said (p. 379, A. p. 536): "The plaintiff had the burden of proving Dr. Montgomery's negligence and in a case such as this it could be proved only by expert testimony to establish negligence in the operation or a procedure which was not in accord with standard medical practice or negligence in his treatment of the patient after the operation:" [citing authorities].

In the Powell case, which was an action to recover damages for injuries to the plaintiff's hands alleged to have been sustained by reason of the improper conduct of defendant doctors in directing the administration of a wet pack to plaintiff who suffered from a manic depressive psychosis, a judgment for plaintiff entered in the trial court was reversed, and it was said (pp. 65, 66, 67, A. ...


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