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June 23, 1959

Kenneth V. DILL
Clayton L. SCUKA, M.D

The opinion of the court was delivered by: EGAN

Essentially this is an attempt to fasten vicarious liability on a treating doctor who called in a specialist, with the patient's consent, to perform an aortogram, in which effort the expert was unsuccessful, the attempted aortogram having been performed by the expert in the absence of the treating doctor who did not assist in any way at the time.

Secondarily, plaintiff seeks to impose liability on the treating doctor on the ground that he abandoned the plaintiff after the unsuccessful attempts to perform the aortogram and failed to prescribe other forms of therapy which might have brought relief.

 There is no merit to either contention.

 This is a diversity case in which all the action, except the trial, took place in Wichita, Kansas. At the time of the occurrence, the defendant, Scuka, lived and practiced medicine in Wichita, Kansas. When he was sued in this Court, he was filling a residency at the Lankenau Hospital in Overbrook, Philadelphia, and was living at Havertown in the Eastern District of Pennsylvania.

 The case was tried, for the most part, on depositions. The only 'live' witnesses appearing at the trial were the plaintiff and his wife and two doctors who were called in to give expert testimony, namely, Doctor Benjamin Manchester, of Washington, D.C., a graduate of the George Washington University School of Medicine and Doctor Abol Khajavi, a graduate of the University of Iran Medical School, who at the time was serving a residency at Jefferson Medical College in Philadelphia.

 The action came on for trial on January 26, 1959. At the conclusion of plaintiff's case on February 3, 1959, the Court granted defendant's motion for involuntary dismissal under F.R.Civ.P. 41(b), 28 U.S.C.A. On February 12, 1959 plaintiff filed his motion to set aside the judgment of involuntary dismissal and for a new trial. The matter was heard on briefs and argument of counsel in open Court on April 20, 1959. It is now ripe for decision.

 Defendant, Dr. Clayton L. Scuka, a general practitioner in Wichita, Kansas, in 1954, had under his care at the Wesley Hospital there the plaintiff, Kenneth V. Dill, whom he was treating for a blood clot which affected the calf and foot of his left leg, which interfered with his ability to perform his duties as service specialist or 'troubleshooter' for the local gas company. He was stricken while waiting in his office on the midnight shift for a call. He had fallen asleep sitting in a chair with his feet on his desk. Two other blood clots developed in his chest while he was under treatment at the hospital and they disappeared after he was given a hypodermic needle.

 Plaintiff consented to the procedure and discussed it at various times with Dr. Scuka and Dr. Miles. The latter made a physical examination of plaintiff, checked his prothrombin time and apparently found him satisfactory for aortography. A general anesthesia was administered by the staff anesthetist. In the attempted injection of dye into the aorta, Dr. Miles was not satisfied with the nature of the blood found in the patient and discontinued the procedure. Dr. Scuka was not present at the procedure and had no control over it. The patient knew that Dr. Miles and not Dr. Scuka would perform it.

 About a week after the attempted aortogram, during which time plaintiff suffered great pain and thrashed about in bed, plaintiff's nerve functions in his lower extremities deteriorated and he lost control of his lower legs from the hips down, became unable to urinate and have normal bowel movements and lost the ability to copulate. He suffered what has been described as 'a flaccid paralysis.'

 Plaintiff's evidence proceeded to show the following: Although there was no direct evidence of a puncture of the aorta, the largest artery in the body which is attached to and follows the external wall of the spinal column, or the spinal column itself which is encased in and protected by a hard bony tube, that there was an involvement of the spinal cord; that there must have been some hemorrhaging in the area of plaintiff's back where the punctures were attempted; that in some unexplained way, some blood must have seeped into and through the osseous wall of the tube in which the spinal column is encased; that this caused a blood clot, or stoppage, or obstruction at the first lumbar vertebra which interfered with fluid which circulated in the spinal column (this is not blood -- it is a fluid surrounding the brain and spinal cord so that it absorbs the jars of daily activity); that this brought about a transverse myelitis, i.e. the substance of the cord which carries the nerve tracks, the impulses from the higher centers above the cord became inflamed or irritated and ultimately destroyed; that this condition could be caused by many things and in this case 'it was related to the aortogram, the procedure done for diagnosis' by Dr. Miles. Testimony of Dr. Manchester, pp. 29, 30.

 Before we examine the two theories on which plaintiff seeks to impose liability on Dr. Scuka, we shall look at the applicable law.

 Issues arising in actions in the Federal Courts by virtue of diversity of citizenship are governed by the law of the place where the injury was sustained sofar as whether a right of action exists, in this case, Kansas. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188; Klaxon Company v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477; Goodrich Handbook of the Conflict of Laws, pp. 33-38. However, the law of the forum, in this case, Pennsylvania, governs as to rules of evidence, burden of proof and whether there is sufficient evidence of negligence or proximate causation to have the case submitted to the jury. Restatement, Conflict of Laws, sections 378, 380; Moran v. Pittsburgh-Des Moines Steel Co., 3 Cir., 166 F.2d 908; Foley v. Pittsburgh-Des Moines Co., 363 Pa. 1, 68 A.2d 517; Singer v. Messina, 312 Pa. 129, 167 A. 583, 89 A.L.R. 1271.

 The burden of proving malpractice by a fair preponderance of the evidence remains on plaintiff throughout the trial.

 1. Plaintiff contends that defendant was negligent in recommending an aortogram to be used on him as a diagnostic procedure. As the evidence developed at the trial, plaintiff read into the record the depositions of a number of doctors, including those of Dr. Hershorn and Dr. Miles. As such, they become plaintiff's witnesses. F.R.Civ.P. 26(f).

 Dr. Miles' function was to inject dye into the aorta. It was Dr. Hershorn's function to take the X-Ray picture after the dye had been injected.

 The competency of Dr. Miles is found in his testimony that he had performed between three and four hundred prior aortographic procedures. Neither the expertize of Dr. Miles nor the competency of Dr. ...

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