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YORSTON v. PENNELL (07/02/59)

July 2, 1959


Appeal, No. 373, Jan. T., 1958, from judgment of Court of Common Pleas No. 6 of Philadelphia County, June T., 1957, No. 2877, in case of William J. Yorston v. Edgar L. Pennell, Jr. Judgment affirmed. Trespass for personal injuries. Before DAVIS, J. Verdict entered for plaintiff in amount of $75,000; defendant's motion for judgment n.o.v. dismissed and judgment entered on the verdict. Defendant appealed.


Philip H. Strubing, with him K. Robert Conrad, Wilbur H. Haines, Jr., and Pepper, Bodine, Frick, Scheetz & Hamilton, for appellant.

Jerome H. Ellis, with him Leon Rosenfield, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Mcbride

[ 397 Pa. Page 31]


This is an appeal by defendant from the judgment on a verdict in favor of the plaintiff in a malpractice action against a staff surgeon at Episcopal Hospital, Philadelphia.

Originally plaintiff included the hospital as a party defendant but, upon preliminary objection that as a charitable institution it was immune from liability for the torts of its servants, the suit against the hospital was discontinued.

In the court below defendant abandoned his motion for new trial and contends only that he is entitled to judgment n.o.v.

It is clear, therefore, that we must consider only the evidence which supports the verdict and reject any evidence to the contrary, Acchione v. Acchione, 376 Pa. 36, 101 A.2d 642; Beatty v. Hoff, 382 Pa. 173, 114 A.2d 173, 178.

Plaintiff based his claim of negligence on two separate grounds: (1) defendant's personal negligence; and (2) defendant's responsibility for the negligence of his agents in accordance with the principle of respondeat superior. At the trial, the court below submitted the case to the jury only on the second ground. However,

[ 397 Pa. Page 32]

    in considering defendant's motion for judgment n.o.v. the court en banc relied on both theories.

If the evidence justified submission to the jury on the basis of respondeat superior then the action of the court below must be affirmed. However, if the judgment of the court below can be supported only on the evidence of direct negligence of defendant then the judgment cannot stand since this issue was not submitted to the jury. In that event, however, it would be improper for us to decide this appeal on the sole issue of whether defendant is entitled to judgment n.o.v. notwithstanding the fact that neither party has asked for the grant of a new trial.

On September 13, 1956, plaintiff was working for the Baton Construction Company, when a nail ricocheted from a ramset gun he was using, entered his right leg and fractured the fibula. He was brought to the receiving ward of Episcopal Hospital between 2 and 3 p.m. The gist of his complaint is that thereafter he became the patient of defendant, Dr. Edgar L. Pennell, Jr., who negligently permitted his agents and servants to prescribe penicillin for plaintiff although they knew or should have known that plaintiff was allergic to this drug, as a result of which plaintiff sustained serious permanent injuries. The injuries were clearly proved and there is no contention but that they were caused by the penicillin. The real question is whether the defendant, who denied agency and put negligence in issue under Rule 1045, is responsible.

The surgical staff of Episcopal Hospital was, at this time, divided into two sections, A and B. They alternated, for periods of six weeks, in the duties of attending patients such as plaintiff brought into the hospital for surgery. Surgical Service B was composed of approximately ten persons who were either surgeons, residents or interns. Dr. Pennell, like the other staff

[ 397 Pa. Page 33]

    surgeons or associates, received his appointment to Surgical Service B from the Board of Managers of Episcopal Hospital. Neither he nor the other associates were paid any compensation by the hospital. Dr. Pennell maintained his principal office at the hospital, for which he paid rent. He was entitled to charge fees from patients who could afford to pay them and from insurance companies in cases involving workmen's compensation, such as that of plaintiff.

Resident physicians, among them Dr. Mohammad Hatemazadeh, usually referred to as Dr. Hatemi, were appointed by the Board of Managers and were paid a full time employee's salary by the hospital and were assigned by the hospital to a particular service. An associate surgeon had no power to discharge any resident. No surgical resident could perform operations without the permission of a staff surgeon of his service. Dr. Hatemi regarded Dr. Pennell as being more active than any other one of the associates under whom he served and spoke of him as his "whole boss" and as his "teacher". Interns were appointed by the Board of Managers, were paid a salary, and were full time employees of the hospital. They could not be discharged by an associate surgeon. Junior interns, including a Mr. Rex, were hired by the assistant to the director of the hospital and were paid by the hospital. These were fourth year medical students who substituted for and performed the duties of interns.

A few months before his accident plaintiff had contracted a virus condition. His family physician, Dr. Katzman, had given him one injection of penicillin in treating him for it. Plaintiff developed a skin rash resulting from an allergy to this drug, whereupon Dr. Katzman discontinued its use and wrote a note on one of his prescription blanks which stated that plaintiff was allergic to penicillin and that he was never to receive

[ 397 Pa. Page 34]

    that drug under any circumstances. Plaintiff put the note in his wallet and on Dr. Katzman's instructions kept it with him. He had it with him when he arrived at the hospital on September 13, 1956.

While plaintiff was in the receiving ward he showed the note to one of the nurses and to Rex, the junior intern. Plaintiff's wife, who had arrived shortly after plaintiff, also showed the note to one of the nurses, and she told Dr. Washington, an intern, that there was a note about an allergy which she had given to the nurse and also that plaintiff was allergic to tetanus antitoxin.

Since plaintiff also advised Rex about an allergy to tetanus antitoxin, a skin test was made which proved negative. Tetanus antitoxin was therefore administered. No test was made for allergy to penicillin although there is testimony in the record from Dr. Gottlieb, an allergy specialist, that tests can be made for allergies to various types of penicillin.

Plaintiff remained in the receiving ward about four hours. During this time Dr. Pennell came there and plaintiff's wife spoke to him, complaining about the long time plaintiff was kept waiting to have the nail taken out of his leg.

While plaintiff was still in the receiving ward, Dr. Hatemi was called to the ward. Dr. Hatemi was at that time a graduate of a medical school in Iran; had spent a one year internship in Quonset City Hospital in Boston, Massachusetts; and then had come to Philadelphia and been appointed a surgical resident at Episcopal Hospital. Upon his appointment he had applied, on July 4, 1956, for a license to pursue postgraduate study in general surgery at the Episcopal Hospital. Prior to the grant of such a license an interview is required with a representative of the Board of Medical Licensure of the Commonwealth. That interview took place on August 20, 1956. The application

[ 397 Pa. Page 35]

    was approved by the Board, in regular session, at a meeting held on October 20, 1956, retroactively for a period commencing July 4, 1956 (the date of the application) to July 3, 1957. Therefore, on September 13, 1956, the date of plaintiff's accident, Dr. Hatemi's application had not yet been approved.

When he was called to the receiving ward Dr. Hatemi examined plaintiff, took a brief history of the manner in which the accident had happened and ordered x-rays. The x-rays disclosed the fracture and the presence of the nail in the fibula. He took the x-ray plates to Dr. Pennell in his private office in the hospital. Dr. Pennell examined the plates and reviewed with Dr. Hatemi the plan of treatment to be followed in repairing the injury to plaintiff's leg. This plan included a general discussion of post-operative care in which antibiotics were mentioned but no specific reference to penicillin was made. A witness called by plaintiff, however, testified that during his investigation on behalf of plaintiff's employer's compensation insurance carrier Dr. Pennell told him that after the operation he had advised penicillin but at the time had no knowledge of plaintiff's allergy, and that as soon as he found out about it he stopped the use of that drug. While Dr. Hatemi was discussing the matter with Dr. Pennell the junior intern, Rex, was making a physical examination and taking a history of the case. It was specifically by virtue of Dr. Hatemi's order that Rex took this history, for otherwise his duties in the receiving ward did not require him to take histories of patients admitted to the hospital for surgery. Part of the history was taken in the receiving ward and part in the corridor outside the operating room.

After Dr. Pennell and Dr. Hatemi had agreed on the proper procedures and Dr. Pennell had approved of Dr. Hatemi's operating, ...

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