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DEMCHUK v. BRALOW. (05/22/61)

May 22, 1961

DEMCHUK, APPELLANT,
v.
BRALOW.



Appeal, No. 270, Jan. T., 1960, from judgment of Court of Common Pleas No. 6 of Philadelphia County, June T., 1956, No. 11216, in case of Datherine Demchuk v. Dr. S. Philip Bralow. Judgment affirmed; reargument refused July 14, 1961.

COUNSEL

John Michael Doodan, for appellant.

Thomas E. Comber, Jr., with him John J. Runzer, and Pepper, Hamilton & Scheetz, for appellee.

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

Author: Bell

[ 404 Pa. Page 101]

OPINION BY MR. JUSTICE BELL.

Plaintiff appeals from a judgment of non-suit which was entered in her suit against defendant, a physician who was certified as specially qualified by the Board of Gastroenterology. In considering the entry or appeal from a non-suit, the evidence and all reasonable inferences therefrom must be considered in the light most favorable to the plaintiff and a judgment should be entered only in a clear case. It is likewise hornbook law that a plaintiff must prove by a fair preponderance of the evidence that defendant was negligent and that his negligence was the proximate cause of the injury. Moreover, as we shall see, in malpractice cases we have pinpointed how a doctor's negligence must be proved.

President Judge CARROLL well summarized the facts: "The testimony of the plaintiff and her witnesses established that she entered the Kensington Hospital in Philadelphia on August 16, 1955, with a diagnosis of possible duodenal ulcer. Under the direction of the defendant various tests and X-rays were administered after which the diagnosis was modified to antral gastritis (inflammation of the stomach in the antral area). Accordingly, on August 23rd, in order to verify this diagnosis, the defendant performed a gastroscopic examination. This procedure consisted of the insertion of a semi-flexible tube approximately three feet in length and three-eighths of an inch in diameter with a soft rubber tip into the esophagus, the tube containing a light and lens periscope arrangement whereby a visual examination of the stomach could be made. [The path of the esophagus is not straight but is curved at the point of penetration.]

"Doctor Bralow testified on cross-examination that he twice attempted to pass the gastroscope into the plaintiff's stomach but was unsuccessful because of the resistance encountered. He attributed this resistance to persistent cardiospasm*fn* [and there was no evidence of any other reason or cause]. After the second attempt plaintiff complained of much pain in the upper quadrant and difficulty in breathing, causing him to suspect a perforation of the esophagus. Subsequently X-rays were taken and it was found that the gastroscope had caused a tear in the esophagus resulting in a leakage of air into the pleura space around the lungs and a partial collapse of the right lung. This condition necessitated emergency surgery to suture the damaged esophagus. The surgery consisted of an incision from the vertebra to the clavicular line and the removal of the seventh rib in order to reach the perforation and the insertion of some forty-one sutures to close the incision. Understandably, the plaintiff experienced severe pain in recuperating from this operation and has been left with a large, disfiguring scar.

"Plaintiff did not offer expert testimony in support of her case. Accordingly, under the authority of the Supreme Court's holding in the case of Robinson v. Wirts, 387 Pa. 291 (1956), an involuntary non-suit was entered. In the Robinson case, the facts were almost identical to those of the instant case in that the defendant physician had perforated the plaintiff's esophagus by performing a gastroscopic examination necessitating the same surgical procedures employed here."

To these findings we add that plaintiff produced no evidence that there was any improper or unskillful or negligent act, or any proof of lack of surgical skill, or any evidence of negligence by the doctor - plaintiff proved nothing except the happening of the injury and

[ 404 Pa. Page 103]

    that it resulted from the insertion of the gastroscope. The use of a gastroscope is an intricate surgical procedure employed only at the hands of doctors having specialized training and qualifications. The passage of the gastroscope through the labyrinth of the esophagus and stomach involves care and skill but the success of such passage is dependent not only upon such care and skill but also upon the condition of the wall of the esophagus and stomach and other internal physiological factors. The record shows that Dr. Bralow, in the process of inserting this gastroscope into the patient's esophagus and stomach to determine the correctness of his diagnosis of gastritis, encountered some "resistance" at a point where the esophagus curves. He encountered this "resistance", nothing more and nothing less. There is not a scintilla of evidence that Dr. Bralow did anything to overcome this "resistance".

The instant case is ruled directly and unquestionably by Robinson v. Wirts, supra, where this Court speaking by Chief Justice STERN affirmed the entry of an involuntary non-suit and said (pages 294, 296): "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,...

"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 to the same effect, holding that no 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,

[ 404 Pa. Page 104]

    by an awkward move would thrust his needle into the patient's eye. It would be a matter of common knowledge and observation that such things do not ordinarily attend the service of one exercising ordinary skill and experience in the work of surgery because they involve ulterior or extraneous acts or omissions the judgment of which would not require scientific opinion. But such is not the present case."

Appellant contends (1) the doctrine of res ipsa loquitur applies, (2) the doctrine of exclusive control applies, (3) the evidence was sufficient to prove negligence, and (4) for some other reason which is obscure, a surgeon has the burden of proving that he exercised due care and skill and followed the established practice if the operation is unsuccessful. Each of these contentions has been heretofore rejected by this Court and is devoid of merit.

We have quoted at great length from Robinson v. Wirts, supra, (a) because the evidence of supposed negligence was stronger for the plaintiff in that case than in the instant case, and (b) because it so well answers and specifically refutes all of the contentions made by this appellant.

In Robinson v. Wirts, supra, when the doctor encountered "resistance" he did something to overcome the "resistance", i.e., he applied "gentle pressure and insufflation". In the instant case there is, we repeat, not a scintilla of evidence that Dr. Bralow did anything to overcome the "resistance" which was caused by persistent cardiospasm. Furthermore it is clear as crystal that this internal and exceptionally difficult examination by gastroscope is not a matter of common knowledge or common observation by laymen, nor does it involve extraneous acts the judgment of which would not require scientific opinion.

Disposition

Judgment of non-suit affirmed.

[ 404 Pa. Page 106]

DISSENTING OPINION BY MR. JUSTICE MUSMANNO:

In affirming the non-suit in this case the Majority follows precedent which is commendable, but, in looking back over the landscape of the law, it apparently trains its glance on a small hill instead of the towering mountain which overshadows the hill and all the terrain in between.

The hillock, which impresses the Majority, is the decision of Robinson v. Wirts, 387 Pa. 291, decided in 1956. The skyscraping mountain which eludes its view is the case of Davis v. Kerr, 239 Pa. 351, decided in 1913.

Let us look at the mountain first, which certainly can be seen without a telescope, and then later pick up the microscope to study Robinson v. Wirts, supra, as it casts its anaemic shadow on the panorama of law and justice.

In the Davis v. Kerr case, the defendant-surgeon failed to remove from the plaintiff's abdomen, in which he was operating, a sponge he had employed during the surgery. A lawsuit charging him with negligence followed. At the trial, the Court affirmed a defendant's point as follows: "If the jury find from the evidence that a sponge, or other material of like nature, was left in the abdomen of Mrs. Davis, at the time of the operation, such fact alone is no evidence of negligence on the part of the defendant." The jury found for the defendant and the plaintiff appealed. This Court reversed, and Justice STEWART, speaking in language as clear as a mountain brook, and with logic as irresistible as Aristotle's, said: "Why was a foreign substance left in the parts which the operating surgeon should have removed? It was for him to acquit himself of ...


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