for trial, and (b) refusal of the Court to charge on negligence as a matter of law, require comment.
(a) Inadequacy of time to prepare for trial:
The complaints in both actions were filed on April 10, 1959. The cases first came on for trial before me on December 3, 1962. After two days of trial decedent's husband moved for the withdrawal of a juror. Decedent's husband is a member of the bar of this Court and throughout the two days of that trial appeared to be in constant conflict with then trial counsel (a most capable and experienced one) over the manner in which the case was being tried. The request for the withdrawal of a juror was to enable decedent's husband to retain other counsel. Because of the apparent strain of the situation upon trial counsel, and because of his joinder in the motion for withdrawal of a juror, the request was granted, but only upon the condition and with the express understanding that the case be set down for trial for the next trial session commencing early in January 1963. At the beginning of that trial session application for a further postponement was made to and was denied by the Calendar Judge, nevertheless, because of the state of the trial list, the case did not come on for trial until February 4, 1963, two months after the aborted first trial.
It is obvious that the real party in interest and the moving force in this lawsuit is decedent's husband. He suffered a severe blow from his wife's tragic condition. Because of bitterness engendered by that loss he obviously has worked long and hard in preparing this case. He testified that as early as July 19, 1957, he had decided to institute suit. In that same month he had his wife examined by Drs. Stahlnecker and Staples and he had an attorney friend accompany him to an interview with Dr. Wright; on August 2, 1957, he took his wife out of Embreeville to be photographed, all in preparation for the contemplated suit.
Decedent's husband apparently did all of the trial preparation. He had every fact, every record, every detail at his finger tips. Having prepared the case so thoroughly, he was in a position to brief new trial counsel quickly and thoroughly. Under such circumstances, a period of two months was ample time for counsel to prepare for trial. The excellent manner in which the case was tried belies the charge that plaintiff's case was prejudiced in any way by insufficient time for counsel to prepare for trial.
(b) Instructions on negligence:
At the outset it would be well to set forth what this suit did not involve. It was not an action charging defendants with malpractice. Defendants were administrators and did not treat decedent. It was not a suit against defendants based on respondeat superior. Under Pennsylvania law, a state official is not liable for the negligence of subordinates of suitable skill and ability unless he commanded the negligent act to be done. Commonwealth to Use of Orris v. Roberts, 392 Pa. 572, 141 A.2d 393, 71 A.L.R.2d 1124 (1958).
What this case did involve was a charge of negligence against the defendants for their own alleged acts and omissions in the performance of their duties. Plaintiff's theory of the case, as it finally evolved, was: Mainero and deSchut, who treated decedent and who prescribed Thorazine for her, were not licensed to practice medicine in Pennsylvania; under Federal
law only licensed physicians may prescribe Thorazine; defendants knew that Mainero and deSchut were not licensed and were, therefore, incompetent to practice medicine and to prescribe Thorazine in Pennsylvania; defendants were, thus, negligent as a matter of law in permitting incompetent subordinates to prescribe and administer Thorazine to decedent.
Plaintiff seems to rest his theory of liability on section 286 of the Restatement of Torts.
In doing so he has misconceived the purpose of the statutes on which he relies. From a reading of those statutes and of the cases decided thereunder, it is evident that their aim is the protection of the public from abuses in the sale and dispensing of drugs, and the protection of the unwary and uninformed from the hazards of mislabeling, misbranding, and adulteration. Nothing in the Federal or the State statutes in question indicates an intention on the part of either legislative body to set up standards governing a doctor's treatment of his patient. The statutes relied upon by plaintiff are, therefore, not applicable for the purpose for which he seeks to use them. It would have been error to have instructed the jury in terms of negligence as a matter of law for violation of those statutes.
The issue then was whether or not defendant Hecker was negligent in making recommendations for the hiring of Mainero and deSchut and whether or not defendant Wright was negligent in permitting them to treat decedent under the conditions which existed at Embreeville. These were factual determinations for the jury. Mainero and deSchut were not notoriously incompetent. See Restatement of Torts § 308, especially comment b. They were not barred from obtaining a license as a child is barred from obtaining a driver's license. Chamberlain v. Riddle, 155 Pa.Super. 507, 38 A.2d 521 (1944). There was considerable evidence of their competence to treat decedent, e.g. they were graduates from medical schools in their own countries; the United States State Department had taken certain precautions in accepting foreign doctors for residency training; they worked under the supervision of a licensed practitioner; progress and treatment of patients were regularly discussed at staff meetings. The jury resolved those issues in favor of the defendants.
Even had plaintiff been able to establish that either or both of the defendants were guilty of negligence, plaintiff's case would still have been deficient. It was incumbent on plaintiff to establish, by expert medical testimony, that decedent sustained harm from improper administration of the drug. Grantham v. Goetz, 401 Pa. 349, 164 A.2d 225 (1960); Donaldson v. Maffucci, 397 Pa. 548, 156 A.2d 835 (1959); Robinson v. Wirts, 387 Pa. 291, 127 A.2d 706 (1956); Powell v. Risser, 375 Pa. 60, 99 A.2d 454 (1953). There was no expert testimony to establish that administration of Thorazine was improper under the circumstances, nor was there any expert medical testimony to establish, by the standards required under Pennsylvania law, that Thorazine caused permanent damage to decedent. In tacit recognition of that fatal deficiency in his case, plaintiff now asks this Court to disregard that requirement of Pennsylvania law. Of course I may not. This is a diversity case and Pennsylvania law is binding upon me. On the state of this record there is no proof of harm to decedent from improper administration of the drug Thorazine.
Plaintiff's motion for new trial is denied.