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SMITH v. YOHE. SMITH (10/09/63)

October 9, 1963

SMITH, APPELLANT,
v.
YOHE. SMITH, APPELLANT, V. GAILEY.



Appeals, Nos. 16 and 17, May T., 1963, from orders of Court of Common Pleas of York County, May T., 1961, Nos. 204 and 205, in cases of Allen Smith, administrator or estate of Joseph Smith, deceased v. Dr. William C. Yohe, and Same V. Dr. Herman A. Gailey, Jr. Order, appeal No. 16, reversed, order, appeal No. 17, affirmed.

COUNSEL

Frank B. Boyle, with him Donald Yost, for appellants.

Arthur Markowitz, with him Markowitz, Kagen & Griffith, for Dr. William C. Yohe, appellee.

Robert J. Stewart, with him Spencer R. Liverant, and Liverant & Stewart, for Dr. Herman A. Gailey, Jr., appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Jones

[ 412 Pa. Page 96]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

These appeals challenge the propriety of the action of the court below in refusing to remove compulsory nonsuits entered at the trial of two malpractice actions.

On March 10, 1959, Joseph Smith (Mr. Smith), 70 years of age and convalescing from a stroke which had left him with a spastic paralysis of his right side, slipped and fell in his home. Dr. W. C. Yohe, Mr.

[ 412 Pa. Page 97]

Smith's family physician, was summoned and he made an examination of Mr. Smith during which, according to his testimony, he found an increased tightening by spasm of the handstring muscles on the right side. Dr. Yohe gave Mr. Smith an injection and medication to reduce his pain and prescribed bed rest. After several visits, Dr. Yohe recommended that Mr. Smith be given physical therapy*fn1 consisting of massage and muscle exercises to relieve the spastic condition.

On March 21, 1959, 11 days after the fall, at the family's insistence, Mr. Smith was admitted to the York Hospital, York, Pa., where he was X-rayed for the first time. At that time, Mr. Smith's right leg was turned outward and completely paralyzed. The X-rays revealed a fracture of the right femur, asceptic necrosis and a generalized demineralization of the pelvic bones. At the hospital Mr. Smith became a patient of Dr. H. A. Gailey, Jr., an orthopedic surgeon. Dr. Gailey twice tried to insert a Smith-Petersen nail in the hip to hold the fracture and, on each occasion, the device became dislocated and his efforts unsuccessful. Dr. Gailey then inserted a Steinman pin in the tibia to enable the leg to be held in an immobile position. It is claimed that, by reason of Dr. Yohe's and Dr. Gailey's treatment, the injuries were aggravated requiring long periods of hospitalization and resultant severe pain, permanent disability and disfigurement.

Malpractice actions were later instituted in the Court of Common Pleas of York County by Mr. Smith against Drs. Yohe and Gailey;*fn2 both actions were consolidated and tried. At the conclusion of the testimony presented on behalf of Smith, the court entered

[ 412 Pa. Page 98]

    compulsory nonsuits in both actions. Motions to remove these nonsuits were refused and these appeals were taken.

Smith v. Dr. Yohe

The negligence alleged against Dr. Yohe is that he erroneously diagnosed Mr. Smith's injuries by reason of his failure to use X-rays in discovering and treating what turned out to be a fractured hip. On these appeals it is contended that the court below erred in the following respects: (a) the court failed to rule that Dr. Yohe's failure to take X-rays was negligence as a matter of law; (b) the court ruled that, since Smith failed to produce any expert medical testimony, there was no jury issue; (c) the court erred in refusing to permit a physician from another locality to testify; (d) the court ruled that certain efforts of Smith to obtain local expert testimony were inadmissible in evidence.

A. The Failure to Use X-rays

Smith's contention is that, in view of the factual situation presented, the proof that Dr. Yohe failed to employ X-rays as an aid to the diagnosis of Mr. Smith's condition presented a prima facie case of negligence ...


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