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TOBASH v. JONES (10/13/65)

decided: October 13, 1965.


Appeal from judgment of Court of Common Pleas of Montgomery County, Nov. T., 1959, No. 354, in case of Edward M. Tobash v. Robert K. Jones.


W. J. Krencewicz, with him Edward J. Ozorowski, for appellant.

Lawrence Brown, with him Duffy, McTighe & McElhone, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Cohen and Mr. Justice Roberts concur in the result. Mr. Justice Musmanno and Mr. Justice Eagen dissent.

Author: Jones

[ 419 Pa. Page 207]

From a judgment entered on a jury verdict in favor of a neurosurgeon in a medical malpractice action this appeal, wherein a new trial is sought, was taken.

Edward Tobash (Tobash) instituted a trespass action against Dr. Robert K. Jones in the Court of Common Pleas of Montgomery County alleging particularly that Dr. Jones was negligent in that he (a) carelessly and incorrectly gave a postoperative diagnosis of a malignant spinal tumor and (b) unnecessarily and in an unsurgeon-like manner damaged portions of Tobash' spinal cord.

Inasmuch as the grounds upon which Tobash seeks a new trial relate solely to alleged errors on the part of the trial court in refusing a continuance, in ruling as to the admissibility of certain testimony and in certain

[ 419 Pa. Page 208]

    of its instructions to the jury, for the purpose of this appeal only a brief resume of the basic facts is necessary.

Shortly before December 14, 1957, Tobash, allegedly then in good health, began suffering a low backache the increasing intensity of which and its side effects caused him to be admitted, on December 14, 1957, to Lankenau Hospital, Montgomery County. At that hospital he came under the service of a general surgeon who, after an examination, turned him over to Dr. Jones, a certified neurosurgeon. After performing a myelogram, which indicated a partial block of the spinal cord, Dr. Jones performed a laminectomy involving the removal of the bony posterior arches of three thoracic vertebrae. During the course of that operation, Dr. Jones found the spinal cord "quite abnormal", swollen to one and one-half times its normal size, not pulsating normally and pale.*fn1 Dr. Jones made an excision into the cord itself and, in so doing, discovered some tissue which he described as having "a mottled hemorrhagic appearance" and he then concluded, from a gross examination, that it was malignant. Dr. Jones excised a section of nerve tissue, -- 2 mm. X 3 mm. X 4 mm. in dimensions -- for biopsy purposes. The biopsy specimen was examined by a pathologist at Lankenau Hospital who later reported that the specimen "resembled" reticulum cell sarcoma which finding was later confirmed by a pathologist at the University of Pennsylvania Hospital.

Tobash remained at the hospital until January 2, 1958, during which time he was given physical therapy and one treatment of x-ray therapy. Tobash, on his own volition, then went to Walter Reed Hospital, Washington, D. C. Upon examination of the biopsy slides taken at Lankenau Hospital and making other tests, the Walter Reed pathologists found Tobash' condition

[ 419 Pa. Page 209]

    to be "transverse myelopathy", a pathological condition which could be either cancerous or non-cancerous.

Tobash was discharged from Walter Reed Hospital on May 8, 1958. It is now contended that Tobash can walk only with the aid of canes, his right leg functions improperly, his left leg is weak, his bladder is impaired, he is suffering pain in the chest and legs and his sexual power has been destroyed. It was Tobash' theory at trial -- supported by a medical witness -- that "the excision of the biopsy specimen from the fasciculus gracilis area of the spinal cord" caused a "traumatic reaction" which caused the cord to be swollen and which thus indirectly affected "the perambutal column of the spinal cord, which affects mobility"*fn2 and bladder function, that Tobash' original condition was "transverse myelitis" or "myelopathy" and that the biopsy caused the present disability.

After a trial before a court and jury a verdict was returned in favor of Dr. Jones, Tobash' motion for a new trial was denied and judgment was entered on the verdict. Six reasons are assigned for a new trial.

Tobash originally engaged attorney James McCrudden of Philadelphia as his counsel and attorney McCrudden engaged, as local counsel in ...

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