Appeal from judgment of Court of Common Pleas of Allegheny County, April T., 1962, No. 624, in case of Charles Gray v. Jerome Grunnagle.
Frank W. Cubbon, Jr., with him Joseph U. Esper, for appellant.
Bruce R. Martin, for appellee.
Francis E. Shields, and Pepper, Hamilton and Scheetz, for amicus curiae.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Roberts concurs in the result solely on the ground that the issue of consent was properly submitted to the jury. Mr. Justice Cohen joins in this view. Mr. Justice Jones and Mr. Justice Eagen dissent. Dissenting Opinion by Mr. Chief Justice Bell.
This action of trespass was brought in the Court of Common Pleas of Allegheny County, Pennsylvania, by Charles Gray, the plaintiff-appellant, alleging that he suffered injuries, damages and disabilities resulting from the negligent surgery, diagnosis, abandonment, and failure to secure the necessary consent by the defendant, Jerome Grunnagle, M.D. The case was tried before a judge and jury. During the trial, appellant
withdrew the charge of abandonment, and the trial judge ruled that the case could not go to the jury on either of the issues of negligent diagnosis or negligent surgery, and submitted the case to the jury solely on the issue of consent. The jury returned a verdict of $80,000 for the plaintiff, following which defendant filed a motion for judgment n.o.v. and for a new trial. The plaintiff, although satisfied with the verdict, filed a contingent motion for a new trial, asking that if a new trial be awarded to defendant, the question of negligence, in both the diagnosis and the performance of surgery, be submitted to the jury.
These motions were argued before a court en banc. The court en banc granted the judgment n.o.v. and overruled plaintiff's contingent motion for a new trial, and it is from the entry of judgment n.o.v. and the overruling of appellant's new trial motion that this appeal is taken.
The appellant, Charles B. Gray, now paralyzed from the waist down, had experienced some difficulty with his left leg during his army service, which covered a period of approximately 4 years, from 1941 through his discharge in 1945. This condition slowly progressed until early in 1960, at which time there was some muscular atrophy of the left leg. The left foot would invert during occasional periods of fatigue and would cause him some difficulty.
Mr. Gray was originally examined by a Dr. Blakley, an orthopedic surgeon of Pittsburgh, Pennsylvania, on January 4, 1960, at which time hospitalization was recommended. Subsequently, Mr. Gray was admitted to the Allegheny General Hospital on January 18, 1960, at which time he signed a Consent to Operation, which reads as follows:
"Whereas, I, /s/ Chas. B. Gray residing at No. --- Street, --- (City and State) and now in the Allegheny General Hospital of Pittsburgh, Pa.; and of full age, have been informed by
the physicians of said hospital that in their opinion an operation on me is necessary for the proper treatment of my illness. I hereby consent to the same and said physicians are hereby authorized to employ whatever operative procedure they deem necessary, using their best skill and judgment.
"Witness, my hand and seal, at said hospital, in the City of Pittsburgh, Pennsylvania, this 18th day of Jan., A.D. 1960.
"Attest: /s/ --- /s/ Charles B. Gray."
This instrument is signed by Charles B. Gray and witnessed by one Helen Miladin.
Dr. Blakley called in the defendant-appellee, Dr. Jerome F. Grunnagle, a specialist in neurosurgery, who examined Mr. Gray on January 19, 1960, reaching a tentative diagnosis of lesion of the dorsal, or thoracic, cord, which was either disc, tumor in the sense of either benign or malignant neoplasm, degeneration, or a combination of them, which he thought was probably in the T-8, T-9, T-10 area.
As a result of his tentative diagnosis, Dr. Grunnagle ordered four tests to be conducted. However, not all those ordered were carried out. Among those ordered and performed was a myelogram, and based upon the findings of this test, Dr. Grunnagle wrote to Dr. Blakley that he favored an exploratory laminectomy, to which Dr. Blakley agreed. Mr. Gray was then transferred as a patient from Dr. Blakley's care to Dr. Grunnagle, and the operation was performed on Mr. Gray by Dr. Grunnagle on January 25, 1960.
Dr. Grunnagle, in his testimony, discussed the operation which he performed on Mr. Gray. He first described the various components of the spinal column. This is a cord surrounded by a fine, transparent membrane called the "arachnoid mater". There is then an outer fibrous elastic membrane called "dura mater".
Over this is a layer of fat, bony substance called the "laminae". Protruding from the spinal column are small bones called "spinous processes". On the day of the operation, the patient was placed face down on the operating table and anesthetized. An incision was made in the thoracic spinal area. After the incision was made through the dura and the arachnoid, the cord appeared small in the affected area. This observation formed the basis for part of the diagnosis, showing that a large number of cells had died and disappeared.
As indicated by the testimony of Dr. Grunnagle, it was necessary to see if there was anything in front of the dura involving the spinal cord. It was necessary to cut into the dura and the arachnoid and to sever points of attachment of the dentate ligaments in order that he be able to rotate the spinal cord itself, so that he could get a glimpse in front of the cord. There was no neoplasm, but a bulging disc was noted which was pushing the dura up against the cord. No effort was made to remove the disc, as such surgery was considered too dangerous to be attempted. Dentate ligament attachments (the continuous ligament on each side of the cord which are attached by small, triangular shaped attachments to the dura mater), in addition to those which had already been cut in order to rotate the cord, were then cut. These dentate ligaments hold the spinal cord in an upright position. The purpose of this Kahn technique is to relieve the pressure of the bulged disc on the front of the cord and the counter stress on the cortico-spinal track within the posterior cord, which counter pressure is exerted by the tough, nonelastic dentate ligament attachments holding the spinal cord against the pressure from the front. In performing this surgery, it was necessary to remove the laminae and the spinous processes in the area of the 3rd, 4th, 5th and 6th thoracic vertebrae. The dura and the arachnoid were also incised. The doctor's
notes at the conclusion of this surgery read as follows: "The posterior part of the cord appeared small, particularly right over the area of pathology. The dura was then closed with a continuous lock stitch of black silk. Hemostasic was then ascertained and the muscles, heavy fascia, subcutaneous layer and skin were approximated with interrupted black silk. Patient withstood the procedure well."
Following the operation, Dr. Grunnagle carried out normal, follow-up procedures. Mr. Gray was discharged from the hospital on February 6, 1960. Dr. Grunnagle saw him several times thereafter in 1960 and February 14, 1961, was the last time he saw Mr. Gray as his patient. Mr. Gray has not been able to walk since this operation. On the occasion of his last visit, Dr. Grunnagle found that the paralysis was due to the disc. This was the fundamental cause of plaintiff-appellant's disability. The doctor recommended that Mr. Gray be readmitted to the hospital for further surgery, which he felt should improve Mr. Gray's condition.
Dr. Grunnagle stated he had no way of knowing what he would find until the operation was under way. Both the roentgenologist at Allegheny General Hospital and Dr. Blakley were under the impression preoperatively that a spinal cord tumor was probably present; however, Dr. Grunnagle was of the opinion that it was more likely the lesion was a disc, although he could not eliminate the possibility that it was a neoplasm without actual surgery. There was no test which could be performed, other than actual surgery, which would have revealed the exact nature of the problem in this case. The record reveals that Dr. Grunnagle had relied on Mr. Gray's signed consent to an operation. This consent, signed on January 18, 1960, the date of his admission to the hospital, was offered in evidence at the trial. It should be noted that in
his testimony, Dr. Grunnagle stated that plaintiff-appellant's condition was becoming progressively worse and would have continued to deteriorate without surgery, although he could not say what the ultimate result would have been had Mr. Gray not undergone surgery.
The development of the law in this field was well stated by Chief Justice Barnhill of the Supreme Court of North Carolina in the case of Kennedy v. Parrott, 243 N.C. 355, 90 S.E. 2d 754 (1956), as follows: "Prior to the advent of the modern hospital and before anesthesia had appeared on the horizon of the medical world, the courts formulated and applied a rule in respect to operations which may now be justly considered unreasonable and unrealistic. During the period when our common law was being formulated and applied, even a major operation was performed in the home of the patient, and the patient ordinarily was conscious, so that the physician could consult him in respect to conditions which required or made advisable an extension of the operation. And even if the shock of the operation rendered the patient unconscious, immediate members of his family were usually available. Hence the courts formulated the rule that any extension of the operation by the Physician without the consent of the patient or someone authorized to speak for him constituted a battery or trespass upon the person of the patient for which the physician was liable in damages.
"However, now that hospitals are available to most people in need of major surgery; anesthesia is in common use; operations are performed in the operating rooms of such hospitals while the patient is under the influence of an anesthetic; the surgeon is bedecked with operating gown, mask, and gloves; and the attending relatives, if any, are in some other part of the hospital, sometimes many floors away, the law is in a
state of flux. More and more courts are beginning to realize that ordinarily a surgeon is employed to remedy conditions without any express limitation on his authority in respect thereto, and that in view of these conditions which make consent impractical, it is unreasonable to hold the physician to the exact operation -- particularly when it is internal -- that his preliminary examination indicated was necessary. We know that now complete diagnosis of an internal ailment is not effectuated until after the patient is under the influence of the anesthetic and the incision has been made.
"These courts act upon the concept that the philosophy of the law is embodied in the ancient Latin maxim: Ratio est legis anima; mutata legis ratione mutatur et lex. Reason is the soul of the law; the reason of the law being changed, the law is also changed. (Emphasis supplied)
"Some of the courts which realize that in view of modern conditions there should be some modification of the strict common law rule still limit the right of surgeons to extend an operation without the express consent of the patient to cases where an emergency arises calling for immediate action for the preservation of the life or health of the patient, and it is impracticable to obtain his consent or the consent of someone authorized to speak for him. Jackovach v. Yocom, supra; King v. Carney, 204 P. 270, 26 A.L.R. 1032.
"Other courts, though adhering to the fetish of consent, express or implied, realize 'that the law should encourage self-reliant surgeons to whom patients may safely entrust their bodies, and not men who may be tempted to shirk from duty for fear of a law suit.' They recognize that 'The law does not insist that a surgeon shall perform every operation according to plans and specifications approved in advance by the patient, ...