Appeal from judgment of Court of Common Pleas No. 6 of Philadelphia County, Sept. T., 1961, No. 123, in case of Julia Collins v. B. Marvin Hand, M.D.
Frank Bielitsky, for appellant.
Benedict A. Casey, with him James E. Beasley, and Beasley, Albert, Hewson & Casey, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Musmanno dissents.
Julia Collins, suffering from an extreme nervous condition, entered Hahnemann Hospital, Philadelphia, on October 27, 1959, on the service of Dr. J. B. Donaldson. Dr. Donaldson, deciding that her condition required psychiatric care, called in Dr. B. Marvin Hand, a Board certified psychiatrist and neurologist.
After an examination of Miss Collins, Dr. Hand concluded that she was suffering from agitated depression*fn1 and he recommended that she submit to electroshock treatments. Since Hahnemann Hospital was not equipped to administer these treatments, Miss Collins was transferred upon Dr. Hand's suggestion, to Eugenia Memorial, Incorporated (Eugenia), a private psychiatric hospital.
Miss Collins was admitted to Eugenia on October 30, 1959. The first electroshock treatment was administered*fn2 the next day with no untoward incidents occurring. However, during the next treatment, administered
November 2, 1959, "there was a cracking sound of [her] lower extremities". It was later determined that Miss Collins suffered bilateral fractures of the acetabulae.*fn3 These injuries have resulted in considerable limitation in her hip necessitating use of a cane. Later, Miss Collins, while at her niece's home, sustained an ankle injury from a fall allegedly caused by this limited hip movement.
Miss Collins instituted this trespass action in Court of Common Pleas No. 6 of Philadelphia County against Dr. Hand and was awarded a verdict in the amount of $40,000. Motions for judgment n.o.v. and for a new trial having been denied by the court en banc, judgment was entered on the verdict and this appeal followed.
Dr. Hand's liability is predicated on two alternative theories: (1) that he was guilty of personal negligence or (2) that he was responsible for the negligence of Eugenia's employees in administering the electroshock therapy. Dr. Hand contends that the evidence presented at the trial is totally insufficient to hold him liable upon either of these bases.
Within the background of Dr. Hand's appeal, we must remember that in disposing of a motion for judgment n.o.v., the evidence together with all reasonable inferences therefrom must be considered in the light most favorable to the verdict winner and the grant or refusal of a new trial will not be reversed on appeal, absent an abuse of discretion or error of law which controlled the outcome of the case. See: Connolly v. Philadelphia Transportation Co., 420 Pa. 280, 216 A.2d 60 (1966); Schwegel v. Goldberg, 209 Pa. Superior Ct. 280, 228 A.2d 405 (1967).
Personal Negligence of Dr. Hand
Considerable case law of our Court has dealt with the standard of care required of a physician. In the absence of a special contract, a physician is neither a warrantor of a cure nor a guarantor of the result of his treatment. The plaintiff in a malpractice action must prove either that (1) the physician did not possess and employ the required skill and knowledge or (2) that he did not exercise the care and judgment of a reasonable man in like cases and that the injury complained of either (1) resulted from the failure on the part of the physician to possess and employ the required skill and knowledge, or (2) resulted from his failure to exercise the care and judgment of a reasonable man in like circumstances. See: Donaldson v. Maffucci, 397 Pa. 548, 156 A.2d 835 (1959); Hodgson v. Bigelow, 335 Pa. 497, 7 A.2d 338 (1939); Wohlert v. Seibert, 23 Pa. Superior Ct. 213 (1903); Richmond v. A. F. of L. Medical Service Plan of Philadelphia, 421 Pa. 269, 218 A.2d 303 (1966).
As a matter of proof in malpractice cases, there is no presumption or inference of negligence merely because a medical procedure terminated in an unfortunate result which might have occurred despite the exercise of reasonable care. This is especially so where the treatment and injury involved are such that common knowledge or experience of laymen is not sufficient to form the basis for passing an intelligent judgment. In such cases, expert testimony in support of the plaintiff's claim is an indispensable requirement to establish a right of action. Robinson v. Wirts, 387 Pa. 291, 127 A.2d 706 (1956); Hodgson v. Bigelow, 335 Pa. 397, 7 A.2d 338 (1939); Demchuk v. Bralow, 404 Pa. 100, 170 A.2d 868 (1961).
In dealing with the problem of the cause of fractures during electroshock therapy, courts from other
jurisdictions have consistently held that res ipsa loquitur is not applicable. This is attributed to the fact that fractures are a recognized risk of electroshock therapy. See: Johnston v. Rodis, 102 U.S. App. D.C. 209, 251 F. 2d 917 (1958); Farber v. Olkon, 40 Cal. 2d 503, 254 P. 2d 520 (1953); Quinley v. Cocke, 183 Tenn. 428, 192 S.W. 2d 992 (1946).
Miss Collins first claims that Dr. Hand was negligent in failing to take or read X-rays which would have disclosed to him that she suffered from osteoporosis.*fn4 This condition and its extent can be determined through the use of an X-ray of the chest or dorsal region of the spine. Prior to administering electroshock therapy, a "routine workup" is prepared, usually by an interne, to determine the patient's physical fitness to undergo the therapy and part of this workup consists of X-rays. In Miss Collins' case, X-rays were taken at Hahnemann and a report furnished to Dr. Hand which indicated Miss Collins was ...