Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1965, No. 427, in case of William E. Thomas v. Edythe Dorothy Hutchinson, executrix of the estate of Paul v. Hutchinson, deceased.
Bruce R. Martin, for appellant.
Frederick N. Egler, with him Robert S. Garrett, and Egler, McGregor & Reinstadtler, for appellee.
Bell, C. J., Jones, Eagen, O'Brien and Pomeroy, JJ. Opinion by Mr. Justice Jones. Mr. Justice Eagen concurs in the result. Mr. Justice Cohen and Mr. Justice Roberts took no part in the consideration or decision of this case.
The facts underlying this appeal involve the claim of William E. Thomas, plaintiff-appellee, for personal injuries occasioned by the alleged negligence of Dr. Paul V. Hutchinson, appellant's decedent, in the performance of a surgical operation on plaintiff-appellee.
Following receipt of all the evidence in the case, the court directed the jury to find a verdict in favor of plaintiff-appellee, leaving to the jury the assessment of damages. From a verdict in favor of the plaintiff-appellee in the sum of $120,000, appellant moved for judgment n.o.v. and for a new trial. These motions were denied by the court below and judgment was entered on the verdict. This appeal followed.
Plaintiff-appellee was a patient of Dr. Hutchinson, an orthopedic surgeon, on whose advice plaintiff-appellee underwent an operation to remove a ruptured vertebral disc. On August 22, 1963, Dr. Hutchinson, assisted by three orthopedic residents, i.e., medical doctors who were then receiving specialized training, performed the surgery in the operating room of St. Francis Hospital. These residents were selected from the hospital staff for this particular operation by the operating room supervisor, who was employed, as were the residents, by the hospital. After Dr. Hutchinson removed the disc and performed the related surgery, he left the operating room as he allowed the residents to close the surgical incision and remove the remaining sponges. As there was no general improvement in plaintiff-appellee's condition, a subsequent operation was performed by a Dr. Watson, who found a surgical sponge which was admitted by the appellant's decedent to be one of the sponges employed in the operation of August 22, 1963.
In Davis v. Kerr, 239 Pa. 351, 86 Atl. 1007 (1913), we held that where a sponge is left in the body of a patient following surgery in which the sponge was used, a presumption of negligence on the part of the operating surgeon arises and the burden is upon the operating surgeon to rebut this presumption. See, Demchuk v. Bralow, 404 Pa. 100, 105, 170 A.2d 868, 870 (1961); Donaldson v. Maffucci, 397 Pa. 548, 556, 156 A.2d 835,
(1959); Robinson v. Wirts, 387 Pa. 291, 297-98, 127 A.2d 706, 710 (1956); De Rose v. Hirst, 282 Pa. 292, 127 Atl. 776 (1925). Assuming, arguendo, that under Davis v. Kerr, 239 Pa. 351, 86 Atl. 1007 (1913), a presumption arose that Dr. Hutchinson, the operating surgeon, was negligent, the instant problem involves the propriety of the court below in directing a verdict for plaintiff-appellee and against Dr. Hutchinson. Under the instant factual posture, the liability of the operating surgeon would have to be bottomed, if at all, upon a theory of direct negligence*fn* on the part of the operating surgeon, Dr. Hutchinson, or upon a theory of vicarious liability.
The presumption of direct negligence on the part of the operating surgeon imposed by Davis v. Kerr is, at best, a rebuttable presumption. In the case at bar, the testimony of Dr. Hutchinson, taken on deposition, was oral in nature, even though transcribed when presented at the trial, and showed that after the surgery involved in the removal of the disc was completed by Dr. Hutchinson, he left the operating room, leaving the removal of the sponges and the closure of the surgical incision to the resident surgeons. If believed by the jury, this testimony would tend to rebut the presumption of any direct negligence on the part of Dr. ...