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COOPER v. ROBERTS. COOPER (12/13/71)

decided: December 13, 1971.

COOPER, APPELLANT,
v.
ROBERTS. COOPER, APPELLANT, V. COHEN



Appeals from order of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1962, No. 331, and Dec. T., 1963, No. 4022, in cases of Irene Cooper v. Dr. Brooke Roberts, and Same v. Dr. Norman Nathan Cohen.

COUNSEL

Milton S. Lazaroff, with him Martin Techner, A. Jay Molluso, and Techner, Rubin & Shapiro, for appellant.

Francis E. Shields, with him Patrick J. O'Connor, and Pepper, Hamilton & Scheetz, for appellees.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding and Cercone, JJ. Opinion by Spaulding, J. Jacobs, J., dissents.

Author: Spaulding

[ 220 Pa. Super. Page 262]

This is an appeal by appellant, Irene Cooper, from the denial of her motion for a new trial. The action involved a medical malpractice claim wherein appellant sought damages for the perforation of her stomach in the performance of a gastroscopic examination. Appellant sued both her general attending physician and the physician who performed the examination on February 22, 1962. Trial of appellees, Doctors Brooke Roberts and Norman Nathan Cohen before Judge Cavanaugh and a jury in the Court of Common Pleas of Philadelphia, resulted in a verdict on May 1, 1969 for appellees and against appellant. Appellant filed a motion for a new trial which was denied by three judges of the court below, sitting en banc. This appeal is from denial of that motion.

Appellant, a 60 year old schoolteacher, upon advice of a staff physician at the University of Pennsylvania Hospital, Philadelphia, that x-rays indicated a suspicious growth within her hernia, agreed to undergo tests and studies of the condition, despite her knowledge of the existence of a hiatal hernia in her body for approximately twenty years. Upon admission to the hospital, she signed a "blanket consent form",*fn1 authorizing such medical procedures as her attending physician found necessary and advisable. She was placed under the care of co-appellee Roberts.

[ 220 Pa. Super. Page 263]

Additional x-rays were taken of appellant, and upon the basis of these x-rays, appellees and the hospital radiologist concurred that a gastroscopic examination was warranted to investigate a "filling defect" within appellant's hernia. Appellee Cohen agreed to perform the examination and proceeded to make the necessary arrangements. Both appellees described the nature of the examination to appellant. However, there is no indication that she was ever informed of any collateral risks, of perforation or otherwise. On one occasion, she was assured that "the examination was a relatively simple diagnostic procedure and that (there) should not be any trouble with it." Appellant agreed to undergo the examination.

The device used for the gastroscopic examination of appellant was a fiberscope, a fiberglass instrument, about 1/4" in diameter containing some 150,000 glass fibers. The fiberscope could be lowered into the stomach of a patient to photograph that area for purposes of diagnosis and treatment. The device had been in use for approximately five years at the time of appellant's examination; during that time, there had been no reported punctures, and appellee Cohen had utilized the device in 250 examinations without mishap. The fiberscope was considered an improvement over its forerunner, the semi-rigid scope, in terms of comfort for the patient, visibility of the area under examination, and safety. The incidence of perforation with the semirigid scope was approximately 1 in 2500, or .0004%.

Within five or six hours after the completion of the examination, appellant began evidencing distress. Upon investigation, it was found that her stomach had been punctured, requiring emergency surgery to seal the perforation.

There was no dispute among the parties that the cause of the perforation was in ...


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