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RAGAN v. STEEN (09/23/74)

decided: September 23, 1974.

RAGAN
v.
STEEN, ET AL., APPELLANTS



Appeals from judgment of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1971, No. 3704, in case of James Ragan v. Oliver Steen and McKeesport Hospital.

COUNSEL

Bruce R. Martin, for appellant at No. 413; Allen T. Lane, with him Wayman, Irvin, Trushel & McAuley, for appellant at No. 414.

Allan H. Cohen, with him Gatz, Cohen, Segal & Koerner, for appellee at Nos. 413 and 414.

Allen T. Lane, with him Wayman, Irvin, Trushel & McAuley, for appellee at No. 413.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Jacobs, J. Wright, P. J., took no part in the decision of this case. Spaulding, J., took no part in the consideration or decision of this case. Concurring Opinion by Spaeth, J. Dissenting Opinion by Hoffman, J.

Author: Jacobs

[ 229 Pa. Super. Page 518]

Plaintiff-appellee, James Ragan, obtained a jury verdict against defendants-appellants Oliver Steen and McKeesport Hospital in a medical malpractice action. The lower court molded the verdict and entered judgment for indemnity over against Oliver Steen in favor of McKeesport Hospital. From this judgment both defendants appeal raising questions as to the limitation of actions, the sufficiency of the expert testimony to establish evidence of negligence, and the ability of the lower court to mold the verdict giving the hospital the right to indemnity. We find that the plaintiff-appellee's evidence was timely produced establishing a right to recovery and that the defendant hospital is entitled to indemnity. Therefore we affirm.

In September 1968, appellee consulted his family physician concerning a colony of plantar warts on his right foot. His doctor referred him to McKeesport

[ 229 Pa. Super. Page 519]

Hospital to determine if x-ray treatment was advisable for removal of the warts. At the hospital he was seen by Dr. Steen, who was employed by the hospital as a radiologist. After two radiation treatments administered by Dr. Steen, appellee returned to his studies at Ohio University. A blister developed on the site which he had treated at the University Health Center and thereafter the area appeared to heal normally. However, in November 1970 the tissue in the area where the warts had been began to decompose and the appellee began to experience pain in his foot. He visited doctors in an attempt to remedy the increasing decomposition and finally in May, 1971 surgery was performed. However, despite all efforts appellee remains with a permanent disability.

On March 30, 1971 appellee filed a complaint in trespass against both Dr. Steen and the McKeesport Hospital. The complaint asserted the negligence of Dr. Steen in Count I. In Count II, liability on the part of the hospital was asserted based on its own negligence and on its vicarious liability as the employer of Dr. Steen. The jury returned a verdict in favor of the appellee, finding "Oliver Steen and McKeesport Hospital equally responsible." The court en banc molded the verdict on the hospital's motion, granting the hospital indemnity over against Dr. Steen, but denied the appellants' motions for judgment n.o.v. and for a new trial. Judgment was therefore entered in favor of the appellee, against both appellants for $40,000 with indemnity over to McKeesport Hospital against Dr. Steen.

The first question raised by the appellants is whether the two year statute of limitations*fn1 should bar the appellee's personal injury action. The two year period

[ 229 Pa. Super. Page 520]

    on actions such as this begins to run when the injury is done. It is undisputed in Pennsylvania that the injury is considered done "when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable." Ayers v. Morgan, 397 Pa. 282, 290, 154 A.2d 788, 792 (1959). Appellants contend that this point was reached when the blister on the affected area appeared in October 1968 warning the appellee of his damaged condition and that an act of negligence had been committed. Appellee maintains that since the blister healed, the warts were gone and the foot appeared normal, he had no reason to know of the injurious effects of the x-ray until November 1970 when the area began to decompose. Which of these two positions is substantiated by the evidence is a question which the jury must decide. Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963); Ayers v. Morgan, supra. The lower court correctly submitted this issue to the jury, and the jury determined that the action had been timely commenced. There was ample evidence in support of this finding.

In support of their motion for judgment notwithstanding the verdict, appellants maintain that the expert testimony produced in support of the plaintiff-appellee's claim did not establish negligence on the part of Dr. Steen. At trial, the appellee called two expert witnesses. The first, a pathologist, testified that from an examination of tissue removed from appellee's foot he concluded that the ulceration had been produced by radiation. The second, Dr. Herring, testified that after examining the appellee and studying his history it was his opinion that the only cause for his injury was an overdose of radiation. He based this conclusion on his knowledge of the effects of x-ray treatments when radiation is used in massive doses and on his experience that tissue death and ulceration can follow such therapy.

[ 229 Pa. Super. Page 521]

If the testimony elicited at trial is to establish proof of medical malpractice, it is necessary that it meet certain well recognized standards. The physician is not expected to guarantee a good result from the course of treatment he recommends or administers. To obtain a recovery against a doctor when the prescribed treatment results badly, the plaintiff initially must prove either that the physician did not possess or employ the skill and knowledge required to effect a cure, or that he did not exercise the care and judgment of a reasonable man under like circumstances. In addition, it must be shown to the satisfaction of the trier of fact that the specific injury complained of resulted from such failure of skill and knowledge or lack of reasonable care. A course of treatment which culminates in a bad result is not evidence of negligence in a malpractice case. There can be no inference of negligence due to a bad result which might have occurred despite the use of reasonable care. Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968). Where the treatment of a patient's condition is such that the attendant risks and the consequent injury are not matters within the experience of layman, expert testimony is required to establish a right of action. Collins v. Hand, supra; Taylor v. Spencer Hospital, 222 Pa. Superior Ct. 17, 292 A.2d 449 (1972).

In the present case, appellants contend that Dr. Herring was not qualified to testify as an expert on the cause of the appellee's injuries and that therefore his testimony should not have been considered by the jury. Because the witness was a surgeon and not a radiologist, and was admittedly unfamiliar with the practice of removing plantar warts by x-ray, it is argued that his testimony merely goes to show a bad result from a course of treatment and is no proof of negligence. Dr. Herring, however, had had occasion to refer many of his own patients for x-ray treatment,

[ 229 Pa. Super. Page 522]

    was knowledgeable of the risks of this treatment, and had had occasion to observe the results to the patient when massive doses of radiation were administered. If a witness has any reasonable pretension to specialized knowledge on the subject under investigation he or she is qualified as an expert. Whether the witness's knowledge or experience justifies admitting his testimony for the consideration of the jury is a matter within the discretion of the trial judge, and the weight to be given this evidence is for the jury. Moodie v. Westinghouse Electric Corp., 367 Pa. 493, 80 A.2d 734 (1951); Taylor v. Spencer Hospital, supra. Due to the witness's familiarity with the use of x-ray and his knowledge of the results of radiation given in massive doses, we find no abuse of discretion on the part of the trial judge in admitting his testimony.

We also find no merit in the appellants' contention that Dr. Herring's testimony showed only his recognition of a bad result unconnected with any lack of skill or reasonable care on the part of Dr. Steen. Dr. Herring indicated that in his expert opinion the depth of tissue death in the appellee's foot could have occurred only through an overdose of radiation when he was being treated for removal of his plantar warts. That is, the dose of radiation that caused the decomposition of his foot was significantly greater than necessary under the circumstances. This testimony was supported by that of Dr. Totten, the pathologist. It is not denied that Dr. Steen prescribed and supervised the administration of radiation. Under these facts a properly instructed jury would not be inferring negligence from the existence of an injury alone, but would have an adequate factual basis on which to infer a lack of skill or reasonable care in the treatment of the appellee.*fn2

[ 229 Pa. Super. Page 523]

The appellants further contend that the chance of a malfunctioning of the x-ray machine itself was not eliminated. However, there was no testimony in the record that the machine used was in any way defective. Since the possibility of a defective machine was not fairly suggested by the evidence, there was no need for the appellee to disprove this possibility as a cause of the injury. "[I]t is not the rule that circumstantial evidence to establish negligence need exclude everything which the ingenuity of counsel may suggest as having possibly caused or contributed to the injuries or death." Straight v. B. F. Goodrich Co., 354 Pa. 391, 396, 47 A.2d 605, 607-608 (1946).

Finally it is contended that the question of the hospital's right to indemnity from Dr. Steen was improperly considered by the court below.*fn3 No claim for indemnity was made in the pleadings but at the conclusion of the trial, McKeesport Hospital requested the following point for charge: "If you determine that the plaintiff's injury was caused by the negligence of the defendant, Oliver Steen, then you must find that ...


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