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decided: December 28, 1977.


NO. 1583 OCTOBER TERM, 1976, Appeal from the Judgment of the Court of Common Pleas, Trial Division - Law, of Philadelphia County at No. 2320, June Term, 1966


John J. Dautrich, Philadelphia, with him White & Williams, Philadelphia, for appellant.

James E. Beasley, Philadelphia, with him Jeffrey M. Stopford, Philadelphia, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, President Judge, concurs in the result. Price, J., files a concurring opinion. Hoffman, Cercone and Spaeth, JJ., dissent on the basis of Judge Cercone's Dissenting Opinion in Hamil v. Bashline II, Author: Van Der Voort

[ 252 Pa. Super. Page 396]

This is an action in trespass for medical malpractice brought by the mother and natural guardian of Edwin J. Gradel, Jr., a minor, on his behalf, and by his father and mother in their own right. A jury returned verdicts of $700,000 for the guardian of the minor boy and $25,000 for the parents. After a hearing on post-trial motions, the trial court refused to grant a new trial or to reduce the $700,000 verdict. However, it conditioned the denial of a new trial on the $25,000 verdict on its reduction to $10,000 by the filing of an appropriate remittitur. The remittitur was filed.

[ 252 Pa. Super. Page 397]

The defendant-appellant has appealed the judgment entered on both verdicts. The appellant seeks either a new trial because of asserted errors in the charge to the jury or, alternatively, a reduction in the amount of the judgment entered for the guardian of the minor.

On July 6, 1964, Edwin J. Gradel, Jr., then age 5, on whose behalf this action was brought by his mother, was injured by jumping out of a tree, fracturing both bones of the left forearm. Dr. William Inouye, a Board-certified general surgeon, X rayed the injured arm and set the fractures at Jean's Hospital in Philadelphia. No contention is made that the doctor's treatment of the fractures had anything to do with the complication that followed. The boy and his mother returned to the doctor on four occasions between the date that the fractures were set and October 31, 1964, when the lad was discharged from appellant's care. On three of those occasions X rays were taken of the fractures to observe the healing process. An X ray was not taken on the final visit when the boy was discharged.

On three occasions in the ensuing year, February, May and September, 1965, the boy's mother had him reexamined by Dr. Inouye because a lump of soft tissue had appeared at the fracture site and was gradually increasing in size. The doctor diagnosed the growth as a callous, a protective device of nature to shield the wound and not unusual under the circumstances, and prognosticated that it would gradually disappear as the fractures mended. On each visit the mother inquired of the appellant whether an X ray would be appropriate but the doctor declined the suggestion explaining to the mother that there was no evidence of pain, there was good motion and use in the arm, the rate of healing was not unusual and that he felt that further X rays might result in overexposure.

Dissatisfied, on November 20, 1965, the mother took her son to Dr. Oscar Corn, an orthopedic surgeon. At that time the growth of soft tissue at the site of the injury was about two inches above the surface of the skin. X rays were taken which disclosed that the fracture of the radius was well

[ 252 Pa. Super. Page 398]

    healed and that the ulna was partially healed but with cystic changes on either side of the old fracture line. There was evidence that the growth tissue had invaded the bone at the point of this fracture. Dr. Corn then performed an excisional biopsy on November 30, 1965, which revealed a cancer of the bone, specifically a fibrosarcoma of low grade malignancy, quite unusual in small children. Dr. Corn thereupon did a second operation on January 16, 1966, to excise the middle two-thirds of the infected bone for about four inches and insert a graft from the fibula, the purpose of the operation being to excise any remaining tumor not removed by the excisional biopsy. There was no evidence of cancer cells at either end of the incision, leading to the conclusion that all cancer cells had been removed. As it turned out, this was not achieved for the cancer recurred at the same situs approximately a year later and on December 16, 1966, Dr. Corn amputated the boy's left arm above the elbow. The lad is right-handed.

The trial took place between February 24 and 27, 1975, in the eleventh year after the accident and eight years after the amputation of the arm. Between the dates of amputation and trial chest X rays of the boy have been taken at frequent intervals to determine whether there was any evidence that the cancer had metastasized and had thereby been transmitted by the bloodstream or lymphatics to some other part of the body. No evidence that the cancer had so spread was found in any of these examinations and Dr. Corn testified that, in his opinion, there had been no metastasis. However, he recommended continuing annual examinations against the possibility that the cancer might recur. He acknowledged the rule of thumb that if a cancer has metastasized it will reappear within five years in an adult and within two years in a child. Dr. Inouye testified that in 50 to 75% of the cases a low grade fibrosarcoma would recur at the original site. Dr. Corn testified that a low grade cancer such as the fibrosarcoma in this case was much more likely to recur at the original site than to metastasize. He declined to give a percentage estimate but testified that recurrence

[ 252 Pa. Super. Page 399]

    at the original site was common. However, it was Dr. Corn's opinion that the cancer had not metastasized at the time of amputation and would not reappear elsewhere in the boy's body. If cancer again struck the boy, now a lad of 18 years, there would be no way of determining whether it was a new cancer or the old one metastasized.

At the time of trial Edwin Gradel, Jr. was 16 years of age, in excellent health, extremely active, a high school sophomore holding a part time job. He had been fitted with a prosthesis which he had worn for a while, but which, by choice, he had not worn for the previous two years.

There was contradictory testimony as to the extent to which the young man's earning capacity had been restricted by the amputation. All witnesses agreed that Gradel could handle many jobs without diminution in earning power but that this was not true of all jobs open to him and that he would be handicapped somewhat both in obtaining and holding employment. The testimony most favorable to the Gradel claim was that his earning ability had been diminished by $6,000 a year averaged over his work expectancy of 47 years. The resulting estimate is a $282,000 loss of earnings which appellees calculated to have a present worth of $131,838. Appellees' testimony also supported estimated medical expenses, past and future, of $47,606. The combined claim for loss of earning power and medical expenses aggregates $180,000. The balance of the award, some $520,000, can only be attributed to compensation for pain and suffering.

On the issue of pain and suffering, the young man testified to the taunts of his peers when he wore the prosthesis and also described the embarrassment and humiliation of adjusting to a life style without a left forearm. He gave no testimony as to any concern over the possibility of a recurrence of the cancer through metastasis.

At the conclusion of the court's charge to the jury, appellant's counsel sought to have the court issue supplemental instructions to the effect that the jury should not take into account any claim that the cancer may later be discovered to have metastasized. The request was denied.

[ 252 Pa. Super. Page 400]

The appellant challenges in four respects the correctness of the trial court's instructions to the jury. These issues are concerned with: (1) proof of appellant's negligence; (2) proof that appellant's negligence caused the amputation; (3) the possibility of metastasis as an element in the award; and (4) the refusal to charge on the non-taxability of the judgment.

1. Negligence. The issue of negligence was submitted to the jury in these words:

"Now, the burden of proof in a malpractice action is upon the plaintiff, to prove either, one, that the physician or surgeon did not possess and employ the required skill and knowledge or, number two, that he did not exercise the care and judgment of a reasonable man in like circumstances.

"Now, a physician or surgeon is neither a warrantor of a cure nor a guarantor of the result of his treatment, and there is no presumption or inference of negligence merely because the medical care provided by a physician terminated in an unfortunate result, which might have occurred even though proper care and skill had been exercised.

"If a physician as an aid to his diagnosis, that is, his judgment, does not avail himself of the scientific means and facilities opened to him for the collection of the best factual data upon which to arrive at his diagnosis, the result is not an error of judgment but negligence in failing to secure an adequate factual basis upon which to support his diagnosis or judgment.

"Malpractice consists of a negligent or unskillful performance by a physician of the duties which are devolved and incumbent upon him on account of his relationship with his patients or of a want of proper care and skill in the performance of a professional act.

"He is under a duty to use reasonable skill and diligence, and reasonable skill is that degree of skill which ordinarily characterizes the profession.

[ 252 Pa. Super. Page 401]

"Was Dr. Inouye's failure to take X-rays on those periods such a departure from established standards of practice as to justify a finding of negligence on the defendant's part?"

The testimony established that on three occasions between October, 1964, and November, 1965, Edwin Gradel, Jr. was brought back to Dr. Inouye for examination with respect to a growth of soft tissue at the site of the injury and that on each occasion Dr. Inouye diagnosed the growth as a callous which would disappear as the fracture healed. He did not have an X ray taken on any of these occasions for the reasons previously attributed to him.

Dr. Corn testified that in his professional judgment an X ray should have been taken, that it would not have been dangerous to the boy and that it might have led to an earlier discovery of the cancerous nature of the growth.

The jury was entitled to choose between these conflicting professional opinions and the verdict indicates that it favored the view of Dr. Corn that an X ray should have been taken. The trial court's instructions on this point correctly left it to the jury to determine whether this failure of Dr. Inouye to take an X ray on any of the three occasions in 1965 when the boy's mother suggested such a procedure amounted to negligence.

2. Causal connection between negligence and amputation. It does not follow, without proof, that the negligent action, or rather non-action of Dr. Inouye caused the amputation. The burden of establishing this causal connection rests with those who assert it, namely, the appellees. They attempted to make the causal connection by the testimony of Dr. Corn to this effect:

"Based upon those facts do you have an opinion whether there was a substantial possibility of survival of the arm had any other diagnosis been made?

"A I believe so.

"Q And what is that opinion?

[ 252 Pa. Super. Page 402]

"A I believe if this tumor mass were discovered earlier, before it had invaded the bone, there is a much greater likelihood of it being removable, and thereby not necessitating the need ...

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