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decided: April 13, 1978.



James Lewis Griffith, Philadelphia, for appellant at No. 1059.

Francis E. Shields, Philadelphia, for appellant at No. 1064.

James J. McCabe, Jr., Philadelphia, for appellants at No. 1094.

Patrick W. Kittredge, Philadelphia, for appellant at No. 1100.

Jerome H. Ellis, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration and decision of this appeal. Jacobs, President Judge, and Van der Voort, J., concur in the result but would not hold the hospital on strict liability. Hoffman and Price, JJ., dissent as to Albert Einstein Medical Center and would grant it a new trial because the lower court erred in charging the jury that it could find the Center liable under the Restatement of Torts, Second, ยง 402a; as to the remaining appellants, Hoffman and Price, JJ., concur in the result, but believe that the "captain of the ship" doctrine is no longer viable in Pennsylvania. Spaeth, J., concurs and dissents.

Author: Per Curiam

[ 255 Pa. Super. Page 387]

These are appeals from the verdict entered in favor of the plaintiff-appellee, LUCY GRUBB, by ALBERT EINSTEIN MEDICAL CENTER, appellant in No. 1059, Appellee in 1094 and 1100; MARK KAUFFMAN, M.D., appellant in No. 1064, Appellee in Nos. 1059, 1094 and 1100; MARTIN BELLER, M.D. and IRVIN STEIN, M.D., Individually and as Co-Partners, Appellants in No. 1094, Appellees in Nos. 1059 and 1100; and STRYKER CORPORATION, additional defendant, appellant in No. 1100, Appellee in Nos. 1059, 1064 and 1094.

On November 19, 1964, the plaintiff, Lucy Grubb, underwent surgery to relieve pain and discomfort she suffered as a result of a herniated cervical disc condition. As a result of a mishap during surgery, she was rendered quadriplegic, suffering weakness of the muscles in all four limbs.

The symptoms Mrs. Grubb complained of prior to surgery appeared after she bumped her head while bending to reach a low cabinet in her home. After consultation with her own physician she was referred to Dr. Irving Stein, a board certified orthopedic surgeon who was then Chief of Orthopedic Surgery at Albert Einstein Medical Center.

Mrs. Grubb was admitted to the hospital as a ward patient "on the service of" Dr. Stein and was given conservative treatment including traction and the administration of codeine. Since this course of treatment failed to produce the

[ 255 Pa. Super. Page 388]

    desired relief, Dr. Stein recommended surgery. He informed Mrs. Grubb that without surgery she would never get symptomatic relief and a permanent curvature could result.

The operation planned is known as an anterior cervical fusion and procedurally includes the removal of a bone plug from the vertebrae at the C 5-6 interspace by means of a surgical tool and replacing it with a donor plug contemporaneously removed from the patient's hip.

Mrs. Grubb's complaint in trespass avers that she had not given her informed consent to the operation because she had been advised that the procedure was minor in nature and, further, that she was not appraised of the risk of harm to her spine. Indeed, the record shows that she had previously feared spinal injury in refusing a spinal tap. Nonetheless, Dr. Stein advised his patient that the surgery would be performed by Dr. Mark Kauffman, a third-year resident orthopedic surgeon at the time. Dr. Stein assured Mrs. Grubb that he would be present at the operation. Contrary to this representation Dr. Stein's partner, Dr. Martin Beller, was present in his place. Dr. Beller had the same certification as his partner, and both were charged with the duty of supervising Dr. Kauffman and generally monitoring his progress as a surgical resident. Although Dr. Beller was in attendance at the surgery in question he was not "scrubbed in" and therefore could not directly approach the operative site nor participate in the use of the sterilized equipment. However, according to the established staff-resident relationship at Albert Einstein, Dr. Beller had the right to direct Dr. Kauffman in his performance and could even have cancelled or terminated the procedure at any time.

On the morning of the operation Mrs. Grubb was placed under general anesthesia and a discogram was performed. This is a method of X-raying a disc after certain traceable dyes are injected into the neck area. The discogram confirmed the herniated disc diagnosis and the operation was commenced by Dr. Kauffman with Dr. Beller in attendance as explained above.

[ 255 Pa. Super. Page 389]

Dr. Kauffman used a number four Stryker plug cutter to remove the plug of bone from the vertebrae. This instrument is an electrically powered drill weighing between three and four pounds. The tool consists of four key parts; a serrated cutting edge; a sliding shield, a hexagonal fixation screw and a plunger used to remove the bone plug. The surgeon measures the depth to which he desires to drill and adjusts the shield accordingly, thereafter securing the shield (variously termed a guard, sleeve, guide or depth gauge at trial) by tightening the fixation screw with an allen-type wrench which is supplied by the manufacturer.

Procedurally, Dr. Kauffman made an incision in plaintiff's neck and the neck muscles were held back by tractors. The cervical spine at the location where the plug was to be inserted is 2.5 cm. thick. The hole where the plug was to be placed is drilled only to a depth of 1.0 cm., as in the donor plug. Dr. Kauffman testified that he measured the plug cutter to 1.0 cm. and tightened the hexagonal screw allowing for a 1.5 cm. margin between the cut and the spinal cord. The entire drilling procedure for a 1.0 cm. plug is normally completed in a few seconds and in the instant operation Dr. Kauffman noticed that the drill was cutting quite quickly which he attributed to the sharpness of the new drill. Dr. Kauffman stated in his post-operative report and likewise testified that in spite of his tightening the screw, securing the guard, the guard slipped allowing the drill to penetrate farther than he had expected. When he removed the drill he found that it had taken a full depth of vertebrae tissue and penetrated to the postinor cortex. Anticipating spinal shock Dr. Kauffman and his assistants inspected the spinal cord and posterior longitudinal ligament for bleeding. Upon finding no bleeding, Dr. Beller directed them to insert the donor plug and complete the operation.

In the post-operative recovery room Dr. Kauffman administered a lumbar spinal tap which showed no bleeding within the spinal column. A Queckenstedt test also showed that the fluid pressure within the spinal column was normal. From the foregoing test results Dr. Kauffman concluded

[ 255 Pa. Super. Page 390]

    that the plaintiff suffered from spinal shock. Next Dr. Kauffman requested and received the consultation of Dr. Harold Haft, an experienced neurosurgeon, who found that the plaintiff was quadriplegic with paralysis at the C6 and C7 level. Both Drs. Kauffman and Beller agreed with this diagnosis.

Dr. Kauffman testified that he examined the Stryker plug cutter after the operation and opined that the guard had slipped. He also observed a scratch on the shaft of the cutter where the screw had not held but rather had slid along the shaft producing the scratch. In the immediate post-operative period, this scratch evidencing an alleged defective condition on the Stryker tool was observed by all of the physicians in attendance and by Dr. Jose Auday who was scheduled to perform surgery on another patient later that morning.

In 1966 Mrs. Grubb brought suit against Drs. Kauffman, Beller and Stein and against Albert Enstein Medical Center, a corporation. Drs. Beller and Stein were sued individually and as co-partners. Subsequently, Albert Einstein Medical Center joined the Stryker Corporation, the manufacturer of the plug cutter, as an additional defendant. After five weeks of trial, the jury returned a $450,000.00 verdict in favor of the plaintiff against all of the defendants.

Each defendant filed motions for a new trial, for judgment n. o. v., and to mold the verdict in his favor. A court en banc dismissed all of these motions without opinion with two judges concurring.

As the reviewing court we are bound by well defined parameters of examining the record certified to us. First, in an appeal from the denial of a motion for a judgment n. o. v., the evidence must be viewed in a light most favorable to the verdict winner. Evidence supporting the verdict is considered and the rest is rejected. All conflicts in testimony are resolved in favor of the verdict winner, the plaintiff herein. Rutter v. Morris, 212 Pa. Super. 466, 243 A.2d 140, 141 (1968). In considering the motion for

[ 255 Pa. Super. Page 391]

    a new trial for the reasons asserted by the appellants we will reluctantly interfere with the reasoning of the lower court and the verdict only upon a clear showing of a mistake of law or abuse of discretion. Simmons v. Mullen, 231 Pa. Super. 199, 331 A.2d 892 (1975); Scaife Co. v. Rockwell-Standard Corp., 446 Pa. 280, 285 A.2d 451 (1972); Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968). In order to succinctly review the appeal issues we will consider the case against each defendant.

I. Liability of Dr. Kauffman

Considerable appellate case law has dealt with the standard of care required of a physician. In the absence of a special contract the treating physician is neither a warrantor nor a cure nor the 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. Collins v. Hand, supra; Donaldson v. Maffucci, 397 Pa. 548, 156 A.2d 835 (1959).

The plaintiff asserted four separate theories of negligence against Dr. Kauffman: (1) he failed to set the plug cutter accurately; (2) he failed to take proper measurements from Mrs. Grubb's X-rays in order to get an exact setting for the plug cutter; (3) he failed to tighten the set screw sufficiently so that the plug cutter could not slip; and (4) he failed to closely observe the plug cutter during the operation so as to be able to remove it from the neck of the plaintiff in time to avoid injury.

In consideration of the first assertion Dr. Kauffman testified at trial that there was no possibility that he had erred in setting the ...

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