No. 274 January Term, 1978, Appeal from Order of the Superior Court at No. 1583 October Term, 1976, reversing the Judgment of the Court of Common Pleas - Trial Division - Law, Philadelphia County, No. 2320, June Term 1966.
James E. Beasley, Jeffrey M. Stopford, Philadelphia, for appellants.
John J. Dautrich, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.
This is an appeal from an order of the Superior Court reversing judgment for appellants*fn1 in a medical malpractice action and remanding for a new trial. The principal issues presented are: (1) the degree of certainty required to establish proximate cause when negligent performance of an undertaking to render medical services is alleged to be a substantial factor in producing physical harm, and (2) in assessing damages, the extent to which a jury properly may consider the increased risk of future metastasis*fn2 caused by the negligent failure to diagnose and remove a cancerous tumor before it spread to the bone.*fn3
In July, 1964, when he was five years of age, Edwin J. Gradel, Jr. ("Edwin"), fell out of a tree and fractured his left forearm. He was treated by appellee, Dr. William Inouye, a board-certified orthopedic surgeon. The cast was finally removed and Edwin was discharged from Dr. Inouye's care on October 31, 1964.
In the year after the cast was removed, Edwin's mother returned him to Dr. Inouye on three occasions because a lump at the fracture site, which she had first noticed when the cast was removed on October 31, was gradually increasing
in size. Although Mrs. Gradel requested an x-ray at each of these visits, Dr. Inouye erroneously diagnosed the lump as a callous formation and failed to x-ray the arm or provide any other treatment.
In November, 1965, dissatisfied with Dr. Inouye's treatment and concerned about the lump's increasing size, Mrs. Gradel took Edwin to Dr. Oscar Corn, an orthopedic surgeon. X-rays revealed that a soft tissue mass had invaded the bone at the point of fracture. An excisional biopsy was performed, revealing a fibrosarcoma (cancer of the bone) of low-grade malignancy. Shortly thereafter, Dr. Corn surgically removed part of the bone and replaced it with a bone graft. Tests showed no cancer cells at either end of the incision and it was thought that all cancer cells had been removed. Unfortunately, however, a year later the cancer recurred at the same site, and on December 16, 1966, Dr. Corn amputated Edwin's left arm above the elbow.
Appellants commenced this malpractice action against Dr. Inouye claiming that his failure to take reasonable and appropriate steps to diagnose and remove the lump on Edwin's forearm, for which they specifically had sought treatment, was negligence which ultimately led to the amputation of his arm.
Appellants' medical expert, Dr. Corn, testified that the cancer, which began as a soft tissue tumor, invaded the bone sometime after the last x-ray study by Dr. Inouye on October 10, 1964, which had revealed no significant pathology. Although he could not testify precisely when the bone invasion occurred, Dr. Corn did conclude that it was long before November 20, 1965, when he was first consulted. Dr. Corn further testified that a biopsy should have been performed upon observation of the continuing growth, even before bone invasion would appear in the x-rays, because if the fibrosarcoma had been discovered before it invaded the bone, it would not have been necessary to do any bone operation. Thus Dr. Inouye's failure to diagnose the fibrosarcoma, testified Dr. Corn, was a substantial factor in the boy losing his arm.
Trial in the Court of Common Pleas of Philadelphia County resulted in jury verdicts of $25,000 for appellant parents and $700,000 for Edwin.*fn4 Appellee's post-trial motion for a new trial was dismissed, but the parents' award in excess of $10,000 was remitted. On appeal, the Superior Court (Hoffman, Cercone, and Spaeth, JJ., dissenting) reversed and remanded for a new trial on two grounds: (1) the trial court's instructions to the jury on causation were erroneous, and (2) the closing argument made to the jury by appellants' counsel was improper because it suggested that the jury could consider the possibility of metastasis of the cancer in assessing damages.*fn5 We granted allocatur and now reverse.*fn6
Appellants first challenge the Superior Court's holding that the jury instructions on causation were erroneous. The disputed charge is as follows:
There is no contention in this case, as I understand it, that the cancer, that is, the fibrosarcoma was caused by any conduct of the defendant. However, the plaintiff is entitled to recover damages for all injuries which the defendant's negligence was a substantial ...