Robinson v. Wirts

Opinion by

Mr. Chief Justice Horace Stern,

The law in this State as to the nature of the evidence required to sustain an action against a physician or surgeon for malpractice has been thoroughly charted. Its application to the facts in the present case fully supports the action of the court below in entering a nonsuit.

Plaintiff, Hannah Robinson, a woman 45 years of age,'visited Jefferson Hospital in Philadelphia in February, 1953, for a gastroscopic examination for the detection of possible cancer. The examination was made by defendant, Dr. Charles Wilmer Wirts, Associate Professor of Medicine and Head of the Division of Gastro-enterology at the Hospital, who, as a specialist, had been regularly performing such examinations for many years. While it was an operation that would normally take but a few minutes, it was apparently more than of a merely casual or routine nature, as is somewhat evidenced by the fact that the patient received prior medication of demerol and a hypodermic Injection of atrophine sulfate, — sedatives given to induee relaxation of the muscles of the esophagus and stomach during the course of the examination. The operation itself consisted of the insertion into the esophagus of a gastroscope, which is a flexible tube approximately three feet in length and three-eighths of an inch in diameter, with a soft rubber tip to guide the instrument downward and with a light at the end to permit of a visual examination of the interior of the stomach for cancerous or other diseased conditions.

In this instance the gastroscope was passed along with ease until the cardia or esophageal orifice of the stomach was reached; there an obstruction was encountered, apparently due to spasm. Dr. Wirts explained that such spasm occurred .at times because of the natural tendency of the esophagus to repel a foreign object. He testified that he applied gentle pressure and insufflation aimed to distend the walls of the stomach and esophagus so as to clear the passage for the tube, which he stated ivas the normal and recognized method in such cases of overcoming the obstacle created by the spasm. The patient, however, showed signs of distress, and an emphysema of the upper abdomen, neck and cheek occurred which made the doctor suspect a possible puncture of the wall of the esophagus ; accordingly he immediately removed the tube and had the plaintiff taken to the surgical ward where it was discovered that there was in fact a puncture approximately an inch to an inch and a quarter in size, requiring a thoracotomy for the removal of a rib and the suturing of the puncture.

The present action was instituted by plaintiff to recover damages for pain and suffering, the disfigurement caused by the incisional scar across her body, and her expenditures for medicines and medical treatment. At the trial the only evidence produced by her, in addition to her own testimony as to what occurred, was that of defendant, called as for cross-examination.¹ The trial judge entered a nonsuit which the court en bane subsequently refused to remove.

The reason for the entry of the nonsuit was that plaintiff had not offered any expert medical testimony to prove that defendant had inserted or manipulated the gastroseope improperly or had done anything else contrary to standard practice in treating the patient. Plaintiff contends that the jury should have been allowed to infer negligence on his part from the mere fact of the happening of the occurrence and that there was applicable the so-called exclusive control doctrine, namely, that where the thing which causes the injury is under the management of the defendant and something untoward happens that ordinarily would not occur if the one having the management used proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the happening arose from a want of care, and the burden is placed upon the defendant to establish freedom from fault.

Unfortunately for plaintiff the law is definitely to the contrary. Three very recent cases on the subject are Bierstein v. Whitman, 360 Pa. 537, 62 A. 2d 843; Scacchi, Admr. v. Montgomery, 365 Pa. 377, 75 A. 2d 535; and Powell v. Risser, 375 Pa. 60, 99 A. 2d 454. They merely follow a long train of authorities in this Commonwealth² to the same effect, holding that no presumption or inference of negligence arises merely because the medical care or surgical operation terminated in an unfortunate result which might have occurred even though proper care and skill had been exercised, and where the common knowledge or experience of laymen is not sufficient to warrant their passing of judgment. In such cases the doctrine of res ipsa loquitur or of exclusive control may not be invoked, and expert testimony in support of the plaintiff’s claim is an indispensable requisite to establish a right of action.

In the Bierstein case, which was an action against a dentist to recover damages because of alleged negligent treatment in extracting the plaintiff’s tooth, resulting in the fracture of her jaw, the court pointed out, in an opinion by the late Mr. Justice Allen M. Stearne (pp. 541, 542, A. pp. 844, 845), that all that had been shown Avas that the defendant did certain things and failed to do other things, but that there was no evidence as to whether a careful and competent practitioner Avould have done otherwise. Accordingly the opinion proceeded to state that “It is argued . . . that a jury of laymen under the present facts could find negligence in the same manner as in any other tort action. It is urged that a lay jury might find that plaintiff’s jaiv was found to have been broken, and from this fact might conclude that defendant had used unwarranted force and was therefore negligent. We disar gree with such doctrine. . . . Negligence may not be inferred by laymen merely because the jaw was found to have been broken. A jaiv could be broken even though there Avas no lack of care or skill by the dentist. Expert testimony is necessary to establish negligent practice in any profession. ... As plaintiff failed to offer any expert witness to establish the measure of professional skill required of a dentist in extracting a tooth, she did not meet the burden of establishing, by the weight of the evidence, that defendant failed to treat her with reasonable and ordinary professional skill. . . . In all such malpractice cases this Court has uniformly applied the above principles:” [citing many cases]. Accordingly, the court affirmed the entry of a compulsory nonsuit by the trial court.

In the Scacchi case, which was an action against a surgeon for alleged negligence in the performance of an operation to remove the patient’s right tube and ovary because of an ovarian cyst, it was alleged that the ligature was not properly placed and tied after the operation so as to prevent hemorrhages, whereby a second operation was required from which the patient died. The court affirmed the action of the lower court in entering a nonsuit. It was said (p. 379, A. p. 536) : “The plaintiff had the burden of proving Dr. Montgomery’s negligence and in a case such as this it could be proved only by expert testimony to establish negligence in the operation or a procedure which was not in accord with standard medical practice or negligence in his treatment of the patient after the operation:” [ citing authorities ].

In the Powell case, which was an action to recover damages for injuries to the plaintiff’s hands alleged to have been sustained by reason of the improper conduct of defendant doctors in directing the administration of a wet pack to plaintiff who suffered from a manic depressive psychosis, a judgment for plaintiff entered in the trial court was reversed, and it was said (pp. 65, 66, 67, A. pp. 456, 457): “It has been uniformly held that expert testimony is necessary to establish negligent practice in any profession: ... In the instant case the plaintiff failed to show by any expert testimony just what Dr. Kisser should have done or refrained from doing. . . . Since, to make out a case, the plaintiff must show by expert testimony that there was a deviation from proper practices in the administration of the wet packs, and since he failed to do so, the doctrine of exclusive control is not in this case.”

It is thus abundantly clear that since, in all such malpractice cases involving an appraisal of the propriety and skill of a doctor or surgeon in his professional treatment of a patient, a lay jury would presumably lack the necessary knowledge and experience to render a just and proper decision, they must be guided by the testimony of witnesses having special or expert qualifications. The only exception to this otherwise invariable rule is in cases where the matter under investigation is so simple, and the lack of skill or want of care so obvious, as to be within the range of the ordinary experience and comprehension of even nonprofessional persons, as, for example, where a gauze pad is left in the body of a patient following an operation (Davis v. Kerr, 239 Pa. 351, 86 A. 1007), or where a dentist, in working on a tooth, uses a tool with a small rotating emery disc at the end and allows it to slip and to remain revolving in the patient’s mouth, grinding and tearing her tongue (Dux v. Shaver, 105 Pa. Superior Ct. 344, 161 A. 481). So, likewise, there might be imagined a case where a surgeon engaged in removing a tumor from a patient’s scalp would let his knife slip and cut off his patient’s ear, or where he undertook to stitch a wound on his patient’s cheek and by an awkward move would thrust his needle into the patient’s eye. It would be a matter of common knowledge and observation that such things do not ordinarily attend the service of one exercising ordinary skill and experience in the work of surgery because they involve ulterior or extraneous acts or omissions the judgment of which would not require scientific opinion. But such is not the present case. Here it certainly could not be said that the injury to the wall of the esophagus — similar to the fracture of the jaw in the Bier-stein case — indicated that the gastroscopio examination must have been conducted negligently, or that the application of gentle pressure and insufflation in order to pass the gastroscope beyond the obstacle caused by the spasm was not in accord with the ordinary and approved procedure of gastro-enterologists engaged in such specialized practice; on the contrary, the only evidence in that regard at the trial was the testimony of defendant, called by plaintiff as for cross-examination, that it followed the normal and recognized practice under the circumstances. The mere fact that the puncture occurred, due, as it well may have been, to an abnormally weak wall of the esophagus or to other natural causes, did not, under all the authorities, justify the application to the case of the doctrine of res ipsa loquitur or of exclusive control.³

Order affirmed.

1 At the conclusion of plaintiff’s cross-examination of the defendant the latter’s counsel interrogated him but only within the scope of the subject matter of the cross-examination, by all of which, therefore, plaintiff was bound.

2 Examples: Williams v. LeBar, 141 Pa. 149, 21 A. 525; De Long v, Delaney, 206 Pa. 226, 55 A. 965; Stemons v. Turner, 274 Pa. 228, 117 A. 922; Nixon v. Pfahler, 279 Pa. 377, 124 A. 130; Tremaine, Exrx. v. H. K. Mulford Company, 317 Pa. 97, 176 A. 212; Wohlert v. Seibert, 23 Pa. Superior Ct. 213; see also Wigmore on Evidence (3d ed.), Vol. VII, §2090, p. 453.

3 For a comprehensive and illuminating article covering the subject matter of this appeal see “Comment, Torts — Malpractice— Medicolegal Relations — Expert Testimony,” 2 Villanova Law Review, p. 95, et seq.