# Hodgson v. Bigelow

> Supreme Court of Pennsylvania · April 24, 1939 · 335 Pa. 497

URL: https://www.frixlaw.com/law-library/cases/3845180

## Case

- **Full name:** Hodgson Et Al. v. Bigelow, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** April 24, 1939
- **Citations:** 335 Pa. 497; 7 A.2d 338; 1939 Pa. LEXIS 458
- **Precedential status:** Published
- **Opinion:** Dissent by Linn
- **Judges:** Barnes, Drew, Kephart, Linn, Maxey, Schafeer, Schaffer, Stern
- **Cited by:** 77 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3845180

## Opinion text

Dissenting Opinion by
Mr. Justice Linn :
I concur in the conclusion reached by Mr. Justice Schaffer and should like to add that, in my judgment, the appeal presents a simple case. (1) The application of standards of medical practice has been settled in this Commonwealth: if there are two recognized methods of treatment, a physician, without being guilty of malpractice, may adopt and apply either. Both sides gave medical evidence, plaintiffs’ witnesses testifying that defendant should have treated the wound by a different method than was adopted, while defendant’s witnesses testified that the treatment applied was prop
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er. The jury found for the defendant, a finding which means that he applied a recognized treatment.
(2) The reason given for granting the new trial shows, I think, that the learned judge made a mistake of law which it is the duty of this court to> correct. He said: “Among the reasons assigned in support of plaintiffs’ motion for a new trial are some directed at the comments and rulings of the trial'judge. After a careful reviexv of the entire record we are of opinion that perhaps some of the rulings and remarks, may have been prejudicial to the plaintiffs, and pxfincipally for that reason grant the motion.”
I- have examined the record in the light of the motion for a new trial and think the rulings and comments were not harmful. The other reason to which the court refers-is thus stated at the end of the opinion: “In this case, howevex*, all of plaintiffs’ medical experts agreed that the method pursued by defendant was not in accord with the proper treatment of the wound. ' The contrary opinion was asserted by all the medical experts who testified for defendant. These witnesses, in our. judgment, were as reputable and as abreast of the progress in the science of medicine as those for the plaintiffs. We think, therefore, that since the experts on one side ax*e in conflict or disagreement with the experts on the other side the case presents an issue of fact for submission to a juiy.
“Medical practitioners should not be harassed by litigation and mulcted for damages, except in clear cases of carelessness; not only because it would deter doctors from attempting to advance the science by experiments with new thoughts, but because it would almost surely result in the loss of his professional standing.
“We conclude, howevex”, that this question is so close that plaintiffs should not be deprived of the right to recover unless and xxntil an appellate court has said that a physician is liable, notwithstanding that in his judgment and the judgment of a number of physicians
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called on Ms behalf one coarse of treatment is proper, whereas on behalf of the plaintiffs a number of physicians are of the opinion that a different method should have been émployed, without showing moreMhan that they differed from one school of thought as to. the proper method to be pursued in the treatment of a certain type of injury;”
If we understand what the learned judge meant by the last paragraph quoted, (his statement may not have been accurately transcribed) it not only discloses no legal reason for setting aside the verdict, but shows there was error in doing so. For that reason, I think the order should be reversed and judgment entered-on the verdict.
Mr. Justice Schaffer and Mr. Justice Barnes concur in this opinion. .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3845180. Public record. Not legal advice.