involving injury while attempting to insert gastroscope into stomach "an intricate surgical procedure"
How later courts described this case
- involving injury while attempting to insert gastroscope into stomach "an intricate surgical procedure"
Written by the judges who cited it.
The opinion
Dissenting Opinion by
Mb. Justice Bok:
I do not think that Robinson v. Wirts, 387 Pa. 291 (1956), 127 A. 2d 706 , is analogous or controlling.
In Robinson the tube reached the entrance to the stomach and met resistance. The defendant sought to overcome it by “gentle pressure and insufflation", which would distend the walls of the stomach and clear the passage for the tube, and was the normal and recognized method of overcoming an obstacle caused by spasm. A nonsuit was entered because there was no expert evidence that standard practice was not followed under such conditions or that there was negligence.
Here the tube did not reach the entrance to the stomach but punctured the esophagus at the point where it curved. This stance of fact removes the case from the category of those requiring expert testimony of standard practice or its lack. Rather the case falls within the class of patent and obvious negligence listed in Robinson at page 297, such as leaving a drill revolving in a patient’s mouth and tearing her tongue, or stitching a cheek and awkwardly thrusting a needle into the patient’s eye. The defendant in the case before us, who must be held to know that an esophagus curves and that there may be spasms and hence resistance, thrust the tube downward in such a way that it failed to follow the curve but instead plunged straight ahead through the wall of tissue. Such a conclusion requires no further evidence to reveal the operator’s negligence.
*120 The majority concerns itself to no purpose with the doctor’s “meeting resistance”, saying that there is not a scintilla of evidence that he did anything to overcome the resistance that he said he met. It is clear from his testimony that when he met it he withdrew his instrument not once but twice. He knew what resistance meant at that point the first time, or he would not have withdrawn the instrument. And the patient did not complain of pain, the tell-tale of puncture, until after defendant withdrew his instrument the second time. He admits that there is no doubt it was his instrument that pierced the wall of his patient’s esophagus. Merely meeting resistance appears to have been enough to do the damage. The instrument did not push itself.
I see resistance as having nothing to do with the case except to make it clearer. Whether there was resistance or none, defendant admitted that his instrument went through the esophagus wall. Since no one else was on the operational end of it, it follows that he pushed it through and caused damage that he must have known could follow such a performance. This was more than the mere happening of an accident. He took the chance it wouldn’t happen, but it did, and let us not forget that this was not a critical operation but only an exploratory one.
This is a very different affair from Robinson and should have been left to the jury. I dissent with verve.