Robinson v. Wirts

Dissenting Opinion by

Mr. Justice Musmanno:

On February 28, Í953, Hannah Robinson, a school teacher and at the time 45 years of age, underwent a gastroscopio examination at the hands of Dr. Charles W. Wirts in the Jefferson Hospital in Philadelphia. *299 The examination consists of the lowering through the mouth, throat and esophagus into the stomach of a tube 77 centimeters long, 9 millimeters in diameter, and equipped with a soft rubber tip plus a light for exploration. Y/hen the tube was two-thirds of the way down, an impassable obstruction was encountered. The doctor attempted to force the tube through the obstacle by applying “gentle pressure” and pumping air into the cavity. Yfhile doing this he noted the patient became very restless and that soon her right eye began to swell. At the same time he noted her neck distending with air or gas. He turned to his two assistants and remarked: “Her esophagus is punctured.” The patient was immediately taken to the surgical ward, and an operation followed. A nurse asked her if she desired the services of a priest. Another nurse encouragingly remarked to her: “If you come out of this, we will celebrate”.

When the patient regained full consciousness, having been semi-conscious for 5 or 6 days, she learned that her esophagus had sustained a serious ripping, and that in order to get to the damage, surgeons were compelled to saw away one of her ribs and then, in suturing the punctured esophagus, use 45 stitches. She brought an action in trespass against Dr. Wirts, charging him with negligence in the manner in which he performed the gastroscopy. The lower Court entered a compulsory nonsuit and the plaintiff appealed. This Court has affirmed the nonsuit.

The Majority Opinion begins with the statement: “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.”

If the charted course referred to by the Majority is one which conducts to the harbor of justice, it should *300 by all means be adhered to, but if it leads to injustice and the shipwreck of a person’s proper claim, the course should be re-studied, re-appraised, and, if necessary, re-charted. No capable navigator follows a course which is taking him to projecting rocks, visible shoals, and palpable disaster.

It is not certain, however, that the law is as insensitive to the demands of injured rights as the Majority Opinion would suggest. The Majority insists that the plaintiff cannot have her claim considered by a jury unless she bolsters the evidence in her case with expert testimony. But expert testimony is not conclusively binding on a jury. In Brueckner v. Pittsburgh, 368 Pa. 554, 558 , this Court said: “The admission of opinion evidence by experts, however, has never been held to take away from the jury its power and duty to determine the evidentiary facts.”

In Snedeker Estate, 368 Pa. 607 , this Court disparaged the value of expert or opinion testimony by saying: “Opinion evidence by an expert is, of course, admissible but as we said in Henry’s Estate, 276 Pa. 511, 513 , 120 A. 454 , ‘opinion evidence, standing alone, as it did, would not sustain a finding of forgery, in the face of the direct and credible evidence . . .’ ”

A layman reading the opinions of this Court on the subject of expert testimony might wonder why it is that two diametrically opposing views are projected on the value of such testimony. For instance, in the case of Ray v. Philadelphia, 344 Pa. 439, 441 , this Court said that expert testimony was practically worthless, using such derogatory language as: “An opinion is only that; it creates no fact. It is what someone thinks about something, and the thought may be precisely accurate or totally inaccurate, and yet represent the absolutely honest conviction of the person who expresses *301 it. Because of this, opinion evidence is generally considered of a low grade, and not entitled to much weight against positive testimony of actual facts. There is a great difference between factual and opinion testimony. In the one the witness testifies to the fact and certifies that what he says of it is true. In the other, he only testifies to his opinion that such a thing is true, and certifies only to his integrity of belief. He says he believes his opinion to be correct, but he does not warrant it to be true, and does not pretend that he cannot be mistaken.” *

After so uncomplimentary an observation on expert-opinion testimony, which would suggest that it is not even fit for decent society, it must seem strange to one unfamiliar with fluctuating evidentiary values to hear this Court say, as it does here, that expert testimony is of the highest possible quality, that it is a sine qua non to the plaintiffs case, and that, in effect, it is a lifesaver, without which the plaintiff’s case must sink into the murky, sinister, and ever-inexplicable waters of damnum absque injuria.

No matter how one looks at this litigation, it is impossible to say, while keeping one’s eyes trained on the figure of Justice, as she imperturbably holds her scales which symbolize fair dealing between human beings, that Hannah Robinson has not been done a grievous wrong. With full faith in her doctor she related to him her symptoms of discomfort and he recommended to her an examination which he said would not last more than 3 or 5 minutes. Without describing to her the precise nature of the procedure he intended to employ, he administered a hypodermic injection, — and then night settled over her. With the coming of the dawn, she counted her ribs and discovered that one was *302 missing, she found also that she had acquired a disfiguring scar. She learned further that she had many doctor bills to pay, which she had not contracted for, and that she was confronted with the prospect of pains enduring into the uncertain future.

As Hannah Robinson bends under this unasked-for burden of woes, piled on her back, it seems to me that she is entitled, at the very least, to an opportunity to present her claim for damages for the wrong done her, before the tribunal constitutionally set up for such cases.

Of course, if it can be demonstrated that the examining doctor took every precaution and did everything possible to avoid the tragic mishap, he should not be mulcted in damages. But did he use the care required under the circumstances? When the descending gastroscope was stopped by a barrier, why did he attempt to force the passage? Could he not have withdrawn the instrument, could he not have paused in deliberation and re-study, and then perhaps try again following an interval? Since the examination was to last only 3 or 5 minutes, and the patient was under sedation, nothing would have been lost by waiting until conditions were more conducive to an easy propulsion of the 9-millimeter tube. Even if the examination had to be postponed for a day or two, prudence would have dictated such a course in preference to one which encompassed the grave risk of causing death or crippling •injury.

There is nothing so complicated about this case that it cannot be understood by a jury without the intervention of expert testimony. The Majority Opinion says no expert testimony would be called for in a case where a surgeon lopped off an ear while removing a tumor from a patient’s scalp. The Majority says also *303 that ao expert testimony would be required, where a surgeon “undertook to stitch a wound on his patient’s cheek and by an awkward move would thrust his needle into the patient’s eye.” But who, in this hypothetical case, would determine that the surgeon’s action was an “awkward” move? The jury, of course. Why cannot the jury, then, in the lawsuit before us, determine whether the defendant was not awkward in trying to force a hose 9 millimeters in diameter past a blockage in his patient’s esophagus?

In the case of Davis v. Kerr, 239 Pa. 351 , the defendant doctor, in performing an operation on the plaintiff Mrs. Davis, left a gauze pad or sponge in the wound, to the patient’s subsequent serious injury. In the ensuing lawsuit the defense ivas that it was customary for attending nurses to account for sponges and that the defendant had relied on them. The trial Court charged that if the practice ivas a reasonable one, the jury should return a verdict for the defendant. The jury found for the defendant and the plaintiff appealed. This Court reversed. Mr. Justice Stewart, speaking for a unanimous Court said that it was not enough for the surgeon to depend on the count of the sponges by the nurses. The real question was what had preceded the count by the nurses. “Here the surgeon reached the conclusion, that he had removed all the sponges, a mistaken conclusion, but verified by the nurses’ count. In reaching his conclusion, did he exercise ordinary skill? We see nothing in the evidence to warrant the inference that he did not; but on the other hand, Ave find nothing to warrant the inference that he did, which is far more important, since the burden of showing care was upon him. Why Avas a foreign substance left in the parts Avhich the operating surgeon should have removed? It was for him to acquit Mmself of *304 negligence with respect to it. The sponge escaped his observation, why? Was it so hidden and concealed that reasonable care on his part would not have disclosed it; or were conditions such that in his professional judgment further exploration by him for sponges would have endangered the safety of the patient? In a word, did he do all that reasonable care and slcill would require? Except as one or the other of these questions can be answered affirmatively from the evidence, the law will presume to the contrary, and attribute the unfortunate consequences to his contributing negligence.”

If a jury has the competence to determine whether a doctor has exercised proper care when he allows a sponge to remain in a patient’s body, why would it not be qualified to determine whether a doctor used the proper care when he forced a tube through the walls of a patient’s esophagus, after being warned of the danger of going ahead? It is to be noted that the defendant himself was the only one who said that gentle pressure was applied. The Majority Opinion points out that the puncture resulting from' the pressure was approximately “an inch to an inch and a quarter in size.” Should not a jury determine whether a “gentle” pressure could tear and rip cartilage, muscle, and membranes to the extent of an inch and a quarter hole? Was it not more likely a heavy pressure?

In the case of Dux v. Shaver, 105 Pa. Superior Ct. 344 , the defendant dentist dropped a rotating emery disc in his patient’s mouth, inflicting serious damage to her tongue. The verdict won by the plaintiff in the trespass action which followed was affirmed even though no expert testimony was introduced to the effect that the dentist had not used an approved technique in working on the patient’s teeth. Counsel for *305 the defendant in the case at bar attempts to distinguish the Dux case from the instant one by arguing that “it was obvious that the dentist did not intend to drop the emery wheel in the patient’s mouth, or touch any part of her mouth with it except her teeth.” The alleged distinction is not convincing. Certainly the defendant here did not intend to puncture the plaintiff’s esophagus, but he did. The question in this case is whether, holding himself out as a skilled practitioner, Dr. Wirts did what he was supposed to do.

The plaintiff does not ask that this Court award or the Court below award her money damages. She only asks that her case be sent before a jury which will determine, after hearing the defendant’s explanation at length, whether or not he exercised the care which the situation demanded.

The Majority Opinion cites, in support of its affirmance of nonsuit here, the case of Powell v. Risser, 375 Pa. 60 . This is another instance where I am constrained to say, as I said in my Dissenting Opinion in the case of Dugan v. Pennsylvania Railroad Co., 387 Pa. 25 , that a case badly decided does not become good authority by the mere acquisition of the patina of time. Decisions do not necessarily improve with age, like wine. If they lack logic, reason, and elementary justice they will be no more convincing tomorrow than they were yesterday. A good decision acquires, like ivory and old silver, a venerable luster with the passing of years; a bad decision, like defective metal, develops rust and soon proclaims its decay.

The decision in the case of Powell v. Risser is encrusted with the rust of faulty logic, unsound jurisprudence, disregard of wholesome precedent, and deficient appraisement of the basic facts which gave rise to the litigation. Reynold Powell, a young man in his *306 early 20’s and suffering with mental illness, was committed to the Allentown State Hospital, where a Dr. Mark Risser ordered for him the treatment known as wet packs. His whole body was tightly bound in wet sheets, folded and knotted like thongs. As the wet sheets began to dry, constriction set in, disturbing the patient’s breathing and causing great pain in his chest. Powell complained but after 6 hours of this treatment he was tied up in another wet-sheeted strait-jacket. No one took his pulse, no one ascertained his temperature. The hermetically tight wrappings interfered with the patient’s blood circulation but neither of the two defendant doctors appeared upon the scene to examine, inquire, probe, or investigate. At the end of the first pack, one of Powell’s arms was in pain. At the end of the second pack, both arms were swollen and numb; his hands, which had received the full impact of the constriction, had “puffed” to twice their normal size. Again no doctor or nurse examined Powell at this juncture; again neither his pulse nor temperature was taken; again he was swathed in the binding sheets and placed in a tub of hot water in which he remained for 5 hours.

When the vise-like sheets were removed, his hands were scarcely recognizable as hands. One witness testified that “His hands were swollen two and half to three times their normal size and resembled two raw steaks. There were blisters in the center of both palms, about the size of a half-dollar, and other blisters over his hand and fingers.” The blisters were toxic and capable of spreading poison throughout the body. Dr. Norman Daley, the other defendant in the case, proceeded to cut into these blisters with an ordinary pen knife which he carried around in his pocket. He did not sterilize the blade, he took no precaution to pre *307 vent infection. What could have been expected, happened. The patient felt “drawing pains,” “like electrical current going through, like my fingers were going to be drawn up.” The fingers began to curl toward the palm. Bid it require expert testimony to prove that what the defendant did constituted tortious negligence? Every school child is taught the necessity for hygiene, every housewife knows the absolute need for cleanliness in handling all items used in feeding her infants or caring for a sick one at home. It certainly was not necessary to introduce expert testimony to show that the use of an unsterilized knife on toxic blisters would cause infection. In Norwood v. Goeddel, 58 Pa. Superior Ct. 500 , the Superior Court said: “It is scarcely necessary to add that a physician who operates on a patient for an infectious trouble and then, without sterilizing his hands or instruments, operates on another patient, is guilty of negligence.”

Prior to entering the Allentown State Hospital, Reynold Powell’s hands were without defect or blemish and responded faithfully to the demands of his work which included piano tuning and carpentering. When he left the hospital those hands were in ruins. Scarred, gnarled, crippled, and deformed, they lost 60% of their normal functions. In the lower Court he recovered a modest verdict of $5,000, but this Court reversed, and entered judgment for the defendants notwithstanding the verdict. One would need to search a long time before finding a case where the facts of themselves more clearly established negligence on the part of defendant doctors than was revealed without expert testimony, in the Powell case. Through indolence, indifference, and outright carelessness they practically wrecked the chances for gainful employment of a young man who, already groping in the darkness of mental illness, was *308 then in addition, deprived of the seeing dog of his hands. The injustice of the decision in the Powell case is so palpable that to expatiate on it further can only increase one’s moral indignation without adding to the intellectual revulsion which is complete. Time cannot dim, for me, that abhorrence, and I accordingly cannot permit citation of the Powell decision as authority for any case today, without repeating the protest I made at the time of the original decision.

Nor am I satisfied that the decision in the case of Bierstein v. Whitman, 360 Pa. 357 , which the Majority also cites, is a sound one. I was not a member of this Court when the Opinion in the Bierstein case was handed down. There the plaintiff’s jaw was broken by a dentist in the process of extracting a tooth. In affirming a nonsuit entered in the Court below, this Court said: “Negligence may not be inferred by laymen merely because the jaw was found to have been broken. A jaw could be broken even though there was no lack of care or skill by the dentist.” The italicized statement speaks a harsh doctrine. It is not difficult, of course, to believe that in the days when teeth were removed with a chisel and hammer, a jaw might suffer breakage even though the extraction was performed by the best blacksmith in town. But if law is supposed to keep pace with modern progress in dentistry, surgery, engineering, and every other field of science, it cannot possibly accept a fractured jaw as a normal sequence of a tooth extraction. While a dentist, who breaks a jaw, in taking out a tooth, should not be compelled ipso facto to pay damages to the injured person, he should, in the event of a lawsuit, be required to show that he used due care because, contrary to what this Court said in Bierstein , a broken jaw is something which just does not ordinarily happen when the defendant uses due care.

*309 It is a mistaken concept that because the highest Court in the State declares with epigrammatic terseness an unsound proposition that the official character of the utterance will supply sense and reason to the logic-defying assertion. Suppose this Court had said in one of its opinions: “A leg could be broken during the removal of an appendix even though there was no lack of care of skill by the surgeon.” Would the imprimatur of the high Court invest so bizarre an observation with logic and truth? The quoted statement in the Bierstein case is no less absurd than stating that normally a shoulder could be fractured in the removal of tonsils. I dare to give voice to a prophecy that the decision in the Bierstein case, which this Court today quotes for authority in the disposition of this case, will one day be repudiated by this Court because a declaration which opposes demonstrated phenomena can no more influence the tide of modern scientific law than King Canute’s edict could shut out the waves of the Atlantic Ocean.

The appellate courts of this State have often said that: “Where the thing which causes the injury is shown to be under the management of defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by defendants, that the accident arose from a want of care and the burden is upon the defendants of establishing their freedom of fault.” *

The Majority says that the exclusive control doctrine does not apply in the present case. Where could there be more exclusive control over a situation than where a surgeon is conducting an operation? The ex- *310 elusive control doctrine came into being because conditions arise where it is impossible for an injured person to know with any degree of detail what happened to him, and thus the law requires that the person in charge of the situation explain why a mishap resulted. Who can tell what a surgeon does when he explores the inner domains of a human body while the monarch of that realm is imprisoned in surgeon-made sleep?

An injured patient may not, of course, recover money damages from an attending physician merely by exhibiting untoward wounds. On the other hand, when there exists prima facie evidence of negligence, he should not be required to produce proof which is unavailable to him. What does a patient know when an anaesthetic lowers the curtains over sight, dams up the channels of hearing, deadens feeling, and blots out memory? While his heart beats on, he is helpless against the world and completely at the mercy of the masked figure wearing rubber gloves. In perhaps 99.9% of the cases the patient need have no fear, because the surgeon is even more concerned than the closest relative about repairing the break, mending the parted tissues, and restoring well-being to the person in his care. A surgeon is performing his duty under the aegis of Aesculapius.

But it can happen in some infinitesimal fraction of cases that the doctor may falter, slip, stumble, or forget, and when that happens and the patient is injured, justice requires that the doctor indemnify the victim of his human error. To immunize an erring doctor under the supposition that a monetary recovery against him may injure the medical profession, or to prevent an injured patient from recovering just damages by imposing upon him impossible conditions precedent, is to do harm not only to the victim but to the medical *311 fraternity itself which is dedicated to healing the sick, binding up the wounds of the fallen, and advancing the general happiness of mankind through sounder bodies and clearer minds.

Italics throughout, mine.

Kelly v. Yount, 135 Pa. Superior Ct. 528 ; Maltz v. Carter, 311 Pa. 550 ; Knox v. Simmerman, 301 Pa. 1 .