Smith v. Yohe
| Decision Date | 09 October 1963 |
| Citation | 194 A.2d 167,412 Pa. 94 |
| Parties | Allen SMITH, Administrator of the Estate of Joseph Smith, Deceased, Appellant, v. Dr. William C. YOHE. Allen SMITH, Administrator of the Estate of Joseph Smith, Deceased, Appellant, v. Dr. Herman A. GAILEY, Jr. |
| Court | Pennsylvania Supreme Court |
[Copyrighted Material Omitted]
Frank B. Boyle, Donald Yost, York, for appellant.
Arthur Markowitz, Markowitz, Kagen & Griffith, York, for appellee Yohe.
Spencer R. Liverant, Robert J. Stewart, Liverant & Stewart, York, for appellee Gailey.
Before BELL C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
These appeals challenge the propriety of the action of the court below in refusing to remove compulsory nonsuits entered at the trial of two malpractice actions.
On March 10 1959, Joseph Smith [Mr. Smith], 70 years of age and convalescing from a stroke which had left him with a spastic paralysis of his right side, slipped and fell in his home. Dr. W. C. Yohe, Mr. Smith's family physician, was summoned and he made an examination of Mr. Smith during which, according to his testimony, he found an increased tightening by spasm of the hamstring muscles on the right side. Dr. Yohe gave Mr. Smith an injection and medication to reduce his pain and prescribed bed rest. After several visits, Dr. Yohe recommended that Mr. Smith be given physical therapy [1] consisting of massage and muscle exercises to relieve the spastic condition.
On March 21, 1959,--11 days after the fall,--at the family's insistence, Mr. Smith was admitted to the York Hospital, York, Pa., where he was X-rayed for the first time. At that time, Mr. Smith's right leg was turned outward and completely paralyzed. The X-rays revealed a fracture of the right femur, asceptic necrosis and a generalized demineralization of the pelvic bones. At the hospital Mr. Smith became a patient of Dr. H. A. Gailey, Jr., an orthopedic surgeon. Dr. Gailey twice tried to insert a Smith-Petersen nail in the hip to hold the fracture and, on each occasion, the device became dislocated and his efforts unsuccessful. Dr. Gailey then inserted a Steinman pin in the tibia to enable the leg to be held in an immobile position. It is claimed that, by reason of Dr. Yohe's and Dr. Gailey's treatment, the injuries were aggravated requiring long periods of hospitalization and resultant severe pain, permanent disability and disfigurement.
Malpractice actions were later instituted in the Court of Common Pleas of York County by Mr. Smith against Drs. Yohe and Gailey; [2] both actions were consolidated and tried. Act the conclusion of the testimony presented on behalf of Smith, the court entered compulsory nonsuits in both actions. Motions to remove these nonsuits were refused and these appeals were taken.
The negligence alleged against Dr. Yohe is that he erroneously diagnosed Mr. Smith's injuries by reason of his failure to use X-rays in discovering and treating what turned out to be a fractured hip. On these appeals it is, contended that the court below erred in the following respects: (a) the court failed to rule that Dr. Yohe's failure to take X-rays was negligence as a matter of law; (b) the court ruled that, since Smith failed to produce any expert medical testimony, there was no jury issue; (c) the court erred in refusing to permit a physician from another locality to testify; (d) the court ruled that certain efforts of Smith to obtain local expert testimony were inadmissible in evidence.
A. The Failure to Use X-rays
Smith's contention is that, in view of the factual situation presented, the proof that Dr. Yohe failed to employ X-rays as an aid to the diagnosis of Mr. Smith's condition presented a prima facie case of negligence which the trial court should have submitted to the jury.
In considering this contention certain well settled principles in this area of the law must be kept in mind: (a) in the absence of a special contract, a physician neither warrants a cure nor guarantees the result of his treatment (Donaldson v. Maffucci, 397 Pa. 548, 553, 156 A.2d 835, and cases cited therein); (b) 'A physician who is not a specialist is required to possess and employ in the [diagnosis and] treatment of a patient the skill and knowledge usually possessed by physicians [of good standing] in the same or a similar locality giving due regard to the advanced state of the profession at the time of the treatment; and in employing the required skill and knowledge he is also required to exercise the care and judgment of a reasonable man' (Donaldson v. Maffucci supra, 397 Pa. 553, 554, 156 A.2d); (c) the burden of proof is upon the plaintiff to prove either (1) that the physician did not possess and employ the required skill or knowledge or (2) that he did not exercise the care and judgment of a reasonable man in like circumstances (Donaldson v. Maffucci, supra, 397 Pa. 554, 156 A.2d 838); (d) the doctrines of res ipsa loquitur and exclusive control are not applicable in this area of the law (Demchuk v. Bralow, 404 Pa. 100, 104, 105, 170 A.2d 868; Robinson v. Wirts, 387 Pa. 291, 294, 295, 127 A.2d 706 and cases therein cited); (e) in malpractice cases which involve an appraisal of the care and skill of a physician a lay jury presumably lacks the necessary knowledge and experience to render an intelligent decision without expert testimony and must be guided by such expert testimony (Robinson v. Wirts, supra, 387 Pa. 292, 127 A.2d 707-708); [3] (f) the only exception to the requirement that expert testimony must be produced is '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 non-professional persons * * *' (Robinson v. Wirts, supra, 387 Pa. 297, 127 A.2d 710); [4] (g) a physician is not liable for an error of judgment (Ward v. Garvin, 328 Pa. 395, 195 A. 885; Duckworth v. Bennett, 320 Pa. 47, 181 A. 558; Williams v. LeBar, 141 Pa. 149, 21 A. 525; (h) if a physician employs the required judgment and care in arriving at his diagnosis, the mere fact that he erred in his diagnosis will not render him liable, even though his treatment is not proper for the condition that actually exists (Richards v. Willard, 176 Pa. 181, 35 A. 114 (); Duckworth v. Bennett, supra, (fracture as arthritis); Ward v. Garvin, supra, (wrong diagnosis of injury to foot). [5]
With these principles in mind, we turn to the situation in the case at bar. Smith, not challenging Dr. Yohe's general qualifications, contends that Dr. Yohe, in diagnosing the condition of Mr. Smith, did not use the requisite judgment and care in arriving at such diagnosis in that he failed to take, or have taken, X-rays. Such failure to have X-rays taken of Mr. Smith, it is urged, presents a situation wherein no expert testimony is required and the failure to use X-rays under the instant factual situation presents a prima facie case of negligence in that the lack of judgment and care of Dr. Yohe in arriving at his diagnosis is so obvious as to be within the understanding, comprehension and common knowledge of a lay jury.
In some jurisdictions, courts have held that the failure on the part of a physician to take X-rays as an aid to diagnosis, when such X-rays are available, may present per se a prima facie case of negligence: James v. Grigsby, 114 Kan. 627, 220 P. 267; Howell v. Jackson, 65 Ga.App. 422, 16 S.E.2d 45. In Agnew v. City of Los Angeles, 82 Cal.App.2d 616, 186 P.2d 450, p. 451, [6] the Court said: (Emphasis supplied) To the same effect: Wilson v. Corbin, 241 Iowa 593, 41 N.W.2d 702. See also: Whitson v. Hillis, 55 N.D. 797, 215 N.W. 480; Flock v. J. C. Palumbo Fruit Co., 63 Idaho 220, 118 P.2d 707; Peterson v. Hunt, 197 Wash. 255, 84 P.2d 999. In Butts v. Watts, Ky., 290 S.W.2d 777, 780, 781, the Court stated: By way of analogy, it might be noted that the Court in Corn v. French, 71 Nev. 280, 289 P.2d 173, p. 179 held that: '* * * without expert medical testimony, a jury might, from its own common knowledge and experience, recognize the use of biopsy or pathological examination and the microscopic analysis of tissue as common and accepted diagnostic practice in determining the presence or absence of cancer.'
On the other hand, courts in other jurisdictions have held that a physician may be held negligent for failing to take X-rays as an aid to diagnosis only, if under the evidence, it is shown 'according to the tenets of the [physician's] school of medicine, or the usual practice in his locality, that the circumstances presented were such as to require the physician to resort to an X-ray examination': 162 A.L.R. 1295n and cases therein collected. For instance, it has been held that the failure to use X-rays is not 'of itself' evidence of negligence (Shumacher v. Murray Hospital, 58 Mont. 447, 193 P. 397); nor necessarily evidence of...
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