Ragan v. Steen

Dissenting Opinion by

Hoffman, J.:

This case presents an opportunity to reconsider when an expert witness may give opinion evidence.

In September of 1968, at the direction of the appellant, Dr. Oliver Steen, and administered at the Mc-Keesport Hospital, an appellant herein, the appellee, James Kagan, age 23, received two doses of radiation therapy for the removal of plantar warts from the sole of his right foot. Following the treatment, the foot appeared to be in a normal condition until November of 1970, when Kagan noticed a large crack developing at the same spot on his foot, and began experiencing pain in the region. The appellee consulted a Dr. Beck, who referred him to a Dr. Conklin, who thereupon cleaned the area and cut away some flesh. The tissue in the area, however, continued to decompose to such an extent that a large ulcerated hole surrounded by necrotic tissue existed at the site. In May of 1971, surgery and skin grafting were performed at Presbyterian-University Hospital in Pittsburgh, and the appellee ivas left with a permanent disability.

On March 30, 1971, suit was instituted against Dr. Steen and McKeesport Hospital. The appellee, plaintiff below, called two expert witnesses. The first was Dr. Robert Totten, chief pathologist at Presbyterian-University Hospital, who testified that he examined a specimen of ulcerated tissue taken from plaintiff’s foot *530during the surgery in May of 1971. It was his opinion that the ulceration had been caused by radiation burns.

The dispute arises from the testimony of the second expert witness, Dr. Norton Herring, in active practice as a surgeon since I960.1 Dr. Herring testified that, in his practice, he had surgically excised many plantar warts. He stated that he was familiar with radiation therapy as he had referred many of his patients for massive doses of x-ray therapy in the treatment of cancer. Dr. Herring said that after examining the plaintiffs foot on March 29, 1971, it was his opinion, on the basis of the results he observed, that the ulcerated condition had been caused by an overdose of radiation, which dosage he characterized as “excessive” and “massive.” When asked on direct examination, whether he was “familiar with the practice of x-ray therapy for plantar warts . . . .”, he replied: “No, sir, I’m not familiar. I have never, in my entire practice, referred a patient with plantar warts for x-ray therapy for plantar warts.” When Dr. Herring opined that “the only thing that could have produced this was an overdose of radiation therapy for the treatment of warts . . . .”, defense counsel moved to strike the testimony “because there is no testimony in the history as to what dosage was given, there is no testimony as to what the standard dosage is; and the testimony of overdosage has no basis whatsoever.” The Court refused to strike the answer.

*531Dv. Herring admitted that radiation therapy was an accepted course of treatment for plantar warts in 1968. He further said that he did not read the hospital records, nor read any written work in the field (though he said that he would not be surprised if there was a large body of literature on the subject), nor could he say what dosage was given the plaintiff, nor know “the accepted medical practice as to dosage of radiation for the x-ray therapy of plantar warts” but this “you would have to get . . . from the radiotherapist . . . .” His total lack of knowledge as to the standard according to the “accepted medical practice” is evidenced by the following line of questioning: “Q. The reason you couldn’t [say what is the accepted practice] is because you’re ignorant or do not have knowledge of what is the standard dosage. Is that right? A. That is right, sir. <Q>. But you do know, from your general knowledge, that these standard dosages and standard procedures sometimes produce an undesired effect. Isn’t that right?2 A. I do not have that knowledge in the treat*532ment of plantar warts. Q. You do have knowledge, generally, that the standard treatment, with an accepted treatment of various conditions in the field of medicine and surgery, sometimes produce undesired results. Isn’t that correct? A. Yes, sir. That is true.” On re-direct examination, he stated that the only basis of his opinion that plaintiff received an “overdosage” of radiation was: “. . . the extent and depth and degree of death of tissue, as represented by this ulcer, could only have been caused by an excessive dose of radiation, which excessive dose is defined as an overdose.”

The jury, after receiving the trial court’s instructions, awarded the plaintiff $40,000, finding “Oliver Steen and McKeesport Hospital equally responsible.” Motions for a new trial and judgment n.o.v. were denied by a court en banc, but the Court granted the Hospital’s motion for indemnity rights. In its Opinion, the lower court stated: “. . . that fact that the jury’s verdict was against both defendants declaring them equally responsible is insignificant . . .” The Order of the Court *533molded the verdict making Steen liable over to the defendant hospital in the amount of $40,000.3 Instant appeals followed.

In Pennsylvania, it is necessary that expert medical testimony be introduced to establish that a defendant has negligently carried out Ms professional duties and departed from the standard of care exercised by other physicians in the community. Lambert v. Soltis, 422 Pa. 304, 221 A.2d 173 (1966); Duckworth v. Bennett, 320 Pa. 47, 181 A. 558 (1935). “The only exception to the requirement that expert testimony 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 nonprofessional persons. . . .’ ” Smith v. Yohe, 412 Pa. 94, 99, 194 A.2d 167 (1963) ; Lambert v. Soltis, supra at 308-309.

The standard amount of dosage acceptable in the medical practice for the treatment of plantar warts through x-ray therapy is certainly not a fact known by the average layman, let alone the average physician. Dr. Herring, a surgeon for more than 10 years, himself admitted an ignorance on the standard dosage in such a case. It is evident that, in order for the plaintiff to satisfy Ms burden in the instant case, he had to produce competent expert opinion that the defendants departed from the recognized standard of care.

In trying a medical malpractice case, it is not, nor has it ever been enough to simply produce evidence of the “bad result.” Lambert v. Soltis, supra; Smith v. Yohe, supra; for other jurisdictions, see, e.g., Nance v. Hutch, 233 N.E. 1, 76 S.E. 2d 461 (1958); Bennett v. Los Angeles Tumor Institute, 102 Cal. App. 2d 293, 227 *534P. 2d 473 (1951) ; Facer v. Lewis, 326 Mich. 702, 40 N.W. 2d 457 (1950).

In a case having a factual situation similar to the instant case, the Pennsylvania Supreme Court reversed a judgment in favor of the plaintiff, where there was expert testimony to the effect that plaintiff suffered radiation burns of the groin region. Stemons v. Turner, 274 Pa. 228, 117 A. 922 (1922). While the Court reversed primarily because the case was submitted to the jury “substantially on one ground,” i.e., that from the existence of the burn negligence could be inferred, the Majority recognized that the case had ostensibly been submitted as a negligence case. The Court concluded at 232: “. . . there was no evidence to show that the defendant used a dangerous formula. While the judge charged that there could only be a recovery if the defendant was negligent, nowhere does he point out what the specific negligence was, but permitted it to be inferred from the injury alone.” Stemons, supra at 232.

I believe that a judgment based entirely on the testimony of two expert witnesses — the first identifying the disability as stemming from a radiation burn; and the second corroborating the cause, but adding, without the slightest pretense of knowledge as to the standard dosage administered in the course of radiation therapy, that the burn was a result of an “overdosage” — may not stand. Nowhere was it shown that “the defendant negligently or ignorantly used the x-ray, on the occasion when he subjected plaintiff to it, measuring the skill and care required of him in its use as a ‘duty to do so with the skill reasonably required in the proper use of such practice and treatment.’ ” Stemons, supra at 231, citing McCandless v. McWha, 22 Pa. 261 (1853).

To this date, we have recognized the oft-quoted rule that a witness is qualified as an expert if he or she “has any reasonable pretension to specialized knowledge on *535the subject under investigation . . . and the weight to be given to his evidence is for the jury.” Moodie v. Westinghouse Electric Corp., 367 Pa. 493, 501, 80 A.2d 734 (1851); Taylor v. Spencer Hospital, 222 Pa. Superior Ct. 17, 22, 292 A.2d 449 (1972). In the case of medical experts, onr courts have recognized the fact that different doctors have different qualifications, some being more qualified than others to testify abont .certain medical practices. Nevertheless, this Oomithou'wealth has taken the position that all medical .doctors are qualified to testify concerning medical subjects, and it is for the jury to determine the weight to be given to expert testimony, “in light of the qualifications shown by the expert witness.”'4 Taylor v. Spencer Hospital, supra at 24, f.n. 2; Moodie v. Westinghouse Electric Corp., supra; Commonwealth v. Morris, 205 Pa. Superior Ct. 105, 207 A.2d 921 (1965).

It is fundamental that it is within the discretion of the trial judge to rule on the admission of expert testimony on the basis of qualifications or competency. Where, however, the trial court commits clear error, that error will constitute reversible error on appeal. Flavin v. Aldrich, 213 Pa. Superior Ct. 420, 250 A.2d 185 (1968). I believe the trial court clearly abused its discretion in accepting the testimony of Dr. Herring, and in submitting the case to the jury on the evidence. There is nothing in the record to indicate that Dr. Herring ever established or had knowledge of a standard course of conduct in the treatment of plantar warts *536by radiation therapy. Absent familiarity with a course or method of treatment, I believe the law should be that a witness, irrespective of his standing as a qualified physician, may not qualify as an expert witness in a medical malpractice case involving the expression of an opinion on the care or skill of a specialist.

It is time that Pennsylvania join the states which have recognized the absurdity of permitting witnesses to testify as experts simply by virtue of their licenses or degrees. If we are to remove speculation from the role of the jury, we must take cognizance of the fact that the medical profession, as with many occupations, has progressed as swiftly as technology has seen the ahorse-and-buggy” era give way to the age of the automobile. The new discoveries, the innovative procedures and practices, and even the birth of fields unknown to medical science just a few years ago (cancer immunologists, transplant specialists, fetologists, and specialists in nuclear medicine, to name a few), have flooded medical science with data no one man can possibly digest.5 Physicians have gone so far as to set *537up a referral system taking a patient from a diagnostic specialist (-ologist) to a specialty surgeon (e.g., neurologist-neurosurgeon, cardiologist-cardiac surgeon). This system is so well implanted that a general practitioner would be exposing himself to potential malpractice by attempting to treat a condition properly referrable to a specialist. Physicians are themselves the first to admit the folly of treating a condition on the basis of their textbook or medical school experience, with the virtual certainty that a bad result would be easily linked to a failure to take cognizance of or utilize a course of treatment which had developed within a given specialty through clinical studies, medical treatises, and theoretical experience. We, as lawyer-judges, must take cognizance of the realities of a burgeoning and progressing world. It is neglect of the first order, and a death blow to the medical world, to ignore such facts.

A number of jurisdictions have reacted to the development of medical science by rejecting notions that a physician or surgeon is shown to be competent to testify as a medical expert by demonstration that lie lias been duly licensed to practice medicine or surgery. This enlightened view may be generally expressed as requiring that in order to qualify as an expert, a medical witness must have some familiarity with the particular medical or surgical technique involved in the suit, unless the technique itself is so unique, as where the defendant is its sole practitioner, that no witness familiar with it is available. These courts have held that familiarity may be demonstrated through means other than “occupational experience,” hut may be gained *538through private study, by observation, or by consultation with other physicians and surgeons.6 See, Hawkins v. Schofman, 204 So. 2d 336 (Fla. 1967); Steinberg v. Indemnity Ins. Co., 364 F. 2d 266 (5th Cir. 1966) ; Swanson v. Chatterton, 281 Minn. 129, 160 N. W. 2d 662 (1968) ; Harris v. Smith, 372 F.2d 806 (8th Cir. 1967); Carbone v. Warburton, 11 N.J. 418, 94 A.2d 680 (1953); Hunt v. Bradshaw, 251 F.2d 103 (4th Cir. 1958); Huttner v. MacKay, 48 Wash. 2d 378, 293 P. 2d 766 (1956); White v. Moore, 134 W. Va. 806, 62 S.E. 2d 122 (1950).

Illustrative of this view, and involving a fact situation similar to the instant ease, a California appeals court held that a chiropodist could not testify in an action against a hospital and its radiologist for burns suffered through the use of radiation therapy for papillomae (warts on the skin or the mouth). Bennett v. Los Angeles Tumor Institute, supra. The court stated that although the witness, as a licensed physician, was permitted to use x-ray treatment in his practice and had taken basic medical courses, including the study of dermatology and skin conditions, in view of the fact that he had never administered such treatments and in the absence of any evidence of any private study of the subject through attendance at lectures, reading, or contact with other men in the field, the trial court’s decision in excluding his testimony on this point was not an abuse of discretion on its part.

*539In the instant case, Dr. Herring was unable to state with any degree of medical certainty that the defendants liad deviated from the recognized standard of care for the treatment of plantar warts. He could not tell what was a proper dosage, but could only say that his examination of the burn (the result) indicated, in his opinion, the administration of an overdose of x-rays. When questioned on his familiarity with techniques, equipment, or methods, he said that he had made no studies, but that there was undoubtedly a great body of literature on the subject. I believe that it was a clear abuse of discretion for the trial court to admit Dr. Herring’s testimony for the jury’s consideration. I believe we should take the view already adopted by an increasing number of jurisdictions that mere credentials do not qualify a witness as an expert, but that he must have “shown such familiarity with the subject upon which he was being interrogated as to entitle him to express the opinion called for.” Hunt v. Bradshaw, supra at 107.

Furthermore, despite the fact that both physicians who testified on behalf of the plaintiff could testify that they believed that the burns resulted from radiation therapy, absent credible evidence on the standard dosage in the treatment of plaintiff’s condition and a demonstration that the result came about from a negligent failure to follow that standard, opinion evidence on the question of defendants’ possible negligence was without proper basis or relevance.

The order of the court below should be reversed, and the appellants granted a new trial.

It is also alleged that the trial court erred in failing to dismiss the case for reason that the action had been barred by the statute of limitations. Since it is undisputed that the plaintiff’s foot appeared normal until November of 1970, the fact that radiation therapy occurred in 1968 is of no consequence. It is well-established that the statute of limitations does not begin to run until discovery of the injury is reasonably possible. Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963) ; Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959).

Our research had disclosed that the incidence of radiation burns was common among patients treated with x-ray therapy, even when the dosage was well within the standard acceptable and practiced by the profession. Dr. Steen testified that he administered two equal doses of lO'OOr’s, totalling 2000r’s, which he stated was the standard dosage for a wart cluster (a mosaic of many warts closely spaced). In a recognized textbook entitled “Radiotherapy of Benign Disease” published in 1965, Dr. Stephen B. Dewing observes at 221:

“If a single dose is to be used, either 1,000 or l,200r will suffice for most lesions not over a centimeter in diameter. Some prefer to use larger doses, going up to l,800r for a single dose. . . . Others vary the dose in inverse proportion to the size of the lesion, as in the schedule of Pipkin et al. which varies from l,000r for a wart of 12 mm. diameter, to 2,720 for a 2 or 3 mm. wart. . . . Alternatively, a wart may be treated fractionally with doses of 600r every two weeks for three treatments, or 900r weekly for three treatments. Thomsen and Bauschkolb recommend contact *532therapy with a single dose of 2,500 to 3,000r at 47.5 Kv (HVL 0.3 mm. AI), noting that smaller doses impair the cure rate when contact therapy is used.”

It is well-recognized among radiotherapists that when a course of x-ray treatments is given for a specific purpose, a standard dose is generally administered at the outset of therapy, and while additional doses are contemplated over a period of time, many patients develop varying degrees of skin irritation so that a change in the schedule may become necessary. In the instant case, there is nothing in the record to indicate that the plaintiff developed a local reaction necessitating a change in the scheduled second dose.

As one widely-read source points out: “The effects of radiation on the skin vary greatly with the dose delivered, the quantity of radiation, the size of the radiated area, the regions of the body, and the individual idiosyncrasy.” Oanoer — Diagnosis, Treatment and Prognosis, by Lauren V. Ackerman & Juan deRegato, at page 101. The Doctors further concluded that ‘late effects vary according to the protraction of the total dose and the individual idiosyncrasy.”

Tt was admitted by the defendants that when defendant Steen administered the x-ray therapy to plaintiff he was employed by defendant hospital and was acting within the scope of his authority and on behalf of the hospital.

In Taylor, supra, we reversed the lower court’s denial of a new trial because we considered the exclusion of testimony of a licensed practical nurse, because she was not a registered nurse, erroneous. We said at 28: “If a duly qualified practical nurse is permitted by law to do certain acts, and she has in fact done those acts or is familiar with them, there is no reason why she could not testify as an expert witness as to the proper method of performing those

Before World War I, general surgery encompassed every form of surgery then in practice. By the 1920’s, neurosurgery had branched off, establishing itself as a distinct specialty. Cardiac surgery and other subspeeialties followed in rapid succession. Today, a urologist may understand aU the techniques and pitfalls of surgery of the genito-urinary system, treating urinary disorders of both sexes, while confining his practice to the sexual disorders of only the male. A distinct specialty — gynecology—has developed to handle the sexual disorders of the female.. Similar examples of specialization and separation of unique skills and techniques may be found in every subdivision of general surgery. It may safely be said that there are in excess of 500 surgical techniques practiced today, over 100 in orthopedic surgery alone. A physician in practice for a number of years could conceivably be totally ignorant of literally hundreds of accepted techniques in the treatment of a given problem. Unless a physician were given special training or exposed to same, he would never undertake such techniques as cardiac catheteriza*537tion, bronehoseopic examinations and other procedures that are everyday concerns of the specialist Just as he would not attempt a procedure with which he lacked sufficient training and experience, so would it be absurd to permit the average physician or specialist in another field to testify on matters on which his knowledge and familiarity is lacking.

A few other jurisdictions have gone even further, requiring that the expert demonstrate “occupational experience”, or rather that the witness himself has performed or carried out the technique. See, e.g. Pearce v. Linde, 113 Oal. App. 2d 627, 248 P. 2d 506 (1952). A less restrictive view has been taken by some courts finding an expert witness qualified if he possesses the skill required to administer such treatment or perform the technique on which he testifies. See, e.g., McCoy v. Buck, 87 Ind. 433, 157 N.E. 456, reh. den. 160 N.E. 46 (1927) (radiation burn case against x-ray specialist).