Ragan v. Steen , 229 Pa. Super. 515 ( 1974 )

Opinion by

Jacobs, J.,

Plaintiff-appellee, James Ragan, obtained a jury verdict against defendants-appellants Oliver Steen and McKeesport Hospital in a medical malpractice action. The lower court molded the verdict and entered judgment for indemnity over against Oliver Steen in favor of McKeesport Hospital. From this judgment both defendants appeal raising questions as to the limitation of actions, the sufficiency of the expert testimony to establish evidence of negligence, and the ability of the lower court to mold the verdict giving the hospital the right to indemnity. We find that the plaintiff-appellee’s evidence was timely produced establishing a right to recovery and that the defendant hospital is entitled to indemnity. Therefore we affirm.

In September 1968, appellee consulted his family physician concerning a colony of plantar warts on his right foot. His doctor referred him to McKeesport Hospital to determine if x-ray treatment was advisable for removal of the warts. At the hospital he was seen by Dr. Steen, who was employed by the hospital as a radiologist. After two radiation treatments administered by Dr. Steen, appellee returned to his studies at Ohio University. A blister developed on the site which he had treated at the University Health Center and thereafter the area appeared to heal normally. However, in November 1970 the tissue in the area where the warts had been began to decompose and the appellee began to experience pain in his foot. He visited doctors in an attempt to remedy the increasing decomposition and finally in May, 1971 surgery was performed. However, despite all efforts appellee remains with a permanent disability.

On March 30, 1971 appellee filed a complaint in trespass against both Dr. Steen and the McKeesport Hospital. The complaint asserted the negligence of Dr. Steen in Count I. In Count II, liability on the part of the hospital was asserted based on its own negligence a,nd on its vicarious liability as the employer of Dr. Steen. The jury returned a verdict in favor of the appellee, finding “Oliver Steen and McKeesport Hospital equally responsible.” The court en banc molded the verdict on the hospital’s motion, granting the hospital indemnity over against Dr. Steen, but denied the appellants’ motions for judgment n.o.v. and for a new trial. Judgment was therefore entered in favor of the appellee, against both appellants for |40,0G0 with indemnity over to McKeesport Hospital against Dr. Steen.

The first question raised by the appellants is whether the two year statute of limitations¹ should bar the appellee’s personal injury action. The two year period on actions such as this begins to run when the injury is done. It is undisputed in Pennsylvania that the injury is considered done “when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable.” Ayers v. Morgan, 397 Pa. 282, 290, 154 A.2d 788, 792 (1959). Appellants contend that this point was reached when the blister on the affected area appeared in October 1968 warning the appellee of his damaged condition and that an act of negligence had been committed. Appellee maintains that since the blister healed, the warts were gone and the foot appeared normal, he had no reason to know of the injurious effects of the x-ray until November 1970 when the area began to decompose. Which of these two positions is substantiated by the evidence is a question which the jury must decide. Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963); Ayers v. Morgan, supra. The lower court correctly submitted this issue to the jury, and the jury determined that the action had been timely commenced. There was ample evidence in support of this finding.

In support of their motion for judgment notwithstanding the verdict, appellants maintain that the expert testimony produced in support of the plaintiffappellee’s claim did not establish negligence on the part of Dr. Steen. At trial, the appellee called two expert witnesses. The first, a pathologist, testified that from an examination of tissue removed from appellee’s foot he concluded that the ulceration had been produced by radiation. The second, Dr. Herring, testified that after examining the appellee and studying his history it was his opinion that the only cause for his injury was an overdose of radiation. He based this conclusion on his knowledge of the effects of x-ray treatments when radiation is used in massive doses and on his experience that tissue death and ulceration can follow such therapy.

If the testimony elicited at trial is to establish proof of medical malpractice, it is necessary that it meet certain well recognized standards. The physician is not expected to guarantee a good result from the course of treatment he recommends or administers. To obtain a recovery against a doctor when the prescribed treatment results badly, the plaintiff initially must prove either that the physician did not possess or employ the skill and knowledge required to effect a cure, or that he did not exercise the care and judgment of a reasonable man under like circumstances. In addition, it must be shown to the satisfaction of the trier of fact that the specific injury complained of resulted from such failure of skill and knowledge or lack of reasonable care. A course of treatment which culminates in a bad result is not evidence of negligence in a malpractice case. There can be no inference of negligence due to a bad result which might have occurred despite the use of reasonable care. Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968). Where the treatment of a patient’s condition is such that the attendant risks and the consequent injury are not matters within the experience of layman, expert testimony is required to establish a right of action. Collins v. Hand, supra; Taylor v. Spencer Hospital, 222 Pa. Superior Ct. 17, 292 A.2d 449 (1972).

In the present case, appellants contend that Dr. Herring was not qualified to testify as an expert on the cause of the appellee’s injuries and that therefore his testimony should not have been considered by the jury. Because the witness was a surgeon and not a radiologist, and was admittedly unfamiliar with the practice of removing plantar warts by x-ray, it is argued that his testimony merely goes to show a bad result from a course of treatment and is no proof of negligence. Dr. Herring, however, had had occasion to refer many of his own patients for x-ray treatment, was knowledgeable of the risks of this treatment, and had had occasion to observe the results to the patient when massive doses of radiation were administered. If a witness has any reasonable pretension to specialized knowledge on the subject under investigation he or she is qualified as an expert. Whether the witness’s knowledge or. experience justifies admitting his testimony for the consideration of the jury is a matter within the discretion of the trial judge, and the weight to be given this evidence is for the jury. Moodie v. Westinghouse Electric Corp., 367 Pa. 493, 80 A.2d 734 (1951) ; Taylor v. Spencer Hospital, supra. Due to the witness’s familiarity with the use of x-ray and his knowledge of the results of radiation given in massive doses, we find no abuse of discretion on the part of the trial judge in admitting his testimony.

We also find no merit in the appellants’ contention that Dr. Herring’s testimony showed only his recognition of a bad result unconnected with any lack of skill or reasonable care on the part of Dr. Steen. Dr. Herring indicated that in his expert opinion the depth of tissue death in the appellee’s foot could have occurred only through an overdose of radiation when he was being treated for removal of his plantar warts. That is, the dose of radiation that caused the decomposition of his foot was significantly greater than necessary under the circumstances. This testimony was supported by that of Dr. Totten, the pathologist. It is not denied that Dr. Steen prescribed and supervised the administration of radiation. Under these facts a properly instructed jury would not be inferring negligence from the existence of an injury alone, but would have an adequate factual basis on which to infer a lack of skill or reasonable care in the treatment of the appellee.²

Tlie appellants further contend that the chance of a malfunctioning of the x-ray machine itself was not eliminated. However, there was no testimony in the record that the machine used was in any way defective. Since the possibility of a defective machine was not fairly suggested by the evidence, there was no need for the appellee to disprove this possibility as a cause of the injury. “[I]t is not the rule that circumstantial evidence to establish negligence need exclude everything which the ingenuity of counsel may suggest as having possibly caused or contributed to the injuries or death.” Straight v. B. F. Goodrich Co., 354 Pa. 391, 396, 47 A.2d 605, 607-608 (1946).

Finally it is contended that the question of the hospital’s right to indemnity from Dr. Steen was improperly considered by the court below.³ No claim for indemnity was made in the pleadings but at the conclusion of the trial, McKeesport Hospital requested the following point for charge: “If you determine that the plaintiff’s injury was caused by the negligence of the defendant, Oliver Steen, then you must find that the defendant, Oliver Steen, is liable over to the defendant, McKeesport Hospital, to indemnify the hospital for the amount of any verdict rendered.” In granting the point for charge, over the objection of Dr. Steen, the trial judge instructed the jury on the law of indemnity stating that if Dr. Steen was found negligent the verdict would have to be returned against both defendants since the hospital remained liable for the acts of its employee. The court continued, however, to charge that “from all of the evidence, there is no negligence on the part of the McKeesport Hospital and the only negligence is that of Dr. Steen” and that in such a case Dr. Steen would be found to be liable over to his employer the hospital, for the amount of any verdict entered. The verdict as returned by the jury found that both defendants Oliver Steen and McKeesport Hospital were “equally responsible” but failed to state Dr. Steen’s liability over to the McKeesport Hospital as instructed. Upon the motion of the hospital the court molded the verdict to conform to the charge, adding the finding of indemnity.

It is now contended by Dr. Steen that since both appellants were original defendants to the plaintiff’s suit, the proper way to raise the issue of indemnity between the co-defendants was for the hospital to plead it in its answer under new matter as provided by Pennsylvania Rule of Civil Procedure 2252 (d). Rule 2252 generally concerns the joinder of additional defendants and section (d) of that rule permits the joinder of any party, whether plaintiff or defendant, as an additional defendant by the assertion under new matter “that such party is alone liable to the plaintiff or liable over to the joining party . . . .” The question we must consider is whether the failure of the hospital to join Dr. Steen, an original defendant, as an additional defendant for the purpose of determining indemnity, results in the loss of appellant hospital’s right to have that issue resolved in this suit.

As originally enacted, Rule 2252 permitted the joinder as an additional defendant of any person who was not already party to the action who might he solely liable or liable over to the original defendant or jointly or severally liable with him. In 1961, the rule was amended to allow the joinder as an additional defendant of a co-plaintiff in the canse of action. The rule was amended again in 1969 to provide a procedure for joining any party, plaintiff or defendant, who might be solely liable, liable over or jointly or severally liable with the joining party. The purpose of these amendments was to provide a short cut procedure for disposing of matters involving numerous parties with divergent interests, avoiding the cumbersome three step process of severance, joinder and consolidation formerly required if one wished to join a person already party to the action. Goughenour v. Campbell, 219 Pa. Superior Ct. 142, 281 A.2d 69 (1971) ; Goodrich-Amram, Procedural Rules Service, §2252 at 235 et seq., (Supp. 3 & 4,1974).

In construing this rule as it applies to the circumstances of this case, a number of principles are to be kept in mind. Generally applicable to all the rules of civil procedure is Rule 126 which provides that “[tjhc rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.” Such an approach is particularly pertinent where multiple parties are involved since in such cases the primary intent of the rules is to avoid multiplicity of suits by providing for the adjudication of all the rights and liabilities of those present and concerned in a single suit. Martinelli v. Mulloy, 223 Pa. Superior Ct. 130, 299 A.2d 19 (1872). This Court has favored the policy of broadly interpreting Rule 2252 “not only to compel every interested person to defend the action by the plaintiff, but also to save the original defendant from possible harm resulting from loss of evidence as might result if compelled to await the end of the suit before proceeding against those from whom he seeks contribution.” Martinelli v. Malloy, supra, at 135, 299 A.2d at 21.

In the present case, appellant, McKeesport Hospital, could have utilized Rule 2252 (d) to raise clearly the issue of indemnity between the two original defendants, appellants here, by asserting its right to liability over in its answer as new matter. This process would insure the determination of the respective parties’ primary or secondary liability to the plaintiff at trial. However, in this case the plaintiff appellee asserted in his complaint not only the liability of Dr. Steen and the McKeesport Hospital through their separate negligent acts, but also liability of the hospital on the basis of its relationship as an employer to Dr. Steen. The employment relationship was admitted by both appellants. Since no evidence was introduced by any party to establish grounds upon which the hospital could be held liable due to its own acts or omissions, the only basis on which it could be held liable was by virtue of the vicarious liability of an employer for the negligence of its employee acting within the scope of his employment. Where an employer is not negligent by his own act, it is well recognized that his liability to the injured party is only secondary to that of the negligent employee. The employer therefore is entitled to indemnity for any payment of damages he is compelled to make from the employee who is primarily liable. Burbage v. Boiler Engineering & Supply Co., Inc., 433 Pa. 319, 249 A.2d 563 (1969); Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951) ; Mixter v. Mack Trucks, Inc., 224 Pa. Superior Ct. 313, 308 A.2d 139 (1973).

Prior to the amendment of Rule 2252 (d), where suit was brought against both an employer and employee, and liability was established against the employer only through the application of the respondeat superior doctrine, this Court did not question the employer’s right to indemnity. Although procedure was not available at that time for joining a person already a defendant on another issue, it was recognized that the defendant primarily liable was a party to the suit and had had opportunity to participate in the defense. Consequently the liability of the defendants between themselves could be established in the plaintiff’s action, without separate suit. Muldowney v. Middleman, 176 Pa. Superior Ct. 75, 107 A.2d 173 (1954). The right of the parties to a determination in a single action of all their obligations to one another regarding the subject matter of the suit was also recognized in East Broad Top Transit Co. v. Flood, 326 Pa. 353, 192 A. 401 (1937). In that case it was stated that in the absence of a jury finding as to the right to recovery over, the proper approach of the party claiming secondary liability was to object to the receipt of the verdict or to move that the court mold the verdict to conform with the jury’s intent.

Considering that the amendment of Rule 2252 (d) was intended to promote the resolution of all parties’ rights in a single suit it is indeed anomalous in a case such as this to advance the method provided by the rule as a reason for denying the parties a right previously held, forcing them to maintain a separate suit. The evidence here showed that the only liability of the hospital was the vicarious liability of the employer. Failure of the hospital to assert against its co-defendant the employment relationship which would entitle it to indemnify should not operate to force the parties into the futile exercise of a separate suit when the plaintiff’s complaint to which both defendants were responding in court asserted that very relationship. Such a result would unnecessarily exalt the form of the procedural rules over their substantive objectives. Goughenour v. Campbell, supra. In this case we believe that the judge acted correctly in charging the jury on the issue of indemnity and subsequently molding the verdict to clarify the jury’s unexpressed intention. See, Gombar v. Schaeffer, 202 Pa. Superior Ct. 282, 195 A.2d 527 (1963); East Broad Top Transit Co. v. Flood, supra.

Judgment affirmed.

Weight, P. J., took no part in the decision of this case. Spaulding, J., took no part in the consideration or decision of this case.

1 The limitation of personal injury actions is covered by the Act of June 24, 1895, P. L. 236, §2, 12 P.S. §34.

2 See Siemens v. Turner, 274 Pa. 228, 117 A. 922 (1922) where the lower court instructed the jury that they could conclude the dofendant acted negligently if they determined the plaintiff merely sustained an x-ray burn on his groin. In so doing, the court directed the jury to hold the defendant to a higher standard of care by permitting a finding of negligence on the basis of proof of an x-ray burn alone without consideration of the defendant’s skill or care in administering the treatment. The case was remanded for a new trial by the Supreme Court with the instruction that the res ipsa loquitur doctrine was not to be applied to x-ray burning cases.

3 Appellants raise substantially the same issues in their motion for a new trial, arguing that it was error for the trial judge to instruct the jury solely on the basis of Dr. Steen’s negligence. However, we agree with the trial judge that the evidence was sufficient to create a jury question as to the negligenc of Dr. Steen and that there was no evidence suggesting negligence on the part of the hospital.