Hodgson v. Bigelow , 335 Pa. 497 ( 1939 )

I am not in agreement with the views expressed in the majority opinion. The case is turned upon the narrow question whether the wound was in reality a puncture wound. Whether or not it was, is a matter not for laymen to decide, but for physicians. Here competent physicians, in number exceeding those called by plaintiffs, said, in their judgment, it was not a puncture wound. The term "puncture wound" is a technical scientific term, and means something entirely different to the physician from what it might mean to the layman. As physicians use the term, it means a wound with a small opening, in comparison with its depth, which is liable to close and thus prevent the entry of air into the wound. The bacillus of tetanus cannot live in the presence of air and the closing of the orifice of the wound, and the consequent shutting off of air, leads to the multiplication of the tetanus bacilli if present. Here the wound, which was underneath the skin and parallel with the surface of the skin, and did not penetrate the deeper tissues, had an opening half an inch wide, which enabled the appellant to probe to the bottom and to apply medication, and, by the insertion of gauze, to keep it open to the air. This being the condition, the nine physicians called by him, said it was not a puncture wound, and therefore did not require to be opened up or demand the use of anti-tetanus serum. When the defendant said, as noted in the majority opinion, that it was a punctured wound, he meant one caused by a puncture, not by a cut or incision. His explanation shows that he did not mean it was a puncture wound in the surgical sense. I can see no distinction between this case and any other in which competent physicians differ as to conditions present in the patient, and when they do, and when the physician charged with malpractice has, as this defendant has, reputable surgical opinion supporting what he did, he should not be held liable, in my judgment.

The correct announcement of the law, I believe, is that embodied in the opinion of President Judge KELLER in Remley v.Plummer, 79 Pa. Super. 117, 121, wherein he said: "The question actually passed upon by the jury was not whether the defendants, in their handling of the case, had been guilty of negligence in not following a well-recognized and established mode of treatment, but rather, which of two methods, both having their respective advocates and followers of respectable authority, was the safer and better from a surgical standpoint. In other words, in the face of conflicting reliable expert evidence as to what was the proper course to be pursued by the surgeon in charge of the case, twelve laymen, with no knowledge of medicine and surgery were called upon to decide a disputed scientific medical and surgical question upon which eleven physicians and surgeons of standing and experience could not agree, and as to which there is a wide divergence of competent authority, and were permitted to mulct the defendants in damages for following a course of conduct which by far the greater number of expert witnesses testifying said was in accordance with that indicated by the best modern surgical practice. . . . where competent medical authority is divided, a physician will not be held responsible if in the exercise of his judgment he followed the course of treatment advocated by a considerable number of his professional brethern in good standing in his community. . . . In cases where authorities differ or 'doctors disagree' the competent physician is only bound to exercise his best judgment in determining which course is on the whole best." We followed the philosophy of that case in Duckworth v. Bennett, 320 Pa. 47, 181 A. 558.

At the most, all that can be said giving full effect to plaintiffs' medical evidence is that the doctor made a mistake in not diagnosing the wound as a puncture wound, and for a mistake in diagnosis there is no liability: English v. Free,205 Pa. 624, 55 A. 777; Ward v. Garvin, 328 Pa. 395,195 A. 885.

I can readily understand why a doctor would hesitate to use tetanus serum in a case in which he did not think it required, because of the danger in its use. This has been shown in the recent case decided by the Superior Court, Gyulai v. PrudentialIns. Co. of America, 135 Pa. Super. 73, 4 A. (2) 824, where the use of tetanus serum caused the death of the patient, as well as by the physicians who testified in this case.

Mr. Justice LINN and Mr. Justice BARNES join in this dissent.