Before GOODRICH and KALODNER, Circuit Judges, and MARSH, District Judge.
This action was instituted against a surgeon and an anesthetist for malpractice. Jurisdiction arises from diversity of citizenship and a claim for damages in excess of the statutory amount. At the conclusion of the evidence presented on behalf of plaintiff the court below entered judgment in favor of the defendants and plaintiff appeals. The question raised by this appeal is whether plaintiff made out a prima facie case. A careful examination of the record convinces us that he did not, and the action of the learned trial judge should be sustained.
Since all the operative facts have a New Jersey setting the tort law of that State governs. Newman v. Zinn, 3 Cir., 1947, 164 F.2d 558.
Viewing the evidence in the light most favorable to the plaintiff, as we are required to do, Newman v. Zinn, supra, the following appears to be the factual situation. Since February, 1947, plaintiff had been treated for gallstones by Dr. Louis F. Albright of Spring Lake, New Jersey. Within the preceding two years, he had undergone two abdominal operations in which spinal anesthesia was used. On September 20, 1947, plaintiff suffered a severe attack and at 3:15 P.M., was removed to the Fitkin Memorial Hospital in Neptune, New Jersey, to undergo an emergency operation for an obstruction to the common bile duct. Plaintiff was seriously ill. His temperature was 103.6 degrees and he had an acute infection. Dr. Albright engaged the defendant, Dr. O. K. Parry, as the surgeon. The other defendant, Dr. Emerson Haines, chief anesthetist at the hospital, undertook to administer the anesthetic. During the afternoon and evening, morphine and scopolamine were administered at the direction of Dr. Albright. Spinal anesthesia was selected because the doctors were of the opinion that ether would be harmful to this patient's liver. Dr. Haines administered the anesthetic agent through a needle inserted between the second and third lumbar vertebrae. This treatment was started at 9:50 P.M. The operation began at 10:10 P.M. and ended at 1:30 the next morning. During the operation gas, oxygen and ether supplemented the spinal anesthetic. The common duct was located at about 1:00 A.M. whereupon the obstructing stones were removed and the cause of the infection was corrected.
Plaintiff testified that he was placed upon the operating table and assumed a "curled up" position to receive the anesthesia. He stated he "felt this jabbing of pain into my spinal column, and from that point on I had this terriffic pain radiating down my [right] leg, such as a heavy electrical shock. I remember striffening out. I remember screaming, and from that point on I fainted and do not know what happened until the next morning in bed." He also said he fainted from the pain. The next morning plaintiff found he could not move his right leg and partial paralysis, marked atrophy, and sensory changes in this leg and in adjacent organs have persisted to the time of trial and probably will be permanent.
Dr. E. A. Rovensteine, an expert anesthetist, hypothesized that if the pain was experienced it was caused by the needle striking the nerve roots. Dr. Denker, a neurologist, testified that a painful reaction to the puncture needle was a "common experience." Dr. Rovensteine further stated that if a patient has pain on the insertion of the needle, followed by stiffening and unconsciousness, the recognized procedure is for the anesthetist to try to determine what caused the unconsciousness and further action would depend on what he learns. As to whether or not defendants should have proceeded with this operation under the circumstances, Dr. Rovensteine was unable to express an opinion.
According to Dr. Denker "this patient suffered an injury to the nerve roots in the lower end of the spinal cord." He said, "The particular region is known as the cauda equina. That is called a cauda equinal neuritis. That condition was produced by the spinal anesthesia. * * * The following nerve roots were injured, on the right side from the eleventh thoracic, all the lumbars and all the sacrals right down to the fifth sacral nerve root." He further said that the anesthetic agent "had a toxic effect on these nerve roots * * * and that has given him the resultant paralysis, atrophy and sensory changes which are manifest on examination."
On cross examination Dr. Albright agreed that the unfavorable reaction of plaintiff to the administration of the anesthetic was something that could not be predetermined and that it was one of the hazards of this anesthesia. He stated that the anesthetic solution produced a condition called "arachnoiditis, which is an inflammation about the spinal cord * * * that constricts and damages the nerves, * * * and which occurs due to some unusual reaction on the part of the patient to that solution."
The parties seem to agree on the principles of law enunciated by the courts of New Jersey as they relate to physicians in the treatment of their patients; they, of course, disagree on their application to the facts.
It is generally held that the physician undertakes in the practice of his profession that he is possessed of that degree of knowledge and skill which usually pertains to the other members of his profession and he has a duty to use that standard of knowledge and skill in treating his patient. Woody v. Keller, 106 N.J.L. 176, 148 A. 624, (E. & A. 1930). One holding himself out as having special knowledge and skill has a duty to exercise the special degree of knowledge and skill possessed by physicians who are specialists in the particular field involved in the light of the present state of scientific knowledge. Coleman v. Wilson, 85 N.J.L. 203, 88 A. 1059, (E. & A. 1913).
The physician is liable for a failure to exercise the requisite skill or for omitting to exercise the proper care, but without an express contract he is not a guarantor of good results. See Lolli v. Gray, 101 N.J.L. 337, 128 A. 256, (E. & A. 1925).
It is presumed that a physician or surgeon exercised the ordinary care and skill required of him in treating his patient. 41 Am.Jur., Physicians and Surgeons § 127; 70 C.J.S., Physicians and Surgeons, § 62a.
The lack of due care, or lack of diligence on the part of a physician in diagnosis, method and manner of treatment ordinarily must be established by expert testimony. Newman v. Zinn, supra; Hull v. Plume, 131 N.J.L. 511, 37 A.2d 53 (E. & A. 1944); Burdge v. Errickson, 132 N.J.L. 377, 40 A.2d 573 (E. & A. 1945); 7 Wigmore on Evidence, 3rd Ed. § 2090; and the alleged ...