Conford, Foley and Kilkenny. The opinion of the court was delivered by Conford, J.A.D.
We have here to review the dismissal of a negligence action on the plaintiffs' opening. The gravamen of the action is that in the course of being delivered of a child in the defendant hospital the female plaintiff sustained a facial inflammation or rash in the nature of a burn as a result of negligence in the administration to her of an anesthetic. The defendant doctors Zampella and Melosh, and another physician, not made a defendant, participated in the delivery of the child. Still another doctor, who was the hospital staff anesthetist actually in charge of the administration of the anesthetic, was not made a defendant.
Involved in the resolution of this appeal are legal principles pertaining both to the sufficiency of an opening to withstand dismissal and to malpractice or negligence by physicians. Both legal questions call for close attention to the factual representations made in the cause by the time
the trial court acted in this matter and to the way in which they came into the case.
In summary, the pretrial order stated plaintiffs' factual position as follows. Mrs. Terhune entered the hospital under the professional care of Dr. Zampella on June 24, 1956 in order to be delivered of a child. On June 25, 1956, while in the delivery room, she received "burns" as the result of the "improper application of anesthetic." The mask was not properly attached to her face, the "anesthetic machine and mask" were not inspected, and "proper tests" of the patient were not made before administration of the anesthetic. The apparatus was operated and maintained by the defendants hospital and county. Dr. Zampella and Dr. Melosh "were actively engaged in the delivery."
In his opening to the jury plaintiffs' counsel stated that Mrs. Terhune's testimony would in essence be to the following effect: She was unconscious during the delivery because she had been given an anesthetic. She delivered during the night. When she awoke it was daylight. She had a burning sensation around her face, which was swollen twice its normal size, and she could barely look through her eyes. Her face was treated at the hospital with salves and medicines. "You will hear from her lips how it was recognized that this came, or this occurred to her as a result of the delivery of the child."
Mrs. Terhune left the hospital after a few days and was treated by Dr. Zampella for the condition which had "caused eruptions all over her face." Later she went to Dr. Donnelly, director of the hospital. "She told him what the story was, 'Look what happened to me,' so forth, so on." Dr. Donnelly sent her to an eye specialist, and she was later examined and treated by other physicians for the skin condition, most recently in 1959. The opening concluded as follows:
"Now, I cannot come here and say to you precisely who did what wrong. Mrs. Terhune did not know, she does not know today. Obviously, only knowing the facts as they have been given to me, I do not know. We claim, and we will attempt to show that the
hospital in its supervision and its preparation of the various medicines, and anesthesias and so forth, which are necessary for this delivery, this operation, bringing into life of a child, was negligent. That the doctors who supervised and participated in the delivery were negligent. They did something wrong to this woman, because she never had any trouble before, but after this operation, after this delivery of the child she had a terrible skin condition, these burns all over her face which progressed to other parts of her body.
Now, it will be for you the jury to hear the evidence as it is put forth, and taking into consideration the facts as you have heard them, decide whether this woman did anything wrong whatsoever, whether she is in any way to blame for this condition over which she had absolutely no control, or whether these various people together, singularly or jointly, as the case may be, in view of the fact we are suing several doctors and the hospital, and so forth, are responsible for the injury to her. If you believe that they are responsible, then we ask you to compensate her for the suffering she has undergone, and still undergoing.
Now, I want to make it perfectly clear that we say that these things occurred because they must have occurred. Since Mrs. Terhune did not do it someone or something, or some people, either together or singularly is responsible for what happened to ...