Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1964, No. 4181, in case of Freda Barshady v. Woodrow D. Schlosser.
Robert A. Ebenstein, with him Fine, Staud, Grossman & Garfinkle, for appellant.
Sidney L. Wickenhaver, with him Montgomery, McCracken, Walker & Rhoads, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Hoffman, J., In Support of Reversal. Watkins and Cercone, JJ., join in this opinion in support of reversal.
[ 226 Pa. Super. Page 261]
The six Judges who heard this appeal being equally divided, the order is affirmed.
Opinion by Hoffman, J., In Support of Reversal:
This appeal presents the question of whether the statute of limitations may bar an action by a plaintiff who does not learn of a surgical injury until more than two years after the operation.
On April 25, 1961, Dr. Woodrow D. Schlosser, a noted surgeon specializing in the field of otolaryngology, performed an operation on the appellant's middle ear. The purpose of the surgery was to attempt a cure of tympanosclerosis which was causing loss of hearing to the appellant. Immediately after surgery, appellant experienced severe pain, rawness of the tongue, and numbness of the face and tongue. She complained of these symptoms to Dr. Schlosser, who assured her that the condition was temporary, being primarily due to an emotional reaction to the surgery. Appellant continued under the care of the appellee from April, 1961 to March, 1963, and received a continuous series of treatments to alleviate her ailments. As late as March, 1963, Dr. Schlosser assured his patient that the condition was temporary.
As her symptoms did not subside, appellant began to consult other physicians, among whom was one Dr. Pegues, a neurologist. Upon physical examination, Dr. Pegues discovered that there was injury to the chorda tympani nerve, which resulted in loss of taste and numbness to the anterior two-thirds portion of the left side of the tongue.
On February 9, 1965, appellant commenced a trespass action against the appellee, Dr. Schlosser. The Complaint charged the defendant with negligent performance of ...