No. 464 April Term, 1977, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, entered January 3, 1977, at No. 3641 October Term, 1972.
Gerald C. Paris, Pittsburgh, with him Reed, Smith, Shaw & McClay, Pittsburgh, for appellant.
William S. Smith, Pittsburgh, with him Cooper, German, Kelly & Smith, Pittsburgh, for appellees.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., files a concurring opinion. Price, J., dissents and would reverse and enter judgment on the verdict for appellant. The local rule involved cannot bar a party's testimony. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 256 Pa. Super. Page 418]
This appeal is taken from an order of the court en banc granting appellees' motion for a new trial in a medical malpractice action. The issue we must decide is whether the court below abused its discretion in holding that the jury verdict for appellant was contrary to the evidence presented at trial. For the reasons that follow, we find it did, and therefore reverse the order entered below.
Shortly before July 6, 1971, Marilyn Sindler consulted Dr. Goldman, a general surgeon, for treatment of a growth on
[ 256 Pa. Super. Page 419]
the left side of the base of her neck. Following his advice, Mrs. Sindler submitted to surgery at Montefiore Hospital on July 6, 1971, and the growth was removed. A short time after the operation, Mrs. Sindler began to experience pain in the area of the surgery, and suffered some loss of motion in her left arm. She spoke with appellant and one of his associates, but was apparently dissatisfied, and subsequently consulted another physician, who referred her to Dr. Norbert Weikers, a neurologist. Dr. Weikers examined plaintiff and observed abnormal protrusion of the left shoulder blade, and atrophy of the superior portion of the left trapezius muscle. He opined that this muscular atrophy was caused by severance of the spinal accessory nerve during surgery.*fn1
Plaintiff also consulted Dr. Peter Sheptak, a neurosurgeon, and Dr. Sebastian Arena, a head and neck surgeon, both of whom stated that Mrs. Sindler's injuries were caused by surgical intervention.
This action in trespass was thereupon instituted on November 21, 1973, alleging negligence in causing damage during surgery, and in failing to subsequently repair the damage. Plaintiff and her husband both testified, and introduced the depositions of Doctors Weikers, Sheptak, and Arena. Appellant testified on his own behalf at trial, and stated that he did not violate the standards of medical practice, that he did not identify the spinal accessory nerve during surgery, and that he did not sever the nerve. Dr. Goldman produced no other defense witnesses.
On April 5, 1976, the jury returned a verdict for appellant on both counts, whereupon plaintiffs moved for a new trial. The court en banc granted the motion on the basis that the verdict was ...