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filed: February 13, 1980.


No. 990 April Term 1978, Appeal from the Judgment in the Court of Common Pleas of Allegheny County, Civil Division, No. GD 75-23514.


P. Christian Hague, Pittsburgh, for appellants.

Charles H. Alpern, Pittsburgh, for Montefiore Hospital, appellee.

William R. Tighe, Pittsburgh, for Silverblatt, appellee.

John W. Jordan, IV, Pittsburgh, for Surgical Associates, appellee.

Van der Voort, Spaeth and Watkins, JJ.

Author: Spaeth

[ 275 Pa. Super. Page 425]

This appeal arises from a judgment in favor of the defendants in a medical malpractice action. Appellants, Naomi Jones and her husband, Ray Jones, argue 1) that for several reasons, they are entitled to a new trial, and 2) that the lower court improperly assessed against them the cost of having the court reporter prepare a transcript to be included in the record on this appeal.

[ 275 Pa. Super. Page 426]


On November 7, 1973, Naomi Jones complained to Dr. Marvin Silverblatt, her physician, of a mass in her right breast. After examining Mrs. Jones, Dr. Silverblatt referred her to Surgical Associates, a professional association that specializes in the diagnosis and treatment of breast cancer. On November 19, 1973, Dr. Waisbrot, a member of Surgical Associates, examined Mrs. Jones and discovered two masses in her right breast; one of these masses was at 12:00 o'clock, or in the superior aspect of the breast, the other, at 6:30, or in the inferior aspect. Mrs. Jones was subsequently admitted to Montefiore Hospital for a biopsy. On November 27, 1973, Dr. Kaufer, another member of Surgical Associates, removed material from Mrs. Jones's breast. Dr. Kaufer testified that this material was from the mass at 12:00 o'clock. (As will be discussed, a principal issue at trial was whether this was so). In removing the material, Dr. Kaufer was assisted by hospital personnel. The material did not reveal cancer, and Mrs. Jones was discharged from the hospital the following day. Following her discharge, Mrs. Jones continued to receive treatment from Dr. Silverblatt and Surgical Associates. Further examinations by Dr. Waisbrot, in particular in December 1973 and March 1974, revealed a mass in Mrs. Jones's right breast at 1:30.*fn1 Because Dr. Waisbrot did not consider additional treatment necessary, however, no further testing or surgery was performed. In August 1975, Mrs. Jones, concerned about the presence of this mass, which continued to increase in size and to cause pain, asked Dr. Miles Mrvos, with whom she worked at Magee Hospital, to examine her. Following Dr. Mrvos's examination, Mrs. Jones was examined again by Dr. Waisbrot on August 25, 1975. Dr. Waisbrot this time diagnosed the mass at 1:30 as probably cancerous, and Mrs. Jones was readmitted to Montefiore Hospital the same day. A biopsy confirmed Dr. Waisbrot's diagnosis, and a mastectomy was performed. In addition, because the cancer had

[ 275 Pa. Super. Page 427]

    spread to a lymph node, Mrs. Jones had to undergo chemotherapy and other treatment.

On October 10, 1975, Mr. and Mrs. Jones brought suit against Dr. Silverblatt, Silverblatt Medical Associates, Surgical Associates (including Drs. Waisbrot, Kaufer, and Hirsch, members of Surgical Associates, in their individual capacities), and Montefiore Hospital, alleging that in November 1973, they had negligently failed to remove the masses in Mrs. Jones's breast, and had negligently failed to perform necessary post-operative tests, as a result of which negligence Mrs. Jones contracted cancer that has shortened her life, impaired her health, and caused financial loss.*fn2 Trial commenced on February 28, 1978. A directed verdict was entered for Montefiore Hospital. Jury verdicts were returned in favor of all the other defendants.

Mrs. Jones first argues that the lower court committed reversible error in denying her request that the jury be instructed that "[a] person who undertakes to render services to another is liable for physical harm resulting from his failure to exercise reasonable care, if that failure increased the risk of harm." This point for charge was a paraphrase of the Restatement (Second) of Torts § 323, which in Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978), was held to be part of the law of negligence in this Commonwealth. Accordingly, to decide whether the lower court should have given the requested point for charge, we must see whether this case turns upon the same principle of law as did Hamil.

In Hamil, the facts were these. Mr. Hamil was taken to the defendant hospital, suffering from severe chest pains. Because of a faulty electrical outlet, the hospital's EKG machine didn't work. When the hospital offered no further aid, Mr. Hamil's wife took Mr. Hamil to the private office of a Dr. Saloom. Mr. Hamil died in Dr. Saloom's office while an EKG was being taken. At trial, an expert witness testified that if the hospital had treated Mr. Hamil properly,

[ 275 Pa. Super. Page 428]

    using oxygen and pain relieving drugs, he would have had a 75% chance of surviving. The hospital argued that this evidence was insufficient to support a finding of proximate cause; according to it, the case could not go to the jury unless the expert expressed the opinion that to a reasonable degree of medical certainty the hospital's negligence caused Mr. Hamil's death. Plainly, the expert could not do ...

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