No. 179 April Term, 1979, Appeal from the Judgment of the Court of Common Pleas of Allegheny County, Civil Division at No. 2175 July Term, 1972.
Kenneth W. Behrend, Pittsburgh, for appellant.
John W. Jordan, IV, Pittsburgh, for appellee.
Hester, Montgomery and Lipez, JJ.
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The Plaintiff-Appellant James R. Quinlan, instituted an action for injuries which he initially sustained in the course of his employment, and which he claims were exacerbated by the negligence and medical malpractice of Defendant-Appellee, Dr. Andrew J. Brown. After a jury verdict for Defendant, and the denial of Plaintiff's motion for new trial, the instant appeal was filed in our Court.
The record reveals that on July 9, 1970, while employed as a machinist at the Mesta Machine Company in Homestead, Pennsylvania, Appellant received a continuous shock from direct electrical current when he grasped a lamp above his work area with his left hand. The electrical current apparently prevented him from removing his hand until, with considerable effort, he was able to pull it away. In doing so, however, he injured his left shoulder. He was taken to nearby Homestead Hospital where he was examined, treated and advised by the Appellee, a specialist in general surgery and industrial injuries.
Dr. Brown's examination included manipulation of Appellant's injured shoulder, but did not include having x-rays taken of Appellant's arm or shoulder. Conflicting expert testimony was presented at trial as to whether the Appellee's examination in this regard was consistent with accepted medical procedures.
Appellee diagnosed Appellant's injury as a rotator cuff injury and recommended, among other things, exercise of
[ 277 Pa. Super. Page 532]
the shoulder and physical therapy. Appellant duly reported to the Therapy Department of the Hospital for a total of fourteen sessions. Although he continually complained of pain to his therapist, he never apprised the Appellee of the problems that he was having with therapy.
In August, 1970, Appellant consulted his family physician, who took a history, examined his shoulder, and ordered x-rays. A few days later, his physician sent Appellant for additional x-rays, and referred him to an orthopedic surgeon, Dr. Ferguson. Dr. Ferguson took further x-rays and then scheduled surgery to treat a posterior dislocation of Appellant's left shoulder. During surgery, Dr. Ferguson discovered a depressed fracture of the humeral head.
Shortly thereafter, Appellant filed suit seeking to recover for injuries which he alleged were compounded by Dr. Brown's failure to properly diagnose the initial work-related injury. The jury verdict for Appellee resulted after a five day trial. As noted earlier, Appellant then filed a motion for a new trial, which was denied.
On this appeal, Appellant first contends that a substantial change in the law relating to the manner of proving causation occurred after the trial, and that his request for a new trial should have been granted on this basis. Specifically, he refers to the decision of the Pennsylvania Supreme Court in Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978), which, in pertinent part, addressed the problem that arises when a plaintiff establishes with a reasonable degree of medical certainty that the defendant's conduct increased his risk of harm, but cannot establish with medical certainty that such harm would not have ...