No. 160 Pittsburgh, 1980, No. 407 Pittsburgh, 1980, Appeal from the Order dated February 6, 1980 and the Order dated April 7, 1980, Court of Common Pleas, Civil Division, Allegheny County at GD 75-18509, Issue No. 96269.
Leonard E. Price, Pittsburgh, for appellants.
Louis B. Loughren, Pittsburgh, for appellee.
Cavanaugh, Cirillo and Johnson, JJ. Cirillo, J., files a dissenting opinion.
[ 300 Pa. Super. Page 323]
Appellants appeal from the Orders of February 6, and April 7, 1980*fn1 which granted Appellee's Motion for Summary Judgment and dismissed Appellants' complaint in trespass and assumpsit. We affirm.
The facts of the instant case emerge as follows.
Appellant Mary E. Connor, an in-patient at Allegheny General Hospital, submitted to a barium enema procedure on November 26, 1973. During the procedure, the barium solution extravasated into the peritoneal cavity, causing severe pain and requiring emergency surgery. Appellants filed a complaint on October 15, 1975, alleging, inter alia, negligence by the Hospital individually and acting through its agent, servant or employee in perforating Appellant Mary E. Connor's colon during the performance of the enema procedure. The complaint also alleged breach of implied warranties for failure to exercise the proper degree of care and skill.
On February 22, 1977, Appellants filed a pre-trial statement which included a report by Cyril H. Wecht, M.D., that Appellant Mary E. Connor had sustained a perforation of the colon and extravasation of barium, as a result of the barium enema. The case was called to trial on November 28, 1977, but counsel for Appellants was unable to proceed because their expert witness, Dr. Wecht, refused to testify, citing his lack of expertise in this area of medicine.*fn2 The case was struck from the issue list. On February 8, 1979, Appellants filed a Supplemental Pre-Trial Statement to which was attached the report of a different expert, Bernard Neff, M.D. The report stated that the extravasation was caused by perforation of the diverticulum, although Dr.
[ 300 Pa. Super. Page 324]
Neff could not say with certainty whether the perforation occurred prior to or by means of the enema procedure.*fn3 The report also stated, inter alia, that there was undue delay both in diagnosis and performance of surgery to correct the barium extravasation.
A Motion to Amend Complaint to include an additional allegation of negligence pursuant to the Restatement of Torts, Section 323(a), was denied on November 9, 1979, without prejudice to Appellants' right to present the same to the trial judge. The case was called for trial on November 21, 1979. Prior to jury selection, Appellants presented another Motion to Amend Complaint, different from that denied on November 9, 1979, setting forth, inter alia, new and different allegations of negligence involving the Hospital's failure to recognize and treat the barium extravasation, based on the statement of their new expert witness. This Motion was denied by the trial judge.
The trial court agreed with both Appellants' and Appellee's counsel that without the amendment, the new expert witness testimony could not sustain the cause of action under the original complaint, because of the expert's opinion that there was no evidence that the barium enema tip caused perforation of the colon, as alleged in Appellants' original complaint. Appellants' counsel then declined to proceed with the trial and upon a discussion with Appellee and the court, agreed to submit the case on a case stated basis. Based on Appellants' counsel's failure to submit the case on this basis, Appellee filed a Motion for Summary Judgment which was granted and the complaint dismissed on February 6, 1980.
The appeal alleges that (1) it was error to deny Appellants' Motion to Amend Complaint, (2) the court erred in
[ 300 Pa. Super. Page 325]
dismissing the complaint and (3) the court erred in striking its Order of February 6, 1980 and then placing the Motion for Summary ...