No. 655 April Term, 1979, Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County, October Term, 1972, No. 3641.
Samuel H. Elkin, Pittsburgh, for appellant.
William S. Smith, Pittsburgh, for appellee.
Price,*fn* Brosky and Montgomery, JJ.
This appeal from the grant of a new trial arises from an action in trespass. The original complaint consisted of two counts, the first a malpractice action by appellee, Marylin Sindler against appellant, Dr. Gilbert S. Goldman, and the second, an action for loss of consortium by appellee Norman Sindler against Dr. Goldman.
The case was tried before a jury, the Honorable Ralph H. Smith, Jr., presiding. The jury returned a verdict for Dr. Goldman on both counts on April 5, 1976. The Sindlers filed a Motion for New Trial which was granted by the lower court en banc (R.H. Smith, Jr. and Larsen, JJ.) on the basis that the verdict of the jury was so contrary to the evidence as to shock judicial conscience. The court did not consider the Sindlers' second allegation of error concerning the failure of appellant to follow a local court rule. Dr. Goldman appealed the new trial award to this court and we reversed and remanded for consideration of the second
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allegation of error. See, Sindler v. Goldman, 256 Pa. Superior Ct. 417, 389 A.2d 1192 (1978).*fn1
On remand before the lower court en banc (R.H. Smith, Jr. and E.E. Narick, JJ.), the Sindler's motion for a new trial was granted by Order dated June 21, 1979 at 3641 October Term, 1972, on the basis that the trial judge had erred in allowing the appellant, Dr. Goldman to testify even though he had not complied with local Rule 212 of Allegheny County by filing a pretrial expert report. Dr. Goldman has again appealed the new trial award to this court.
The facts of the case are as follows: Mrs. Sindler consulted Dr. Goldman shortly before July 6, 1971 for treatment of a growth on the left side of the base of her neck. (N.T. 25). Upon his advice and recommendation, Mrs. Sindler underwent surgery at Montefiore Hospital on July 6, 1971 and the growth, an enlarged lymph node, was removed from the left side of the base of her neck. (N.T. 26, 27). The condition was diagnosed as chronic, nonspecific lymphadenitis. (N.T. 99). Mrs. Sindler was released from the hospital the same day but had to return to Dr. Goldman's office on July 8 to have a drain removed from the surgical wound. (N.T. 28). She complained of pain in her left arm during this visit but was advised that the pain would go away. No more pain-killing medication was prescribed for her. (N.T. 28, 29).
Mrs. Sindler continued to feel pain and she also began to lose mobility in the left arm. (N.T. 30-32). She made several return trips to Dr. Goldman's office between July 8, 1971 and May 24, 1972. (N.T. 28-30). Dissatisfied, Mrs. Sindler consulted other medical experts and it was thereby determined that there was a loss of function in the superior portion of the left trapezius muscle. It was also concluded that the left trapezius muscle, which is controlled by ...