No. 49 W.D. Appeal Odcket, 1982, Appeal from the Order entered on June 4, 1982 by the Superior Court of Pennsylvania at Nos. 160 and 407 Pittsburgh, 1980, affirming the orders of the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 75-18509, Pa. Super. ,
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Roberts, C.j., files a concurring opinion. Nix, J., files a dissenting opinion.
On November 22, 1973, appellant Mary E. Connor was admitted as an emergency patient to appellee Allegheny General Hospital with abdominal distress. As part of her treatment, on November 26, 1973 appellant underwent a barium enema. During the procedure, and continuing for several hours thereafter, barium solution leaked out of a perforation in appellant's colon into her abdominal cavity, ultimately necessitating surgery to remove the barium. Further surgeries were required to drain an abscess which had formed after the first surgery, to remove damaged portions of the colon and one ovary, and to repair and remove adhesions which had formed on the colon.
On October 15, 1975, based upon the expert opinion of Cyril H. Wecht, M.D., appellants Mary E. and Earl T. Connor, filed their complaint in trespass and assumpsit against appellee. It was Dr. Wecht's opinion that the leakage of barium from appellant's colon was "a quite unexpected and dangerous condition, and one which does not ordinarily occur if a barium enema is performed properly and carefully." Accordingly, the complaint alleged that the hospital, acting individually and through its employees, was negligent:
a. In perforating the sigmoid colon during the performance of a barium enema procedure;
b. In perforating the sigmoid colon and causing extravasation of the barium into the abdominal cavity causing barium peritonitis;
f. In otherwise failing to use due care and caution under the circumstances.
On November 28, 1977, the case was called for trial. Trial was postponed, however, because Dr. Wecht refused to testify.*fn1
Thereafter, appellant obtained a new expert, Bernard Neff, M.D. Dr. Neff was unable to determine whether appellant's colon had perforated prior to or during the barium enema. Nevertheless, he was of the opinion that once perforation of the colon had occurred and barium had begun to leak into the abdominal cavity, "there was hesitation on the part of the radiologist to make a definitive diagnosis of perforation," and "there was undue delay in performing surgery on a patient with perforation and acute peritonitis."
The case was called again for trial, and on November 26, 1979, appellants filed a motion to amend their complaint by adding, inter alia, the following allegation:*fn2
4. After it became apparent or should have become apparent . . . that barium with accompanying intestinal contents had extravasated into the abdominal cavity, the necessary laparotomy and cleansing of the abdominal cavity . . . was delayed improperly causing the barium and intestinal contents to remain within the abdominal cavity causing extensive peritonitis, formation of adhesions and a pericolic abscess.
This motion to amend the complaint was denied. Subsequently, the court of common pleas granted appellee's motion for summary judgment and dismissed appellants' complaint. On appeal, a three-judge panel of the Superior Court (Cirillo, J., dissenting) affirmed, holding that the proposed amendment to appellants' ...