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filed: August 7, 1987.


Appeal from Order of the Court of Common Pleas, Civil Division, of Allegheny County, No. G.D. 83-08887.


Larry A. Silverman, Pittsburgh, for appellants.

Jay H. Feldstein, Pittsburgh, for Solomon, appellees.

Cavanaugh, Wieand and Johnson, JJ. Johnson, J., files a dissenting opinion.

Author: Wieand

[ 365 Pa. Super. Page 448]

In this medical malpractice action, it was alleged in the complaint that Dr. David Wilson, a medical intern, had been negligent in making an inaccurate diagnosis of symptoms suffered by Gilbert Solomon. This, it was alleged, had been a substantial factor in causing the myocardial infarction which Solomon subsequently suffered. In addition, it was

[ 365 Pa. Super. Page 449]

    alleged that Wilson's employer, Presbyterian University Hospital, was vicariously liable for the negligence of its intern. The jury which heard the evidence returned a verdict in favor of the defendants. When the trial court granted a new trial, Dr. Wilson and the hospital appealed.*fn1

In the early morning hours of May 30, 1981, Gilbert Solomon awoke from sleep complaining of pain in his jaw. At the suggestion of his wife, Solomon went to the emergency room at Presbyterian University Hospital where he came under the care of Dr. David Wilson. Dr. Wilson, a first year intern at the hospital, was licensed to practice medicine pursuant to a temporary license. The medical history taken from Solomon disclosed an ongoing dental problem. Dr. Wilson performed a physical examination of Solomon's ears, mouth, and jaw. As a result of his examination, Dr. Wilson concluded that the pain experienced by Solomon was related to his dental condition. On the basis of this diagnosis, Dr. Wilson issued three painkilling pills to Solomon and advised him to see his family physician and his dentist. Later on the same afternoon, Solomon was examined by a dentist who confirmed Dr. Wilson's diagnosis. Two days later, Solomon sought a third opinion from a periodontist. The periodontist agreed that the pain in Solomon's jaw had been caused by a dental disease. After leaving the periodontist's office, however, the pain in Solomon's jaw spread to his neck, shoulders and arms. He was immediately taken to the office of Dr. Myron Friedlander, who informed Solomon that he had suffered a myocardial infarction.

The action was tried on the issues raised in the complaint, i.e., that Dr. Wilson had negligently misdiagnosed Solomon's condition and that the hospital was vicariously liable

[ 365 Pa. Super. Page 450]

    because Dr. Wilson had been its employee.*fn2 The complaint contained no averment that the hospital had been independently negligent because of a failure to supervise Dr. Wilson;*fn3 and such an issue of independent negligence by the hospital was not at any time raised at trial. After the evidence had been received, Solomon requested that the trial court instruct the jury as follows:

Unless a physician has obtained a Pennsylvania Medical License, he cannot be called a Doctor, cannot diagnose and cannot treat a patient unless he is under the direct supervision, direction or control of a licensed physician. Accordingly, if you find that Dr. Wilson was not under the direct supervision, direction and control of a licensed physician or if you find the licensed physician was not present or immediately available in the emergency room on the morning of May 30, 1981, you may find Dr. Wilson, and the hospital through the agency relationship, negligent per se under Pennsylvania law. 63 P.S. § 421.3.

[ 365 Pa. Super. Page 451]

The trial court denied the requested instruction, and the jury returned a verdict in favor of Dr. Wilson and the hospital. Solomon filed a motion for new trial in which he alleged, inter alia, that the trial court had erred by refusing the requested instruction. The trial court agreed and awarded a new trial for the purpose of determining (1) whether Dr. Wilson had violated the provisions of the Medical Practice Act of 1974,*fn4 which allegedly prohibited an intern from performing health care services without the direct and immediate supervision of a licensed physician; and (2) whether the hospital was independently liable for failing to provide necessary supervision for Dr. Wilson. We conclude that the award of a new trial was error; and, therefore, we reverse.

A plaintiff is bound by the theory upon which he submits and tries his case. See: Kramer v. Pittsburgh Coal Co., 341 Pa. 379, 382, 19 A.2d 362, 364 (1941); In re King's Estate, 183 Pa. Super. 190, 198, 130 A.2d 245, 249 (1957). He may not, at the post-trial motion stage, raise a new theory which was not raised during trial. See: Kramer v. Pittsburgh Coal Co., supra; Richardson v. LaBuz, 81 Pa. Commw. 436, 446 n. 5, 474 A.2d 1181, 1190 n. 5 (1984). In the instant case, Solomon did not allege in his complaint that the hospital had been independently negligent by failing to supervise Dr. Wilson. Moreover, he did not at any time request leave of court to amend his complaint to allege such a theory of recovery. In keeping with the averments of his complaint, the submitted point for charge did not ask that the jury be instructed regarding any possible act of negligence by the hospital. The requested instruction, if granted, would only have told the jury to determine whether the hospital, "through the agency relationship" with Dr. Wilson, was liable for Dr. Wilson's alleged failure to act under appropriate supervision. It was not until after the trial had been concluded and a verdict had been entered in favor of the hospital that Solomon raised for the first time in post-trial motions the issue of the hospital's independent

[ 365 Pa. Super. Page 452]

    negligence for failure to supervise Dr. Wilson. This was too late. After Solomon had litigated the hospital's liability solely on the theory of respondeat superior, he could not assert post-trial an entirely different theory of recovery against the hospital. He could not, as an afterthought, contend that the hospital had been independently negligent. It was erroneous for the trial court to award a new trial against the hospital on a ground which had not been raised in the complaint or at trial.

The trial court also awarded a new trial to permit the jury to consider whether Dr. Wilson had violated a provision of the Medical Practice Act of 1974 which, according to Solomon, required that Wilson act only under close supervision.*fn5 Specifically at issue was Section 421.2(6) of the Act, which defined an intern as "[a] physician receiving supervised graduate medical training at an approved hospital or its legal affiliate." 63 P.S. § 421.2(6). Solomon argues, and the trial court agreed, that an intern with a temporary medical license, such as Dr. Wilson, was prohibited from rendering patient services unless he was subject to direct and immediate supervision by a licensed physician. The statutory provision, according to appellee, required that a

[ 365 Pa. Super. Page 453]

    physician be present or immediately available whenever an intern examined, diagnosed or treated a patient.

Whether and to what extent supervision of interns was required by the Medical Practice Act is an issue with which the appellate courts of this state have not previously been confronted. To resolve the issue, we examine the provisions of the statute and apply rules of statutory construction in order to ascertain the intent of the legislature.

The Medical Practice Act of 1974, as we have observed, defined an intern as "[a] physician receiving supervised graduate medical training at an approved hospital or its legal affiliate." 63 P.S. § 421.2(6). A "physician" was defined as an individual "qualified to seek or [who] ha[d] acquired a license to practice medicine or surgery." Id. § 421.1(4). An intern participating in graduate medical training could, for that purpose, acquire a temporary license to practice medicine. Id. § 421.4(2). The only restriction imposed upon an intern by such a license, in addition to the fact that it was valid for only twelve consecutive months, was that the medical practice of the intern was limited to the facility in which he or she received graduate medical training. Within that facility, however, the intern was fully qualified to practice medicine and surgery.

No express provision of the Act precluded an intern from practicing medicine unless he or she was under the immediate, physical direction of a licensed physician. If the legislature had intended to subject interns to such close supervision, it could have drafted the Act to reflect this intention. It is not without significance that the legislature chose not to do so.

Elsewhere in the Act, specific supervisory requirements were imposed upon other health care practitioners. For example, Section 421.10(l) provided that a physician's assistant could not practice medicine "without the supervision and direction of a licensed physician approved by the appropriate board." 63 P.S. § 421.10(l). See also: Id. §§ 421.2(13), 421.3. This ...

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