Appeal from the Order of the Court of Common Pleas, Beaver County, Civil Division, at No. 1037 of 1982.
Christine L. Donohue, Pittsburgh, for appellants.
Robert S. Grigsby, Pittsburgh, for appellees.
Cirillo, President Judge, and Brosky and Tamilia, JJ. Tamilia, J., concurs in the result.
[ 384 Pa. Super. Page 360]
This is an appeal from an order granting judgment notwithstanding the verdict in favor of appellees. Appellants raise only one question for our determination, whether the "discovery rule" is "applicable" when the injury is discovered within a two year period after a surgical operation. The trial court found the rule inapplicable if the injury was in fact discovered during the two year period after the surgical operation took place. We vacate and remand.
On May 22, 1979, appellant Edith Pounds underwent back surgery performed by appellee John Lehman. The basis of the present action is the allegation that appellee Lehman failed to disclose and inform appellant of the risks of the surgery, specifically the potential for scar tissue development, and of the alternatives to surgery. Appellant had injured her back while lifting an object at work in June of 1978. Appellee began treating appellant who underwent a conservative treatment under appellee's direction. Appellant went back to work but experienced severe pain which required her to stop working. On April 30, 1979 Dr. Lehman recommended low back surgery.
Testimony at trial was varied as to the information disclosed to appellant prior to surgery. However, it does appear that no discussion was had on the potential for scar tissue formation at the nerve roots. Surgery took place on May 22, 1979. Appellant remained under appellee's care after surgery and eventually returned to work in January, 1980. Appellant's condition purportedly improved after surgery, yet she continued to experience low back and left leg pain until, on May 31, 1980, appellant experienced a sharp pain her back while lifting a box at work. She was again admitted to Ellwood City Hospital and diagnosed by appellee as suffering acute low back sprain. Appellant was referred to a neurosurgeon, Dr. Phillips, whom she first saw in July, 1980. Dr. Phillips performed exploratory surgery
[ 384 Pa. Super. Page 361]
on August 1, 1980, whereupon he discovered scar tissue compressing the L5-S1 nerve, located in the same proximity where the first surgery took place. The scar tissue was described as permanent.
After appellant's surgery, but before her discharge on August 4, 1980, Dr. Phillips related to appellant that her low back condition was caused by the scar tissue which formed after her first surgery by Dr. Lehman. She had remained under Dr. Phillips care up until the time of trial.
Appellants instituted an action against appellees on July 30, 1982. After a jury trial and upon special interrogatory, a verdict was returned in appellant's favor. However, upon appellees' motion, judgment n.o.v. was granted. The trial court, asserting that appellant knew of the requisite elements sometime in August, 1980, agreed with appellees that the discovery rule was "inapplicable" to render appellant's action timely as the knowledge was gained within the "original" statutory period. Thus, it was concluded that appellants were obligated to file suit within two years of the operation and not within two years of the discovery date.
We are puzzled to a degree as to how the above interpretation was garnered. However, we must state that there is a lack of support in law and reason for the application of the "discovery rule" in the manner done so here. We stated in ...