Appeal from the Order of the Court of Common Pleas of Delaware County, Civil at No. 85-14364.
James M. Penny, Jr., Philadelphia, for appellant.
A. Charles Peruto, Sr., Philadelphia, for appellees.
Montemuro, Tamilia and Montgomery, JJ.
[ 384 Pa. Super. Page 257]
This is an appeal from an order removing a non-suit and granting appellee a new trial*fn1 in a medical malpractice action.
[ 384 Pa. Super. Page 258]
At the end of May, 1983, appellee Seija K. Gorfti, then 34 years old, visited appellant, her regular gynecologist, complaining of a lump in her left breast. Upon examination, the nodule proved to measure less than one centimeter. Appellant ordered a mammogram which was performed two weeks later, and interpreted by the radiologist as demonstrating normal results, although with the proviso that the patient should be monitored. Appellant cancelled a June appointment with appellee on the basis of these findings. During the parties' telephone conversation of June 17 regarding the test results, appellee informed appellant that the lump had decreased in size, and was in turn instructed that she should plan to be examined again in three months, or sooner should soreness or an increase in the size of the lump occur. In December of 1983, with no intervening contact between the parties, appellee revisited appellant, this time presenting a tumor six centimeters in diameter, with associated enlargement of the lymph nodes. Following an unsuccessful attempt at needle aspiration, appellee was referred to a specialist whose biopsy of the lump proved it to be malignant. Almost immediately, appellee underwent a modified radical mastectomy; however, as the lymphatic swellings indicated, metastasis had already occurred. Despite continuous treatment, appellee died in August 1987, three months after the conclusion of trial.
Suit was instituted in October, 1985, alleging negligence in appellant's examination, diagnosis, and treatment of appellee's condition, and claiming damages for loss of both spousal and filial consortium. Trial commenced on May 11, 1987. As her first witness, appellee called appellant as of cross examination; the second witness was her expert, Dr. Donna Glover, and plaintiff's evidence concluded with the testimony of appellee herself. Appellant then moved successfully for the imposition of compulsory non-suit. The
[ 384 Pa. Super. Page 259]
trial court granted appellee's post trial motions for removal of the non-suit and for a new trial, and this appeal followed.
Appellant has presented us with two issues which mirror the arguments underlying the Motion for Non-Suit.
It is first contended that non-suit is compelled by the rule enunciated in Mudano v. Philadelphia Rapid Transit Co., 289 Pa. 51, 137 A. 104 (1927). There our supreme court held that because the two medical experts produced by the plaintiff attributed his condition to irreconcilable causes, the testimony of both should be stricken. The argument herein is predicated on the assumptions that appellant was called as a witness for appellee, who is therefore bound by his testimony,*fn2 and that the evidence elicited represented ...