Solomon v. Presbyterian University Hospital

530 A.2d 95, 580 A.2d 95, 365 Pa. Super. 447, 1987 Pa. Super. LEXIS 8855
CourtSupreme Court of Pennsylvania
DecidedAugust 7, 1987
Docket251
StatusPublished
Cited by6 cases

This text of 530 A.2d 95 (Solomon v. Presbyterian University Hospital) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Solomon v. Presbyterian University Hospital, 530 A.2d 95, 580 A.2d 95, 365 Pa. Super. 447, 1987 Pa. Super. LEXIS 8855 (Pa. 1987).

Opinions

WIEAND, Judge:

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 [449]*449alleged 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.1

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 [450]*450because Dr. Wilson had been its employee.2 The complaint contained no averment that the hospital had been independently negligent because of a failure to supervise Dr. Wilson;3 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.

[451]*451The 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 1974,4 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.Cmwlth. 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 [452]*452negligence 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.5 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 [453]*453physician 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).

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Solomon v. Presbyterian University Hospital
530 A.2d 95 (Supreme Court of Pennsylvania, 1987)

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Bluebook (online)
530 A.2d 95, 580 A.2d 95, 365 Pa. Super. 447, 1987 Pa. Super. LEXIS 8855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/solomon-v-presbyterian-university-hospital-pa-1987.