*2 CAVANAUGH, JOHNSON, and JJ. Before CIRILLO JOHNSON, Judge:
Appellants from the Orders of and appeal February April 19801which Motion for granted Appellee’s Summa and ry Judgment Appellants’ dismissed trespass and affirm. assumpsit. We
The facts of the instant case emerge as follows. Connor, Appellant in-patient E. an at Mary Allegheny General Hospital, submitted to a barium enema procedure on November the barium During procedure, solution extravasated into peritoneal cavity, causing severe pain and requiring emergency surgery. Appellants filed a complaint alia, October alleging, Hospital individually acting through its agent, servant or employee perforating Appellant E. Connor’s colon Mary during performance of the enema procedure. The complaint also breach of alleged implied warranties for failure to exercise the proper degree *3 of care and skill. 22, 1977,
On February filed Appellants state pre-trial ment which included a Wecht, H. reрort by Cyril M.D., that Appellant Mary E. had Connor sustained a of perforation the colon and barium, extravasation of as a result of the barium enema. The case was called to trial on November 28, 1977, but counsel for was Appellants unable to proceed because their expert witness, Wecht, Dr. refused tо testify, citing his lack of expertise this area of medicine.2 The case was struck from the 8, 1979, issue list. On February Appellants filed a Supplemental Pre-Trial Statement to which was attached the of a report different Ber expert, Neff, nard M.D. The stated that report the extravasation was caused of by perforation diverticulum, the although Dr. Prohibition, Appellants’ 1. Pursuant to Writ of the Order of the lower 5, 1980, vacating February court dated March its Order of by 19, 1980, was stricken the Court on June as in violation Therefore, of Pa.R.A.P. of the Order lower court dated April nullity. 1980is a 2. A Society provides resolution of the Pennsylvania Medical Society dismissal from the in of member who for Plaintiffs testifies malpractice expertise. medical cases matters outside their
Neff could not with whether the say certainty perforation occurred to or means of enema prior procedure.3 stated, alia, delay also inter that there was undue report both in diagnоsis and of to correct performance surgery barium extravasation.
A Motion to Amend Complaint include an additional to the allegation negligence pursuant Restatement Torts, 9, 1979, was denied on 323(a), Section November without the same to prejudice Appellants’ right present the trial The case was сalled for trial on November judge. selection, 1979. Prior to an- jury Appellants presented other Motion to Amend different from that Complaint, alia, forth, denied on new setting November different and allegations negligence involving Hospi- extravasation, tal’s failure to and treat the barium recognize based on the stаtement of their new witness. This expert Motion was denied the trial judge.
The trial court with agreed both Appellants’ Appel- amendment, lee’s counsel that without the the new expert witness sustain the testimony could not cause of action under the because of the original complaint, expert’s opinion therе was no evidence that enema tip barium colon, caused as perforation alleged Appellants’ counsel then original complaint. Appellants’ declined with the trial and a discussion with proceed upon Appellee court, and the to submit the case on a case stated agreed basis. Based on counsel’s failure Appellants’ to submit basis, case on this filed a Motion for Appellee Summary which was and the dismissed Judgment granted *4 6, on February it appeal alleges (1) was error to deny Appel-
lants’ Motion to Amend Complaint, (2) court erred Neff, 1979, 2, report February 3. The medical of Dr. dated contаined following pertinent part: “THE DUE EXTRAVASATION WAS A I TO PERFORATION OF DIVERTICULUM BUT CANNOT SAY WITH CERTAINTY WHETHER THE HAD PER- DIVERTICULUM (PERFORATION FORATED PRIOR TO THE BARIUM ENEMA MAY DIVERTICULITIS) A OCCUR AS RESULT THE OF OR DURING [capitals original]. PROCEDURE.”
325 dismissing complaint (3) the court erred in striking its Order of 6, 1980 February and then the Motion placing for Summary Judgment the court en banc argument list.4
It is clear that while amendments to pleadings are
freely allowed under the
Procedure,5
Rules of Civil
are
they
subject
to the qualification thаt an amendment
not
may
introduce a new cause of action after the statute of limita
tions has run. Laursen v. General
of
Hospital
Monroe
494
County,
238,
Pa.
The decision to grant or deny permission amеnd is within the discretion of the trial court and we will reverse that decision only upon a showing a clear abuse of discretion. Geiman v. Board of Assessment and Revision Taxes, Pa. 352, 195 A.2d 355-56 (1963).
A cause of action in negligence has been defined as the negligent act or acts which occasioned the injury which relief is sought. Cox v. Wilkеs-Barre Railway Corporation, 334 568, Pa. 570, 538, 539 (1939); Martin v. Pittsburgh Railways 18, Company, 20, Pa. A. 837 (1910). A new cause of action does not if exist plaintiffs amendment merely adds to or amplifies the original complaint or if the original states a cause of action showing that the plaintiff has a legal right to recover what is claimed in the subsequent сomplaint. Wilson v. Howard Restaurant, Johnson 421 Pa. moot,
4. This per third issue is now as the Order of the Court dated June 1980. See footnote 1. Pa.R.C.P., Rule 1033 states: Rule 1033. Amendment party, A party either filed consent of the adverse or leave court, may action, change at time the form of correct party name pleading. of a or pleading amend his The amended may aver happened transactions or occurrences which have before filing or original after the pleading, though they give even rise to a new may cause of action or defense. An amendment pleading made to conform the to the evidencе offered or admitted. *5 326 587, Sokol, 373 Pa. 676, (1966);
219 678-79 Arner v. A.2d 3 854, (1953); Pennsylvania 96 A.2d 855-56 Standard however, arise, A new cause of action does Practice 682. a different or a differ- theory if the amendment proposes or if than the one raised previously ent kind of negligence 2B the claim are changed. facts operative supporting Practiсe, 1033.28 Anderson Civil Pennsylvania §§ 1033.31. id., 262 at Pa.Super. End Fire Department,
Junk v. East
490-91,
The statute of the instant case were in amendments until February of 1979. It was not submitted in November pre-trial filed their 8,1979, supplemental that the Appellants this new expert’s report. By included their statement which had been time, already of the depositions in point many fоund in allegations on the taken, and a defense prepared the second Although expert’s report the original complaint. in the of advanced negligence did not follow the theory perforating namely negligence original complaint, report, alleging, of the colon, receipt expеrt’s the mere would not have alia, performing surgery, undue delay either a change Appel of Appellee constituted notice intention by Appellants the case or an lants’ of theory nine months later on date their complaint seek to amend if the Motion to clear, therefore, trial. It is being a nеw cause of action Amend amounted Complaint refused the amend correctly then the lower court presented, in its prejudiced would have been ment, because Appellee not allegations negligence against to defend attempt until the date of trial. in the pleadings incorporated “cause of action” has been definition of comprehensive No it has been defined as action but in adopted, the injury.” or acts which occasioned “the act negligent (1965). Pa. Cotoia, Saracina case, the second amendment in the instant Under the facts new allegations to add sought proffered by Appellants theory. a different proceeding acts negligent original alia, complaint alleged, inter negligence Ap- pellee in colon perforating sigmoid during the perform- *6 ance of the enema and the extravasation of the causing barium. second Motion to Appellants’ added, Amend aliа, the acts of (1) alleged improper diagnosis and apprecia- tion of the extent of the extravasation (2) failure to recommend and immediate perform surgery.
These amendments involved new and clearly different acts negligent neither nor contemplated inferable from the original deal with complaint; they acts which occurred after the acts of negligence alleged in the original com- plaint. The alleged negligence perforating the colon and the extravasation of the barium are distinct in from theory to alleged negligence properly remedy extravasation and immediate corrective perform surgery. There is also clear prejudice Appellee to in permitting such an amendment on the date of trial and thereby a requiring different defense to be at trial. presented
Therefore, as no abuse of discretion the trial court has shown, been there was no error the Mоtion refusing Amend.
Appellants’ second of error allegation concerns the lower court’s dismissal of the complaint pursuant Appel lee’s Motion for Judgment. failed Summary Appellants had in their to amend their attempt to conform the allegations to the prospective proof as discussed supra. Their original Wecht, refused to expert, Dr. testify. Appel lants’ new expert was to conclude that the perfora unable tion and extravasation of barium amounted to negli measures, but gence, that the remedial taken after the only extravasation, negligent Therefore, were done in a manner. Apрellants had no expert testimony prove asserted in their original complaint.
Counsel for therefore discussed the Appellants submission of the case on a case stated basis after advising the court that he did not wish to with selection. In proceed jury effect, counsel non-suit was the feasible agreed only failed to for Appellants
result at that in time. Counsel point of the case materials for submission prepare necessary to file a on a case stated basis and Appellee proceeded Motion for Summary Judgment. as error, judgment no as was entitled to Appellee
We find former expert, thаt their argue a matter of law. Appellants if How- Wecht, necessary. required testify, Dr. should he was not a ever, Dr. refused to because testify as Wecht colon perforation the area qualified expert not be compe- the barium enema he would during procedure, Erschen v. Pennsylvania tent to as an testify expert. See Co., Pa.Super.Ct. Oil Independent failed to submit Therefore, as counsel for (1978). Appellants remained basis, and because there the case on a case stated *7 proved that could have been no issue as to material fact their after original complaint to by Appellants рursuant grant Motion to Amend the Complaint, denial of their was Summary Judgment proper. 6, 1980 is affirmed.
The order dated February CIRILLO, J., files dissenting opinion: CIRILLO, Judge, dissenting.
I dissent. respectfully that the court appeal contend
Initially,
appellants
file an amended
below erred in
to allow them to
Hospital
In the case of Laursen General
complaint.
(1981),
494 Pa.
In to are pleadings liberally amеndments general, But, owed.1 action will a new cause of introducing amendment
[a]n has run after the of Limitations not be Statute permitted However, if the proposed in favor of a defendant... mere- does not the cause of action but change amendment averred, been it should already that which has ly amplifiеs 1. See Pa.R.C.P. No. 1033. Limitations has
be allowed even
the Statute of
though
(citations omitted).
run.
already
also:
v. Baldwin-
241, 431
494 Pa. at
A.2d at 239.
Kuisis
See
(1974).
Lima
457 Pa.
In the original complaint, appellants alleged the colon and in not due care gence perforating using under the circumstances. In the amended complaint, undertaking in the appellants sought allege negligence stаtute of limitations had expired by render services. The time the amendments to the were submitted.3 complaint However, the amended submitted to Judge Silves tri did not set forth a new cause of action. fact that the information available to the
Despite the limited, still at the outset of this suit was appellants they action in nеgligence against were able to frame a cause of due to Dr. Wecht was not able to hospital. testify there- circumstances the control of the appellants, beyond fore, had to Dr. Neff to as an they testify expert. secure did Dr. Dr. Neff had the benefit of more information than Wecht, conclude, аnd was thus able to more definitely, in their care and the were physicians hospital negligent *8 of Mrs. Connor. This is an allegation merely amplification of the which in original complaint alleged negligence contents, general specific averments of 2. For the as well as the and Pleadings, the see No. 1019. Pa.R.C.P. following proceedings 3. The must be commenced within actions and years: two (2) damages injuries person An action to recover to the or for by wrongful neglect or the death of an individual caused the act or unlawful violence or another. 2; July Act of No. 42 P.L. Pa.C.S.A. § § 330 circumstances,
to use due care under the and is not thе of a new cause of action.4 allegation the in alleged the matters Additionally, appellants their amended were related complaint part causally chain of which occurred on the same November day, events 26,1973, and at the same General place, Allegheny Hospital. The had notiсe of these events from the hospital very day and, therefore, this incident was not in its de- prejudiced fense the amended In the complaint. judgment, my lower court erred in Motion to refusing appellants’ Amend. next contend that the court below appellants erred their
dismissing complaint. dismissed the Judge complaint, рresumably Silvestri the basis of the Motion for hospital’s Summary Judgment. Zemel, 1181 Keating Pa.Super. See A.2d Rules (1980). Under the of Civil Procedure: Pennsylvania shall if the be rendered [Summary Judgment] pleadings, answers to and admissions on depositions, interrogatories, file, affidavits, with the if that there together any, show is no material fact genuine issue as and that is entitled to a as a matter of law. moving party judgment A character, summary judgment, interlocutory may rendered on the issues of alone there is a liability although genuine issue as to the amount of damages. 1035(b); Pa.R.C.P. No. 42 Pa.C.S.A.
In taken at the reviewing testimony depositions, as well as the amended which I feel the lower court allowed, should have I am to view the facts as compelled Therefore, disputed and issue. was summary judgment not in this case and the lower court erred in dismiss- proper I would reverse the ing complaint. Accordingly, Orders court below and direct that amendment to the Parking Garage, City In the case of William Penn Inc. v. of Pitts- 168, 169, 187, burgh, (1975), Suрreme 464 Pa. (per Roberts) “hypertechnicality Court Mr. Justice stated that pleading contrary practice formalism in are to the modern of allow- ing promote free amendment in order to the resolution of cases on their merit.” *9 Thereafter, proceed the case should granted. to trial. A.2d
Betty Louise BUTTERBAUGH
v. CITY, INC., Appellant. WESTONS SHOPPER Nicholas TALERICO CITY, INC., Appellant. WESTONS SHOPPER Pennsylvania. Court of Argued Oct. Filed June