Solomon v. Presbyterian University Hospital

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 *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 *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.

*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 *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 *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). 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(Z) 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(Z). See also: Id. §§ 421.-2(13), 421.3. This provision went on to state, however, that “such supervision and direction [should] not be construed to *454necessarily require the personal presence of the supervising physician at the place where the services [were] rendered.” Id. § 421.10(7). Moreover, Section 421.10(m) provided: “This act shall not be construed to prohibit the performance by the physician assistant of any service within his skills, which is delegated by the supervising physician, and which forms a usual component of that physician’s scope of practice.” Id. § 421.10(m). If the legislature had recognized a need to provide for personal supervision of interns, it could easily have satisfied such a need by providing in the Act for restrictions similar to those imposed upon physicians’ assistants. In the absence of language restricting the practice of interns, we are constrained to conclude that the legislature deemed intern-physicians fully capable of practicing medicine without direct and immediate supervision by other physicians. It would be truly anomolous to infer, in the absence of language expressly so providing, that the legislature intended licensed intern-physicians, with extensive and sophisticated medical training, to act only under the direct scrutiny of other licensed physicians when physicians’ assistants, with less education and training, were permitted by the Act to perform their duties without “the personal presence of the supervising physician.” Id. § 421.10(l). The legislature should not be deemed to intend a result which is absurd or unreasonable. 1 Pa.C.S.A. § 1922(1). See: Fireman’s Fund Insurance Co. v. Nationwide Mutual Insurance Co., 317 Pa.Super. 497, 502, 464 A.2d 431, 434 (1983); Valley Forge Industries, Inc. v. Armand Construction, Inc., 38 Pa.Cmwlth. 603, 606, 394 A.2d 677, 678 (1978).

The only reference in the 1974 Act to the supervision of interns appeared in the section which defined an intern or resident as “[a] physician who is receiving supervised medical training____” 63 P.S. § 421.2(6). Solomon argues that we should interpret this definitional section to require that interns be under the “direct supervision, direction or control of a licensed physician.” Such a requirement did not appear in the language of the statute, however, and we will not rewrite the statute by inserting words which the legisla*455ture itself declined to include. See: Worley v. Augustine, 310 Pa.Super. 178, 183, 456 A.2d 558, 561 (1983); In re Township of Upper Chichester, 52 Pa.Cmwlth. 121, 125, 415 A.2d 1250, 1252 (1980).

The Medical Practice Act of 1974, supra, has been repealed and replaced by the Medical Practice Act of 1985.6 Although the present action is controlled by the Act of 1974, the interpretation which we, as a court, have placed thereon is consistent with the intent of the legislature which has been expressed specifically in the Act of 1985. Although the new Act eliminated a separate definition of “intern,” the definition contained in the earlier statute has been subsumed in other definitional sections of the new Act. Thus, the term “medical doctor,” as defined in section 422.2 of the 1985 statute, includes a person who has acquired a graduate license. See: 63 P.S. § 422.2. Moreover, the term “resident,” which had been defined coextensively with “intern,” is now defined in the new statute as a “medical doctor who is participating in graduate training.” Id. Although both definitions in the Act of 1985 describe practitioners who hold less than full licenses to practice medicine, the language of the statute conspicuously refrains from imposing any requirement that those with graduate licenses or those receiving graduate training be “supervised.” Nowhere in the 1985 Act is there any suggestion that physicians who possess a graduate license, as did Dr. Wilson, are subject to immediate and direct supervision. This is significant because the new Act continues to provide for direct and immediate supervision of other practitioners within the health care field. See: 63 P.S. §§ 422.11 (clinical clerks), 422.13 (physician assistants). The legislature has made clear its intent by defining specifically the holder of a graduate license as a medical doctor entitled to practice medicine.

We interpret the Medical Practice Act of 1974 in a similar manner. An intern who possessed a temporary license to *456practice medicine was not required by the Act of 1974 to be under the direct and immediate supervision of a licensed physician while performing health care services within a hospital where he or she was receiving graduate medical training. Much of the direct patient care provided by hospitals has been rendered by interns and residents involved in post-graduate training programs. Many of the advances in medicine have been spawned by examinations conducted and observations made by interns and residents. Were we to adopt an interpretation of the Act requiring hospitals to provide personal and direct supervision over each intern or resident practicing in a particular hospital, a result which is not compelled by any specific provision of the Act, we would not only impair the effectiveness of the present system of delivering hospital services, but we would also interfere with the education and training of tomorrow’s medical specialists.

In the instant case, Dr. Wilson was not in violation of the Act merely because he diagnosed Solomon’s complaint without the presence of a supervising physician. The trial court correctly refused a contrary point for charge submitted by the plaintiffs. Therefore, it was error to grant a new trial to enable another jury to determine whether Dr. Wilson had been negligent per se for diagnosing plaintiff’s symptoms without supervision.7

The order awarding a new trial is reversed; the verdict of the jury is reinstated; and judgment is entered on the verdict.

JOHNSON, J., files a dissenting opinion.

. Also named as defendants in the complaint were Dr. David Sumney and Dr. James Danner. Dr. Sumney was dismissed from the case by stipulation of counsel dated April 10, 1985. A verdict was returned for Dr. Danner against Solomon, and Solomon’s subsequent motion for a new trial with respect to Dr. Danner was denied by the trial court. Solomon has not appealed from this determination.

. LaRue Solomon, the wife of Gilbert Solomon, alleged a derivative claim for loss of consortium.

. It is suggested by the dissent that the issue of the hospital's independent negligence was raised in paragraph nineteen of the plaintiff's complaint. Nowhere in that paragraph, however, is it alleged that the hospital was independently negligent for failing to provide proper supervision of Dr. Wilson. In fact, the only allegations of negligence which are enumerated in that paragraph refer to omissions by Dr. Wilson during his examination and treatment of Mr. Solomon. Reading the inartfully drafted paragraph in its entirety, it is apparent that plaintiffs did not intend to assert the independent negligence of the hospital for failing to supervise Dr. Wilson; rather, they attempted to allege vicarious liability on the part of the hospital arising out of Dr. Wilson’s specific acts of negligence. This construction of paragraph nineteen of the complaint finds support in the next succeeding paragraph which alleged:

20. The Defendant Presbyterian University Hospital in addition to being liable as the master of either David Wilson, M.D. or Stephen Wilson, M.D. is liable on a theory of ostensible agency.

(emphasis added). When considered in context, the allegations of the complaint do not raise the issue of the hospital's independent negligence for failing properly to supervise its intern, Dr. Wilson. Moreover and in any event, as the author of the dissent appears to concede, the issue of the hospital’s independent negligence for failing to provide direct supervision of Dr. Wilson was not raised at trial, and no jury instruction pertaining thereto was requested.

. Act of July 20, 1974, P.L. 551, No. 190, § 1, 63 P.S. § 421.1 et seq.

. Like the issue of the hospital’s independent liability, the issue of whether there had been a violation of the Medical Practice Act of 1974 was not raised by the Solomons in their complaint. It was presented to the trial court for the first time as a requested point for charge. Ordinarily, jury instructions will be confined to the issues raised in the pleadings and the facts developed by the evidence in support of such issues. See: Heyman v. Electric Service Manufacturing Co., 412 Pa. 338, 345, 194 A.2d 429, 432 (1963); Hrivnak v. Perrone, 231 Pa.Super. 151, 154, 331 A.2d 507, 508 (1974), aff'd, 472 Pa. 348, 372 A.2d 730 (1977). Where a claim of negligence is predicated upon an alleged violation of statute, the complaint must allege facts which show that the case is within the statute and must disclose the duty of care created thereby. See: Goldberg v. Friedrich, 279 Pa. 572, 574, 124 A. 186, 186 (1924); Godina v. Oswald, 206 Pa.Super. 51, 55, 211 A.2d 91, 93 (1965); Sheffit v. Koff, 175 Pa.Super. 37, 39, 100 A.2d 393, 395 (1953); Commonwealth, Department of Transportation v. Shipley, 29 Pa.Cmwlth. 171, 174, 370 A.2d 438, 440 (1977). See also: 65A C.J.S. Negligence § 186(8). Appellants have not questioned whether Solomon properly raised the possible application of the Medical Practice Act; and, therefore, we do not address this issue.

. Act of December 20, 1985, P.L. 457, No. 112, § 1, 63 P.S. § 422.1 et seq., effective January 1, 1986.

. In light of our holding, it is unnecessary to consider appellants’ remaining argument that Dr. Wilson’s alleged violation of the Act was not the "efficient cause” of the injury sustained by Solomon.