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November 24, 1997


Appeal from the Order entered September 9, 1996, docketed September 10, 1996 in the Court of Common Pleas of Blair County, Civil No. 94 CP 1164. Before CALLAN, J.

Before: Cirillo, P.j.e., and Johnson and Ford Elliott, JJ.

The opinion of the court was delivered by: Cirillo


FILED November 24, 1997

Randall Smith, in his own right and as Executor of the Estate of Flora Smith, appeals from an order entered in the Court of Common Pleas of Blair County denying a motion to remove a compulsory nonsuit and a motion for new trial. *fn1 Julia Burke, a physician's assistant, has taken a cross-appeal from an order denying her cross-motion for post-trial relief. *fn2 We reverse the order refusing to remove the compulsory nonsuit and remand for trial. Additionally, we quash the cross-appeal.

Randall Smith and Flora Smith, husband and wife, commenced this action for medical negligence, misrepresentation, and punitive damages against Edmundo Grab, M.D., and his physician's assistant, Julia Burke. The pertinent facts are as follows. Mrs. Smith testified (via videotaped deposition) that on January 23, 1994 she suffered severe pain when her left breast became very enlarged, acquired the texture of an orange peel, and became hard, red and inflamed. *fn3 Mrs. Smith called Dr. Grab's office and scheduled an appointment. Mrs. Smith had been a patient of Dr. Grab's since 1977. On January 26, 1994, Mrs. Smith went to her scheduled appointment; she was seen first by a nurse and then by Ms. Burke, whom Mrs. Smith assumed was a doctor. *fn4 Ms. Burke did not introduce herself as a physician's assistant. Ms. Burke determined that Mrs. Smith's symptoms were caused by mastitis, an inflammation of the breast. The antibiotic Ampicillin was prescribed, along with hot compresses three times a day. Mrs. Smith's condition, however, did not improve. Her pain increased. Mrs. Smith scheduled another appointment for February 3, 1994. This time she was seen only by Ms. Burke. Mrs. Smith was prescribed Keflex, a stronger antibiotic. John T. Weibel, M.D., Dr. Grab's partner, signed both of Mrs. Smith's prescriptions for the antibiotics.

After taking the Keflex, Mrs. Smith's pain continued. Additionally, a brown liquid had begun to leak from her breast. She was told to return to the doctor's office. After missing an appointment on February 9th due to inclement weather, Mrs. Smith returned to the office on February 16, 1994. During that visit, Mrs. Smith was again seen by Ms. Burke, who scheduled a mammography for the same day and referred Mrs. Smith to a surgeon. A biopsy was performed, which revealed cancer, specifically, inflammatory carcinoma of the left breast. Mrs. Smith sought a second opinion at Roswell Park Cancer Institute on February 24, 1994, and began receiving chemotherapy on March 7, 1994. Mrs. Smith did not respond to the treatment, and she died on September 24, 1995.

The Smiths' complaint alleged that Ms. Burke was negligent in her failure to diagnose inflammatory breast carcinoma and in her failure to refer Mrs. Smith to a physician. It was alleged that Dr. Grab acted with reckless disregard when he entrusted Mrs. Smith to a physician's assistant on three occasions which resulted in the three-week delay in the diagnosis and, consequently, increased her risk of death.

At the pre-trial conference, Mr. Smith identified his expert as Dr. Barry Singer and submitted a report containing Dr. Singer's medical opinions and Conclusions. Dr. Singer concluded that there was a significant delay in the diagnosis of Mrs. Smith's condition and that this three-week delay decreased the patient's prognosis for survival. Dr. Grab and Ms. Burke filed a motion to compel, seeking authority upon which Dr. Singer based his opinions. This led to an exchange of interrogatories wherein Dr. Singer identified sources for his opinions. *fn5 Dr. Grab and Ms. Burke then filed a motion in limine, a motion for summary judgment, and a motion to strike Dr. Singer's testimony. The defendants asserted that Dr. Singer had no basis for his opinion and that his Conclusions were not generally accepted in the medical community. The trial Judge denied all motions.

Trial commenced and Dr. Singer took the stand. After direct examination on his qualifications, defense counsel proceeded to cross-examine Dr. Singer. Responding to counsel's questions, Dr. Singer testified that he had done no research on delay in treatment. He also stated that there are existing texts which state that a delay in the diagnosis of any cancer can have a material effect on the patient. During this questioning, the court excused the jury and held an in camera hearing to explore the foundation for Dr. Singer's opinions. Upon inquiry, Dr. Singer admitted that none of the texts he cited as supportive in previous answers to interrogatories contained the specific opinion that a three-week delay in the diagnosis of a patient with inflammatory carcinoma has any effect on a patient's prognosis. Dr. Singer proceeded to testify that the basis of his opinion was his general knowledge, education, reading, and experience during twenty-five years as a practicing oncologist. On this basis, he opined that inflammatory breast cancer is a rapidly growing cancer, and the cancer could progress from one stage to another within weeks or months if not treated. Thus, Dr. Singer claimed, delay in Mrs. Smith's diagnosis was significant.

Following a brief recess, the trial court granted the defendants' motion to strike off the proffered testimony of Dr. Singer. The court stated that it "has no problem with the qualifications of the witness," rather, "the ruling goes to the articles that he cited and the basis for the opinion. Just being an expert does not grant him the status to have an opinion out of thin air or based on other matters that were not the subject matter of his responses to written interrogatories." The court then granted a compulsory nonsuit, "there being a requirement of expert testimony that is necessary for such causation, and this Court's prior ruling as to the lack of authoritative basis precludes the plaintiff from going forward on that basis."

Mr. Smith filed a motion for post-trial relief in the nature of a motion for removal of nonsuit and motion for new trial. Post-trial relief was denied, and this appeal followed. Mr. Smith raises the following issues for our consideration:

(1) Whether the trial court applied the wrong legal standard in striking off the proffered testimony of plaintiff's medical expert and entering a compulsory nonsuit, where the expert's opinion that delay caused by defendant's misdiagnosis increased the risk of decedent's premature death, was based upon his education, training, experience and treatment of patients with conditions similar to those of decedent?

(2) Whether the trial court's "finding of fact that as a matter of law Defendants' conduct does not rise to the level of outrageousness which would support a punitive damage award," a Disposition on the merits, was error?

(3) Whether the trial court abused its discretion in a series of evidentiary rulings in:

(a) precluding the testimony of two lay witnesses who were listed as witnesses in response to interrogatories and as damage witnesses in plaintiff's supplemental pre-trial statement, on the ground that they were not specifically listed in response to two interrogatories seeking identity of witnesses with knowledge of decedent's treatment?

(b) striking plaintiff's supplemental affidavit/report as untimely when it was timely filed in opposition to issues raised in defendants' motions in ...

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