Appeal from the Order Entered on August 9, 2011 In the Court of Common Pleas of Lawrence County Civil Division at No(s): 10313 of 2001, C.A.
The opinion of the court was delivered by: Olson, J.:
BEFORE: OLSON, WECHT and PLATT,*fn1 JJ.
Appellant, Natalie Catlin, appeals from the order entered on August 9, 2011, granting a motion for summary judgment filed on behalf of Appellee, Marc Hamburg, M.D. (Dr. Hamburg). After careful consideration, we vacate the order and remand for additional proceedings.
We summarize the facts and procedural history of this case as follows. Appellant gave birth to her second child at Saint Francis Hospital in New Castle, Pennsylvania on March 23, 1999. Dr. Hamburg delivered the child. Following the delivery, Appellant suffered from postpartum hemorrhaging and uterine atony, medically described as the failure of the uterus to contract after delivery. Thereafter, following medical consultation, Appellant decided to undergo postpartum sterilization on March 24, 1999. Dr. Hamburg conducted a surgical procedure wherein he utilized "Filshie" clips to occlude, or close off, Appellant's fallopian tubes. During surgery, Dr. Hamburg noticed that the Filshie clip on Appellant's right fallopian tube slid. Accordingly, he performed another precautionary procedure, called the modified Pomeroy procedure whereby he excised and removed a portion of Appellant's right fallopian tube. He did not perform the modified Pomeroy procedure on the left fallopian tube.
In February 2000, Appellant consulted Dr. Hamburg about abdominal pain and light menstrual periods. After examination, Dr. Hamburg opined that Appellant was not pregnant and referred her to her primary physician. In May 2000, Appellant's primary physician determined Appellant was 19½ weeks pregnant and that the fetus had congenital abnormalities. Appellant opted to terminate the pregnancy in June 2000. Following the termination procedure, Appellant experienced heavy bleeding, anemia, and received several blood transfusions before the hospital discharged her. Appellant continued to have excessive bleeding and, after exhausting other conservative medical treatments, underwent a total hysterectomy in May 2001.
On March 1, 2001, Appellant filed a civil suit against Dr. Hamburg, and the hospital, alleging negligence in performing the sterilization procedure. In support of her claims of medical malpractice, Appellant filed an expert report authored by Bruce L. Halbridge, M.D. (Dr. Halbridge) opining that Dr. Hamburg breached the standard of care. Dr. Halbridge report, 2/14/2009. More specifically, Dr. Halbridge stated:
The standard of care requires that when a surgical technique is seen to fail during a surgery, or when a more secure technique is available to accomplish the same goal, then the surgeon should perform the more secure and safer surgical procedure.
Id. at 5. Because Dr. Hamburg recognized during the sterilization procedure that the Filshie clip on the right fallopian tube had slipped and opted to perform a modified Pomeroy procedure, Dr. Halbridge concluded that Dr. Hamburg should have performed the same precautionary procedure on the left fallopian tube. Id. Failure to do so, according to Dr. Halbridge, was a breach of the standard of care.
On February 24, 2011, Dr. Hamburg filed motions in limine to strike Dr. Halbridge's expert opinion, and to limit Appellant's claim for damages for emotional distress to a discrete postnatal period. With respect to the motion seeking to strike Dr. Halbridge's opinion, Dr. Hamburg argued that Dr. Halbridge had no medical or scientific basis for believing that the Filshie clip on the left tube failed or that the ovum was fertilized from the left tube. Thus, Dr. Hamburg argued that Dr. Halbridge's expert opinion was based on mere supposition, lacked foundation and "can only be considered speculative." Motions in Limine, 2/24/2011, p. 2. As for the motion seeking to limit Appellant's claim for damages, Dr. Hamburg argued inter alia that, pursuant to Pennsylvania law, Appellant was only entitled to recover damages for pain and suffering incurred during the prenatal through postnatal period. Id. at 4. Following argument, the trial court, by an Opinion and Order entered July 21, 2011, denied Dr. Hamburg's motions in limine.
On July 28, 2011, Appellant deposed the doctor who performed
Appellant's hysterectomy, Dr. Halina Zyczynski (Dr. Zyczynski), and specifically questioned her regarding her post-operative report. Dr. Zyczynski testified that in removing Appellant's uterus, she discovered a Filshie clip free floating in the surgical field and she excised the other Filshie clip still attached to a fallopian tube. Moreover, Dr. Zyczynski testified that hospital staff manipulated the uterus after it was removed from Appellant and there was no way of knowing whether the attached clip was on the right or the left fallopian tube. Thus, she could not tell which clip was attached and which clip was free floating.
Following receipt of Dr. Zyczynski's post-operative report, Dr. Halbridge prepared a supplemental expert report. In his supplemental report, Dr. Halbridge noted Dr. Zyczynski's findings that one clip was free floating and the other clip was "easily excised" from the fallopian tube. Dr. Halbridge's report, 7/3/2011, p. 1. Dr. Halbridge stated that "[a] securely fastened Filshie clip that completely occluded the fallopian tube . . . would not be so easily removed" as it would be "deeply embedded in the fallopian tube and covered with fibrotic, scar like tissue" after two years in place. Id. Based on this information, Dr. Halbridge stated that he "continue[s] to recognize that neither fallopian tube was occluded by the Filshie clips utilized by Dr. Hamburg." Id. at 2. His supplemental expert opinion concluded by stating:
Seeing the failure of the Filshie [c]lip on the right fallopian tube, Dr. Hamburg should have also recognized that the clip would very likely fail on the left tube since both tubes were nearly identical. The standard of care is to abandon a surgical procedure when it is seen to fail during a surgery and employ a more secure procedure to accomplish the goal. In this case Dr. Hamburg should have performed a Pomeroy tubal ligation on the left fallopian tube also in order to ensure sterilization.
On the day of trial, counsel for Dr. Hamburg asked the trial court to reconsider its rulings on his motions in limine. The trial court reconsidered Dr. Hamburg's motions in limine and granted relief.
As for Dr. Hamburg's request that Appellant's expert opinion be stricken, the trial court determined upon reconsideration that Dr. Zyczynski's testimony showed that she did not know the position of the Filshie clips (i.e. which clip was attached and which clip was free floating) and, therefore, the facts of the case were speculative. Because Dr. Halbridge's opinion relied upon Dr. Zyczynski's testimony, the trial court struck Dr. Halbridge's report as speculative thereby precluding his testimony at trial. Moreover, the trial court concluded that there was no medical literature to support ...