TIMOTHY R. RICE, Magistrate Judge.
Defendant Rajanjum Patel, M.D. seeks to preclude Plaintiff Roselle Sucharski's expert witness, Mark Graham, M.D., from testifying that Dr. Patel's actions or omissions "increased the risk of harm" to decedent Zeney Sucharski. See Dr. Patel's Mot. (doc. 92). The issue in this case is whether Dr. Patel's withholding of Coumadin, a prescription decedent was receiving prior to Dr. Patel's care, directly caused or increased the risk of decedent having a stroke. Sucharski argues that she should be allowed to proceed on both direct causation and increased risk of harm theories. Sucharki's Ans., Memo (doc. 96). Alternatively, she argues that she should be allowed to proceed only on an increased risk causation theory. Sucharski Ans. at 3.
I deny Dr. Patel's motion. Under Pennsylvania law, Sucharski cannot proceed on both direct causation and an increased risk of harm theories because they are mutually exclusive. An action that allegedly increased the risk of harm cannot have directly caused the harm. Further, based on the alleged facts and experts' reports, only an increased risk of harm theory applies here, thereby precluding Sucharski from alleging direct causation. Sucharski may proceed, as she has requested, solely on the increased risk of harm theory.
A plaintiff asserting a medical malpractice claim must establish: (1) a duty owed by the physician to the patient; (2) a breach of that duty; (3) that the breach was the proximate cause of, or a substantial factor in, bringing about the patient's harm; and (4) that the patient suffered damages as a direct result of the harm. Mitzelfelt v. Kamrin , 584 A.2d 888, 891 (Pa. 1990). A plaintiff also must present an expert to testify to a reasonable degree of medical certainty that the physician deviated from the standard of medical care and that the deviation was the proximate cause of the harm suffered. Id. at 892. In some cases, however, direct causation cannot be established because "irrespective of the quality of the medical treatment, a certain percentage of patients will suffer harm." Id . In those cases, a plaintiff may introduce evidence that defendant's negligence "increased the risk of harm." Hamil v. Bashline , 392 A.2d 1280, 1286 (Pa. 1978); see id. (interpreting Restatement (Second) of Torts Section 323, Negligent Performance of Undertaking to Render Services, as a relaxed standard in cases where defendant increased the risk of harm). To find a defendant's negligence increased the risk of harm, the jury must determine "whether the harm would have resulted from the independent source even if defendant had performed his service in a non-negligent manner." Id. at 1287; see Vogelsberger v. Magee-Womens Hosp. of UPMC Health Sys. , 903 A.2d 540, 563 (Pa.Super. Ct. 2006) ("if the expert can opine to a reasonable degree of certainty that the acts or omissions could have caused the harm, then it becomes a question for the jury with regard to whether they believe it caused the harm") (emphasis in original) (citation omitted).
In Mitzelfelt, the Court explained that an increased risk of harm theory would be appropriate in a case where a doctor failed to timely diagnose breast cancer. 584 A.2d at 892. "Although timely detection of breast cancer may... have reduce[d] the likelihood that the patient" would have died, "even with timely detection and optimal treatment, a certain percentage of patients unfortunately will succumb to the disease." Id . Thus, the Court concluded that if "there is testimony that there was a failure to detect the cancer in a timely fashion, and such failure increased the risk" of an early death or harm to the patient, the jury must consider whether the physician's acts or omissions "were a substantial factor in bringing about the harm." Id .; see also Billman v. Saylor , 761 A.2d 1208, 1212 (Pa.Super. Ct. 2000) (increased risk of harm theory applies "where a patient's blood pressure was permitted to drop to a low level during surgery... and cases where a patient's preoperative fall increased the risk of surgery") (citations omitted).
The Pennsylvania Supreme Court has not addressed whether a plaintiff may proceed simultaneously under both a direct causation theory and an increased risk of harm theory. The Supreme and Superior Courts, however, have explained that increased risk of harm applies when it would be impossible for any physician to opine that defendant's negligence was the direct cause of an injury. See Mitzelfelt , 584 A.2d at 894; see also Billman , 761 A.2d at 1212-13 (noting cases where plaintiff is unable to show that defendant caused the harm, but that defendant increased the risk of harm); Vogelsberger , 903 A.2d at 563 ("where it is impossible to state with a reasonable degree of medical certainty that the negligence actually caused the injury, " the increased risk of harm standard applies).
I must predict whether the Pennsylvania Supreme Court would find that a plaintiff may assert both causation theories by looking at Pennsylvania court decisions and federal courts interpreting Pennsylvania law, other state court decisions, and any other reliable information and data tending to show how the Pennsylvania Supreme Court would decide the issue. See Pac. Employers Ins. Co. v. Global Reinsurance Corp. of Amer. , 693 F.3d 417, 433 (3d Cir. 2012); Norfolk S. Ry. Co. v. Basell USA, Inc. , 512 F.3d 86, 91-92 (3d Cir. 2008).
The Superior Court, in an unpublished, non-precedential, opinion,  interpreted a Pennsylvania Supreme Court case as allowing a plaintiff to present evidence of direct causation, without being precluded from also receiving an increased risk of harm jury instruction. See Weaver v. St. Christopher's Hosp., No. 1759 EDA 1999, at 5-6 (Pa.Super. Ct. Dec. 29, 2000) (attached as Ex. A) (citing Jones v. Montefiore Hosp. , 431 A.2d 920, 924 (1981) (jury should have been instructed on increased risk of harm "whether or not the medical testimony as to causation was expressed in terms of certainty or probability.")). The Superior Court explained in Jones, and the case before it, there was "sufficient evidence... presented by both parties to raise the issue of increased risk, " to warrant a jury instruction. Id. at 6. It reasoned that because both parties' experts conceded that it was uncertain when the injury occurred, the "case presented a situation where it was difficult for the physicians to testify to a reasonable degree of certainty that" defendant's actions caused the injury. Weaver, No. 1759 EDA 1999, at 8. Thus, Weaver is limited to situations where neither expert can testify with certainty as to direct causation. Weaver, No. 1759 EDA 1999, at 6.
This is consistent with the view of Pennsylvania trial courts, which have held that the "increased risk of harm" theory is not applicable when a plaintiffs expert testified that the defendant's negligence was the direct cause of the alleged harm. See Snyder v. Hawn, No. 2004 CV 635, 2006 Pa. Dist. & Cnty. Dec. LEXIS 256, at *15, 20 (C.C.P. Dauphin Cnty. Sept. 28, 2006) (increased risk of harm inapplicable when "Plaintiffs expert opined unequivocally that the Defendants' alleged negligence caused the harm" and the expert's "testimony dispel[ed] the argument that the evidence warranted the increased risk of harm standard") aff'd 935 A.2d 34 (Pa.Super. Ct. 2007); Brown, 2011 WL 6296640 (increased risk of harm "applies only in cases where it is impossible to state with a reasonable degree of medical certainty that the negligence actually caused the injury, '" (quoting Vogelsberger , 903 A.2d at 563), and increased risk of harm instruction "cannot be given where the plaintiff introduces evidence of a direct cause of the plaintiffs injury"); Pentz v. Garvin, No. CI-07-08727, at 19 (C.C.P. Lancaster Cnty., Dec. 22, 2010) (because plaintiffs' causation expert opined that defendant's conduct was the direct cause of the injuries, increased risk jury instruction not warranted) (attached as Ex. B) aff'd 47 A.3d 1232 (Pa.Super. Ct. 2012); Wright v. Conte, No. 2003-0578, at 4-5 (C.C.P. Armstrong Cnty., Dec. 6, 2007) (increased risk of harm instruction not warranted when plaintiffs expert testified that defendant was negligent, and defendant's negligence was the cause of plaintiffs injuries, making the "requisite link" between defendant's negligence and plaintiffs harm) (attached as Ex. C) aff'd 968 A.2d 805 (Pa.Super. Ct. 2009).
The Subcommittee Note in the Pennsylvania Suggested Standard Jury Instructions for Medical Practice further supports the proposition that a plaintiff cannot proceed under both direct and increased risk of harm. It states: "[t]he principle of increased risk of harm is applicable where direct evidence of causation is an impossibility." Subcomm. Note § 14.20 (Civ.), Medical Malpractice-Factual Cause. It also states that the increased risk of harm instruction is appropriate when no expert can testify that an act or omission directly caused the result, but can testify that such conduct increased the risk of injury. Id.
Similarly, courts in other jurisdictions have found that the increased risk of harm theory, sometimes referred to as "loss of chance" doctrine, applies only when a plaintiff cannot satisfy the traditional causation standard. See McMullen v. Ohio State Univ. Hosp. , 725 N.E.2d 1117, 1122, 1124 (Ohio 2000) ("loss of chance" doctrine does not apply where the plaintiff proved a direct causal relationship to the decedent's death because the doctrine must be conditioned upon a negative finding of proximate cause) (citation omitted); Dughaish v. Cobb , 729 N.E.2d 159, 166 (Ind.Ct.App. 2000) (plaintiffs not entitled to lessened causation standard because they argued that the defendant's failure set in motion chain of events that caused an injury).
Although some state courts have recognized the possibility that a plaintiff may assert direct and increased risk, those courts made such findings only in dicta or in discussing damages. See e.g. Geesaman v. St. Rita's Med. Ctr., 917 N.E.2d 867, 877 (Ohio Ct. App. 2009) ("we fail to find any legal obstacle in Ohio law for the Geesamans to have pursued both the traditional notion of proximate causation and the relaxed causation standard of loss of less-than-even chance"); Renzi v. Paredes , 890 N.E.2d 806, 809, 813 (Mass. 2008) ("A jury may find the defendant liable either for causing the patient's wrongful death or for causing the patient's loss of a chance to survive, but not for both, " and "the judge should make it clear to the jury that only one kind of damages or the other may be awarded.") (emphasis in original).
Based on the foregoing, I predict that the Pennsylvania Supreme Court would not allow a plaintiff to proceed on both a direct and an increased risk of harm theory here. The non-precedential Weaver opinion applies to the limited situation where the timing of the injury is disputed and both parties' experts concede either a direct causation or an increased risk of harm theory could apply. Thus, it would be "difficult for the physicians to testify to a reasonable degree of certainty that" defendants caused the harm. See Weaver, No. 1759 EDA 1999, at 8.
Sucharski's case does not feature such facts. Here, Dr. Graham appears to have carelessly written his report by referencing both proximate cause and an increased risk of harm. See Dr. Graham's Rep. (Dr. Patel's Ex. A) at 1-2; Dr. Graham's 5/2/13 Rep. (Dr. Patel's Ex. B) at 3. I construe his report in the only way that comports with logic, that is, as asserting that Dr. Patel's alleged actions increased decedent's risk of having a stroke by causing him to be insufficiently anticoagulated. See Dr. Graham's Rep. (Dr. Patel's Ex. A) at 1; Mitzelfelt , 584 A.2d at 894 (court looked to the substance of expert's testimony to determine whether it met the required causation standard); Billman , 761 A.2d at 1214 (court read expert's report in its entirety and in conjunction with expert's previous letter).
Dr. Patel, meanwhile, will offer two experts, Dr. Bruce G. Silver and Dr. Garry D. Ruben. See Dr. Bruce G. Silver's Rep. (doc. 98); Dr. Garry D. Ruben's Rep. (doc. 99). Dr. Silver states that decedent "had atrial fibrillation which predisposed him to having strokes, " decedent was "susceptible to having strokes whether on Coumadin or not, " and "[n]othing that Dr. Patel did or did not do caused Mr. Sucharski to have a stroke." Dr. Silver's Rep. at 3. Dr. Ruben found that decedent's stroke, while in Dr. Patel's care, would not have been prevented by Coumadin because his stroke was not caused by clots associated with atrial fibrillation. Dr. Ruben's Rep. at 3. He also found that decedent previously had a stroke while he was on Coumadin and concluded that even if decedent had been therapeutic on Coumadin, the stroke still would have occurred. Id. at 3-4.
Neither defense expert states that Dr. Patel's actions or omissions increased decedent's risk of a stroke. Thus, the reasoning of Weaver, which would allow Sucharski to proceed on both causation theories, is not applicable. Because Sucharski is going to proceed on the increased risk of harm theory, Sucharski is precluded under Pennsylvania law from asserting a direct causation theory. By definition, increasing a person's risk of harm necessarily means that the conduct did not directly cause the harm. Rather, it simply increased the chances that that result would have occurred.
An increased risk theory also is consistent with Sucharski's alleged facts. She claims decedent had a history of minor strokes, caused by atrial fibrillation, that were treated by Coumadin. Sucharski's Memo. at 7. Thus, he was predisposed to strokes. Decedent was in Dr. Patel's care for a hip fracture and Dr. Patel withheld decedent's Coumadin. Id . By doing so, she alleges Dr. Patel was increasing decedent's risk of having a stroke, to which he was already susceptible. Id . Dr. Graham may testify at trial only to increased risk of harm posed under those facts.
An appropriate Order follows.
Appellant, Luther E. Weaver, Esquire, as guardian ad litem of Darryl Bosket, a minor, appeals from the June 2, 1999 Order which denied his motion for post-trial relief and entered judgment in favor of appellees, St. Christopher's Hospital for Children and Stephen P. Dunn, M.D. Weaver asserts he is entitled to a new trial because the trial court erred in refusing to instruct the jury on the doctrine of increased risk of harm. For the reasons that follow, we reverse and remand for a new trial.
The record in this medical malpractice action reveals that on July 2, 1989, Darryl Bosket appeared at St. Christopher's Hospital with an incarcerated hernia. Dr. Louts Marmon, a pediatric surgical resident, treated Darryl in the early morning hours of July 3, 1989. Darryl remained at the hospital. It was not until July 5, 1989, that Dr. Marmon and Dr. Dunn, who was an attending pediatric surgeon at St. Christopher's Hospital, performed surgery, which revealed a perforated bowel. Darryl underwent several bowel resection procedures. As a result of the loss of a portion of his bowel Darryl developed short bowel syndrome.
A complaint was filed on September 29, 1993. The complaint alleged that the appellees failed to treat Darryl in timely manner, which resulted in the death of a majority of the bowel tissue in the child's body and short bowel syndrome. Trial commenced on May 18, 1998. On May 25, 1998, the jury returned a verdict in favor of the appellees, The jury found that Dr. Marmon was not negligent. With regard to Dr. Dunn, the jury found that he was negligent but that his negligence was not a substantial factor in causing harm to Darryl. St. Christopher's Hospital was not on the verdict sheet because the sole claims against it were derivative in nature, as the trial court found both Dr. Dunn and Dr. Marmon were ostensible agents of the hospital. Weaver filed a motion for post-trial relief on June 4, 1998, which was denied on June 2, 1999. This appeal followed. Weaver appeals only the entry of judgment as to Dr. Dunn and St. Christopher's Hospital based on respondeat superior.
On appeal. Weaver asserts the trial court erred in refusing to instruct the jury on the doctrine of increased risk, of harm. Based on the trial court's alleged error. Weaver maintains a new trial is warranted, initially, we note our standard of review:
Where the motion for a new trial is based upon the sufficiency of the jury charge, we must examine the charge in its entirety against the background of the evidence to determine whether error was committed. If an appellate court concludes that the charge was erroneous, a new trial will be granted only if the jury charge might have prejudiced the appellant. A new trial will be granted even though the extent to which the appellant had been prejudiced is unascertalnable. An alleged inadequacy in jury instructions constitutes trial error if the jury was probably misled by what the trial judge said or there is an omission in the charge which amounts to fundamental error. As a general rule, refusal to give a requested instruction containing a correct statement of law is ground for a new trial unless the substance thereof has otherwise been covered in the court's general charge.
Ottavio v. Fibreboard Corp., 617 A.2d 1296, 1301-1302 (Pa.Super. 1992)(citations omitted).
Weaver argues the trial court erred in denying his request that the jury be instructed on increased risk of harm as provided in the Pennsylvania Standard Jury Instructions, which states, in part, that "[a] causal connection between the injuries suffered and the defendant's failure to exercise reasonable care may be proved by evidence that the risk of incurring those injuries was increased by the defendant's negligent conduct." Pa.S.S.J.I. (Civil) 10.03B(b)(1991).
In the context of actions for medical malpractice, the plaintiff's evidence must establish that: (1) the physician owed a duty to the patient; (2) the physician breached that duty; (3) the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient; and (4) the damages suffered by the patient were a direct result of that harm. Eaddy v. Hamaty, 694 A.2d 639, 642 (Pa.Super. 1997). A plaintiff is required to present an expert witness who will testify, to a reasonable degree of medical certainty, that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause, of the harm suffered. Brannan v. Lankenau Hospital, 490 Pa. 588, 417 A.2d 196 (1980).
In certain cases, however, the standard of proof regarding medical expert testimony is an Impossible standard. Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888 (1990).
An example of this type of case is a failure of a physician to [make a timely diagnosis]. Although timely detection of a [disease or medical condition] may well reduce the likelihood that a patient will have a terminal [or adverse] result, even with timely detection and optimal treatment, a certain percentage of patients unfortunately will succumb to the disease. This statistical factor, however, does not preclude a plaintiff from prevailing in a lawsuit. Rather, once there is testimony that there was a failure to detect the cancer in a timely fashion, and such failure increased the risk that the [plaintiff] would have either a shortened life expectancy or suffered harm, then it is question for the Jury whether they believe, by a preponderance of the evidence, that the acts or omissions of the physician were a substantial factor in bringing about the harm.
Billman v. Saylor, 2000 PA Super. 320. The expert in these cases has been permitted to testify under the relaxed degree of certainty enunciated in Section 323(a) of the Restatement (Second) of Torts,  that the physician's failure to exercise reasonable care in the diagnosis and treatment increased the risk of harm, Mitzelfelt, at 66-67, 584 A.2d at 894. Once a patient shows to a reasonable degree of medical certainty that a physician increased the risk of harm and that harm actually occurred, sufficient evidence has been offered to submit the case to a Jury. Billman, supra. The jury then must decide whether the increased risk constituted a substantial factor contributing to the injuries sustained. Mitzelfelt, supra .
The trial court found that because Weaver presented evidence of direct causation he was not entitled to a charge on increased risk of harm. Our Supreme Court rejected such an argument in Jones v. Monteflore Hospital, 494 Pa. 410, 431 A.2d 920 (1981). in Jones the plaintiff alleged the negligent delay in the diagnosis and treatment of her breast cancer, At trial the trial court did not instruct the jury on the doctrine of increased risk of harm. The Pennsylvania Supreme Court found the trial court's failure to charge the Jury on the doctrine of increased risk of harm was erroneous. The Court stated:
The appellees insisted, and the Superior Court agreed, that because appellants sought to prove that appellees' failure either to remove the mass in Mrs. Jones' breast or to properly diagnose and treat a later-discovered mass caused the harm, they were not entitled to a Section 323(a) charge. Thus, the jury was precluded from deciding whether or not appellees' conduct increased the risk of harm which was in fact sustained, and, if so, whether or not the increased risk of harm was a substantial factor in producing the harm. We conclude that the jury should have been instructed to impose liability if it decided that appellees' negligent conduct increased the risk of harm and that such increased risk was a substantial factor in bringing about the harm actually inflicted upon Mrs. Jones, whether or not the medical testimony as to causation was expressed in terms of certainty or probability. Undoubtedly, an unsuccessful effort to prove that appellees' conduct was the direct and only cause of harm might well have succeeded in persuading the jury that appellees' conduct at least increased the risk of the particular harm inflicted and was a substantial factor in bringing it about.
Id. at 417, 431 A.2d at 924. Because sufficient evidence was presented by both parties to raise the issue of increased risk, the Court concluded that appellants were entitled to a charge on increased risk.
As Jones Illustrates, a plaintiff is not disqualified from obtaining a charge on the doctrine of increased risk of harm by attempting to proffer evidence of direct causation. The main issue at trial in the instant case was whether appellees were negligent in falling to timely and adequately treat Darryl's hernia and whether the negligent failure to timely and adequately treat the hernia caused Darryl's bowel to die. Weaver claimed Darryl's dead bowel developed during the three days that Darryl was at the hospital and was not operated on. Weaver's expert. Dr. Eli Wayne, testified the operation to correct the hernia should have occurred at the latest on the morning of July 3, 1989, the morning after Darryl arrived at the hospital to prevent a piece of intestine that has been entrapped in the hernia sac from losing its blood supply, and that appellees breached the standard of care by waiting to operate until July 5th. R.R., 506a-511a.
Appellees claimed that the dead bowel had already developed by the time Darryl had arrived at the hospital on July 2, thus any alleged delay in surgery was immaterial. Appellees presented expert testimony that Darryl came in with a part of his bowel irreversibly damaged, and there is no reason to believe Darryl would not have had the same complications following an operation July 3rd that he had following the actual operation on July 5th R.R., 692a-693a.
As the trial court correctly notes. Weaver's expert. Dr. Wayne, testified to a direct causal connection,  However, Dr. Wayne's conclusion that appellees' failure to timely treat Darryl caused his bowel to die was dependent on his belief that Darryl's bowel died during his hospital stay and not beforehand. Dr. Wayne conceded the possibility that bowel injury occurred prior to Darryl's coming under appellees' care. R.R., 551a-552a. Appellees' expert, Dr. Marchlldon, also acknowledged there was no way to tell outside of performing an operation whether Darryl had a compromised bowel by the time he arrived at the hospital on the night of July 2, 1989. R.R., 724a-725a. Because both parties' experts conceded that it was uncertain whether the harm to Darryl occurred by the time he arrived at the hospital, this case presented a situation where it was difficult for the physicians to testify to a reasonable degree of certainty that appellees' actions directly caused Darryl harm.
As was stated in Jones, supra , an unsuccessful effort to prove that appellees' conduct was the direct and only cause of harm might well have succeeded in persuading the jury that appellees' conduct at least increased the risk of the particular harm inflicted. A review of the record reveals Weaver presented evidence to raise the issue of increased risk, thus entitling him to a jury charge on the doctrine. Dr. Wayne testified as follows:
Q. By delaying the surgery after the third of July, did that delay increase the risk of Darryl having bowel die?
Q. Is that an opinion that you hold to a reasonable degree of medical certainty.
When the facts are disputed a trial court should instruct the jury on any theory or defense that has support in the evidence. Clementi v. Procacci, 2000 Pa.Super. 297. Once there is testimony that there was a failure to treat Darryl in a timely fashion, and such failure increased the risk that Darryl would have suffered harm, then it was a question for the jury whether they believed, by a preponderance of the evidence, that the acts or omissions of appellees were a substantial factor in bringing about the harm. Dr. Wayne's testimony supports a charge on increased risk of harm, and the trial court's exclusion of a charge on the doctrine was erroneous.
The trial court also found any error to instruct on the doctrine of increased risk of harm was harmless in light of the fact that the jury found the appellees' negligence did not directly cause Darryl's harm. However, "an inadequate jury instruction may amount to reversible error if it has a tendency to mislead the jury or if it omits material, which is basic and fundamental, " McCllntock v. Works, 716 A.2d 1262, 1264 (Pa.Super. 1998). Here, the failure to inform the jury that a causal connection between the appellees' omissions in failing to perform surgery earlier and Darryl's short gut syndrome could be established if appellees' omissions increased the risk of the syndrome was fundamental to the jury's determination regarding causation. Without a complete instruction on the doctrine of increased risk of harm, it cannot be said the trial court's omission was harmless. As the jury might have reached its decision as a result of an incomplete instruction, we conclude that a new trial is warranted.
As a final matter Weaver asserts that remand for a new trial should be limited to the issues of causation and damages. Weaver maintains because the jury's verdict on negligence is supported by the evidence, a new trial on the issue of negligence is not warranted. In support of his argument Weaver relies on case law which provides for a new trial on remand limited to the issue of damages where liability has been fairly determined. See Weaver's Brief at 37. In the cases upon which Weaver relies the remand was required based on inadequacy of the verdict. In those cases because liability had been fairly determined a new trial was necessary only on the issue of damages. Those cases are inapposite because liability was not determined in the present case. While the jury found that Dr. Dunn was negligent it did not impose liability because it found causation lacking. Therefore, a new trial is required on negligence, causation and damages.
Judgment reversed. Remanded for a new trial. Jurisdiction relinquished.
BY: ASHWORTH, J., DECEMBER 22, 2010
Before the Court for disposition is Plaintiffs' motion for post-trial relief following a medical malpractice trial in which the jury returned a verdict in favor of Defendants. For the reasons set forth below, this motion will be denied.
I. Factual Background
The relevant facts established at the trial in this matter are as follows. Plaintiff William Pentz was a 64-year-old gentleman who was diagnosed with prostate cancer. After consultation with his urologist, it was decided that he would undergo a radical retropubic prostatectomy at Ephrata Community Hospital.
On April 11, 2006, Robert A. Gavin, D.O., an anesthesiologist, performed a preoperative anesthesia evaluation noting no significant anesthetic history. (See Notes of Testimony (N.T.) at 641.) On April 28, 2006, Plaintiff presented to the Ephrata Community Hospital for the prostectomy. (N.T. at 280.) Defendant Maureen Barr, a certified registered nurse anesthetist, delivered the anesthesia care. Dr. Gavin supervised the anesthesia care. Mr. Pentz was evaluated in the anesthesia holding area by Nurse Barr and then taken to the operating room for his surgery. (Id. at 279.) Hospital records note that anesthesia began at 7:37 a.m. and ended at 12:10 p.m. while the notes indicate that the surgery started at 8:07 and ended at 11:24. (Id. at 324.) The intraoperative period was uneventful. (Id. at 335.)
Based on the Anesthesia Record and testimony elicited at trial, reversal agents were administered at 11:15 a.m. and Mr. Pentz was switched from controlled ventilation to assisted ventilation. (N.T. at 340, 350-53.) Between 11:15 a.m. and 11:30 a.m., Nurse Barr employed various means of gauging Plaintiff's return to consciousness and ability to breathe on his own, including monitoring the trend of spontaneous respirations, tidal volume (depth of breath), chest rise and fall, blood pressure and heart rate, train-of-four (response to a peripheral nerve stimulator), oxygen saturation, and BIS monitoring (a measure of the level of consciousness). (Id. at 349-50, 359-62, 366-67, 494, 499-503, 515-17.) Nurse Barr also evaluated Plaintiff's hand grip, and his ability to respond to commands and open his eyes, prior to making the decision to extubate. (Id. at 361-62, 530.)
Based on her evaluation of the responses, Nurse Barr extubated Plaintiff at 11:30 a.m. (N.T. at 362-64, 494, 499-503, 515-17.) At that time, "[h]e was sufficiently awake. He was following commands. His oxygen saturation was maintained. He was doing his own breathing. It was nice and rhythmic. It had increased from the tidal volume of 10 to 20 and so forth up to 300." (Id. at 500.)
After the extubation was performed at 11:30 a.m., Mr. Pentz was still hooked up to the operating room monitors, and was receiving oxygen by mask. (N.T. at 494-95.) At 11:37 a.m., Mr. Pentz was transported from the operating room to the PACU (Post Anesthesia Care Unit). (Id. at 504.) He was not attached to monitors or oxygen during his brief transfer to the PACU. (Id. at 497-99.) During the one-minute transport, Nurse Barr noticed that the depth of Mr. Pentz's breathing was not as she would have liked it. (Id. at 503-04.) Immediately upon his arrival in the PACU, Mr. Pentz was attached to monitors and placed on an oxygen mask. (Id. at 504, 506, 511-12.) His vital signs revealed a low heart rate, or bradycardia, and Nurse Barr observed minimal respirations. (Id. at 505-06, 569.) Dr. Gavin was called by Nurse Barr. (Id. at 512.)
Interventions, including the administration of two doses of Atropine and additional reversal agents, and placement of a laryngeal mask airway (LMA) were successful in bringing up Mr. Pentz's heart rate. (N.T. at 510-13.) At 12:40 Mr. Pentz was reintubated and connected to the ventilator.
At 2:40 p.m., Mr. Pentz was transferred to the ICU, ventilated. He was observed to be bradycardic and hypoxic with apneic episodes. The next day, April 29, 2006, Mr. Pentz was transferred from Ephrata Community Hospital to Lancaster General Hospital where he was placed in a Phenobarbital-induced coma to control his seizure activity. Additionally, Mr. Pentz had a tracheostomy performed to assist with long-term management of his ventilation.
Eventually, Mr. Pentz awoke and demonstrated some ability to follow commands but exhibited evidence of myoclonic movements. He also demonstrated possible vocal cord paralysis and dysphasia. On June 1, 2006, Mr. Pentz was discharged from Lancaster General Hospital to HealthSouth Rehabilitation Hospital in Reading, Pennsylvania, where he remained until July 17, 2006.
Mr. Pentz has problems with verbal fluency, memory and attention. He also experiences peripheral jerking of both the upper and lower extremities, severe fatigue and loss of balance. He has great difficulty ambulating and he is generally wheelchair bound or needs assistive devices to move. He continues to receive treatment for his condition.
II. Procedural History
This medical malpractice action was commenced by complaint on August 31, 2007. Plaintiffs William and Mary Pentz asserted claims of medical negligence against Dr. Gavin and his anesthesia group, Anesthesia and Pain Associates of Northern Lancaster, P.C., and Nurse Barr, and her employer, Ephrata Community Hospital. Specifically, Plaintiffs alleged that Dr. Gavin, Nurse Barr and the PACU staff failed to identify risk factors for administrating anesthesia, failed to properly administer that anesthesia, extubated Mr. Pentz prematurely, and failed to properly protect him against hypoxic episodes and failed to provide timely care. It was further alleged that as a result of Defendants' alleged negligence, Plaintiff William Pentz suffered an acute hypoxic event during which time he was deprived of oxygen.
The trial of this matter commenced on August 2, 2010. At trial, Plaintiffs' negligence case focused on claims of premature extubation and improper postextubation monitoring. Nurse Barr was the target defendant. The crux of the causes of action presented at trial was that Nurse Barr was negligent in failing to properly assess the patient for potential risks at extubation. Additionally, it was alleged that Nurse Barr was negligent for failing to properly evaluate the patient for extubation criteria and extubating the patient prior to his being sufficiently awake and breathing. Nurse Barr was charged with negligence for failing to request the presence of Dr. Gavin at the time of extubation and for failing to adequately monitor Mr. Pentz following extubation. Plaintiffs further sought to prove that Nurse Barr deviated from accepted standards of care by failing to recognize and treat respiratory depression and hypoxemia in a timely fashion.
The claims at trial against Dr. Garvin were that he failed to adequately and properly supervise Nurse Barr and, specifically, that he failed to be present or failed to direct her to call him to be present at the time of extubation of Mr. Pentz. Additionally, it was alleged that Dr. Gavin was negligent in his pre-anesthesia evaluation of Mr. Pentz. Trial concluded on August 12, 2010, when the jury returned a defense verdict. The jury unanimously found that Dr. Gavin and Nurse Barr were not negligent. (N.T. at 854-55.) On August 17, 2010, the verdict was molded to reflect that the jury found no negligence by Dr. Gavin and Nurse Barr, and that a verdict shall be ...