Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Sucharski v. Patel

United States District Court, Third Circuit

January 8, 2014

ROSELLE SUCHARSKI, Plaintiff,
v.
RANJANJUM PATEL, M.D., Defendant.

MEMORANDUM OPINION

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.[1] 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).[2] 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.[3] 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, [4] 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.[5] Id . Dr. Graham may testify at trial only to increased risk of harm posed under those facts.

An appropriate Order follows.

Exhibit A

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, [1] 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, [2] 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?
A. Yes.
Q. Is that an opinion that you hold to a reasonable degree of medical certainty.
A. Yes.

R.R., 507.

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.

Exhibit B

OPINION

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.[1] (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.[2] (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 entered in favor of Defendants Dr. Gavin, Anesthesia and Pain Associates of Northern Lancaster, P.C., Nurse Barr, and Ephrata Community Hospital, and against Mr. and Mr. Pentz.

Plaintiffs filed a timely post-trial motion seeking a new trial on August 18, 2010. They have raised four issues in their motion: (1) whether, during the cross-examination of Nurse Barr, the Court improperly precluded Counsel from questions regarding her failure to properly chart the administration of Fentanyl; (2) whether the Court improperly precluded Plaintiffs' counsel from cross-examining Defendant's expert nurse anesthetist, Brigid Squilla, C.R.N.A., about Defendant Barr's failure to account for missing Fentanyl on the chart of William Pentz; (3) whether, during direct examination, Plaintiffs' counsel was improperly precluded from eliciting the opinion of their expert witness, James B. Eisenkraft, M.D., regarding whether the negligence of Nurse Barr increased the risk of harm to Plaintiff William Pentz; and (4) whether, during the jury charge, the Court improperly refused to instruct the jury on the issue of increased risk of harm despite Counsel's requests for the instruction. Defendants filed timely responses. The certified transcript was filed on October 7, 2010.[3] Briefs having now been filed by the parties, this matter is ripe for disposition.

III. Standard of Review

The decision to grant or deny a request for a new trial is within the sound discretion of the trial court and will not be disturbed absent palpable abuse of discretion or error of law. Andrew v. Jackson , 800 A.2d 959, 962 (Pa.Super. 2002).

There is a two-step process that a trial court must follow when responding to a request for a new trial.... First, the trial court must decide whether one or more mistakes occurred at trial. These mistakes might involve factual, legal, or discretionary matters. Second, if the trial court concludes that a mistake (or mistakes) occurred, it must determine whether the mistake was a sufficient basis for granting a new trial.... The harmless error doctrine underlies every decision to grant or deny a new trial. A new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would have ruled differently; the moving party must demonstrate to the trial court that he or she has suffered prejudice from the mistake.

Lockley v. CSX Transp. Inc. , 5 A.3d 383, 388 (Pa.Super. 2010) (quoting Harman ex rel. Harman v. Borah , 562 Pa. 455, 467, 756 A.2d 1116, 1122 (2000) (citations omitted)). Moreover, a new trial is warranted only where the jury's verdict is so contrary to the evidence as to shock one's sense of justice. Neison v. Hines , 539 Pa. 516, 520, 653 A.2d 634, 636 (1995).

IV. Discussion

A. Cross Examination Regarding Fentanyl Wasting

Initially, Plaintiffs contend the Court abused its discretion by precluding the cross examination of Nurse Barr and defense expert nurse anesthetist, Brigid Squilla, C.R.N.A., regarding Nurse Barr's failure to properly chart the administration of Fentanyl. Mr. Pentz received Fentanyl during the course of his procedure. Fentanyl is a Class II narcotic. Federal law and Ephrata Community Hospital policy require controlled dispensation of Fentanyl. The hospital monitored Fentanyl through the Pyxis medication management dispensing system. (N.T. at 16.)

The Ephrata Community Hospital Narcotics Log indicates that Nurse Barr signed out two five-cc ampules of Fentanyl from the Pyxis System at 7:22 a.m. and 7:23 a.m., for use during Mr. Pentz's surgery. Thus, a total of ten ccs of Fentanyl was dispensed.

Nurse Barr notes on the first page of the Anesthesia Record, which runs from 7:30 a.m. until 11.00 a.m., that she administered eight ccs of Fentanyl. On the second page of the Anesthesia Record, which goes from 11:00 a.m. to approximately 11:30 a.m., Fentanyl is written in one of the columns, however, no drugs are noted to be administered. Fentanyl and Desflorane are the only two medications from the prior nine medications noted on page one of the Anesthesia Record that appear on page two of the Anesthesia Record.

Hospital Policy requires that any amount of a Class II narcotic, such as Fentanyl, that is not used during the course of a procedure must be properly wasted. In order to be properly wasted, the remaining narcotic must be emptied or destroyed in front of a witness and both parties must sign that it was properly destroyed. This is entered into the Pyxis System. (N.T. at 16.) Four other controlled substances, including Demerol, Valium, Versed and Morphine, that were partially administered to Mr. Pentz by other practitioners are noted in the Pyxis Narcotics Log to be properly wasted. The remaining two ccs of Fentanyl from Mr. Pentz's care were not noted to be wasted and were not returned to the pharmacy. The remaining two ccs of Fentanyl were unaccounted for and Nurse Barr was unable to provide any explanation as to their whereabouts.

Prior to the testimony of Plaintiffs' liability expert anesthesiologist, Dr. Eisenkraft, I held an in-chambers conference with counsel to address the admissibility of testimony about Fentanyl wasting. I identified two issues as related to the oustanding two ccs of this medication:

One, whether or not the two CCs of unaccounted-for Fentanyl has any causation with the ultimate injury sustained by Mr. Pentz[.]...
And the other issue with regard to the Fentanyl is the recordkeeping and the proper wasting or the discrepancies in any recordkeeping with regard to the wasting of the unaccounted-for two CCs. And I see that as two separate issues.

(N.T. at 4.) After hearing argument of counsel, I requested and heard an offer of proof from Dr. Eisenkraft on the subject. (Id. at 15, 31-35.) Plaintiffs' expert stated that he thought he would testify that if a patient received two ccs of Fentanyl around the time of extubation, it would contribute to the respiratory depression, or decreased breathing, as well as a slow heart rate, as exhibited by Mr. Pentz in the PACU. (N.T. at 33; see also Plaintiffs' Exhibit 50B, Dr. Eisenkraft's Report of May 16, 2010 at 3.) I ruled that Dr. Eisenkraft would be permitted to testify on the Fentanyl wasting issue. (Id. at 35.) Plaintiffs, however, elected not to have their expert anesthesiologist testify on the Fentanyl issue. (Id. at 154-55, 616.)

Although Plaintiffs chose not to present testimony in their case-in-chief linking Fentanyl to the alleged injuries, they nonetheless wished to cross-examine Nurse Barr and her nurse anesthetist expert, Brigid Squilla, on the Fentanyl documentation issue described above. The defense objected to this line of questioning.

The issue of Nurse Barr's record or chart-keeping was a contested issue throughout trial. Plaintiffs specifically alleged and set forth to prove that William Pentz did not meet the criteria for extubation and, thus, Nurse Barr was negligent for extubating him when she did. Nurse Barr's alleged failure to document the extubation criteria on William Pentz's chart was critical evidence that she did not properly assess his condition prior to extubation.

Nurse Barr disputed this contention, offering testimony on direct examination that it was her practice to keep detailed anesthesia records, and that she did so in this case. (N.T. at 321-46.) In an attempt to impeach her credibility on the issue of her detailed chart-keeping, Plaintiffs planned to question Nurse Barr concerning her failure to properly document the use and/or wasting of the two ccs of Fentnyl. Plaintiffs' counsel raised the issue with the Court and counsel at sidebar prior to asking any questions. (N.T. at 576-77.) Defense counsel objected to this line of questioning (Id. at 577), and I sustained the objection, explaining:

The way this case is coming, given the relevancy or the fact that the Fentanyl was never addressed, I'm going to rule now at this time that the prejudicial effect outweighs the probative value in regard to Fentanyl and the recording requirements. I'm not going to allow you to address the Fentanyl, the recordkeeping for Fentanyl.

(N.T. at 578-79.) Plaintiffs claim this was error.

"Our Rules of Evidence vest the trial court with the authority to determine the admissibility of evidence as well as to control the scope of examination." Rettger v. UPMC Shadyside , 991 A.2d 915, 925 (Pa.Super. 2010). Rule 403 allows for the exclusion of evidence that is confusing, cumulative, or unfairly prejudicial:

Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Pa. R.E. 403. "Unfair prejudice, " for purposes of this Rule, means "a tendency to suggest a decision on an improper basis or to divert the jury's attention away from its duty of weighing the evidence impartially." Pa. R.E. 403, Comment. See also Feld v. Merriam , 461 A.2d 225 (Pa.Super. 1983), rev'd on other grounds, 485 A.2d 742 (Pa. 1984).

In addition, the Rules vest the trial court with the necessary discretion to limit a party's presentation in an effort to achieve a just result:

The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time and (3) protect witnesses from harassment or undue embarrassment.

Pa. R.E. 611 (a). See Rettger , 991 A.2d at 925.

Here, evidence regarding the improper wasting of Fentnyl was irrelevant as it did not establish any medical fact material to the issues being tried. Plaintiffs acknowledged that this evidence was relevant only to the issue of witness credibility. There is no evidence that the two ccs of Fentanyl were administered to Mr. Pentz either prior to or immediately after the extubation. In fact, there is evidence to the contrary. Nurse Barr's trial testimony and the medical records indicate that only eight ccs of Fentanyl was administered. Any testimony regarding the alleged improper wasting of Fentanyl would have created a confusing "trial within a trial." As I explained:

... I don't know how we eliminate from the jurors' minds the issue of speculating as to what impact [Fentanyl] would have had because we have heard that it's a narcotic and we have heard what it does to the body. And once it's out there left unaddressed, I'm concerned that the prejudicial effect outweighs the probative value.

(N.T. at 616.) I later reiterated:

... [W]hat is presently before me is the specter of what impact, if any, 2 ccs of Fentanyl would have on the plaintiff. I don't know how the recordkeeping aspect of it can be parsed out or separated or sanitized enough so as not to create or cause speculation on the part of the jury of the impact of that 2 ccs.

(Id. at 619.) Accordingly, I ruled that the proposed cross-examination of Nurse Barr was likely to divert the jury's attention from its duty of weighing the evidence impartially and likely to suggest a decision on an improper basis. Thus, pursuant to Rules of Evidence 402 and 403, cross-examination of Nurse Barr on this issue was properly precluded.

On a related issue, Plaintiffs contend that this Court committed error by preventing Plaintiffs' counsel from cross-examining Nurse Barr's expert witness about the Fentanyl wasting. Nurse Squilla testified that "clearly [Nurse Barr] gave great attention to detail" in her anesthesia record. (N.T. at 603.)

On cross-examination, Plaintiffs' counsel attempted to impeach Nurse Squilla's opinion regarding Nurse Barr's record keeping by asking her about the missing Fentanyl and why it had not been entered on Nurse Barr's otherwise "exemplary" chart.[4] (N.T. at 613-14.) Defense counsel objected to this line of questioning and, after the parties argued their positions in chambers, I sustained the objection, stating:

I am ruling that the prejudicial effect of raising the specter of the Fentanyl use outweighs the probative value. Even if the attempt is made to limit it to the charting issues, there's no escaping the fact that once we raise the specter or the issue of where did these two ccs of Fentanyl go, it, in my opinion, either causes the jury to speculate as to what impact, if any, the missing two ccs would have on the plaintiff if it had been administered to him, or - and it forces the jury into a situation where they are either forced to speculate or the parties would then feel obligated to call witnesses to address what impact, if any, those two ccs would have.
So I am ruling that plaintiffs will not be permitted to get into any questions regarding the Fentanyl.

(Id. at 612-13.)

The issue of Fentanyl wasting was not even raised in Dr. Eisenkraft's September 11, 2009 expert report (see Plaintiffs' Exhibit No. 50), which set forth the major bases of Plaintiffs' claim for recovery. At trial, Plaintiffs declined to have Dr. Eisenkraft opine on Fentanyl at all. This Court could not allow the jury to be misled into a decision based on speculative considerations unrelated to the medical care rendered in this case.

The jury found that Defendants were not negligent based on facts and testimony relevant to the care rendered. Plaintiffs cannot claim prejudice as the result of this Court's refusal to admit irrelevant and misleading testimony into evidence.

B. Increased Risk of Harm

Next, Plaintiffs claim the Court abused its discretion and committed legal error by excluding testimony and declining a jury charge on the increased risk of harm causation standard.

Prior to trial, Plaintiffs' liability expert anesthesiologist, Dr. Eisenkraft, produced three expert reports dated September 11, 2009, May 16, 2010, and July 10, 2010. Dr. Eisenkraft's September 11, 2009 report set forth eight deviations from the standard of care that he alleged took place in connection with Plaintiff William Pentz's treatment. At the end of the report, Dr. Eisenkraft set forth his opinion on causation. He clearly and unequivocally wrote that the alleged negligence was a direct cause of Plaintiff's injuries. Dr. Eisenkraft expressed his opinion on causation as follows: "As a result of these deviations, Mr. Pentz suffered a hypoxemic event that resulted in neurological impairment." (See Plaintiffs' Exhibit 50, Dr. Eisenkraft's Report of September 11, 2009, at 7.)

In the subsequent report dated May 16, 2010, Dr. Eisenkraft supplemented his opinion on the issues of pre-anesthesia evaluation and improper extubation. (See Plaintiffs' Exhibit 50B, Dr. Eisenkraft's Report of May 16, 2010, at 1-3.) Although there was no evidence that more than eight ccs of Fentanyl was administered to Plaintiff, "Dr. Eisenkraft's May 16, 2010 report sought to turn the outstanding 2 ccs of Fentanyl into an additional theory of recovery for the Plaintiffs." (See Defendant Barr's Brief in Opposition to Post-Trial Motion at 6.) Explaining that Fentanyl is "a potent opioid that causes respiratory depression" and bradycardia, Dr. Eisenkraft speculated in his report that "if" Mr. Pentz had been given the remaining two ccs of Fentanyl "around" the time of extubation, "this would well explain the subsequent events." (See Plaintiffs' Exhibit 50B, Dr. Eisenkraft's Report of May 16, 2010, at 3.) At the conclusion of his May 16, 2010, Report, Dr. Eisenkraft reinforced his opinion on direct causation. He confirmed that he viewed Defendants' negligence as the factual cause of Plaintiff's injuries, stating that "[t]he injuries that he sustained in this case would not have occurred absent negligence." (Id. at 5.)

During the presentation of their case-in-chief, Plaintiffs' counsel elicited Dr. Eisenkraft's opinions on deviation from the standard of care and his opinion on causation. Dr. Eisenkraft stated that the negligence alleged was a direct cause of Mr. Pentz's injuries. (N.T. at 159-60.) Despite this, Plaintiffs' counsel asked Dr. Eisenkraft if he had an opinion "whether the care and treatment provided during Mr. Pentz's treatment in the operating room and subsequent in the PACU increased his risk of harm and was a factual cause of his injury?" (Id. at 116.) This question elicited an objection from defense counsel, who argued that as Plaintiffs' expert stated in his reports and on direct examination that the deviations from the standard of care in treating Mr. Pentz were the direct cause of his injuries, Plaintiffs were then precluded from offering expert testimony that Defendants' actions increased the risk of harm to William Pentz. (Id. at 116-17, 126-28.)

Plaintiffs argued in part that Defendants had notice of the claimed increased risk of harm based on its inclusion in the complaint. (N.T. at 123, 129, 137-38, 139-40, 152; see also Plaintiffs' Complaint at ¶¶ 42, 47, 60, 68.) Additionally, Plaintiffs argued that just because Dr. Eisenkraft opined that Defendants' deviations from accepted medical practice were a direct and proximate cause of Plaintiff William Pentz's injuries should not preclude him from also opining that these same deviations increased the risk of harm to Plaintiff. (Id. at 133-34, 145-46, 152.)

Extensive argument was held in chambers and after thoroughly reviewing the case law on the issue, and after reviewing the subcommittee note following the applicable standard jury charge, I ruled that the increased risk of harm causation standard would not be applied in this case and sustained Defendants' objection. (N.T. at 155-57.) I ruled that Plaintiffs' expert, Dr. Eisenkraft, could not offer an expert opinion concerning whether the negligence of Defendants increased the risk of harm to Plaintiff. I offered the following explanation:

[]The principle of increased risk of harm is applicable where direct evidence of causation is an impossibility] [W]here no expert can testify that an action or a failure to act directly caused the result but can testify to a reasonable degree of medical certainty that the action or inaction increased the risk of the bad result occurring, that testimony provides a factual basis from which the jury can answer the substantial factor or factual cause question[, ] namely, did the risk increased by the malpractice actually cause the injury.[] [Pa. S.S.J.I. (Civ), 11.02, Subcommittee Note at 3.]
Based upon the subcommittee note, and in the absence of any other case law, I believe the facts are such and the report as submitted by Dr. Eisenkraft, Dr. Eisenkraft is able to testify that - on direct causation that the - and the specific language is as follows: []As a result of these deviations, Mr. Pentz suffered a hypoxic event that resulted in neurological impairment[']
I read that as a statement of direct causation. And insofar as he is able to testify that an action or a failure to act directly caused the result, I am not going to allow an instruction on the increased risk of harm and as such, your question with regard to causation should be directed towards direct causation.

(N.T. at 156-57.)

Consistent with this ruling, I refused to instruct the jury on the issue of increased risk of harm despite Counsel's requests for the instruction. (N.T. at 701-02.) It is a fundamental precept of Pennsylvania law that a trial court has the responsibility of charging a jury on all issues relevant to the case. Clayton v. Sabeh , 594 A.2d 365, 366 (Pa.Super. 1991).

The proposed instruction at issue here, Pa. S.S.J.I. (Civ), 11.02, entitled "Medical Malpractice - Factual Cause, " states in relevant part:

(B) Increased Risk of Harm [to be read when appropriate]
When a defendant physician negligently fails to act or negligently delays in taking indicated diagnostic or therapeutic steps, and his or her negligence is a factual cause of injuries to the plaintiff, that negligent defendant physician is responsible for the injuries caused.
Where the plaintiff presents expert testimony that the failure to act or delay on the part of the defendant physician has increased the risk of harm to the plaintiff, this testimony, if found credible, provides a sufficient basis from which you may find that the negligence was a factual cause of the injuries sustained.
If there has been any significant possibility of avoiding injuries and the defendant has destroyed that possibility, [he] [she] may be liable to the plaintiff.
It is rarely possible to demonstrate to an absolute certainty what would have happened under circumstances that the wrongdoer did not allow to come to pass.

Pa. S.S.J.I. (Civ), 11.02(B) (2010). The Subcommittee Note further states:

[T]here is no cause of action in Pennsylvania for an increased risk of harm. The principle of increased risk of harm is applicable where direct evidence of causation is an impossibility. Where no expert can testify that an action or a failure to act directly caused the result but can testify to a reasonable degree of medical certainty that the action or inaction increased the risk of the bad result occurring, that testimony provides a factual basis from which the injury can answer the substantial factor or factual cause question, namely, did the risk increased by the malpractice actually cause the injury.

Id., Subcommittee Note at 3 (emphasis added).

Because medical malpractice is a form of negligence, to state a prima facie cause of action, a plaintiff must demonstrate the elements of negligence: a duty owed by a physician to the patient, a breach of that duty, that the breach of duty was the proximate cause of the harm suffered, and the damages suffered by the patient were the direct result of that harm. Stimmler v. Chestnut Hill Hospital , 602 Pa. 539, 555, 981 A.2d 145, 154 (2009) (quoting Quinby v. Plumsteadville Family Practice , 589 Pa. 183, 199, 907 A.2d 1061, 1070-71 (2006)). Normally, the plaintiff's medical expert must testify, to a reasonable degree of medical certainty, that the defendant's negligence caused the alleged injury. However, in Hamil v. Bashline , 481 Pa. 256, 392 A.2d 1280 (1978), the Pennsylvania Supreme Court adopted the increased risk of harm standard for establishing causation in medical malpractice cases. The Court in Hamil specified that the increased risk standard is only applicable to cases where direct causation cannot be proven, because the harm at issue could have occurred in the absence of negligence. Id. at 271, 392 A.2d at 1287.

The Pennsylvania Supreme Court addressed the issue of increased risk of harm again in Mitzelfelt v. Kamrin , 526 Pa. 54, 584 A.2d 888 (1990). There the Court reiterated that this relaxed standard for establishing causation is only applicable where the standard of proof regarding medical expert testimony is an impossible standard and the plaintiff is unable to show to a reasonable degree of medical certainty that the physician's actions or omissions caused the resulting harm. Id. at 62, 584 A.2d at 892. See also Billman , 761 A.2d at 1212 (increased risk of harm charge should only be given where the plaintiff's expert cannot testify to direct causation); Wright v. Conte, No. 2003-0578-CIVIL (Armstrong Co., Dec. 6, 2007), aff'd 968 A.2d 805 (Pa.Super. 2009) (same). Thus, where a plaintiff's expert testifies to direct causation, the jury should not be charged on increased risk of harm. Snyder v. Hawn, 123 Dauph. 232 (2006), aff'd 935 A.2d 34 (Pa.Super. 2007). The case law is clear that a plaintiff cannot proceed under both causation theories; evidence of direct causation precludes application of the increased risk standard.

In the instant case, Plaintiffs' causation expert, Dr. Eisenkraft, was well able to opine in his reports that Defendants' conduct was a direct cause of the alleged injuries. (See Plaintiffs' Exhibit 50, Dr. Eisenkraft's Report of September 11, 2009 at 7; Plaintiffs' Exhibit 50B, Dr. Eisenkraft's Report of May 16, 2009 at 5.) His reports did not state that he was unable, or that it was impossible, to testify that the alleged deviations caused the harm. His reports did not state that the conduct in question merely increased the risk of harm to the patient.[5] To the contrary, Dr. Eisenkraft's reports very clearly and unequivocally rendered an opinion on direct causation. His reports concluded that "[a]s a result of these deviations, Mr. Pentz suffered a hypoxemic event that resulted in neurologic impairment, " and that "[t]he injuries that he sustained in this case would not have occurred absent negligence." Id . Moreover, throughout the direct examination, Plaintiffs' expert, Dr. Eisenkraft, repeatedly testified to direct causation. He then summarized his opinions as follows:

Q.... Doctor, you've been good enough to work through your opinions here this morning concerning the care and treatment provided by the anesthesia team, if you will, Dr. Gavin and Miss Barr.
Do you have an opinion to a reasonable degree of medical certainty as to whether that care and treatement caused the hypoxic event resulting in neurological impairment to Mr. Pentz?
A. Yes.
Q. What is your opinion in that regard?
A. Well, that it did.
Q. And your basis for that opinion?
A. Review of the medical records.
Q. What about the review?
A. Well, looking at the evaluation of a patient, the kind of patient that he was, the sort of surgery that he had, the amount of fluid that he had, the failure to meet the extubation criteria. He was inadequately recovered from the neurological block.
He wasn't really breathing as deeply as he should have been. He was not as responsive as he should have been. He was awake and responsive in the operating room at 11:37 when he was extubated and how come he was now obtunded after a short time, such that they could try to put a breathing tube in or an LMA. You have to be obtunded or depressed to tolerate that.
So I think taken together, he was not - he should not have been extubated in that time. He didn't meet the criteria.
And then having been extubated, he was not being monitored adequately so that they could intervene sooner to prevent the adverse outcome.
When he got to the recovery room, they found he had a slow heart rate. He wasn't breathing very well. They took care of what they had to, the airway, the breathing, the circulation.
But obviously to get a bad neurological outcome, adverse outcome, the situation must have gone on for a prolonged period of time.

(N.T. at 159-61.) With this testimony, Plaintiffs' expert testified that Defendants' negligence was the cause of Mr. Pentz's injuries to a reasonable degree of medical certainty. Therefore, "[Plaintiff's] expert made the requisite link between [Defendants'] negligence and the harm suffered by [Plaintiff]" and the increased risk of harm instruction was not warranted. Accordingly, my refusal to give it did not constitute error.

Moreover, the increased risk of harm instruction addressed the question of causation, not negligence. Thus, even assuming, arguendo, that this jury instruction should have been given, the jury never reached issues of causation, having found that Defendants acted in accordance with the standard of care. (N.T. at 854-55.) Thus, any alleged error regarding the testimony of Dr. Eisenkraft on causation had no impact on the jury's determination of whether Defendants adhered to the standard of care, and would be harmless error that would not warrant a new trial. See Wright v. Conte, supra.

V. Conclusion

For the reasons set forth above, Plaintiffs' Motion for Post-Trial Relief will be denied.

Accordingly, I enter the following order:

ORDER

AND NOW, this 22nd day of December, 2010, upon consideration of Plaintiffs' Motion for Post-Trial Relief and the briefs filed by the parties, it is hereby ORDERED that said Motion is DENIED.

Exhibit C

OPINION

VALASEK, J.

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 Defendant.

The background of the case is as follows. On September 26, 2006, Plaintiff was referred to Defendant, (a general surgeon), by her treating physician, Dr. Vogan, for possible surgical intervention through the emergency room of Armstrong Memorial Hospital. Plaintiff was suffering continuing abdominal discomfort on her right flank with nausea. Plaintiff described the pain as sharp in nature and covering the right abdomen, including the right back.

Defendant diagnosed abdominal pain of unknown etiology and felt that appendicitis was a possible cause. He hospitalized Plaintiff overnight for observation and intravenous hydration. As Plaintiffs condition did not improve, Defendant performed a diagnostic laparoscopy on Plaintiff on the morning of September 27, 2002. Although the appendix looked normal, Defendant removed it to eliminate it as a potential source of future problems.[1] Defendant then encountered various adhesions in the abdomen caused by prior pelvic inflammatory disease, which he proceeded to cut, or lyse.

There were adhesions in the vicinity of the appendix, and also multiple adhesions between the dome of the liver and the right diaphragm. Defendant testified that the adhesions by the liver looked inflamed and were possibly the source of Plaintiffs pain in her upper right quadrant. Therefore, he proceeded to lyse the adhesions, which were dense and difficult to cut. In the course of lysing these adhesions, the Defendant accidentally perforated Plaintiffs right diaphragm and surgically entered her right chest.

Discovering this complication, Defendant then terminated the laparoscopic procedure and performed a procedure to repair the diaphragm and drain the right chest. After the surgery had been performed, Plaintiff was hospitalized until October 4, 2002. She was subsequently readmitted to the hospital when she developed pneumonia and an infection (empyema) in the right chest cavity. At that time, Defendant performed a thoracoscopy to remediate Plaintiffs problems.

At trial, Plaintiff alleged professional negligence by Defendant with respect to her surgery in the following respects. Dr. Richard Goldstein, Plaintiffs expert, testified that Defendant deviated from acceptable surgical medical practice as a general surgeon in failing to conduct an adequate pre-operative evaluation and workup. 12/12/06 Notes of Transcript, at 97. Goldstein indicated that Defendant had a duty to take into account all the information that could have been available, to know her history fully and to conduct a thorough workup to more precisely determine the need or lack of need for surgery. Id. at 97. He indicated that Defendants failure to do this constituted a deviation from acceptable medical practice. Id. at 97.

Goldstein testified that Defendant also deviated from acceptable medical practice in failing to properly interpret the pre-operative findings, thus performing surgery at a time that it was not indicated. Id. at 98. In addition, Goldstein testified that Defendant deviated from the standard of care by attempting to electrocauterize or lyse the adhesions between the dome of the liver and the diaphragm. Goldstein said that [b]ased on the knowledge that [defendant] had at the time of surgery and based upon the physical findings at the time of surgery and the information that would have been available, had he properly reviewed the previous records and/or spoken with Dr. [Jeffrey] David, he would have known that these adhesions could not have been the source of her abdominal pain. Id. at 99.[2] Goldstein said that Defendant had a duty to acquire information about Mrs. Wrights history, either by consulting Dr. David or by obtaining the records that would have been available from the hospital and/or Dr. Davids office and that by not having that information available prior to surgery, there was deviation from the standard of care. Id. at 100. Plaintiff had previously been treated by Dr. Jeffrey David for pelvic inflammatory disease and had undergone a laparoscopy for endometriosis and a hysterectomy during the previous year as a result. Dr. David had noted at surgery that Plaintiff had perihepatic adhesions consistent with Fitz-Hugh-Curtis syndrome.

In addition, Goldstein testified that the lyses of adhesions between the liver and diaphragm should never have been undertaken. He said attempting to lyse adhesions between the liver and the diaphragm when those adhesions are so dense, that later on you cant even free them up when the abdomen is open, means that there was no safe surgical technique for doing something that should never have been attempted by even attempting to lyse those adhesions was a deviation from the standard of care [sic]. Id. at 100.

Goldstein testified that Defendant also deviated from the standard of care and from acceptable medical surgical practice by not developing a differential diagnosis of the multiple possible causes for her pain because this meant, he was not able to properly proceed. Id. at 100-101.

Goldstein said that had the surgical procedure not been performed or had the lyse of adhesions between the liver and diaphragm not been done, there would not have been injury to the diaphragm and there would not have been subsequent pneumonia and neuralgia and chronic pain. Id. at 101. He testified that Plaintiffs contraction of pneumonia, empyema, neuralgia neuritis nerve pain, even thoracospy having permeated increased risk of additional infections having undergone all the medical treatment she had to go was a factual and direct cause of the negligence of the defendant [sic]. Id. at 101.

In contrast, Defendants experts testified that Defendant had sufficient information to proceed with surgery, that the diagnostic laparoscopic surgery was indicated at that time, that Defendants lysing of the adhesions between the liver and the diaphragm was warranted under the circumstances, and that Defendants puncturing of the Plaintiffs diaphragm during this lysing procedure was an unfortunate complication which occurred through no fault of Defendant.

DISCUSSION

Plaintiff seeks a new trial for the following reasons.[3] Plaintiff claims the Court erred in its charge to the jury, whereby it modified Pa. Standard Civil Jury Instruction 3.25 and Pa. SSJI (Civ) 11.02(B), and also refused to charge the jury on the issue of increased risk of harm.

Plaintiff claims the Court also erred in sustaining Defendants objections to the scope of the testimony permitted by Plaintiffs expert witness, Richard S. Goldstein, M.D.

Finally, Plaintiff claims that the Court erred in overruling Plaintiffs objection to the proffered testimony of defense expert Joseph Sanfillipo, M.D., and in further permitting Sanfillipo to testify both outside the scope of the Courts earlier ruling and inconsistent with § 512 of the MCARE Act.

The decision to grant or deny a request for a new trial is within the sound discretion of the Court. Andrew v. Jackson, 800 A.2d 959, 962 (Pa.Super. 2002), appeal denied, 813 A.2d 835 (Pa. 2002). A new trial is warranted where the jurys verdict is so contrary to the evidence as to shock ones sense of justice. Neison v. Heinz, 653 A.2d 634, 636 (Pa. 1995). There is a two-step process that a trial court must follow when responding to a request for new trial. * * * First, the trial court must decide whether one or more mistakes occurred at trial. These mistakes might involve factual, legal, or discretionary matters. Second, if the trial court concludes that a mistake (or mistakes) occurred, it must determine whether the mistake was a sufficient basis for granting a new trial. * * * The harmless error doctrine underlies every decision to grant or deny a new trial. A new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would have ruled differently; the moving party must demonstrate to the trial court that he or she has suffered prejudice from the mistake. Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1122 (Pa. 2000) (citations omitted).

First, the Court will address its decision not to charge the jury on the issue of increased risk of harm. For a jury instruction to constitute reversible error, it must be both erroneous and harmful to the complaining party. Anderson v. Hughes, 208 A.2d 789, 792 (Pa. 1965). A trial judge has wide latitude in his/her choice of language when charging the jury, provided that the judge fully and adequately conveys the applicable law. Jeter v. Owens-Corning Fiberglass Corp., 716 A.2d 633, 636 (Pa.Super. 1998) (citations omitted).

The proposed instruction at issue here, Pa. SSJI (Civ) 11.02, is entitled Medical Malpractice-Factual Cause. Section B states:

(B) Increased Risk of Harm [to be read when appropriate]

When a defendant physician negligently fails to act or

negligently delays in taking indicated diagnostic or

therapeutic steps, and his or her negligence is a factual cause of injuries to the plaintiff, that negligent defendant physician is responsible for the injuries caused.

Where the plaintiff presents expert testimony that the failure to act or delay on the part of the defendant physician has increased the risk of harm to the plaintiff, this testimony, if found credible, provides a sufficient basis from which you may find that the negligence was a factual cause of the injuries sustained.

If there has been any significant possibility of avoiding injuries and the defendant has destroyed that possibility, [he] [she] may be liable to the plaintiff.

It is rarely possible to demonstrate to an absolute certainty what would have happened under circumstances that the wrongdoer did not allow to come to pass.

Pa. SSJI (Civ) 11.02(B) (emphasis added). The Subcommittee Note further states:

Thus there is no cause of action in Pennsylvania for an increased risk of harm. The principle of increased risk of harm is applicable where direct evidence of causation is an impossibility. Where no expert can testify that an action or a failure to act directly caused the result but can testify to a reasonable degree of medical certainty that the action or inaction increased the risk of the bad result occurring, that testimony provides a factual basis from which the injury can answer the substantial factor or factual cause question, namely, did the risk increased by the malpractice actually cause the injury.

Id., Subcommittee Note at 3 (emphasis added).

In this case, Plaintiffs expert testified that Defendant was negligent in failing to obtain available information from Dr. David or hospital records prior to performing laparoscopic surgery, in deciding to perform the diagnostic surgery, and in lysing the adhesions between the liver and the diaphragm, and that Defendants negligence was the cause of Plaintiffs injuries to a reasonable degree of medical certainty. N.O.T. at 101. Plaintiffs expert made the requisite link between Defendants negligence and the harm suffered by Plaintiff. Thus, the increased risk of harm instruction was not warranted, and the Courts refusal to give it did not constitute error.

Moreover, the increased risk of harm instruction addressed the question of causation, not negligence. The jury found that Defendant was not negligent in any of the respects alleged by Plaintiff, and thus never reached the question of causation. Assuming for the sake of argument that the increased risk charge had been warranted, because the jury never reached the issue of causation, the Courts decision not to charge the jury on increased risk of harm is moot, or at most, harmless error.

Plaintiff also complains that the Court erred in modifying Pa. SSJI (Civ) 3.25, which contains the definition of legal cause. Plaintiff argues that because [the jury] heard the words substantial, along with significant, material, essential, and largely responsible for there was ample basis for them to construe the Plaintiffs burden on legal cause as greater than required due to the cumulative effect of the synonyms given for substantial factor. Plaintiffs Brief in Support of Post-Trial Motion at 5.

However, the Court did not modify Pa. SSJI (Civ) 3.25. To the contrary, it utilized the definition of factual cause contained in Pa. SSJI (Civ) 3.15, which replaced Pa. SSJI (Civ) 3.25 in October of 2005. See N.O.T. at 467-468, 489. At no point in the Courts charge to the jury did we give any synonyms for substantial factor. The Court is frankly perplexed as to Plaintiffs argument, and finds it to be wholly without merit.

Finally, Plaintiff objects to the Courts use of the language [i]f and only if you find the Defendant, Dr. Conte was negligent if and only if you find both Defendant, Dr. Conte, was negligent and that his negligence was the factual cause as prejudicial to Plaintiff and claims that the use of such language mislead [sic] the jury during the course of their jury deliberations. Plaintiffs Brief at 6. The Court does not see how the jury could have been misled by such language. Furthermore, in the context of the instructions as a whole, the Court finds that the use of the words if and only if was not at all prejudicial. Rather, these words simply emphasized that the jury was to decide the case in stages, since the special interrogatories could be confusing if not properly explained.

Next, the Court will address Plaintiffs contention that the Court erred in sustaining Defendants objections to the scope of testimony of Plaintiffs expert, Dr. Richard Goldstein, pursuant to Pa.R.C.P. 4003.5(c).[4] The Superior Court has outlined the law on scope of testimony as follows:

The experience of this Court has been that it is impossible to formulate a hard and fast rule for determining when a particular expert's testimony exceeds the fair scope of his or her pretrial report. Rather, the determination must be made with reference to the particular facts and circumstances of each case. The controlling principle which must guide us is whether the purpose of Rule 4003.5is being served. The purpose of requiring a party to disclose, at his adversary's request, the substance of the facts and opinions to which the expert is expected to testify is to avoid unfair surprise by enabling the adversary to prepare a response to the expert testimony. See Augustine v. Delgado. 332 Pa.Super. at 199. 481 A.2d at 321 (Pa.R.Civ.P. 4003.5 favors liberal discovery of expert witnesses and disfavors unfair and prejudicial surprise); Martin v. Johns-Manville Corp., 322 Pa.Super. at 358. 469 A.2d at 659 ([W]e have found experts' reports to be adequate... when the report provides sufficient notice of the expert's theory to enable the opposing party to prepare a rebuttal witness.). In other words, in deciding whether an expert's trial testimony is within the fair scope of his report, the accent is on the word fair. The question to be answered is whether, under the particular facts and circumstances of the case, the discrepancy between the expert's pretrial report and his trial testimony is of a nature which would prevent the adversary from preparing a meaningful response, or which would mislead the adversary as to the nature of the appropriate response.

Wilkes-Barre Iron & Wire Works, Inc. v. Pargas of Wilkes-Barre, Inc., 502 A.2d 210, 212-213 (Pa.Super. 1985). Plaintiff claims that the Court erred in sustaining Defendants objection to the question, is it part of a proper evaluation and work up of a patient presurgery to discuss with the patient all of the parameters of a surgery you intend to perform, (N.O.T. at 79). However, Plaintiff did not plead a lack of informed consent in her complaint and Dr. Goldsteins report certainly did not address that issue. Therefore, this was not a proper area of testimony by Dr. Goldstein, and Defendants objection was properly sustained.

Plaintiff also claims that the Court abused its discretion by sustaining Defendants objection to Plaintiffs questioning of Goldstein about the origins of the particular bacteria which caused Plaintiffs empyema. See N.O.T. at 83-91. Plaintiff was seeking to elicit testimony at trial that the source of the infection was the large intestine, and that the bacteria had been surgically carried by Defendant to Plaintiffs chest cavity. Dr. Goldsteins report clearly did not address the source of the bacteria which caused a subsequent infection in Plaintiffs lung. It also did not opine that the empyema would not have occurred had Defendant not performed the appendectomy. As the Court noted at trial, The source of empyema is clearly something that should be stated in this report because I would imagine it could be the subject of enormous argument between two experts. N.O.T. at 131. To allow Dr. Goldstein to testify about the source of the empyema and the ramifications thereof clearly would have constituted unfair surprise and would have prejudiced Defendant. Thus, exclusion of such testimony was proper and not an abuse of discretion.[5]

Finally, Plaintiff complains that the Court erroneously precluded Dr. Goldstein from testifying about the medication Ultram and whether it causes seizures. However, there was absolutely nothing in Dr. Goldsteins report about Plaintiff suffering seizures or that the Ultram she was prescribed was the cause thereof. This being outside the fair scope of the experts report, it was clearly proper to exclude such testimony. See N.O.T. at 91-94. Moreover, as Plaintiff admitted, Plaintiff was simply attempting to prove additional damages. Id. at 92. As the jury never got to the issue of damages, the issue is moot.

Next, the Court will address Plaintiffs contention that the Court erred by allowing Dr. Sanfillipo to testify pursuant to 40 P.S. § 1303.512 of the MCARE Act. That section states:

§ 1303.512. Expert qualifications

(a) General rule.-No person shall be competent to offer an expert medical opinion in a medical professional liability action against a physician unless that person possesses sufficient education, training, knowledge and experience to provide credible, competent testimony and fulfills the additional qualifications set forth in this section as applicable, (b) Medical testimony.-An expert testifying on a medical matter, including the standard of care, risks and alternatives, causation and the nature and extent of the injury, must meet the following qualifications:

(1) Possess an unrestricted physician's license to practice medicine in any state or the District of Columbia.

(2) Be engaged in or retired within the previous five years from active clinical practice or teaching. Provided, however, the court may waive the requirements of this subsection for an expert on a matter other than the standard of care if the court determines that the expert is otherwise competent to testify about medical or scientific issues by virtue of education, training or experience, (c) Standard of care.-In addition to the requirements set forth in subsections (a) and (b), an expert testifying as to a physician's standard of care also must meet the following qualifications:

(1) Be substantially familiar with the applicable standard of care for the specific care at issue as of the time of the alleged breach of the standard of care.

(2) Practice in the same subspecialty as the defendant physician or in a subspecialty which has a substantially similar standard of care for the specific care at issue, except as provided in subsection (d) or (e).

(3) In the event the defendant physician is certified by an approved board, be board certified by the same or a similar approved board, except as provided in subsection (e).

(d) Care outside specialty.- A court may waive the same subspecialty requirement for an expert testifying on the standard of care for the diagnosis or treatment of a condition if the court determines that:

(1) the expert is trained in the diagnosis or treatment of the condition, as applicable; and

(2) the defendant physician provided care for that condition and such care was not within the physician's specialty or competence.

(e) Otherwise adequate training, experience and knowledge.-A court may waive the same specialty and board certification requirements for an expert testifying as to a standard of care if the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in or full-time teaching of medicine in the applicable subspecialty or a related field of medicine within the previous five-year time period.

40 P.S. § 1303.512 (emphasis added).

It is Plaintiffs contention that because Dr. Sanfillipo was trained as an obstetrician/gynecologist and practices as a reproductive endocrinologist, not a general surgeon, he was not competent to testify as to the standard of care expected of a general surgeon in the instant case. Specifically, the issue in this case, in large part, was the attempted cutting of perihepatic adhesions during the course of the performance of what was to be a laparoscopic appendectomy. Dr. Sanfillipos expertise and training was far different than that of Dr. Conte. To allow Dr. Sanfillipo to apply his care, skill and knowledge, attained as a result of his subspecialty, to the standard of care to be applied to a general surgeon, such as Dr. Conte, was a violation of Section 512. Plaintiffs Brief at 18.

However, as Defendant points out, in this case Dr. Sanfillipo practices in a subspecialty which has a substantially similar standard of care for the specific care at issue. 40 P.S. § 1503.512(c)(2); see also Smith v. Paoli Memorial Hospital, 885 A.2d 1012, 1022 (Pa.Super. 2005)(holding that general surgeon and oncologist/internist were qualified to testify regarding standard of care of gastroenterologist determining cause of gastrointestinal bleeding, since both doctors were substantially familiar with the applicable standard for the particular care at issue and practiced in a subspecialty with a substantially similar standard of care for the specific care at issue).

While qualifying Dr. Sanfillipo as an expert, counsel for Defendant specifically asked Dr. Sanfillipo if the standard of care regarding the cutting or lysing of adhesions is the same whether a gynecologist or general surgeon is performing the laparoscopic procedure. N.O.T. at 244-245. Dr. Sanfillipo testified that the standard of care was identical. Id. at 245. He further explained that laparoscopy had originally been the province of gynecologists, but subsequently general surgeons became proficient at it and now more commonly conducted the procedure. Id. at 245-246. Dr. Sanfillipo further testified that he trained and certified general surgeons in laparoscopy. Id . Under the circumstances, it is clear that Dr. Sanfillipo was familiar with the standard of care expected of general surgeons performing laparoscopy. Thus, the Courts ruling that Dr. Sanfillipo could testify as an expert regarding the standard of care was a proper exercise of its discretion.

Furthermore, the Court did limit Dr. Sanfillipos testimony to a certain degree. The doctor was permitted to testify regarding whether the adhesions found by Defendant were caused by Fitz-Hugh-Curtis syndrome, N.O.T. at 242, and also regarding whether the complication of injury to an adjacent organ can result during the lysis of adhesions despite the exercise of due care, N.O.T. at 248-249. However, the Court precluded Dr. Sanfillipo from testifying whether, under the particular circumstances of this case, it was reasonable for Defendant to elect to cut the perihepatic adhesions he encountered beside the liver, N.O.T. at 239. Dr. Sanfillipo did not do so.

Plaintiff also objects to the Court allowing Dr. Sanfillipo to visually demonstrate to the jury by means of a pelvic trainer how laparoscopic lysis of adhesions takes place. However, this demonstration was clearly permissible to educate the jury about the specific procedure, the location of the various organs involved in the surgery in question, and how the complication of injury to an adjacent organ the doctor did not intend to operate on can occur despite the exercise of reasonable care. Contrary to Plaintiffs assertions, the demonstration had nothing to do with the question of whether it was reasonable under the circumstances for Defendant to cut adhesions during his laparoscopic surgery.

Plaintiff also claims that [t]o allow Dr. Sanfillipo to testify, especially where Defendants [sic] also called Harry Sell, M.D., (a Board-certified general surgeon) to testify, constituted prejudicial error to the Plaintiff warranting the granting of a new trial. Plaintiffs Brief at 18. The number of witnesses that the Court allows a party to call is within the sound discretion of the Court, and the jury was specifically instructed that the number of witnesses offered by one side or the other did not determine the weight of the evidence. N.O.T. at 478.

Moreover, in this case, Dr. Sell testified from the viewpoint of a general surgeon, while Dr. Sanfillipo testified as a gynecologist intimately familiar with Fitz-Hugh-Curtis syndrome. As the defense explained in its brief:

Dr. Sanfillipo, as a gynecologist, had the greatest experience among the experts who testified regarding the adhesions that formed secondary to Fitz-Hugh-Curtis syndrome, as Fitz-Hugh-Curtis syndrome is a result of having a sexually-transmitted pelvic inflammatory disease, a condition that a gynecologist commonly deals with. [Trial Transcript p. 254]. Dr. Sanfillipo testified to his experience with the adhesions caused by Fitz-Hugh-Curtis syndrome. [Trial Transcript pp. 260-262]. Articles cited by Dr. Sanfillipo as supportive of the proposition that Fitz-Hugh-Curtis syndrome can be painful and can be effectively treated through cutting or lysis were part of the gynecological literature. [Trial Transcript pp. 266-267], As one of the major issues in this case was whether the adhesions caused by Fitz-Hugh-Curtis syndrome can be symptomatic and when symptomatic, whether they can be amenable to treatment by lysis or cutting, Dr. Sanfillipos expertise as a gynecologist who has commonly dealt with this condition was properly considered by the Court to be important to the jurys condition.

Defendants Brief at 16. The testimony of Defendants experts was not duplicative and the Court acted properly in allowing both to testify.

For all the above reasons, the Court finds that the issues raised in Plaintiffs post-trial motions are without merit. Therefore, the motion is denied.

An appropriate Order will be entered.

ORDER

AND NOW, this 6th day of December, 2007, after due consideration of Plaintiffs post-trial motion and for the reasons stated in the foregoing Opinion, it is ORDERED, ADJUDGED AND DECREED that the motion be and hereby is denied.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.