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[U] Emery v. Groh

Superior Court of Pennsylvania

February 7, 2014

LINDA EMERY, AS EXECUTRIX OF THE ESTATE OF DALE EMERY, DECEASED, Appellee
v.
WILLIAM GROH, M.D., PHILADELPHIA HEART INSTITUTE, CLINICAL PRACTICES OF THE UNIVERSITY OF PENNSYLVANIA, PENN PRESBYTERIAN MEDICAL CENTER OF THE UNIVERSITY OF PENNSYLVANIA HEALTH SYSTEM, UNIVERSITY OF PENNSYLVANIA HEALTH SYSTEM, THE TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA, Appellants

NON-PRECEDENTIAL DECISION

Appeal from the Judgment Entered May 14, 2013 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): April Term, 2010, No. 3731

BEFORE: BENDER, P.J., LAZARUS, J., and FITZGERALD, J. [*]

MEMORANDUM

BENDER, P.J.

Appellants, William Groh, M.D. (Dr. Groh), et. al, appeal from the entry of judgment in favor of Appellee, Linda Emery (Mrs. Emery), individually and as executrix of the estate of Dale Emery (Mr. Emery) in this medical malpractice case. The judgment awarded damages to Mrs. Emery in her dual capacity for negligence, failure to obtain informed consent, and loss of consortium related to the implantation of a cardiac stent in Mr. Emery. Appellants claim that the jury's verdict was inconsistent with the causation testimony offered by Mrs. Emery's medical expert, and that the jury's verdict for Mrs. Emery's loss of consortium claim was against the weight of the evidence. After careful review, we reverse.

A jury trial commenced in this matter on November 13, 2012. On November 15, 2012, the jury returned a verdict in Mrs. Emery's favor on her claims of negligence, failure to obtain informed consent, and loss of consortium. The jury awarded Mrs. Emery, as Executrix of the Estate of Dale Emery, [1] $365, 500, and $282, 000 to Mrs. Emery individually. Appellants filed a timely notice of appeal. They now present the following questions for our review:

A. Whether the trial court erred in failing to enter a judgment notwithstanding the verdict in [Appellants'] favor or, alternatively, in failing to grant a new trial because the jury's verdict was inconsistent with the causation testimony of [Mrs. Emery's] medical expert, Stuart Fischer, M.D.?
B. Whether this Court should grant remittitur, or, alternatively, a new trial since the jury's verdict in favor of Mrs. Emery was clearly excessive and against the weight of the evidence presented and/or could only have been the product of prejudice, speculation, sympathy and/or conjecture?

Appellants' Brief at 4.

In August 2008, Dale Emery was under the care of a cardiologist, who referred him to Dr. Groh for a diagnostic cardiac catheterization. N.T. Trial Volume I, 11/13/12, at 139, 147. Dr. Groh testified that Mr. Emery "indicated to me that he was allergic to nickel." Id. at 146. According to Dr. Groh, it was not possible to choose an exact course of treatment for Mr. Emery's cardiac disease prior to the procedure, "without knowing the patient's specific anatomy or taking into account his clinical situation." Id. at 154. Dr. Groh told Mr. Emery that treatment options included stenting, bypass surgery, medical therapy, and balloon angioplasty. Id. at 153. Dr. Groh also told Mr. Emery that all stents contain nickel. Id. at 155. Initially, Mr. Emery objected to the implantation of a stent, but after further discussion with Dr. Groh, Mr. Emery signed a form that stated he explicitly consented to all of the above-mentioned procedures (including the implantation of a stent). Id. at 155, 163. That form did not note that Mr. Emery was allergic to nickel, nor did it note that stents contain nickel. Id. The instruction for use of the stent at issue stated that it was not indicated for use in patients with a known allergy to stainless steel.[2] Id. at 155 – 160. This fact was not disclosed to Mr. Emery prior to the catheterization. Id. at 161.

Dr. Groh performed the catheterization. Id. at 166. While in the hospital room, Dr. Groh spoke by telephone with Mr. Emery's physician. Id. He also spoke with Mr. Emery (who was sedated but conscious) about his observations. Id. Dr. Groh then proceeded to implant a stent in one of Mr. Emery's coronary arteries. Id. Once implanted, the stent could not be removed. Id. at 167.

Mr. Emery experienced itching, pain and rashes following the procedure. Id. at 186 – 187. These symptoms progressively worsened over the course of the following year. Id. at 202 – 203. His mood deteriorated as well. Id. at 204. The combination of his physical symptoms, and the emotional distress resulting from them, put a strain on the Emerys' marriage. Id. at 202 – 204. Mr. Emery began to travel from the marital home to reside at the homes of his family members for extended periods of time. Id. at 203. Mrs. Emery continued to reside in the marital home, but would frequently spend time with Mr. Emery at his relatives' homes. Id. The situation continued until Mr. Emery died of unrelated causes in 2011. Id. at 206.

At trial, Mrs. Emery offered the expert testimony of Dr. Stuart Fischer, an interventional cardiologist. Dr. Fischer testified that he felt comfortable expressing opinions regarding the standard of care and causation as they related to this case. N.T. Trial Vol. II, 11/14/12, at 15 – 16. He opined that Dr. Groh breached his duty of care when he failed to inform Mr. Emery that, according to the stent's package instructions, its use was contraindicated in patients with known stainless steel allergies. Id. at 34.

Dr. Fischer prepared a report prior to trial. In that report, he characterized the facts as follows: Mr. Emery "complained of pruritus [itching] in his chest, felt secondary to the nickel-containing stent." Expert Report of Dr. Stuart Fischer (Report), at 4. Dr. Fischer also reported that "following discharge, [Mr. Emery] continued to have complaints of pruritus, rash, all felt secondary to the nickel-containing stent, " and that "Mr. Emery continues to complain of multiple symptoms, including pruritus, and rash, all felt secondary to the nickel-containing stent." Id. He concluded, "It is my opinion to a reasonable medical probability that had Mr. Emery not received this ...


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