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[U] Rawdin v. Real

Superior Court of Pennsylvania

February 26, 2014



Appeal from the Judgment Entered March 11, 2013, in the Court of Common Pleas of Montgomery County, Civil Division at No(s): 2006-00386 2006-26593




Myrna Rawdin (Mrs. Rawdin) and Martin Rawdin, husband and wife (collectively "the Rawdins"), appeal from the judgment entered against them and in favor of Mark B. Real, M.D. (Dr. Real) and PMA Medical Specialists, LLC (PMA) (collectively "Appellees") in this medical malpractice action. Upon review, we vacate the judgment, reverse the order of the trial court denying the Rawdins' post-trial motion for a new trial, vacate the order on the motion in limine, and remand for a new trial.

The trial court summarized the underlying facts as follows.

In 2001, Mrs. Rawdin began treating with Dr. Real, board certified in internal medicine and geriatrics, at PMA Medical Specialists. She attended her first office visit with Dr. Real on July 5, 2001, just prior to her sixty-third (63rd) birthday. Mrs. Rawdin next saw Dr. Real on April 10, 2002, for an annual routine visit.
On June 17, 2003, Mrs. Rawdin experienced an episode of severe dizziness, which led her to call 911. The ambulance transported her to the Pottstown Memorial Hospital Emergency Room ("ER"), where the medical staff ordered laboratory studies, an X-ray and a CAT scan of her brain. The ER physician diagnosed labyrinthitis, 1 prescribed Antivert and told Mrs. Rawdin to follow up with her family doctor. Mrs. Rawdin saw Dr. Real on June 23, 2003. Based on her presentation and what Mrs. Rawdin had told him about her episode of vertigo, Dr. Real ordered an MRI of her brain. Mrs. Rawdin obtained the MRI on July 2, 2003. The MRI revealed small vessel ischemic disease, which Dr. Real considered a common finding in individuals over the age of sixty (60). A nurse from Dr. Real's office reported to Mrs. Rawdin that the results of her MRI were within normal limits. Her symptoms of dizziness resolved within a couple of weeks after the MRI.
Mrs. Rawdin next saw Dr. Real on April 29, 2004, for her annual routine checkup. On November 1, 2004, Mrs. Rawdin again presented to Dr. Real. At this visit, she related an episode at her synagogue on October 29, 2004, when she experienced the sensation that her voice did not sound normal to her, although no one else noticed anything different. She also reported a little headache and dizziness, but that the speech problem, noticed only by her, had gone away almost immediately. As part of his examination, Dr. Real checked Mrs. Rawdin's ears and had a nurse remove a large amount of earwax from her left ear. Dr. Real prescribed Meclizine for the dizziness, which resolved within a few days. Mrs. Rawdin did not see Dr. Real again after the November 1, 2004 visit. During the evening hours of Sunday, November 28, 2004, Mrs. Rawdin suffered an ischemic stroke involving the right side of her brain. [The stroke has left her with significant left-sided disability.]
1 Labyrinthitis is an inflammation of the inner ear that can cause loss of balance, vertigo and vomiting. Steadman's Medical Dictionary 2006.

Trial Court Opinion, 8/21/2013, at 2-3 (citations omitted).

The Rawdins instituted a medical professional liability action against Dr. Real on January 10, 2006, alleging that Dr. Real was negligent in failing to diagnose and treat Mrs. Rawdin's transient ischemic attack (TIA) that led to her debilitating stroke.[1] The case proceeded to a jury trial, which returned a verdict in favor of Appellees. Specifically, the jury found that Dr. Real's care of Mrs. Rawdin did not fall below the applicable standard of care. See Verdict Sheet, 9/17/2012, at Question 1. The Rawdins timely filed post-trial motions requesting a new trial, which were denied. They timely filed a notice of appeal, and both the Rawdins and the trial court complied with Pa.R.A.P. 1925.

On appeal, the Rawdins present two issues for our review.

1. Did the [t]rial [c]ourt err and abuse its discretion in granting [Appellees'] Motion in Limine to Preclude Plaintiffs' expert, Nancy Futrell, M.D. from testifying as to any opinions on the standard of care, and in its rulings during trial further limiting Dr. Futrell's testimony?
2. Did the [t]rial [c]ourt err and abuse its discretion in failing to sustain [the Rawdins'] objection to Defense Counsel's statement during closing argument that Nancy Futrell, M.D. failed to testify on the issues of negligence and causation, because earlier rulings made by the [trial court] precluded Dr. Futrell's testimony in these areas?

The Rawdins' Brief at 5.

We set forth our well-settled standard of review.

Our standard of review from an order denying a motion for a new trial is whether the trial court committed an error of law, which controlled the outcome of the case, or committed an abuse of discretion. A trial court commits an abuse of discretion when it render[s] a judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, or was motivated by partiality, prejudice, bias, or ill will.

Polett v. Public Communications, Inc., ___ A.3d ___, 2013 WL 6732103 (Pa.Super. 2013) (citing Mirabel v. Morales, 57 A.3d 144, 150 (Pa.Super. 2012) (internal citations and quotation marks omitted)). "In making this determination, we must consider whether, viewing the evidence in the light most favorable to the verdict winner, a new trial would produce a ...

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