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Cragle v. O'Brien

Superior Court of Pennsylvania

December 20, 2019


          Appeal from the Judgment Entered February 20, 2019 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 2013-08944



          McLAUGHLIN, J.

         David Cragle appeals from the judgment entered in favor of Frank O'Brien, M.D., James M. Matucci, Jr., M.D., and Orthopaedic Consultants of Wyoming Valley, LLC (collectively "Appellees") following a jury trial in this medical malpractice case. The jury found Drs. O'Brien and Matucci were negligent but that the negligence did not cause harm to Cragle. Cragle argues that the verdict was against the weight of the evidence and that the trial court erred in failing to instruct the jury as to an adverse inference. We affirm.

         Cragle initiated this medical malpractice action in July 2013. According to the testimony at trial, Cragle began suffering from knee pain in 2010. In 2011, Cragle went to see Dr. O'Brien, who diagnosed Cragle with a potential torn meniscus. N.T., Trial, 5/29/18-6/1/18, at 59. He ordered an MRI, which showed Cragle had a large Baker cyst, which is a pocket of fluid behind the knee. Id. at 59-61. Dr. O'Brien aspirated fluid from the cyst. Id. at 63-64. Cragle's symptoms did not improve and, on August 1, 2011, Dr. O'Brien excised the cyst. Id. at 65-66. The surgery included an incision to the back of the leg. Id. at 63.

         Cragle scheduled a post-operative appointment for August 15, 2011. Id. at 68. On August 4, 2011, Cragle called to re-schedule the appointment to August 12, 2011, because he was scheduled to leave for vacation on August 13, 2011. Id. at 68-69. However, Dr. O'Brien was on vacation that day, so Cragle was given an appointment for August 12, 2011, to see Dr. Matucci. Id.

         Four days before the appointment, Cragle called the office complaining of swelling in his lower leg and foot. He had a Doppler lower extremity exam, which was negative for deep vein thrombosis.[1] Id. at 69, 71. Cragle was seen by Dr. Matucci on August 12, 2011. Dr. Matucci noted Cragle had swelling in the calf and posterior portion of the leg, and had bleeding from the back of the knee. Id. at 164. Dr. Matucci put a pressure dressing on the wound and told Cragle to stay off of, and elevate, the leg, and to follow-up with Dr. O'Brien on the following Monday, August 15, 2011. Id. at 170.

         In addition to the above, the office note for the August 12, 2011, appointment with Dr. Matucci stated that he was admitting Cragle to the hospital because he was having a hard time ambulating, for evacuation of a hematoma[2] and for irrigation of the wound. Id. at 177. Dr. Matucci testified at trial that he did not know how this information was added to the note, and that the information about hospitalization, evacuation, and irrigation was not accurate. Id. at 177-82. Dr. Matucci further testified that Cragle did not need to be admitted on August 12, 2011, and that if Cragle had needed to be admitted to the hospital, Dr. Matucci would have done so. Id. Cragle does not contend that Dr. Matucci sent him to the hospital on August 12, 2011.

         The medical record contained a prescription for Oxycodone, which was written by Dr. Matucci and dated the day after Cragle's appointment with Dr. Matucci, August 13, 2011. Id. at 172. This prescription was not included in the office note. Id. at 173. At trial, Dr. Matucci testified he provided the prescription on August 12, 2011, but dated it August 13, 2011.[3] Id. at 176. At his deposition, however, Dr. Matucci testified he did not write a prescription. The prescription was filled on August 13, 2011. Id. Cragle could not recall receiving a prescription. Id. at 208. He further testified that after August 12, 2011, the next time he had contact with the office was on Monday, August 15, 2011. Id. at 223-24.

         Cragle saw Dr. O'Brien on Monday, August 15, 2011. Dr. O'Brien noted Cragle had a lot of pain and swelling. Id. at 77-78. Dr. O'Brien removed fluid from the knee, and noted evidence of potential sepsis[4] and probably an element of hematoma or seroma[5] in the calf. Id. at 78, 80. Dr. O'Brien planned to check the fluid analysis and the gram stain[6] and cultures. Id. at 81-82.

         On August 16, 2011, Cragle was admitted to the hospital for surgery, including debridement of the incision and knee arthroscopy, washing out the knee, and synovectomy. Id. at 88. During the surgery, Dr. O'Brien discovered a torn meniscus, which he treated. Id. at 89. Cragle had an infection in his knee, but not in his calf. Id. at 89. Cragle remained in the hospital for six days and required intravenous antibiotic therapy. Id. at 91-92. Cragle was readmitted two weeks later and Dr. O'Brien did a second arthroscopic procedure on September 8, 2011. Id. at 97. Dr. O'Brien testified that 25% of people "who have a washout for an infected knee need to go back and have a washout again." Id. Cragle required intravenous antibiotic treatment until October 2011. Id.

         Cragle continued to treat with Dr. O'Brien through November 2013. Id. at 391. Cragle's arthritis worsened and, in December 2011, Dr. O'Brien told Cragle that he should consider knee replacement surgery. Cragle testified he had pain and was unable to properly function for several months, was told he needs a knee replacement, and has been declared permanently disabled from his employment as a gas company meter reader. Id. at 215-19.

         Cragle's causation testimony included testimony from his liability expert James Kipnis, M.D:

[Q] . . . [A]s a result of the delays in the care that you mentioned earlier, what happened to Mr. Cragle specifically?
A Well, he did have to go back to the operating room for a second, you know, wash out, irrigation debridement. And he did go on to develop increased degenerative arthritis of his knee and having difficulty with the knee.
Q And in terms of the advancement of the infection and limitation to the knee, was that also as a result of the things we've been talking about today?
A Well, it does appear that the degenerative findings - the degenerative occurrence was a result of the infection and the surgeries he had done.

N.T., Deposition, 5/16/18, at 42-43. Cragle also claims medical expert Gerald Dworkin, D.O. provided causation testimony:

Unfortunately, post procedure, there was complication of significant swelling, and the associate of the operative surgeon took over the care during this aspect of the clinical course.
So we have a situation where there were some complications following this. There turned out to require other arthroscopic surgical interventions in order to handle the swelling and the complications of sepsis or infection that occurred.
So essentially over the course of a couple months, though a second arthroscopy which was performed in September, a lot of manipulation and care to the knee was required, as a result of this complicated clinical course.

N.T., Deposition, 5/9/18, at 16.

         The defendant doctors presented expert causation testimony that included testimony that there was nothing about the timing of treatment that would have put Cragle at increased risk for worse arthritis. N.T., Trial, 5/29/18-6/1/18, at 285. In addition, the expert testified that the combination of removing the torn meniscus, the infection, and the arthritis would cause arthritis to worsen, and that having the surgery on August 12, 2011, rather than August 16, 2011, would not have made a difference because it was still within a week of the infection. Id. at 300.

         In May 2018, a week and a half prior to trial, Cragle filed a motion to amend the complaint to include, among other things, a claim for punitive damages based on the allegedly altered medical records. This motion referenced sections 511(c) and 505 of the Medical Care Availability and Reduction of Error Act ("MCARE"). 40 P.S. 1303.511, 1303.505. Cragle withdrew this motion. N.T., Trial, 5/29/18-6/1/18, at 430. Cragle also filed a Supplemental Pretrial Statement, in which he requested that the court instruct as to Pennsylvania Suggested Standard Jury Instruction 5.70, Intentional Alteration or Destruction of Documents, which provides:

1. If a party intentionally [alters] [destroys] a relevant document, and
2. Does not satisfactorily explain why [he] [she] [altered] [destroyed] the document, you may find that this document would have been unfavorable to the party who [altered] [destroyed] it.

Pa.S.S.J.I. (Civ) 5.70.

         During a side-bar discussion at trial, Appellees stated their concern that Cragle was attempting to raise a negligent record-keeping cause of action. Cragle stated he was exploring the alteration because of the request for an "adverse inference instruction":

The Court is aware of our most liked [sic] request for an adverse inference given the potential that the records were altered, and we're exploring that, Your Honor; and that is - there is nothing that we're doing beyond what they did in terms of the manner in which they kept the records.
The MCARE Act is very clear that it's unprofessional conduct to alter records; and if a record is altered, an adverse inference should be given.
In terms of exploring that, other than to ask them about how they kept the records and what is in the records; and that ...

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