from the Judgment Entered February 20, 2019 In the Court of
Common Pleas of Luzerne County Civil Division at No(s):
BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and FORD ELLIOTT,
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.
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.
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.
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. 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.
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 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
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. 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
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 and probably an
element of hematoma or seroma in the calf. Id. at 78,
80. Dr. O'Brien planned to check the fluid analysis and
the gram stain and cultures. Id. at 81-82.
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.
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.
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
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
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
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.
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.
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
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]
Pa.S.S.J.I. (Civ) 5.70.
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 ...