Weiss, J. v. Lieber, P. ( 2017 )

J-A33036-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
JODI WEISS, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
v. :
:
DR. PAUL LIEBER, :
:
Appellee : No. 666 WDA 2016
Appeal from the Judgment Entered May 18, 2016,
in the Court of Common Pleas of Allegheny County,
Civil Division, at No: GD 10-024404
BEFORE: LAZARUS, SOLANO, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 31, 2017
Jodi Weiss (Weiss) appeals from the judgment1 entered on May 18,
2016, in favor of Dr. Paul Lieber (Lieber) and against her in this medical
malpractice case. After review, we affirm.
As this Court explained previously,
In January of 2010, [Weiss] sought treatment for chronic
back pain from Dr. Saloni Sharma, a physician employed at
Rehabilitation and Pain Specialists, P.C. (Rehabilitation). Dr.
Sharma prescribed a series of epidural steroid injections to
relieve the pain. During the second injection, on February 22,
2010, Dr. Sharma injected steroids into [Weiss’s] spine, as a
result of which she experienced a severe spinal headache. She
returned to Rehabilitation the next day, where physician
assistant Melissa Kauffman diagnosed her with a spinal fluid
leak. When more conservative treatment did not resolve her
symptoms, [Weiss] returned for an epidural blood patch, which
involves injecting a small amount of the individual’s own blood
1
Weiss purports to appeal from the order denying her motion for post-trial
relief. However, her appeal properly lies from the judgment entered May 18,
2016. Jackson v. Kassab, 812 A.2d 1233, 1233 n.1 (Pa. Super. 2002). We
have amended the caption accordingly.
*Retired Senior Judge assigned to the Superior Court.
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into the back to stop the spinal fluid leak. Appellee Lieber,
physician and owner of Rehabilitation, performed the blood patch
procedure at the Gamma Surgery Center on February 25, 2010.
For this procedure [Weiss] signed a second consent form.3 A
witness and [Lieber] also signed it.
______
3
In pertinent part, the consent form
which [Weiss] signed states:
2) The basic procedures of my
surgery and the advantages and the
disadvantages, risks and possible
complications of alternative treatments
have been explained to me by the
doctor. Although it is impossible for the
doctor to inform me of every possible
complication that may occur, the doctor
has answered all my questions to my
satisfaction. As with ALL types of
surgery, there is the possibility of other
complications due to anesthesia, drugs,
reactions, or other factors which may
involve other parts of my body, including
a possibility of brain damage or even
death. I am aware that there is a
possibility of a hospital transfer in an
emergency situation. Since it is
impossible to state every complication
that may occur as a result of surgery,
the list of complications is incomplete.
***
13) I AM STATING THAT I HAVE
READ THIS CONSENT (OR IT HAS
BEEN READ TO ME), AND I FULLY
UNDERSTAND IT AND THE POSSIBLE
RISKS, COMPLICATIONS AND
BENEFITS THAT CAN RESULT FROM
THE SURGERY. I ACCEPT ON BEHALF
OF MYSELF AND/OR THIS PATIENT
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ALL OF THE ITEMS LISTED IN THESE
PARAGRAPHS.
After the blood patch procedure, [Weiss] complained that
her back condition worsened and she began to have pain in her
legs. She went to UPMC Mercy Hospital, where she was
diagnosed with arachnoiditis.4 She underwent a laminectomy5
and implantation of a spinal stimulator.6
______
4
Arachnoiditis is a pain disorder caused
by the inflammation of the arachnoid,
one of the membranes that surround and
protect the nerves of the spinal cord. It
can cause a number of symptoms,
including numbness, tingling, and a
characteristic stinging and burning pain
in the lower back or legs, as well as
debilitating muscle cramps, twitches, or
spasms. It may also affect bladder,
bowel, and sexual function. In severe
cases, arachnoiditis may cause paralysis
of the lower limbs. The disorder has no
predictable pattern or severity of
symptoms.
5
Spinal laminectomy (also known as
spinal decompression) involves the
removal of the lamina [the arched bony
roof of the spinal canal] (usually both
sides) to increase the size of the spinal
canal and relieve pressure on the spinal
cord and nerve roots.
6
Spinal cord stimulation is a treatment
for back pain that uses a mild electric
current to block nerve impulses in the
spine.
[Weiss] filed a complaint [against Lieber] which originally
alleged claims for professional negligence and lack of informed
consent. Notably, however, by the time of trial all of [Weiss’s]
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claims of professional negligence had been withdrawn, and the
trial proceeded solely on the claim of lack of informed consent.
Weiss v. Rehab. & Pain Specialists P.C., 87 A.3d 382 (Pa. Super. 2013)
(unpublished memorandum at 3-5) (citations and some footnotes omitted).
The matter proceeded to a jury trial on May 3, 2012. The jury
returned a verdict in favor of Lieber, and Weiss filed an appeal with this
Court. In that appeal, Weiss argued that the trial court erred in refusing to
admit certain expert testimony and by failing to give a requested jury
instruction on assumption of duty. On September 13, 2013, this Court
vacated the judgment and remanded the case for a new trial “with direction
to permit expert testimony, otherwise admissible, addressed to whether the
blood patch procedure at issue here constituted [surgery as] set forth in
sub-section 1303.504(a) of [Pennsylvania’s Medical Care Availability and
Reduction of Error Act (MCARE), 40 P.S. §§ 1303.501-1303.516], and [if
so,] to identify the risks of that procedure, the alternatives to that procedure
and the risks of those alternatives.” Id. at 14.
After some delays,2 the second trial in this matter commenced on
January 13, 2016. On January 20, 2016, the jury once again returned a
2
Following the issuance of this Court’s September 13, 2013 memorandum,
Weiss petitioned for reargument en banc, which was denied. See Order,
1307 WDA 2012, 11/08/2013. On December 9, 2013, Weiss filed a petition
for allowance of appeal, which our Supreme Court denied on June 2, 2014.
Weiss v. Rehab. & Pain Specialists P.C., 93 A.3d 463 (Pa. 2014). A
second trial was scheduled; however, on May 22, 2015, following argument
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verdict for Lieber, finding via special interrogatories that (1) the epidural
blood patch procedure performed by Lieber on Weiss was not a “surgery”
and (2) Lieber did not fail to obtain informed consent from Weiss before
performing the epidural blood patch procedure. See Jury Interrogatory
Sheets, 1/20/2016.
On February 1, 2016, Weiss filed a motion for post-trial relief, which
was denied on April 19, 2016. This appeal followed. The trial court ordered
Appellant to file a concise statement of errors complained of on appeal and
one was filed. The trial court issued an opinion pursuant to Rule of Appellate
Procedure 1925(a) on August 8, 2016.3
on various pretrial motions filed by both parties, the trial court granted
summary judgment in favor of Lieber. See Trial Court Order, 5/22/2015.
Weiss filed a notice of appeal with this Court, which was docketed at 969
WDA 2015. In addition, Weiss filed an application for relief at docket
number 1307 WDA 2012, requesting that this Court enforce the previously
entered remand order. We granted Weiss’ application for relief and, by
order dated August 10, 2015, vacated, inter alia, the trial court’s May 22,
2015 order granting summary judgment and directed the trial court “to
comply with this Court’s decision in the case of Weiss, supra at 87 A.3d
382 (Pa. Super. 2013) (unpublished memorandum)[.]” Order, 1307 WDA
2012, 8/10/2015. On October 26, 2015, we dismissed the appeal docketed
at 969 WDA 2015 due to Weiss’ failure to file a brief. See Order, 969 WDA
2015, 10/26/2015.
3
In his brief, Lieber urges this Court to dismiss the instant appeal or find
that Weiss has waived her claims for failure to comply with the Rules of
Appellate Procedure. Lieber’s Brief at 12-17. While we agree that Weiss’s
brief violates the Rules of Appellate Procedure by (1) ignoring the font
requirement, see Pa.R.A.P. 124(a)(4), and (2) including argument in her
statement of the case, see Pa.R.A.P. 2117, these violations of the rules do
not impede this Court’s ability to conduct meaningful appellate review of the
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Weiss presents the following questions for our review.
I. Whether the [trial] court erred in allowing testimony from all
witnesses, that the procedure in question was not a “surgery”
under Pennsylvania’s MCARE law for informed consent?
II. Whether the trial court erred in not giving [Weiss] judgment
notwithstanding the verdict or a directed verdict as the verdict
was against the weight of the evidence?
III. Whether the trial court erred in allowing [Lieber’s] expert Dr.
Kabazie to testify beyond the scope of his report as to [Weiss’s]
prior back injuries, proximate cause, and whether [Weiss] was
still suffering from arachnoiditis?
IV. Whether the trial court erred in not instructing the jury as to
assumption of duty?
Weiss’s Brief at 4 (issues renumbered for ease of disposition).
Weiss first contends that the trial court erred in allowing the admission
of testimony that the epidural blood patch procedure was not a surgery
under the MCARE Act and, therefore, did not require informed consent.
Weiss’s Brief at 24. Weiss further argues that it was improper and prejudicial
to submit to the jury the question of whether the procedure performed
herein was a surgery under MCARE. Id.issues raised. Thus, we deny Lieber’s request. Booher v. Olczak, 797 A.2d
342, 344 (Pa. Super. 2002).
Further, Lieber argues that Weiss’s 13-page 1925(b) statement
violates the mandates of that Rule, particularly the requirements that the
statement be concise and specific. Lieber’s Brief at 13; Pa.R.A.P.
1925(b)(4)(iv). However, because the trial court was able to ascertain and
address the issues raised on appeal, Trial Court Opinion, 8/8/2016, at 2, we
will not find waiver. See, Boehm v. Riversource Life Ins. Co., 117 A.3d
308, 319 n.3 (Pa. Super. 2015), appeal denied, 126 A.3d 1281 (Pa. 2015).
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The MCARE Act requires consent to be obtained prior to, inter alia,
“[p]erforming surgery, including the related administration of anesthesia.”
40 P.S. § 1303.504(a)(1). The term “surgery” is left undefined by the Act;
however, it is clear that “[e]xpert testimony is required to determine
whether the procedure constituted the type of procedure set forth in
subsection (a) and to identify the risks of that procedure, the alternatives
to that procedure and the risks of these alternatives.” 40 P.S. § 1303.504(c)
(emphasis added). As noted above, in deciding the prior appeal in this
matter, this Court determined that the threshold question of whether the
blood patch procedure performed herein was a “surgery” under subsection
1303.504(a)(1) was one for the jury and remanded the case for a new trial,
directing the lower court to permit testimony on this exact issue. Weiss, 87
A.3d 382 (Pa. Super. 2013) (unpublished memorandum at 14). Thus,
Weiss’s argument that admission of this testimony was improper is
unavailing. Neidert v. Charlie, 143 A.3d 384, 390 (Pa. Super. 2016)
(noting that “under the doctrine of the law of the case, when an appellate
court has considered and decided a question submitted to it upon appeal, it
will not, upon a subsequent appeal on another phase of the case, reverse its
previous ruling”.).
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We now turn to Weiss’s contention that she is entitled to judgment
notwithstanding the verdict.4 Weiss’s Brief at 23-26. Our standard of review
is well-settled.
A motion for judgment n.o.v. is a post-trial motion which
requests the court to enter judgment in favor of the moving
party. There are two bases on which the court can grant
judgment n.o.v.:
[O]ne, the movant is entitled to judgment as a
matter of law and/or two, the evidence is such that
no two reasonable minds could disagree that the
outcome should have been rendered in favor of the
movant. With the first, the court reviews the record
and concludes that even with all factual inferences
decided adverse to the movant the law nonetheless
requires a verdict in his favor, whereas with the
second, the court reviews the evidentiary record and
concludes that the evidence was such that a verdict
for the movant was beyond peradventure.
Polett v. Public Communications, Inc., 83 A.3d 205, 212 (Pa.
Super. 2013). In an appeal from the trial court’s decision to deny
judgment n.o.v.,
we must consider the evidence, together with all
favorable inferences drawn therefrom, in a light most
favorable to the verdict winner. Our standard of
review when considering motions for a directed
verdict and judgment notwithstanding the verdict are
identical. We will reverse a trial court’s grant or
denial of a judgment notwithstanding the verdict
only when we find an abuse of discretion or an error
of law that controlled the outcome of the case.
4
Weiss is confused as to the standard for granting a directed verdict or
judgment n.o.v. in her question presented, she asserts that the trial court
erred in not granting such because “the verdict was against the weight of
the evidence.” However, as outlined infra., weight of the evidence is not
the standard.
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Further, the standard of review for an appellate court
is the same as that for a trial court.
Id. at 211.
Drake Mfg. Co. v. Polyflow, Inc., 109 A.3d 250, 258–59 (Pa. Super.
2015).
Weiss argues that “[t]he jury could not logically and fairly decide what
was told to [Weiss] was sufficient to obtain[] her informed consent” where
the testimony of Lieber and his expert established that she was not warned
of nerve damage before undergoing the blood patch procedure. Weiss’s Brief
at 19. However, Weiss’s argument fails to take into account the fact that the
jury determined, after hearing all the evidence, that the blood patch
procedure performed by Lieber on Weiss was not a surgery, and as a result,
informed consent was not necessary. See Jury Interrogatory Sheets,
1/20/2016.
The record reveals that, consistent with this Court’s remand, the jury
was presented with testimony from Alexander Weingarten, M.D., who
testified on behalf of Weiss that the blood patch procedure was a “minor
surgical procedure,” explaining that while “it is not a major surgical
procedure like you would use a scalpel and sutures for, but because you’re
trying to repair something to, you know, get rid of a problem, the headache.
It is a minor surgical procedure.” N.T., 1/15/2016, at 342-43. Conversely,
the jury heard from defense expert Abraham John Kabazie, M.D., who
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testified on Lieber’s behalf that the blood patch procedure was “not a
surgical procedure” because “surgical procedure involves cutting, it involves
suture, and typically, typically surgeries are done with some sort of
anesthetic, not always. But the blood patch, [and] epidural steroid injections
involve no sutures, involve no cutting, and they are just not considered to be
surgery.” N.T., 1/19/2016, at 702-03.
Reviewing the evidence in the light most favorable to Lieber, as the
verdict winner, we conclude that no abuse of discretion or error of law
controlled the outcome of this case. The jury, sitting as factfinder, was free
to resolve this conflicting evidence in Lieber’s favor and determine that the
blood patch procedure was not a surgery that would trigger the informed-
consent protections of the MCARE Act. Therefore, we conclude that the trial
court properly denied Weiss’s motion for post-trial relief. See Drake, 109
A.3d at 258–59.5
In her final issue, Weiss contends that the trial court erred in failing to
instruct the jury as to assumption of duty. Weiss’s Brief at 15-16. However,
this case proceeded to trial only on the cause of action of implied consent.6
5
Because we resolved the foregoing issue on testimony of Dr. Kabazie
unrelated to that which Weiss alleges was outside the scope of the expert’s
report, see Weiss’s brief at 20-23, we need not address Weiss’ third issue.
6
As this Court has explained, “[t]here is no cause of action in Pennsylvania
for negligent failure to gain informed consent.” Pomroy v. Hosp. of Univ.
of Pennsylvania, 105 A.3d 740, 746 (Pa. Super. 2014) (citation omitted).
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Assumption of duty, see Restatement (Second) of Torts § 324A (1965), is a
negligence theory. Accordingly, because section 324A was inapplicable in
this case, the trial court did not err in refusing Weiss’s request for a jury
charge.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/2017
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