Matusek, J. v. Bruno, J.

J-A26020-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN MATUSEK, SR., SPOUSE AND IN THE SUPERIOR COURT OF
EXECUTOR OF THE ESTATE OF PENNSYLVANIA
ANGELINE P. MATUSEK,
Appellant
v.
JAMES R. BRUNO, M.D., THOMAS J.
CASTELLANO, M.D., JOHN ROTHSCHILD,
M.D., GARY DECKER, M.D., MARK
BERNARDI, D.O., GEISINGER WYOMING
VALLEY MEDICAL CENTER, GEISINGER
HEALTH SYSTEM FOUNDATION,
Appellees No. 279 MDA 2014
Appeal from the Judgment Entered March 18, 2014
In the Court of Common Pleas of Luzerne County
Civil Division at No(s): 4735 OF 2006
BEFORE: BOWES, MUNDY, and JENKINS, JJ.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 05, 2015
This is an appeal from the March 18, 2014 judgment entered in favor
of Thomas J. Castellano, M.D. and Gary Decker, M.D., in a wrongful death
and survival action commenced by John Matusek, Sr. (“Executor”), in his
capacity as the Executor of the Estate of Angeline P. Matusek (“Decedent”),
his late wife.1 Executor alleged that the negligence of various medical
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1
Executor purported to appeal from the denial of the motion to remove
the nonsuit, which is an interlocutory order and generally not appealable.
The appeal properly lies from the final judgment. Executor timely complied
(Footnote Continued Next Page)
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professionals in their treatment of Decedent resulted in her death. 2 At the
conclusion of Executor’s case, the trial court entered a nonsuit, and declined
to remove it by order dated December 9, 2013. After thorough review,
we affirm.
On April 13, 2004, Decedent underwent total left knee replacement
surgery. As is standard prior to surgery, she was placed on the antibiotic
Clindamycin to prevent infection. After surgery, she participated in physical
therapy and was discharged on April 22, 2004. Three days later, she was
taken by ambulance to Berwick Hospital with complaints of severe diarrhea,
vomiting, chest discomfort, and dehydration. Doctors there tentatively
diagnosed Clostridium Difficile, commonly known as C. Diff., and treated her
with Flagyl administered orally. Thereafter, Decedent was transferred to
Geisinger Wyoming Valley Medical Center (“Geisinger” or “hospital”) for
treatment of both the C. Diff and chest discomfort, and she was placed
under the care of Dr. Bernardi, a cardiologist. When the cardiologists
determined that her problems were not heart-related, and her condition
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(Footnote Continued)
with this Court’s order directing him to enter final judgment, and thus, we
have jurisdiction to entertain this appeal. See Staiger v. Holohan, 2014
Pa. Super. 200 (Pa.Super. 2014).
2
Mark Bernardi, D.O., Decedent’s admitting cardiologist, was excused
following the filing of an affidavit of non-involvement. James R. Bruno, M.D.
and John Rothschild, M.D., reached settlements with Executor prior to trial,
and Geisinger Wyoming Medical Center and Foundation were dismissed by
stipulation.
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continued to deteriorate, they brought in other consultants to address the C.
Diff. Dr. Decker, a specialist in infectious disease and Dr. Malhotra, a
surgeon, were consulted. Dr. James R. Bruno and his practice assumed
responsibility for Decedent’s medical management, and he requested a
gastroenterology consult from Dr. Castellano and a renal consult from
Dr. John Rothschild.
Dr. Decker first examined Decedent on April 27, 2004. He continued
the Flagyl, but doubled the dosage and changed the order to IV
administration of the drug. Nonetheless, blood test results on April 28
revealed that Decedent’s white blood cell count had risen substantially.
Decedent complained of abdominal pain and there were signs of acidosis and
systemic failure. Dr. Malhotra, the surgeon who saw her on the morning of
April 28th noted that she was stable at the moment, but asked to be re-
consulted if the patient deteriorated clinically. Dr. Decker saw Decedent
within several hours of the surgeon and did not change her treatment.
Drs. Rothschild and Bruno changed her IV fluids and Dr. Rothschild noted
renal failure that could require dialysis. During the afternoon of April 28, the
Decedent’s condition deteriorated and she was transferred to the ICU.
On the afternoon of April 29, the intensivist in the ICU sought a
surgical consult. At that point, Decedent’s condition had worsened. Her
abdomen was septic, her colon infarcted. An emergency exploratory
laparotomy performed at 4:00 p.m. revealed peritonitis, toxic mega colon
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and overall scatted infarctions. The surgeon removed the colon but she
continued to deteriorate. Ms. Matusek died at 10:56 p.m.
At trial, Executor and the couple’s daughter testified. He also offered
via videotaped deposition the expert testimony of Dr. Harold Lipsky, a
physician who was double board-certified in internal medicine and
gastroenterology. Dr. Lipsky opined that the failure of the defendant
physicians to recognize and address the signs of an acute abdomen in light
of Decedent’s severe C. Diff. and rapid deterioration on April 28 was a
deviation from the standard of care. Deposition, Harold Lipsky, M.D.,
9/9/13, at 55. He testified that there was a window in the afternoon and
evening of April 28 when, had Decedent undergone surgery, she would have
had a chance to survive. He criticized the defendants’ failure to obtain
another surgical consult during that window. He also opined that Decedent
should have been started earlier on oral Vancomycin, and that the failure to
do so increased the risk of harm and death.
Dr. Edward Weissman,3 board-certified in internal medicine, testified
contrary to Dr. Lipsky that it was not a violation of the standard of care to
wait until April 28 to start Vancomycin and that the medication regimen was
appropriate. He also noted that Decedent was stable at 10:00 a.m. that
morning when she was examined by Dr. Decker. Dr. Castellano’s partner,
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3
Dr. Weissman’s name is spelled both Weismann and Weissman throughout
the record.
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Dr. Fried, also saw Decedent that morning, and the expert opined that these
physicians acted within the standard of care at that time. The expert added,
“Things changed later in the day.” N.T. Trial, 9/10-13/13, at 333. He
agreed with Dr. Lipsky that a surgical reassessment should have been
ordered during the afternoon of April 28, and that this deviation from the
standard of care increased the risk of harm.
The defendant physicians were called to testify as on cross-
examination. Dr. Castellano confirmed that his partner, Dr. Fried,
supervised the Decedent’s care on April 28, 2004. Dr. Decker testified that
he did not see Decedent later on April 28, and that nurses did not notify him
of her decline.
At the close of Plaintiff’s case, the defense moved for a nonsuit, which
the trial court granted. The court relied in large part upon Mudano v.
Philadelphia Rapid Transit Co., 137 A. 104 (Pa. 1927) and Brodowski v.
Ryave, 885 A.2d 1045 (Pa.Super. 2005), in holding that the absolute
conflict between the testimony of Plaintiff’s two experts warranted a nonsuit.
The court also found that Executor had failed to prove that the standard of
care required defendant physicians to call the hospital to ascertain
Decedent’s declining condition and order the surgical consult.
On September 20, 2013, Executor filed a motion to remove the
nonsuit and, in the alternative, a motion for new trial. The motions were
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denied on December 9, 2013, and Executor timely appealed. He raises one
issue for our review:
I. Did the court abuse its discretion by relying on the holding
in Mudano (Mudano v. Philadelphia Rapid Transit Co.,
289 Pa. 51, 137 A. 104 (1927)) as the sole basis for
entering a compulsory non-suit where there [sic] Plaintiff
has presented two experts that have testified to
Defendants’ breach of the standard of care?
Appellant’s brief at 4.
In reviewing the denial of a motion to remove a nonsuit,
Our standard of review . . . is well-established.
Nonsuit is properly entered where it is clear that the
plaintiff has not established a cause of action or right
to relief. Pa.R.C.P. 230.1. In determining whether
the plaintiff has established a right to relief, [t]he
plaintiff must be allowed the benefit of all favorable
evidence and reasonable inferences arising
therefrom, and any conflicts in the evidence must be
resolved in favor of the plaintiff. Further, [i]t has
been long settled that a compulsory nonsuit can only
be granted in cases where it is clear that a cause of
action has not been established. However[,] where
it is clear a cause of action has not been established,
a compulsory nonsuit is proper. We must, therefore,
review the evidence to determine whether the order
entering judgment of compulsory nonsuit was
proper.
Braun v. Target Corp., 2009 Pa. Super. 206, 983 A.2d 752, 764
(Pa. Super. 2009). "This Court will reverse an order denying a
motion to remove a nonsuit only if the court abused its
discretion or made an error of law." Brinich v. Jencka, 2000
Pa. Super. 209, 757 A.2d 388, 402 (Pa. Super. 2000).
Staiger v. Holohan, 2014 Pa. Super. 200.
Executor contends that the trial court erred in relying upon Mudano
and Brodowski as the basis for granting the nonsuit. He disputes that
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there was a direct irreconcilable conflict between the testimony of his
experts Dr. Lipsky and Dr. Weissman and characterizes any inconsistencies
in their standard of care testimony as “minor.” Appellant’s brief at 21. In
finding the expert testimony to be in direct conflict, Executor alleges that the
trial court failed to view the evidence in the light most favorable to Executor.
Moreover, he maintains that the Mudano rule was modified in Brannan v.
Lankenau Hospital, 417 A.2d 196 (Pa. 1980), to allow juries to resolve
conflicts in expert testimony. See Gorfti v. Montgomery, 558 A.2d 109,
111 (Pa.Super. 1989) (recognizing modification of Mudano in Brannan, and
characterizing the expert testimony in the latter as “suffer[ing] from minor
internal inconsistencies rather than absolute divergences as to liability”).
Defendant physicians counter that the testimony of the two experts
was irreconcilable regarding the timing of the administration of oral
Vancomycin. Dr. Lipsky’s only criticism of the drug regimen was that he
would have started Decedent on oral Vancomycin at the same time as he
switched the patient to IV Flagyl, i.e., on April 27. Dr. Weissman opined
that it was appropriate to add oral Vancomycin on April 28 and that both
changes were “reasonable” and “within the standard of care.” N.T. Trial,
9/10-13/13, at 309-10. Defendant physicians maintain that the trial court
was correct in applying Mudano and entering a compulsory nonsuit on the
Vancomycin issue.
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In Mudano, supra, our Supreme Court addressed the situation where
a party’s experts present testimony that is in direct conflict regarding a
fundamental issue such as breach of the standard of care or causation. The
Court reasoned that
If plaintiff calls more than one expert, there must be no absolute
contradiction in their essential conclusions; for, since he,
carrying the burden of proof, is asking that a certain definite
scientific inference shall be drawn from given facts, and is
producing witnesses, accredited by him as specially qualified to
draw deductions from such facts, to inform the jury, on his
behalf, as to what that inference should be, it is his duty to
furnish consistent, and not inconsistent, advice, -- otherwise the
jury would be confused rather than instructed. Lacking scientific
knowledge themselves, the members of the jury, in a case like
the present, when called upon to determine whether a particular
physical condition is the result of the accident (or of another
cause, unrelated thereto), are not obliged to choose between
contradictory advice tendered by plaintiff's medical experts; the
law imposes no such duty on jurors, -- though it does at times
require them to determine whether to accept the advice of
experts on one side or the other of a case.
Mudano, supra at 107.
In Brannan, supra, the trial court refused to strike a nonsuit that it
granted in favor of two physicians based upon the rule in Mudano. Plaintiff
had four distinct theories of negligence against Dr. Rex, one of which
included failing to timely diagnose and treat the plaintiff’s punctured
esophagus. As to Dr. West, plaintiff alleged that he was negligent in failing
to administer antibiotics earlier. The plaintiff offered the testimony of one
expert witness. The trial court, citing Mudano, entered a nonsuit at the
close of the plaintiff’s case regarding the negligent administration of
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antibiotics based on its determination that the expert “gave contradictory
statements with regard to” the defendant physicians’ negligence. In
addition, the court found that the expert’s testimony made it clear that the
defendants “acted consistently with a respected body of medical thought.”
Id. at 199.
This Court affirmed, and the Supreme Court reversed. The High Court
found that the expert offered competent testimony establishing that the
physicians did not administer antibiotics at the earliest opportunity. The
expert testified that the recognized standard of care required the
administration of antibiotics immediately upon suspicion of a perforated
esophagus and that both defendants were negligent in failing to administer
drugs when perforation was first suspected. The Supreme Court rejected
this Court’s view that the expert had equivocated so much on cross-
examination as to render his opinion conjecture, and concluded that the
expert’s “relatively minor divergence” had not “sufficiently compromised” the
expert’s direct testimony “to justify removal of this issue from jury
consideration.” Id. at 200. In so holding, the Court limited application of
Mudano to the situation where the plaintiff's experts “so vitally disagree on
essential points as to neutralize each other's opinion evidence.” Id.
We found such a situation in Brodowski v. Ryave, 885 A.2d 1045,
1060 (Pa.Super. 2005). Recognizing that a plaintiff in a medical malpractice
case must present expert testimony to establish the applicable standard of
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care, its deviation, causation, and the extent of the injury, we found that the
experts were “in irreconcilable conflict” regarding the standard of care
applicable to one of the defendant physicians, Dr. Varganos. See Toogood
v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140, 1145 (Pa. 2003).
Dr. Varganos was a cardiologist who consulted in the emergency room, who
identified a life–threatening illness, and who had privileges to admit patients.
Plaintiff’s first expert opined that Dr. Varganos should have admitted the
plaintiff on his own service with a neurology consult and initiated heparin
therapy or consulted neurology from the emergency room. According to the
first expert, it was not enough to merely recommend to the treating
physician that a neurologist be consulted. Plaintiff’s second expert felt it was
appropriate for the plaintiff to have been seen by a neurologist, but
maintained that it was the admitting physician’s duty to obtain that
consultation. We found these opinions regarding whose duty it was to
obtain the neurology consultation to be in absolute conflict regarding the
essential issue of the standard of care applicable to Dr. Varganos. Since the
conflicting opinions would lead to jury speculation, the very ill the Mudano
rule was designed to prevent, we found that the trial court correctly
removed this issue from the jury consideration.
We find no abuse of discretion in the application of Mudano on the
issue of the timing of the administration of Vancomycin. Dr. Lipsky testified
on direct examination that the standard of care required that the drug be
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initiated on April 27; Dr. Weissman opined that its administration on April 28
was appropriate. Thus, according to one of plaintiff’s experts, the defendant
physicians deviated from the standard of care; according to the other, they
met the standard of care. We agree with the trial court that these experts
were so directly in conflict as to the standard of care as to effectively
neutralize each other. Nonsuit on this theory was appropriate.
Executor’s second theory of liability was that the defendant physicians
were negligent in failing to obtain another surgery consult during the
afternoon or evening of April 28. Both Dr. Lipsky and Dr. Weissman agreed
that a surgical consult was indicated at that time, and thus, the experts’
testimony does not present the type of direct conflict contemplated by
Mudano. Dr. Castellano argues, however, that since he did not treat the
Decedent on April 28, 2004, and the Executor’s experts did not establish
that the standard of care required him to call and check on Decedent that
day, the facts and evidence adduced do not support a finding that he
breached the standard of care. Dr. Decker advances a similar argument. He
acknowledges that Dr. Weissman initially testified that his failure to call the
hospital and check on Decedent was a breach of the standard of care.
However, he points to Dr. Weissman’s subsequent testimony that, by relying
upon nurses to notify him if the patient declined, Dr. Decker was acting
within the standard of care. He posits that Mudano precludes the
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submission of this contradictory standard of care testimony to the jury. For
the following reasons, we agree.
Assuming that the Decedent’s condition deteriorated during the
afternoon and evening of April 28, and that another surgical consult was
indicated during that timeframe, Executor does not establish a breach of the
standard of care on the part of these two specific doctors. Dr. Decker saw
Decedent in the morning of April 28, shortly after the second surgery
consultation. Executor’s experts agreed that the Decedent was stable that
morning, and that it was not a deviation from the standard of care not to
perform surgery at that time despite the fact that her white blood count had
risen substantially. It was undisputed that Decedent’s condition had not
deteriorated between the surgical consult and Dr. Decker’s visit shortly
thereafter. Both experts agreed that Dr. Decker did not breach the standard
of care when he did not order another surgical consult at that time.
Dr. Decker did not see Decedent during the remainder of that day. He did
not call the hospital, as no test results were outstanding, and there was no
note in the chart reflecting that the nursing staff contacted him regarding
Decedent.
Dr. Castellano testified that the initial consult came to his practice
group. Since he was the physician assigned to Geisinger on April 27, 2004,
the Decedent was his patient the first day. He and his partner, Dr. Fried,
would alternate days at Geisinger. Dr. Castellano treated Decedent on
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April 27 and 29, 2004; Dr. Fried saw Decedent on the morning of April 28,
2004. It was undisputed that Dr. Castellano did not see the patient during
the pertinent window of time. Furthermore, the records do not reflect that
the nursing staff contacted either Dr. Castellano or Dr. Fried during the
afternoon or evening of April 28.4
Dr. Lipsky did not offer any basis for holding these two physicians
responsible, neither of whom saw the patient during the relevant time, for
failing to recognize and address the signs of an acute abdomen and rapid
deterioration. Dr. Lipsky offered no opinion suggesting that it was a breach
of the standard of care for Defendant physicians not to contact the hospital
regarding Decedent. Thus, there was no testimony from Dr. Lipsky that
Drs. Decker or Castellano knew or should have known of the Decedent’s
deteriorating condition. See, e.g., Whittington v. Episcopal Hosp., 768
A.2d 1144, 1154 (Pa.Super. 2001) (finding hospital had constructive notice
of patient’s adverse condition when its nurses should have known but failed
to act).
Dr. Weissman conceded that there was nothing in the chart indicating
that the hospital called Dr. Decker after he saw Decedent that morning with
any additional information on her condition. N.T. Trial, 9/10-13/13, at 331-
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4
Evidence was adduced that Decedent’s daughter called the practice that
day and that Dr. Fried was informed that she called. Neither Dr. Fried nor
the medical practice were defendants in the lawsuit.
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32. The expert acknowledged that Dr. Rothschild was actively ordering
blood cultures and gases, basic metabolic profile, and bicarbonate and
managing Decedent’s renal function during that time. He agreed that the
records reflected that a physician from the cardiology service was involved in
Decedent’s care and ordered her to be transferred to the ICU that afternoon.
Yet, Dr. Weissman opined that Drs. Decker and Castellano should have
called the hospital to check on Decedent’s condition, and that failure to do so
constituted a deviation from the standard of care. Id. at 351.
Had Dr. Weissman steadfastly maintained this position, nonsuit on the
issue of failure to obtain a surgical consult would not have been proper.
However, on cross-examination, Dr. Weissman conceded that the standard
of care did not require a doctor to be at the hospital twenty-four hours per
day, seven days per week. Id. at 352. More importantly, he agreed that
doctors with a patient in the hospital had a right to rely upon nurses to
monitor a patient’s condition and notify the physician if there was a change.
Id. at 353. In fact, Dr. Weissman agreed that it was the standard of care
for nurses to act as the eyes and ears of the physician round the clock, and
pick up the telephone and notify the physician of any significant change in
the patient’s condition. Id. The trial court viewed such testimony as wholly
inconsistent with his earlier testimony that the standard of care required the
physicians to call the hospital.
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The problem with Executor’s proof was that the expert testimony,
together with the other evidence of record, viewed in the light most
favorable to Executor, failed to make out a prima facie case of negligence
against these two physicians. It was undisputed that they did not see
Decedent during the relevant time. There was no evidence that they knew
or were apprised of Decedent’s decline. Any assertion of negligence hinged
on evidence that they should have known and responded accordingly.5
Dr. Lipsky did not address this issue. Dr. Weissman attempted to cure this
deficiency when he opined that Drs. Decker and Castellano should have
called into the hospital to check on Decedent during the afternoon of
April 28. However, he retreated from that position on cross-examination,
and agreed that the standard of care was for nurses to notify doctors if the
patient’s condition deteriorated. Since neither physician was contacted, the
court found that Dr. Weissman’s inconsistent testimony left the jury with
“nothing but conjecture to guide them as to whether or not these particular
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5
In addition to Dr. Weissman’s conflicting testimony regarding a duty to
contact the hospital, there was testimony from Dr. Lipsky that as a
consultant, he would generally go through the medical management if he felt
a patient needed a surgical consult. The record reveals that it was the
house intensivist in the ICU who ultimately consulted surgery on the
morning of April 29, 2004.
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Defendants6 violated the standard of care when they did not re-consult
surgery on April 28.” Trial Court Opinion, 3/18/14, at 16.
We agree with the trial court that plaintiff did not introduce sufficient
evidence to establish the necessary elements to maintain this cause of
action for negligence. In a malpractice action, a plaintiff must demonstrate
that the defendant’s act or omission was an “unwarranted departure from
generally accepted standards of medical practice resulting in injury to a
patient[.]” Toogood, supra at 1145. Dr. Weissman’s contradictory
testimony regarding whether the onus was on the physician to call in, or on
the hospital to notify the physician, was woefully inadequate in defining the
generally accepted practice. It was tantamount to no standard of care
testimony at all. Thus, Executor did not carry its burden of establishing the
minimum necessary to survive a nonsuit. Brodowski, supra.
Judgment affirmed.
Judge Jenkins Joins the Memorandum.
Judge Mundy files a Dissenting Memorandum.
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6
The trial court noted that the expert reports spoke in terms of multiple
departures from the standard of care by several medical consultants and
attending physicians, and were not tailored to the conduct of Drs. Castellano
and Decker specifically. The trial court attributed “the confused and
conflicting testimony offered at trial” by Dr. Weissman to that lack of
specificity. Trial Court Opinion, 3/18/14, at 17 n.5. Dr. Lipsky’s videotaped
deposition was taken for use at trial while other physicians remained as
defendants in the case. The timing explains why many of his opinions were
expressed in terms of deviations by physicians generally, not Drs. Castellano
and Decker specifically.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2015
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