Nilles, R. v. Hu, K.

J-A12038-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RICHARD W. NILLES IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
KENNETH K. N. HU, M.D.
Appellee No. 1615 WDA 2016
Appeal from the Order Entered September 23, 2016
In the Court of Common Pleas of Butler County
Civil Division at No(s): A.D. No. 14-11007
BEFORE: OLSON, SOLANO and RANSOM, JJ.
MEMORANDUM BY OLSON, J.: FILED JUNE 29, 2017
Appellant, Richard W. Nilles, appeals from the order entered on
September 23, 2016, entering non-suit in favor of Kenneth K. N. Hu, M.D.
(Dr. Hu) in a medical malpractice action for injuries allegedly caused by a
needle biopsy. We affirm.
We summarize the facts and procedural history of this case as follows.
On December 30, 2014, Appellant filed a complaint against Dr. Hu. The
complaint alleged that, on December 3, 2012, Dr. Hu negligently positioned
Appellant while performing a needle biopsy of Appellant’s prostate which
eventually resulted in the deterioration of his pelvic bone, a condition known
as osteitis pubis. The case proceeded to a jury trial beginning on August 15,
2016. Appellant and his adult daughter testified. Appellant also presented
the video-recorded depositions of Sameer Dixit, M.D. (Dr. Dixit) and M.S.
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Brodherson, M.D. (Dr. Brodherson) before resting his case. Thereafter,
counsel for Dr. Hu orally moved for a compulsory non-suit, arguing that
Appellant failed to meet his burden of proof on causation because Appellant’s
expert, “Dr. Brodherson[,] never anywhere in his testimony formulated or
expressed an opinion to a reasonable degree of medical certainty or
otherwise that the performance of the biopsy was a factual cause of the
osteitis pubis in this case.” N.T., 8/15/2016, at 147. On August 15, 2016,
the trial court entered an order granting compulsory non-suit in Dr. Hu’s
favor. On August 22, 2016, Appellant filed a motion to remove non-suit. On
August 23, 2016, the trial court entered an order scheduling briefing and a
hearing on Appellant’s motion to remove non-suit. Prior to the hearing, both
parties submitted memoranda of law. The trial court held a hearing on
September 23, 2016. In an order entered the same day, the trial court
denied Appellant relief. This timely appeal resulted.1
On appeal, Appellant presents the following issue for our review:
Did the trial court commit an error when [it] granted a non-suit?
Appellant’s Brief at 4.
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1
Appellant filed a timely notice of appeal on Monday, October 24, 2016.
See 1 Pa.C.S.A. § 1908 (when the last day of the 30-day appeal period falls
on a weekend or legal holiday such day shall be omitted from the
computation of time). On November 1, 2016, the trial court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on November 7,
2016. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
November 18, 2016.
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Initially, we note that Appellant only cursorily cites to 42 Pa.C.S.A.
§ 742 to support his claim that this Court has jurisdiction over the instant
appeal. See Appellant’s Brief at 1. Appellant, however, does not supply any
additional citations to legal authority with regard to our standard of review
and the law pertaining to the entry of non-suit, the legal standards for a
medical malpractice cause of action, and/or the requirements for expert
testimony, as we discuss below inter alia.
We previously determined:
The Rules of Appellate Procedure state unequivocally that each
question an appellant raises is to be supported by discussion and
analysis of pertinent authority. Appellate arguments which fail to
adhere to these rules may be considered waived, and arguments
which are not appropriately developed are waived. Arguments
not appropriately developed include those where the party has
failed to cite any authority in support of a contention. This Court
will not act as counsel and will not develop arguments on behalf
of an appellant. Moreover, we observe that the Commonwealth
Court, our sister appellate court, has aptly noted that mere issue
spotting without analysis or legal citation to support an assertion
precludes our appellate review of a matter.
Coulter v. Ramsden, 94 A.3d 1080, 1088–1089 (Pa. Super. 2014) (internal
citations, quotations and brackets omitted). “Where an appellate brief fails
to provide any discussion of a claim with citation to relevant authority or
fails to develop the issue in any other meaningful fashion capable of review,
that claim is waived.” McEwing v. Lititz Mut. Ins. Co., 77 A.3d 639, 647
(Pa. Super. 2013) (citation and original brackets omitted). Here, Appellant’s
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brief is woefully undeveloped and we could find waiver on this basis.
Appellant’s arguments, however, do not merit him relief.
Our standard of review is as follows:
An order denying a motion to remove a compulsory nonsuit will
be reversed on appeal only for an abuse of discretion or error of
law. A trial court's entry of compulsory nonsuit is proper where
the plaintiff has not introduced sufficient evidence to establish
the necessary elements to maintain a cause of action, and it is
the duty of the trial court to make a determination prior to
submission of the case to a jury. In making this determination
the plaintiff must be given the benefit of every fact and all
reasonable inferences arising from the evidence and all conflicts
in evidence must be resolved in plaintiff's favor.
Additionally, a compulsory nonsuit is valid only in a clear case
where the facts and circumstances lead to one conclusion—the
absence of liability.
Allen-Myland, Inc. v. Garmin Intern., Inc., 140 A.3d 677, 690–691 (Pa.
Super. 2016) (internal citations and footnote omitted).
This Court previously determined:
Because medical malpractice is a form of negligence, to state a
prima facie cause of action, a plaintiff must demonstrate the
elements of negligence: a duty owed by the physician to the
patient, a breach of that duty by the physician, that the breach
was the proximate cause of the harm suffered, and the damages
suffered were a direct result of harm. With all but the most self-
evident medical malpractice actions there is also the added
requirement that the plaintiff must provide a medical expert who
will testify as to the elements of duty, breach, and causation.
Further, [a]n expert witness proffered by a plaintiff in a medical
malpractice action is required to testify to a reasonable degree of
medical certainty, that the acts of the physician deviated from
good and acceptable medical standards, and that such deviation
was the proximate cause of the harm suffered. However, expert
witnesses are not required to use magic words when expressing
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their opinions; rather, the substance of their testimony must be
examined to determine whether the expert has met the requisite
standard. Moreover, in establishing a prima facie case, the
plaintiff in a medical malpractice case need not exclude every
possible explanation of the accident; it is enough that reasonable
minds are able to conclude that the preponderance of the
evidence shows the defendant's conduct to have been a
substantial cause of the harm to the plaintiff.
Tillery v. Children's Hospital of Philadelphia, 156 A.3d 1233, 1240 (Pa.
Super. 2017) (citations and original brackets omitted).
At trial, to prove the elements of duty, breach and proximate cause,
Appellant presented the expert testimony of Dr. Brodherson by way of video
deposition and transcript. The trial court determined that “in examining the
totality of the testimony of [Dr.] Brodherson [] that said testimony was
insufficient to give rise to a jury question on the issue of causation, to the
requisite degree of medical certainty.” Trial Court Opinion, 11/18/2016, at
2. Upon review, we agree. In describing the potential cause for Appellant’s
injuries, Dr. Brodherson opined that “the [biopsy] needle, more likely than
not went up against the pubic symphysis and irritated the bone there taking
bacteria from the rectum, which is always a dirty part of the body, through
the prostate and seeded the pubic bone, which eventually developed into an
inflammatory condition – osteitis pubis.” Deposition of Dr. Brodherson,
8/4/2016, at 11. Dr. Brodherson conceded that osteitis pubis could result
from a fall or a trauma. Id. at 44. However, Dr. Brodherson claimed that
although Appellant fell in June 2012, fracturing his spine, that fall was not
the cause of his instant injury, because there were no studies showing the
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presence of osteitis pubis at the time of the fall and Appellant did not
complain about pubic bone pain until later. Id. at 45. Dr. Brodherson
opined that, “if someone falls on their back and fractures their spine, I would
find it difficult to ascribe osteitis pubis to that.” Id. He further testified that
his opinion that the injury to Appellant’s pubic bone was caused by the
needle biopsy was a “theory” or “one way [the injury] possibly could have
occurred.” Id. at 46. However, Dr. Brodherson stated he was unable to
conclude that, within a reasonable degree of certainty, Appellant’s injuries
occurred pursuant to this theory. Id. at 47. He specifically testified that he
could not be reasonably certain that the biopsy needle infected Appellant’s
pubic bone. Id. Dr. Brodherson claimed it was “conceivable that [] the
needle went through the entire prostate, it could [have] hit the pubis.” Id.
at 49. In sum, Dr. Brodherson concluded:
[E]ven if I were there I wouldn’t know [if the biopsy needle
went through the prostate into the pubic bone], but the
evidence points so much in that direction that that is the
only reasonable hypothesis. That is the best I can do for
you.
The patient had the biopsy done. The patient g[o]t osteitis
pubis. [] There’s no other reason for him to have gotten
osteitis pubis and I am hypothesizing that it could be that
the needle went through the prostate, touched the pubic
bone, either infected it or inflamed it and we now have a
patient with disabilities. That is all I’m saying.
Id. at 50.
Based upon the foregoing, we agree with the trial court that Appellant
failed to present expert evidence on causation. Dr. Brodherson spoke in
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scientific generalities, referring to broad theory and hypothesis. He used
equivocal language, i.e. “could,” “conceivably,” and “possibly,” in rendering
his opinion that Dr. Hu may have caused Appellant’s injury. Moreover, while
Dr. Brodherson claims that he ruled out other causes, he acknowledged that
a fall could cause the same injury and there was evidence that Appellant fell
several months prior to the biopsy. Dr. Brodherson also specifically
acknowledged that his opinion was not rendered with a reasonable degree of
medical certainty. Thus, viewing the totality of Appellant’s expert opinion,
the jury would have been left to speculate as to whether Dr. Hu’s actions
actually caused Appellant’s injury. Hence, Appellant did not introduce
sufficient evidence to establish the necessary elements to maintain a
negligence cause of action. Accordingly, we conclude that the trial court did
not abuse its discretion or err as a matter of law in granting a non-suit and
dismissing Appellant’s claims.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2017
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