Thomas, W. v. Evans, N.

J-A31039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WALTER THOMAS, AS : IN THE SUPERIOR COURT OF
ADMINISTRATOR OF THE ESTATE : PENNSYLVANIA
OF WILLA MAE THOMAS, AND IN :
HIS OWN RIGHT :
:
Appellant :
:
:
v. : No. 2220 EDA 2016
:
:
NATHANIEL R. EVANS, III, M.D. & :
JEFFERSON UNIVERSITY :
PHYSICIANS & THOMAS JEFFERSON :
UNIVERSITY HOSPITAL :
Appeal from the Judgment Entered June 22, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): May Term, 2012 No. 01003
BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 14, 2018
Walter Thomas (“Appellant”), individually and as the administrator of
the Estate of Willa Mae Thomas, appeals the judgment entered in the Court of
Common Pleas of Philadelphia County in favor of Appellees Nathaniel R. Evans,
III, M.D., Jefferson University Physicians, and Thomas Jefferson University
Hospital (collectively “Appellees”). After careful review, we affirm.
The trial court set forth the following recitation of the facts:
Willa Mae Thomas [(“Decedent”)] was a 68-year old woman
in 2010. In September of that year, [Decedent] started to
experience symptoms, including a hoarse voice, a loss of appetite,
and a feeling of a “lump” in her throat.
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* Former Justice specially assigned to the Superior Court.
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[Decedent’s] primary care physician referred her to
[Appellee], Dr. Nathaniel Evans, a thoracic surgeon, after a chest
X-ray and CAT scan indicated there was a mass in her chest.
Dr. Evans ordered a needle biopsy for [Decedent]. The
needle biopsy was “undiagnostic” for cancer, but revealed that
there was necrotic tissue in the sample. Unsatisfied with these
results, and wanting more information, Dr. Evans recommended
a more invasive biopsy during which he hoped to obtain a bigger
tissue sample.
This procedure was performed on November 29th, 2010 by
Dr. Evans. He planned to perform a procedure called Video
Assisted Thorascopic Surgery (“VATS”). During this procedure,
however, it became apparent both that there was more necrotic
tissue in [Decedent’s] lungs,1 and that Dr. Evans would not be
able to obtain a suitable tissue sample through the VATS
procedure alone.
Dr. Evans therefore determined that it was appropriate to
perform a wedge biopsy, a procedure where a larger tissue sample
could be obtained. During this procedure, however, Dr. Evans
injured [Decedent’s] pulmonary artery, causing [Decedent] to
hemorrhage. The injury to [Decedent’s] pulmonary artery was
repaired, and she remained in the hospital for approximately two
and a half weeks. After she was discharged from the hospital,
[Decedent] spent a week in the nursing home, and then returned
to her home.
Despite the fact that during the winter months of 2011, her
health appeared to be improving, on March 18, [Decedent’s]
condition began to deteriorate. Thomas was admitted to Abington
Hospital and died on March 23, 2011.2
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1 During the surgery, Dr. Evans was able to obtain multiple biopsy samples
sent to the pathology department of the hospital, where pathologists were
waiting to review the samples with a microscope. Dr. John Farber, the most
senior pathologist, was able to telephone Dr. Evans in the operating room to
inform him that the samples contained necrotic tissue with rim of fibrosis.
2 The parties agree Decedent’s cause of death was sepsis and constriction of
the pericardium, but disagree as to whether Dr. Evans’s alleged deviation from
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Trial Court Opinion, 4/19/17, at 1-2.
Appellant, administrator of the estate of his deceased wife, commenced
this medical malpractice action against Appellees, averring that Decedent’s
death was caused by the negligence of Dr. Evans in choosing to perform the
wedge biopsy in which Decedent’s pulmonary artery sustained damage. The
complaint contained counts of negligence, informed consent, and negligent
infliction of emotional distress. After the trial court granted the preliminary
objections and a motion for summary judgment filed by Appellees, the only
claim remaining for trial was the negligence count.
Appellant filed a motion in limine to exclude use of the informed consent
form and testimony as to Dr. Evans’s discussion with Decedent and Appellant
about the risks and complications of her proposed lung biopsy. Given that the
trial court had dismissed Appellant’s informed consent claim, the trial court
ruled that the informed consent form was inadmissible, but indicated that Dr.
Evans was permitted to offer general testimony about the possible risks and
complications of the lung biopsy procedure.
The jury trial in this case commenced on January 11, 2016. At the
conclusion of the two-week trial, the jury determined that Dr. Evans was not
negligent and returned a verdict in favor of Appellees on January 26, 2016.
On February 4, 2016, Appellant filed a Motion for Post-Trial Relief, designating
a portion of the trial testimony to be transcribed. On February 16, 2016,
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the standard of care contributed to Decedent’s death. N.T. 1/12/16, at 208-
10; N.T. 1/15/16, at 196-200; N.T. 1/21/16, at 94-96.
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Appellees filed a response, arguing that additional portions of the trial should
be transcribed at Appellant’s expense. On May 10, 2016, the trial court issued
an order indicating which portions of the trial record the court reporter should
transcribe.
On June 22, 2016, Appellant filed a praecipe for the prothonotary to
enter judgment on the jury verdict in favor of Appellees pursuant to Pa.R.C.P.
227.4(b). Appellant filed a timely appeal from this judgment. Appellant
complied with the trial court’s order to submit a Concise Statement of Matters
Complained of on Appeal, but asked for permission to file an Amended Rule
1925(b) statement when he had received all the transcripts. On October 20,
2016, the trial court issued an order giving Appellant additional time to file
the concise statement before October 31, 2016. When Appellant apprised the
court that the transcripts were still not available, the trial court vacated its
October 20, 2016 order and indicated that a new order requesting an Amended
Rule 1925(b) statement would be filed when it was assured that all the notes
of testimony had been produced.
Upon the completion of the trial transcription, on November 17, 2016,
the trial court issued an order requesting that Appellant file an Amended Rule
1925(b) statement by November 28, 2016. Appellant complied with this
request in filing a timely Amended Rule 1925(b) Statement. On April 19,
2017, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).
Appellant raises the following issues for our review on appeal:
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1. Did the trial court err as a matter of law or abuse its discretion
where it permitted Dr. Evans to testify about his conversations
with [Appellant and Decedent] regarding the risks of
[Decedent’s] lung biopsy, after the court had dismissed
[Appellant’s] informed consent claim on summary judgment
and [Appellant’s] only remaining claim at trial was for
negligence?
2. Did the court err as a matter of law or abuse its discretion by
precluding [Appellant] from cross-examining Dr. Evans and Dr.
Evans’ standard of care expert upon matters that they testified
to on direct examination and which sought to discredit their
credibility including:
A. precluding the cross-examination of the credibility of Dr.
Evans’ testimony about his conversations with his patient
regarding the risks of [Decedent’s] lung biopsy using the
informed consent form?
B. precluding cross-examination of the credibility of Dr.
Evans’ statement that [Decedent] “showed no signs of
infection during the recovery period [at Thomas Jefferson
University Hospital]?”
C. precluding cross-examination of Dr. Evans regarding
whether he could have consulted more experienced
physicians when he confronted a thick, unusual tissue
and chain of lymph nodes even though Dr. Evans testified
about other times during [Decedent’s] case where he
consulted with more experienced physicians?
D. precluding the cross-examination of Dr. Detterback’s
statement that [Decedent] had an “at least 99 percent of
cancer” after the court denied [Appellant’s] motion In
Limine which sought to preclude this precise testimony?
3. Did the court err as a matter of law or abuse its discretion
where it denied [Appellant’s] Motion In Limine To Preclude
Certain Testimony of [Dr. Evans’s] standard of care expert and
permitted him to testify that no objective standard of care
controlled Dr. Evans’ surgical decisions and conduct, but rather
the surgical conduct was left entirely up to Dr. Evans’ own
subjective judgment?
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4. Did the court err as a matter of law or abuse its discretion
where it refused to grant [Appellant’s] motion to preclude Dr.
Farber, the treating pathologist, from offering expert opinions
as to the cause of the necrosis and fibrosis found in
[Decedent’s] pathology which were not disclosed to [Appellant]
in advance of trial?
Appellant’s Brief, at 2-3 (reordered for review).
As an initial matter, we note that Appellant requested a new trial in his
Motion for Post-Trial Relief based on the trial court’s alleged abuse of
discretion in evidentiary rulings. Although Appellant sought this relief from
the trial court, Appellant filed a praecipe for the entry of judgment pursuant
to Pa.R.C.P. 227.4 before the trial court ruled on the motion. Rule 227.4(1)(b)
permits any party to an action to praecipe the prothonotary for entry of
judgment if
one or more timely post-trial motions are filed and the court does
not enter an order disposing of all motions within one hundred
twenty days after the filing of the first motion. A judgment entered
pursuant to this subparagraph shall be final as to all parties and
all issues and shall not be subject to reconsideration.
Pa.R.C.P. § 227.4(1)(b).3 “The intent of this rule is to give all parties the
option of moving the case forward if there is a delay in the trial court's ruling
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3 We also note that the trial court was required to file a responsive Rule
1925(b) opinion despite its loss of jurisdiction to decide the Motion for Post
Trial Relief. This Court has provided that:
there is nothing contained in Pa.R.C.P. 227.4 which relieves
a trial court of responsibility for writing an opinion on the legal
merits of the issues presented by the parties for review.
Pa.R.A.P.1925. While a trial court in this situation is powerless to
act by entry of an order, the court is required to write an opinion
on the legal merits of the issues and to suggest what relief it would
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on post-trial motions. The parties have the right to not exercise this option.”
Hartner v. Home Depot USA, Inc., 836 A.2d 924, 927 (Pa.Super. 2003)
(citing Pa.R.C.P. 227.4, Explanatory Comment-1995, § I(a)). In such cases
where a party enters judgment pursuant to Rule 227.4, we may deem motions
for a new trial to be denied. Angelo v. Diamontoni, 871 A.2d 1276, 1279
(Pa.Super. 2005).
Appellant challenges the lower court’s denial of his Motion for Post-Trial
Relief, in which he requested a new trial. “[W]hen reviewing the denial of
a motion for new trial, we must determine if the trial court committed
an abuse of discretion or error of law that controlled the outcome of the
case.” Fletcher–Harlee Corp. v. Szymanski, 936 A.2d 87, 93 (Pa.Super.
2007) (citation omitted). All of Appellant’s issues challenge the trial court’s
discretion in ruling on evidentiary issues.
The admission or exclusion of evidence, including the admission
of testimony from an expert witness, is within the sound discretion
of the trial court. Thus, our standard of review is very narrow; we
may only reverse upon a showing that the trial court clearly
abused its discretion or committed an error of law. To constitute
reversible error, an evidentiary ruling must not only be erroneous,
but also harmful or prejudicial to the complaining party.
Crespo v. Hughes, 167 A.3d 168, 181 (Pa.Super. 2017) (citations omitted).
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have granted had it been able to take such action in a timely
fashion.
K-B Bldg., Co. v. Hermara Assocs., Inc., 709 A.2d 918, 919 (Pa.Super.
1998).
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First, Appellant argues that the trial court abused its discretion in
allowing Dr. Evans to testify as to his conversations with Decedent and
Appellant about the risks and complications associated with the lung biopsy
scheduled for November 29, 2010. Appellant contends that, as the trial court
had previously dismissed his informed consent claim and his only remaining
claim was for negligence, any testimony related to Dr. Evans’ discussion of
the risks of the lung biopsy with Decedent was irrelevant to the issue of
whether Dr. Evans was negligent in performing the procedure. Moreover,
Appellant argues that Dr. Evans’s testimony was unfairly prejudicial as it
allowed the jury to determine that Decedent’s consent to undergo the surgery
was the same as her consent to all the risks and complications even if the
surgery was performed negligently.
In response, Appellees argue that Appellant opened the door to the
admission of this informed consent evidence by introducing testimony that
would cause the jury to infer that Decedent did not provide informed consent
to the wedge biopsy. Appellees also argue that Dr. Evans’s testimony was
relevant to the standard of care as it went directly to his state of mind and his
appreciation for the risk of injury to Decedent’s pulmonary artery.
Our rules of evidence provide that evidence is relevant if it has “any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” Pa.R.E. 401. “All relevant evidence is admissible,
except as otherwise provided by law.” Pa.R.E. 402. Even if the evidence is
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relevant, the evidence may be still excluded if “its probative value is
outweighed by the danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Pa.R.E. 403.
In Brady v. Urbas, 631 Pa. 329, 111 A.3d 1155 (2015), a similar case
in which the plaintiff sought relief on a medical negligence claim and did not
raise an informed consent claim, our Supreme Court discussed the
admissibility of evidence of known risks and complications of treatment as
follows:
To prevail on a claim of medical negligence, the plaintiff must
prove that the defendant's treatment fell below the appropriate
standard of care. We therefore consider whether informed-
consent evidence is probative of that question. In undertaking
this inquiry, it is important to recognize that such information is
multifaceted: it reflects the doctor's awareness of possible
complications, the fact that the doctor discussed them with the
patient, and the patient's decision to go forward with treatment
notwithstanding the risks.
Some of this information may be relevant to the question of
negligence if, for example, the standard of care requires that the
doctor discuss certain risks with the patient. Evidence about the
risks of surgical procedures, in the form of either testimony or a
list of such risks as they appear on an informed-consent sheet,
may also be relevant in establishing the standard of care. In this
regard, we note that the threshold for relevance is low due to the
liberal “any tendency” prerequisite. Pa.R.E. 401. Accordingly,
we decline … to hold that all aspects of informed-consent
information are always irrelevant in a medical malpractice
case.
Still, the fact that a patient may have agreed to a procedure in
light of the known risks does not make it more or less probable
that the physician was negligent in either considering the patient
an appropriate candidate for the operation or in performing it in
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the post-consent timeframe. Put differently, there is no
assumption-of-the-risk defense available to a defendant physician
which would vitiate his duty to provide treatment according to the
ordinary standard of care. The patient's actual, affirmative
consent, therefore, is irrelevant to the question of negligence.
Moreover, … assent to treatment does not amount to consent to
negligence, regardless of the enumerated risks and complications
of which the patient was made aware. That being the case, in a
trial on a malpractice complaint that only asserts negligence, and
not lack of informed consent, evidence that a patient agreed to go
forward with the operation in spite of the risks of which she was
informed is irrelevant and should be excluded.
Brady, 631 Pa. at 339–42, 111 A.3d at 1161–63 (emphasis added, citations,
footnotes, and some quotation marks omitted).
However, consistent with its refusal to hold that all aspects of informed-
consent information are always irrelevant in a medical malpractice case, the
Supreme Court expressly indicated in Brady that it did not intend to preclude
a plaintiff from using such informed consent evidence for impeachment
purposes “if the plaintiff adduces evidence that she did not consent to a
particular risk.” Id. at 342, 111 A.3d at 1163 n. 8.
In this case, despite the trial court’s pretrial ruling that testimony with
respect to the Decedent’s informed consent was inadmissible, Appellant’s
counsel emphasized in his opening statement that Decedent did not want to
undergo surgery but only agreed to go forward with the lung biopsy only after
being assured by Dr. Evans that it would be a routine, minimally invasive
surgery. Counsel’s opening statement included the following statement:
[Decedent and Appellant] went for a follow-up visit with Dr. Evans
on November 4, 2010. Unfortunately all of that happiness that
they had over the good biopsy results dissipated because Dr.
Evans said, no, I still think it’s cancer, and we need to do an
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operation. I need to take you to surgery and I need to get a bigger
and better tissue sample so that we can find this out for sure.
You are going to find out [Decedent] did not want to have surgery.
She didn’t understand why since she already had a biopsy and it
wasn’t cancer, why she needed surgery. She was afraid. She was
afraid of getting cut up. She didn’t want scars on her body, but
Dr. Evans and her husband and her daughter based on what Dr.
Evans had said convinced her this was something she really
needed to do, and so [Decedent] went to surgery by Dr. Evans on
November 29th, 2010, and the additional assurance that
[Decedent] had received was this wasn’t going to be a big
operation. Dr. Evans was going to do what’s known as a minimally
invasive surgery.
***
Dr. Evans had told [Decedent] and [Appellant] that he was going
to do minimally invasive surgery. You heard a little bit about it in
the jury selection, what is called a VATS surgery, and that is an
acronym for Video Assisted Thorascopic Surgery …. For my
purposes it is a scope, and essentially Dr. Evans is in the operating
room, and with one eye is he looking through the scope through
incisions that had been placed into [Decedent’s] body. It is a two-
dimensional view of everything in her chest like you would have if
you do an open surgery.
And so [Decedent] was told, convinced that this was going to be
a minimally invasive surgery. It wasn’t going to take long, not
longer than maybe an hour, a hour-and-a-half, as much as two
hours. She probably wouldn’t have to stay in the hospital
overnight and then she would go home and she would be fine. We
could have a diagnosis and then we would proceed.
Notes of Testimony (N.T.), 1/12/16, at 33-35.
Appellant continued to highlight the issue of Decedent’s consent to the
surgery by repeatedly testifying on direct-examination that Decedent did not
want to have the biopsy but eventually agreed to have the procedure after Dr.
Evans told her it was a minor, routine procedure that “was no big deal.” N.T.,
1/14/16, at 41-42.
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[Appellant’s counsel]: Now, in that visit with Dr. Evans following
the biopsy on November 4, 2010, did you go with your wife there?
[Appellant:] Yes, I did.
[Appellant’s counsel]: And do you remember that conversation
with Dr. Evans on November 4th?
[Appellant:] Yes, I did.
[Appellant’s counsel]: Can you please tell us what happened at
that visit with Dr. Evans?
[Appellant:] We went into Dr. Evans’ office and he – first he told
us that she needed another biopsy, and my wife didn’t want to
take it, didn’t want a biopsy. He didn’t insist, but he ensured us
that she needed that to find out what was wrong with her. Me
and her really didn’t want to do that, but we had came too far and
he ensured us that taking the biopsy, it was a chance of him
finding out what the dark mass was in her chest.
[Appellant’s counsel]: Did he tell you that [Decedent] needed to
go and have surgery for his biopsy?
[Appellant:] Yes he did. That was the part that she really didn’t
want to do because he was going to cut her and she was very
upset about it, but he ensured her that he was only going to put
very small incisions in her skin and put some items in there to see
and take the biopsy. She really didn’t want to do it, but he insisted
that we had to do it because that’s the only way to get a big
enough sample to get a biopsy. He ensured us that he would do
that and take care of her.
[Appellant’s counsel]: The way the biopsy surgery was presented
to you and your wife by Dr. Evans, did it seem like it was going to
be any type of a major operation or big deal?
[Appellant:] No, it didn’t. He described it to us, a small incision
that would maybe take two stitches on the sewing up and it
wouldn’t leave no big scars or anything, and it was basically a
routine type thing, and it wasn’t no big deal. She would either go
home that evening or maybe spend the night in the hospital that
night and go home the next day. So we kind of did a quick talk
over and we didn’t want to do it, but I talked her into doing it.
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[Appellant’s counsel]: Did Dr. Evans tell you how long the surgery
would take?
[Appellant:] Approximately a couple of hours.
[Appellant’s counsel]: Did you and your wife trust Dr. Evans?
[Appellant:] Yes, I trusted him. Because he said – I asked him
was he going to do the surgery. He said I am going to do it with
my own hands and I am going to take care of your wife, and I
entrusted my wife with him.
N.T., 1/14/16, at 41-42.
Moreover, Appellant’s counsel delivered a narrative to the jury, accusing
Dr. Evans of being an inexperienced surgeon who did not foresee the risks
associated with a wedge biopsy and foolishly pursued this course of action. In
her opening statement, Appellant’s counsel stated:
[Decedent] was losing blood so fast that anesthesia couldn’t keep
up with her. They couldn’t get enough blood product fast enough
into her to keep her sustaining life. Fortunately she was at
Thomas Jefferson University Hospital where there were other
more experienced surgeons available to come in and help Dr.
Evans. More experienced surgeons that he could have called upon
before he decided to do his wedge biopsy, but he didn’t.
You will find out that Dr. Evans had completed his residency, his
physician in training in thoracic surgery in February, 2010, just
seven months before [Decedent’s] surgery. He was only an
attending physician for that seven months having primary
responsibility for his patients.
… So the surgeons came in and did what needed to be done under
this emergency situation that all could have been avoided.
N.T., 1/12/16, at 42-43.
Thereafter, upon direct examination of Dr. Evans by his counsel, Dr.
Evans clarified that he informed Decedent of the possible risks and
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complications of the lung biopsy that he had thoroughly contemplated before
recommending this course of action.
[Defense counsel:] Dr. Evans, did you have a conversation with
[Appellant] and [Decedent] about the risks that could be
associated with surgery that you were proposing to perform on
November 29th?
[Dr. Evans:] Certainly, yes.
[Defense counsel:] And could you discuss that with the jury,
please?
[Dr. Evans:] Well, I had the same discussion I have with every
patient I ever do chest surgery on. I explained to them that what
I expect the course of the operation to be and the potential risks
that are associated, especially in a case like this where we’re doing
a thoracoscopy. That I tell them there is always a small chance I
will have to make a bigger incision and there are multiple reasons
why that may happen. It doesn’t happen very often, but it does
happen, and I tell them that every operation there is a small
chance of death during or around the time of the operation. It’s
extremely unlikely but it does happen. I typically will given them
my estimation of the percentage of that happening for their
operation. So with an operation like here I would have said there
is a 1 to 2 percent chance of your having a life-threatening
complication during this operation.
N.T, 1/15/16, at 131-32.
In light of Appellant’s emphasis that Decedent had allegedly only
consented to a minor, routine, and minimally-invasive surgery and his
suggestion that Decedent was never advised of the potential for the life-
threatening consequences that ultimately ensued, it was not an abuse of
discretion for the trial court to allow Dr. Evans to briefly state that he had
advised Decedent of the risks associated with the biopsy to impeach
Appellant’s suggestion to the contrary. We reiterate that the Supreme Court
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in Brady expressly stated that its decision in no way precluded a plaintiff from
using informed consent evidence for impeachment purposes “if the plaintiff
adduces evidence that she did not consent to a particular risk.” Id. at 342,
111 A.3d at 1163 n. 8. Other than Dr. Evans’s isolated statement
contradicting Appellant’s suggestion that Dr. Evans had not advised Decedent
of the potential risks and complications of the surgery, the defense did not
pursue any further questioning with respect to Decedent’s consent to the
procedure. Accordingly, the trial court did not abuse its discretion in allowing
Appellees latitude to present this limited testimony to rebut Appellant’s
suggestion that Decedent did not consent to the risks posed by the biopsy.
In Appellant’s second issue, he argues that the trial court improperly
limited his ability to properly cross-examine defense witnesses, Dr. Evans and
Dr. Frank Detterback, the defense expert on standard of care. It is well
established that “[t]he scope of cross-examination is within the sound
discretion of the trial court, and we will not reverse the trial court's exercise
of discretion in absence of an abuse of that discretion.” Yacoub v. Lehigh
Valley Med. Assocs., P.C., 805 A.2d 579, 592–93 (Pa.Super. 2002) (citation
omitted). “[I]n setting limits on cross-examination, the trial court may
consider whether the cross-examination would be likely to confuse or mislead
the jury. As with any other type of evidence, to be admissible, it must be
relevant and also not unfairly prejudicial. Id. (citing Pa.R.E. 403).
Appellant’s claim with respect to Dr. Evans is three-fold: Appellant
claims that he was prevented from cross-examining Dr. Evans (1) in using the
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informed consent form to impeach his credibility, (2) in questioning his claim
that Decedent showed no sign of infection, and (3) in asking whether Dr.
Evans could have consulted more experienced physicians before pursuing the
wedge biopsy.
The trial court correctly precluded Appellant’s counsel from employing
the November 4, 2010 consent form in his cross-examination of Dr. Evans as
this document was irrelevant to Appellant’s negligence claim. As discussed
above, the Supreme Court in Brady affirmed the award of a new trial to the
appellee patient as the defendant physician was permitted to admit consent
forms into evidence and question appellee extensively as to her consent. The
Supreme Court reasoned that introduction of this evidence led to a substantial
possibility that the jury relied on an improper consideration in reaching its
verdict, that is the jury may have determined that the patient’s consent to the
procedure implied consent to the resultant injury.
In this case, Appellant himself had successfully moved to preclude the
admission of this document in his pretrial motion on the very basis set forth
in Brady. Accordingly, we find the lower court did not abuse its discretion in
refusing to allow Appellant to introduce the consent form, which would likely
have only served to confuse the jury and allow it to find liability on an improper
basis.
Appellant also claims that the trial court restricted him from cross-
examining Dr. Evans as to his claim that Decedent did not show any signs of
infection upon her discharge from Thomas Jefferson. Our review of the record
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reveals that Appellant’s counsel did cross-examine Dr. Evans with respect to
a finding of haemophilus influenza on Decedent’s bronchoscopy. Appellant’s
counsel also presented Dr. Evans with the fact that Decedent had elevated
white blood cell counts during her hospitalization, which Dr. Evans agreed
could be a sign of infection. Thus, Appellant’s counsel was able to question
Dr. Evans’s assertion that there were no signs of infection at Thomas
Jefferson.
The trial court did prevent Appellant’s counsel from further emphasizing
the finding of an elevated white blood cell count, as Appellant was attempting
to introduce a new theory of causation at trial, specifically that Dr. Evans had
missed an infection while Decedent was hospitalized at Thomas Jefferson,
which worsened and led to her death several months later.4 As Appellant had
not properly presented a theory of liability based on Dr. Evans’s failure to
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4 Appellant’s initial theory was that Decedent developed an infection during
her subsequent admission to Abington Memorial Hospital in March 2011 as
she was so debilitated from her hospitalization at Thomas Jefferson several
months earlier in late November – December 2010. Appellant’s complaint in
this case centered on Dr. Evans’ alleged negligence in choosing his surgical
technique and in pursuing the wedge biopsy.
Just weeks before trial was to commence, Appellant attempted to assert
for the first time that Dr. Evans was negligent in failing to diagnose and treat
an infection while Decedent was still a patient at Thomas Jefferson. Appellant
also identified Dr. Kevin G. Mennitt, M.D., as a new expert. Thereafter,
Appellees filed a motion in limine arguing that Appellant could not advance a
new theory of liability at this point as the request was untimely and involved
the allegations of postsurgical breaches in the standard of care of Dr. Evans
and other non-party physicians. Following oral argument, the trial court
granted Appellee’s motion and precluded Dr. Mennitt from testifying at trial.
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diagnose an infection at Thomas Jefferson, the trial court properly exercised
its discretion to appropriately preclude further questioning that would suggest
that the jury could find liability on an improper basis.
Moreover, we reject Appellant’s claim that his counsel was improperly
precluded from questioning Dr. Evans upon whether he should have sought
assistance from “more experienced surgeons” when he decided to further
pursue the wedge biopsy in attempting to dissect Decedent’s lymph nodes
from her pulmonary artery. This line of questioning suggested a new theory
of liability that Dr. Evans was negligent in failing to consult with other surgeons
in the midst of the wedge biopsy. Moreover, the question implied that Dr.
Evans lacked the training or experience to perform this portion of the biopsy.
The issue of whether Dr. Evans was negligent in failing to consult with
other surgeons during the operation is a matter requiring expert testimony,
as it is not within the ordinary knowledge of laypersons. Appellant’s liability
expert, Dr. Michael Greene, did not opine that Dr. Evans deviated from the
standard of care in proceeding with the wedge biopsy without consulting with
other surgeons. See Toogood v. Owen J. Rogal, D.D.S., P.C., 573 Pa. 245,
255, 824 A.2d 1140, 1145 (2003) (emphasizing that “because the negligence
of a physician encompasses matters not within the ordinary knowledge and
experience of laypersons a medical malpractice plaintiff must present expert
testimony to establish the applicable standard of care, the deviation from that
standard, causation and the extent of the injury”). Therefore, we conclude
that the trial court did not err in limiting this line of questioning.
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Appellant also argues that the trial court improperly limited his ability to
cross-examine Dr. Detterbeck, the defense’s standard of care expert. Dr.
Detterback, who serves as a professor and Chief of Thoracic Surgery at Yale
University School of Medicine, reviewed Decedent’s medical records and
testing results and opined that [Decedent] had “at least 99 percent chance”
that the mass in Decedent’s lung was malignant cancer. N.T. 1/20/16, at 34.
Appellant does not challenge the admission of this particular testimony
but argues that he was prevented from cross-examining Dr. Detterbeck with
respect to whether that Dr. Evans should have sought additional blood tests
or other studies to conclusively determine that Decedent had cancer or
whether Dr. Evans should have referred Decedent to an oncologist before
performing the thorascopic biopsy. As these matters are likewise outside the
ordinary knowledge of laypersons, Appellant was first required to establish
with expert testimony that Dr. Evans’s failure to take these steps was a
deviation from the standard of care. Appellant’s own expert, Dr. Greene, did
not testify or opine that Dr. Evans deviated from the standard of care in failing
to order additional tests or studies or in referring Decedent to an oncologist
before proceeding with the biopsy. As such, the trial court properly limited
Appellant from suggesting that Dr. Evans was negligent in these omissions
without first establishing that the standard of care required these steps.
In his third claim of error, Appellant argues that the trial court erred in
denying his motion in limine and permitting Dr. Evans’s standard of care
expert, Dr. Detterback to allegedly testify that Dr. Evans was not subject to
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an objective standard of care in deciding to proceed with the wedge biopsy
after observing that Decedent’s lymph nodes were stuck together and needed
to be separated. Instead, Appellant argues that Dr. Detterback improperly
suggested that the decision to proceed with the surgery should have been
guided under a solely subjective standard and left to Dr. Evans’s own
judgment.
When we review the record as a whole, we find that Appellant is taking
Dr. Detterback’s expert opinion and testimony out of context. Initially, we
note that Appellant’s expert, Dr.Greene, first testified that it was improper for
Dr. Evans to proceed with the wedge biopsy after determining that the VATS
procedure revealed more necrotic tissue in Decedent’s lungs, but did not allow
Dr. Evans to obtain a suitable tissue sample. Dr. Greene suggested that Dr.
Evans’s decision to perform the wedge biopsy did not fall within the standard
of care as it required him to separate the lymph nodes where were very close
to the pulmonary artery. Dr. Greene specifically opined that it would not be
prudent for a surgeon to commence any biopsy that would “put tension or
jeopardize the pulmonary artery.” N.T., 1/12/18, at 154-55.
In response, Dr. Evans presented the testimony of Dr. Detterback, who
opined that Dr. Evans acted appropriately within the standard of care in
choosing to proceed with a wedge biopsy after determining that the mass of
necrotic tissue in Decedent’s lung was likely cancer. Dr. Detterback felt that
Dr. Evans’ attempt to obtain a more suitable tissue sample was an appropriate
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choice as doctors would need to identify the type of Decedent’s tumor to best
define the treatment plan that Decedent would need.
[Defense counsel:] [W]as there any deviation from the standard
of care by Dr. Evans in his decision making with respect to
dissecting lymph nodes in an attempt to complete the wedge
resection?
[Dr. Detterback:] I don’t know think that deviates from the
standard of care. I do think it’s a, you know, judgment call of,
you know, what appears to be feasible to do, and I think you have
to try to do this carefully and see how this goes, but if it appears
that freeing up those lymph nodes is going to make you be able
to complete the wedge resection, then I certainly would have
proceeded in that fashion.
[Defense counsel:] And is that something that surgeons ---
thoracic surgeons like yourself … have been through programs are
trained to do every day?
[Dr. Detterback:] Yes, that’s certainly, what we do everyday.
[Defense counsel:] Now, notwithstanding the exercise of
appropriate care in the dissection of lymph nodes, is there not
involved a risk of injury to the pulmonary artery on those
branches?
[Dr. Detterback:] Well, certainly. I mean, there is clearly an
element of risk with surgery, and there is clearly an element of
risk with thoracic surgery, and I think that the pulmonary artery
is probably the thing we respect the most. You know, overall it’s
the instance of major bleeding which is typically from the
pulmonary artery is 1 percent in thoracic operations, and
interestingly it’s about 1 percent whether it’s a VATS case or an
open case, but clearly there is an element of risk that’s there, and
I think that any thoracic surgeron that has been significantly in
practice has encountered this situation at times. So you can’t say
that it can’t happen. It certainly does.
[Defense counsel:] And when it does happened and when it’s
happened to you, has it happened notwithstanding appropriate
care, appropriate decision making, and careful dissection?
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[Dr. Detterback:] Well, yes. It certainly has happened to me and
it’s happened despite trying to be very careful and thoughtful and
trying not to have that happened.
N.T, 1/20/16, at 51-52.
Dr. Detterback rejected Dr. Greene’s statement that the standard of
care always requires a surgeon to abandon any attempt to perform a biopsy
near the lymph nodes. Instead, Dr. Detterback explained that Dr. Evans’s
choice to continue with the wedge biopsy which was also an accepted course
of treatment if the surgeon proceeded with reasonable caution based on his
intraoperative findings:
[Defense counsel:] If I could, and that is when Dr. Evans
encountered lymph nodes which precluded him from completing
the wedge resection, do you have an opinion as to whether the
standard of care required Dr. Evans to abandon or abort the
wedge resection when he encountered the lymph nodes that he
could not staple through?
[Dr. Detterback:] Well, I do not think there is a standard of care
that would say that you have to abandon VATS or you have to do
this or that. I think that many --- it’s a judgment call as to what
the situation is like and what you can do and what you can do
safely. But you know, dissecting lymph nodes off of the
pulmonary artery is something that, you know, I do day in and
day out, every thoracic surgeon does day in and day out when you
resect lung cancer. That’s part of what you do, and you see how
that goes and you dissect them off. Can there be situations where
it’s more difficult or situations where it’s easier, certainly. Do you
have to exercise some judgment, yes. But can we, you know, --
I mean in retrospect you can say all sorts of things, but I don’t
think that you can say there is a standard of care that requires
one or the other. I think it’s a judgment call based on how things
seem to set up and what is feasible.
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N.T, 1/20/16, at 48-49. As a result, Dr. Detterback asserted that the objective
standard of care requires a physician to exercise reasonable care in the
treatment of his or her patients.
Our courts have recognized a “two schools of thought” doctrine which
holds that a physician will not be liable for choosing, in the exercise of her or
his judgment, one of two or more accepted courses of treatment where
competent medical authority is divided as to the proper course. Passarello
v. Grumbine, 624 Pa. 564, 585, 87 A.3d 285, 297 (2014) (citations omitted).
Thus, the parties’ disagreement as to whether Dr. Evans’s decision to proceed
with the wedge biopsy violated his standard of care is not a question of
admissibility, but concerns the weight of the evidence. The parties were free
to contest each theory through cross-examination and leave the ultimate
credibility determination to the factfinder.5 We thus find this claim to be
without merit.
In his last claim of error, Appellant argues that the trial court abused its
discretion in denying his motion to preclude Dr. John Farber, the treating
____________________________________________
5 Appellant’s sole citation to Pringle v. Rapaport, 980 A.2d 159, 170,
(Pa.Super. 2009) is unavailing as it does not concern the admissibility of an
expert’s opinion but focuses exclusively on the propriety of the trial court’s
instruction to the jury. The Pringle Court held that a jury must be charged
that a defendant-physician must be judged by an objective standard of care
and that trial courts should not give “error in judgment” jury instruction which
has a substantial risk of confusing the jury as to the standard of care.
Appellant does not challenge the jury instructions in this case and the trial
court properly charged the jury that Dr. Evans must be held to an objective
standard of care.
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pathologist who analyzed the lung biopsy samples that Dr. Evans sent to the
pathology department during Decedent’s November 29, 2010 surgery, from
offering expert testimony as to the cause of necrosis and fibrosis in Decedent’s
lung and chest. Appellant argues that Dr. Evans failed to properly disclose
this expert testimony in advance of trial pursuant to Pa.R.C.P. 4003.5
(requiring pre-trial identification of experts and disclosure of expert reports
“acquired or developed in anticipation of litigation or for trial”).
By way of background, we note that Appellant’s expert witnesses used
Dr. Farber’s pathology report to support their opinions that Decedent did not
have cancer. For example, Dr. Carl Schoenberger, a physician specializing in
pulmonary medicine, testified that Dr. Farber’s pathology report “proved
definitively” that Decedent did not have cancer as none of the samples showed
any evidence of malignancy. N.T. 1/13/16, at 182, 204-207. Although the
pathology report did not identify the cause of the necrosis in Decedent’s chest,
Dr. Schoenberger opined that the pathologist had diagnosed Decedent with
fibrosing mediastinitis (a benign disease). Id. at 206. Likewise, Dr. Greene
interpreted Dr. Farber’s report to conclude that Decedent’s abnormal tissue
was “consistent with fibrosis and necrosis and no cancer.” N.T. 1/11/16, at
152-53.
Thereafter, the defense called Dr. Farber as a fact witness to testify as
to his findings and conclusions made in preparing his pathology report and to
rebut the testimony of Dr. Schoenberger and Dr. Greene. Appellant made an
oral motion to preclude Dr. Farber from offering expert opinions, accusing the
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defense of failing to identify Dr. Farber as an expert witness prior to trial.
Defense counsel argued that Dr. Farber was a fact witness that was known to
Appellant since the beginning of the case as the treating pathologist who
authored the pathology report and Appellant had every opportunity to depose
Dr. Farber. Defense counsel advised the court that the jury should hear from
Dr. Farber as to what his findings and conclusions were from his pathology
report to contest the interpretation of the report by defense experts. The trial
court decided to allow Dr. Farber to testify but indicated he would rule on the
motion on a question-by-question basis.
Dr. Farber worked with Dr. Evans during Decedent’s November 29, 2010
surgery to analyze the cause of the mass in Decedent’s lung. Based on the
seventeen tissue samples that Dr. Evans provided to the pathology lab that
day, Dr. Farber testified that he found necrotic tissue in four areas: the
anterior mediastinum, the pericardium, the chest wall, and the lung.
Thereafter, Dr. Farber opined that there are “very, very few” disease
processes that will cause necrosis in all four areas and stated that these
findings “reduce[d] what this could be all about to virtually one thing…
cancer.” N.T. 1/22/16, at 112-13. Appellant’s counsel made an immediate
objection, which the trial court sustained.
In evaluating whether a fact witness has properly given expert
testimony, this Court has held the following:
Technical expertise does not ipso facto convert a fact witness, who
might explain how data was gathered, into an expert witness, who
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renders an opinion based on the data.” Branham v. Rohm &
Haas Co., 19 A.3d 1094, 1110 (Pa.Super.2011).
A pre-trial report by a non-party expert serves to
inform the opposing side of the identity of a party's
experts and the conclusions of the experts in order to
prevent unfair surprise and prejudice at trial.
However, a physician who is also a defendant may
testify as a fact witness in his own behalf without the
prior filing of an expert's report.
Havasy v. Resnick, 415 Pa.Super. 480, 609 A.2d 1326, 1333
(1992). “Fact testimony may include opinion or inferences so long
as those opinions or inferences are rationally based on the
witness's perceptions and helpful to a clear understanding of his
or her testimony.” Brady by Brady v. Ballay, 704 A.2d 1076,
1082 (Pa.Super.1997).
Deeds v. Univ. of Pennsylvania Med. Ctr., 110 A.3d 1009, 1017–18
(Pa.Super. 2015).
In this case, Dr. Farber was asked to clarify his specific findings on a
pathology report he made at the time that Dr. Evans was conducting the
wedge biopsy as part of Decedent’s treatment. Dr. Farber’s opinions were
formulated in the course of his duties in his capacity as the senior pathologist
at Thomas Jefferson. As Dr. Farber’s opinions were not developed in
anticipation of litigation, Rule 4003.5 does not apply. See Miller v. Brass
Rail Tavern, 541 Pa. 474, 664 A.2d 525, 531–32 (1995) (noting that the rule
of preclusion for failing to identify experts pursuant to Rule 4003.5 applies
only where the expert opinions were formulated “in anticipation of litigation
or for trial”).
Further, Dr. Farber was qualified to comment as a fact witness on
causation as his opinion was rationally based on his perceptions and diagnosis
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at the time he rendered his pathology testing on Decedent’s tissue for her
treatment. Dr. Farber’s testimony was helpful to the jury’s clear
understanding of the pathology report, which had been interpreted differently
by Appellant’s expert witnesses. See also Crespo, 167 A.3d at 182 (finding
physician “qualified to comment as a fact witness on causation because his
testimony was based on his observations, diagnosis, and medical judgment at
the time he rendered treatment to the appellee). Thus, we discern no abuse
of the trial court’s discretion.
For the foregoing reasons, we affirm the judgment entered in favor of
Appellees.
Judgment affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/18
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