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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 ANGELINE P. PENNSYLVANIA
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 Order Entered December 9, 2013
In the Court of Common Pleas of Luzerne County
Civil Division at No(s): 4735 of 2006
BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.
DISSENTING MEMORANDUM BY MUNDY, J.: FILED FEBRUARY 05, 2015
I respectfully dissent from the conclusion reached by both the trial
court and the Majority that Executor did not carry his burden of establishing
the minimum necessary to survive a nonsuit in this case. Trial Court
Opinion, 3/18/14, at 25; Majority Memorandum at 16. After a thorough
review of the certified record, the parties’ briefs, and the relevant law, I
disagree that the judgment of compulsory nonsuit in favor of Drs. Decker
and Castellano was proper.
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The Majority has correctly detailed the appropriate scope and standard
of review employed in examining a judgment of compulsory nonsuit.
Specifically, nonsuit is only proper when it is clear that a plaintiff has not
established a right to relief or cause of action. Majority Memorandum at 6,
citing Staiger v. Holohan, 100 A.3d 622, 624 (Pa. Super. 2014) (internal
citations omitted); see also Pa.R.C.P. 230.1. In assessing whether a
plaintiff has established a right to relief, the plaintiff must be given the
benefit of all favorable evidence and all reasonable inferences derived
therefrom. Majority Memorandum at 6, citing Staiger, supra. Further, any
conflicts in the evidence must be resolved in the plaintiff’s favor. Id.
However, as the following discussion illustrates, despite observing the
appropriate standard, the trial court and the Majority fail to afford Executor,
plaintiff below, the benefit of all reasonable inferences derived from the
favorable evidence adduced at trial or to resolve conflicts in evidence in
Executor’s favor.
The Majority notes that the trial court’s analysis was based, in large
part, on Mudano v. Phila. Rapid Transit Co., 137 A. 104 (Pa. 1927) and
Brodowski v. Ryave, 885 A.2d 1045 (Pa. Super. 2005) (en banc)
(plurality), appeal denied, 897 A.2d 449 (Pa. 2006). Majority Memorandum
at 5. Indeed, the trial court recognized Executor “relies significantly” on our
Supreme Court’s decision in Brannan v. Lankenau Hosp., 417 A.2d 196
(Pa. 1980) but finds that “such reliance is misplaced.” Trial Court Opinion,
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3/18/14, at 8. This finding is erroneous.1 Similarly, while the Majority fairly
recounts the salient principles elucidated by our Supreme Court’s decision in
Brannan, it curiously fails to apply these binding principles of law to the
case herein. See Majority Memorandum at 8-9.
As noted in the Majority Memorandum, Brannan involved a single
expert witness who gave inconsistent testimony on behalf of the plaintiff in
that case. Majority Memorandum at 8. The Majority recognizes that our
Supreme Court reiterated, in Brannan, that for a plaintiff’s case to fail
based on contradictory expert testimony, the “experts must so vitally
disagree on essential points as to neutralize each other’s opinion evidence.”
Id., citing Brannan, supra at 200. Indeed, the Majority notes that the
Supreme Court, in holding the compulsory nonsuit was improperly granted,
again acknowledged that conflicts in expert testimony are fatal to a plaintiff’s
case only if they are absolute. Id. at 9 (emphasis added), citing
Brannan, supra. Thus, the “relatively minor divergence in only a part of
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1
Not only is this finding erroneous, the trial court also plainly
mischaracterizes Mudano. See Trial Court Opinion, 3/18/14, at 5. The trial
court posits that Mudano established, “expert testimony from plaintiff’s
experts in a medical negligence action must remain reasonably consistent in
order to survive a Motion for Compulsory Non-Suit … .” Id. Mudano did
not involve a medical malpractice action. Rather, the plaintiff in Mudano
sought to recover damages arising from an injury to his foot, suffered while
working on a public highway. Mudano, supra at 53-54. The issue of the
defendant’s and plaintiff’s respective negligence in causing the injury were
not under review. Id. at 54. The appeal involved the legal sufficiency of the
expert testimony to sustain the award of damages. Id.
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[plaintiff]’s expert testimony, when viewed against the testimony as a
whole, [did not] sufficiently compromise the witness’ testimony on direct to
justify removal of th[e] issue from jury consideration.” Brannan, supra. It
bears emphasis that in Brannan, the Court recognized that after the
decision in Mudano, “this Court has allowed juries to consider and resolve
conflicts among expert witnesses.” Id. (citation omitted).
The Majority observes this Court found the application of the Mudano
rule in Brodowski was appropriate where experts proffered testimony in
irreconcilable conflict on the standard of care as to one defendant physician,
Dr. Vaganos.2 Majority Memorandum at 9-10. However, the analysis
provided by the Majority is silent regarding the other defendant physician in
that case, Dr. Ryave. See id. Though we affirmed the grant of compulsory
nonsuit in favor of the physician the Majority discusses, we reversed the
grant of compulsory nonsuit as to the other defendant physician, Dr. Ryave.
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2
I note the Brodowski opinion was extremely fractured regarding the five
issues the appellant raised, with only three judges joining the opinion in full.
In separate writings, a majority of the Court agreed with the opinion as to
both the reasoning and result of the disposition on the issue of nonsuit as to
the two defendant doctors. Id. at 1066 (Joyce, J., concurring and
dissenting), 1067 (Bowes, J., concurring and dissenting); see also, e.g.,
Commonwealth v. Brown, 23 A.3d 544, 555 (Pa. Super. 2011)
(observing, “[i]n cases where a concurring opinion enumerates the portions
of the plurality’s opinion in which the author joins or disagrees, those
portions gain precedential value.”) (citation omitted). Nevertheless, this
Court’s decision is controlled by Brannan. See Bell v. Willis, 80 A.3d 476,
479 (Pa. Super. 2013) (stating, “[a]s an intermediate appellate court, this
Court is obligated to follow the precedent set down by our Supreme Court.”)
(citation omitted), appeal denied, 89 A.3d 1282 (Pa. 2014).
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We concluded the experts’ testimony did not irreconcilably conflict on the
issue of Dr. Ryave’s duty and breach. Brodowski, supra at 1061. The first
expert opined that Dr. Ryave breached the standard of care by “failing to
admit [the] [p]laintiff to a proper place prior to his departure even though
he had more than two hours to do so.” Id. (citation and internal quotation
marks omitted). This expert criticized Dr. Ryave’s failure to arrange a
consultation with a neurologist and for not signing out the patient
appropriately to the oncoming emergency room physician. Id. (citation
omitted). The second expert opined that Dr. Ryave “did a good job in his
evaluation, but something fell apart after he left. He was meant to properly
convey to the ER doctor … that this patient needed to be admitted to the
hospital for evaluation of stroke, but something went awry at that point.”
Id. (citation and internal quotation marks omitted). In declining to find an
irreconcilable conflict between the two expert opinions, the Court noted the
second expert opined that Dr. Ryave’s “evaluation, assessment, and
differential diagnosis were proper,” while the first expert opined on issues of
treatment implementation and did not address, specifically, evaluation,
assessment, and diagnosis. Id. Therefore, the testimony of the two experts
did not neutralize each other’s opinions as to Dr. Ryave’s care, and nonsuit
was improper. Id.
Contrary to the trial court’s and Majority’s conclusion, the instant case
does not present a situation where two inconsistent inferences are possible
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of adoption from the testimony of Drs. Lipsky and Weissman. The experts
testified there were deviations from the standard of care, and those
deviations caused harm to Decedent. In order to demonstrate that the
experts’ opinions did not irreconcilably conflict, a more in depth reproduction
of the testimony is warranted. Dr. Lipsky testified, to a reasonable degree of
medical certainty, as follows.
The deviations, most importantly, were not
recognizing the signs of acute abdomen in this
patient who had severe pseudomembranous C. Diff
colitis, who rapidly deteriorated on the 28th, and who
would have had a better chance of survival had this
been addressed over a day before it was actually
addressed.
N.T., 9/9/13, at 55. Regarding the administration of antibiotics to Decedent,
Dr. Lipsky testified Vancomycin was “more effective for a more severe case
of colitis,” and it should have been administered earlier to Decedent. Id. at
57. His explanation for this opinion follows.
… So, on April 26th, [2004], the patient -- on
admission, the patient was started on Flagyl, which I
think was a reasonable choice of an initial antibiotic.
However, I think that the antibiotic – there was
concern in this patient who was changed to NPO, no
food, that whatever medicine was being
administered orally was not reaching the appropriate
location in the colon. I would have had a much
earlier threshold to start the patient on intravenous
antibiotic; Flagyl, being the only one approved for
this.
What I would like to do, even as of 2004, is
changing the patient to oral Vancomycin at the time
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I did IV Flagyl [April 27, 2004] to just to try to see if
we could get an oral medication into the patient.
… [A]ll of us who were in gastroenterology at
the time had anecdotal experience of Vancomycin
being more effective for a more severe case of
colitis.
Id. at 56-57. Following that testimony, Dr. Lipsky opined that the
deviations identified were ultimately involved in causing Decedent’s death
and that the deviations increased the risk of harm to Decedent. Id. at 57-
58.
On direct examination, Dr. Weissman testified as follows relevant to
the issue of antibiotic treatment.
[Counsel for Executor:]
Q. All right. Doctor, in terms of the medicines
available to treat, there was testimony yesterday
that [Decedent] came in with an oral medication for
Flagyl and then on the 27th was changed to I.V.
introduction of Flagyl. Can you comment on that
change?
[Dr. Weissman:]
A. The reason – that – there was nothing wrong
with that. I mean, that’s sometimes done in
situations where you are concerned that the
medication orally isn’t being delivered where you
want it to be delivered.
Q. All right. Let’s talk about the introduction of
Vancomycin that occurred, I believe, on the 28th.
Could you discuss the issues relating to that?
A. Yes. Again, I – that was perfectly reasonable to
do that. You know, the problem that I mentioned
about wondering whether it was going to get where
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you needed it to go – but at that point, where clearly
[Decedent] was getting sicker, … that was an
appropriate addition to try -- the thing about
Vancomycin orally is it’s not absorbed, and it just
basically, as it makes its way down, it – you know, --
there’s a high concentration of the drug in the
intestinal -- in the inside of the intestine, which is
where you want it to be. So at this point … that was
an appropriate addition.
N.T., 9/12/13, at 273-274. On cross-examination, Dr. Weissman again
opined the intravenous antibiotic treatment on April 27, 2004 was a
reasonable initial course of treatment. See id. at 310. Counsel for Dr.
Decker then inquired as to the addition of Vancomycin on April 28, 2004.
[Counsel for Dr. Decker:]
Q. … [A]s soon as Dr. Decker saw the increased
white blood count from 6:00 that morning – because
he was in, he said somewhere between ten and
noon, so he saw that laboratory data -- he
immediately added Vancomycin by mouth. Did you
see that?
[Dr. Weissman:]
A. As I stated earlier, he did that, and I thought that
was appropriate.
Id. at 310-311. The Majority concludes that these two opinions “were so
directly in conflict as to the standard of care as to effectively neutralize each
other.” Majority Memorandum at 11. I cannot agree. There is no doubt
that both experts testified that the intravenous administration of Flagyl was
an appropriate course of treatment for Decedent on April 27, 2004. See
N.T., 9/9/13, at 57; N.T., 9/12/13, at 273-274, 310-311. Dr. Lipsky opined
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that at that time, Vancomycin should also have been introduced as an oral
medication. There was no absolute contradiction of that opinion by Dr.
Weissman opining that the addition of Vancomycin upon Dr. Decker’s
assessment of her condition on April 28, 2004 was fitting. Dr. Weissman
was asked if the introduction of Vancomycin was appropriate based on
Decedent’s condition on April 28, 2004. His opinion did not render Dr.
Lipsky’s opinion neutralized because he did not testify regarding whether the
Vancomycin should have been introduced earlier or opine that Vancomycin
was not a required or appropriate addition to Decedent’s medication regime
thus creating an absolute conflict as between the two expert opinions. He
merely opined that its introduction, based on her condition April 28, 2004,
was appropriate. The instant issue is more akin to the expert opinions
rendered in Brodowski as discussed supra. Herein, the experts were not in
direct conflict because the testimony given by Dr. Weissman did not
contradict Dr. Lipsky’s opinion that the standard of care required
introduction of oral Vancomycin at the same time as the introduction of
intravenous Flagyl. See Brodowski, supra.
Accordingly, I cannot conclude there was an absolute contradiction of
the experts’ opinions on the administration of antibiotics or that the experts
so vitally disagreed on essential points as to neutralize each other’s opinion
evidence. See Brannan, supra. Therefore, I conclude the trial court erred
in granting nonsuit on this basis.
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Next, the Majority concludes Executor failed to establish Drs.
Castellano and Decker breached the standard of care by not calling to check
on Decedent and ordering a surgical consult. Majority Memorandum at 12-
15.
Dr. Lipsky testified that after the surgical consult performed at 8:30
a.m. on April 28, 2004, there should have been another consult.
[Counsel for Executor:]
Q. [] Doctor, given the information provided
regarding [Decedent]’s condition in terms of April
28th of 2004, after the surgical consult was done in
the early morning, and I believe it was 8:30 in the
morning on the 28th, was there a period of time
where any of the physicians, treating physicians,
should have been brought back for a consult for
surgery to evaluate [Decedent] after the 8:30 a.m.,
April 28th time period?
[Dr. Lipsky:]
A. Yes. Clearly on the 28th, things had changed
from the 27th, including as we mentioned before, the
acidosis, which was now documented, and the
marked elevation of the white blood cells, which was
very disturbing.
The clinical exam remained – remained fairly
severe with diffused abdominal tenderness,
abdominal distention. This already had persisted,
probably for over 48 hours and not improved.
As I mentioned, the decrease in the quantity of
the bowel movements would not have been
reassuring to me. It might have [] disturbed me
that something else might have been brewing that
was more of an emergency.
The answer is yes.
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N.T., 9/9/13, at 52-53. Dr. Lipsky did not render an opinion regarding
whether the standard of care required Drs. Castellano and Decker to check
on the status of Decedent after their respective assessments of her.
Dr. Weissman also testified that a surgical consult should have been
conducted on Decedent.
[Counsel for Executor:]
Q. … Doctor, do you have an opinion within a
reasonable degree of medical certainty if there were
any deviations of the standard of care by Dr. Decker
on April 28th, … ?
…
[Dr. Weissman:]
A. My opinion is that on the -- [Decedent]’s clinical
condition worsened on the 28th and – clinically and
also on the basis of the laboratory data from that
day.
Q. Do you have an opinion within a reasonable
amount of medical certainty if a surgical consult
should have been done after 8:30 a.m. on April 28th?
A. Based on the clinical and laboratory information,
I think it would have been appropriate for the
surgeon to be called back to reassess [Decedent].
N.T., 9/12/13, at 290-291. Dr. Weissman testified further that the deviation
from the standard of care caused harm or resulted in Decedent’s death and
also increased the risk of harm to Decedent. Id. at 291. He later testified
as to the obligation Drs. Castellano and Decker had to Decedent.
[Counsel for Executor:]
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Q. Doctor, … on [April] 28th, given [Decedent]’s
condition, did [Drs. Decker and Castellano] in this
case, should they have called back to check on her
condition later in the day on the 28th?
[Dr. Weissman:]
A. In my opinion?
Q. Yes.
A. Yes.
N.T., 9/12/13, at 351. After this testimony, counsel for Dr. Castellano cross-
examined Dr. Weissman. Dr. Weissman agreed nurses are the “eyes and
ears” of physicians, and “one type of standard of care” is for a nurse to
contact a physician regarding a patient who is experiencing a problem or a
change in condition. Id. at 353. Immediately thereafter, counsel for Dr.
Decker addressed the issue of calling back.
[Counsel for Dr. Decker:]
Q. Dr. Decker had no tests outstanding that he was
going to call back to say, how did that test turn out
that I ordered, did he?
[Dr. Weissman:]
A. There were no tests outstanding, but there was
a patient outstanding.
Id. at 354-355 (emphasis added).
Again, there is no doubt that both experts proffered opinions that the
standard of care was breached when a surgical consult was not conducted
following the initial consult at 8:30 a.m. on April 28, 2004. Because Dr.
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Lipsky offered no testimony on this issue, the instant matter bears more
resemblance to the testimony of the single expert witness in Brannan.
Though on cross-examination, Dr. Weissman conceded doctors rely on other
hospital staff to alert them to a patient’s condition, his testimony, in its
entirety, was not, as the trial court found and the Majority concludes,
wholly inconsistent with his earlier testimony that the standard of care
required physicians to call the hospital nor was it “tantamount to no
standard of care testimony at all.” Majority Memorandum at 16. Dr.
Weissman testified Drs. Decker and Castellano should have called back to
check on Decedent. The concession that “one type of standard of care”
permitted physicians to wait to be contacted by nursing staff before checking
on a patient was a minor divergence from the conclusion that the defendant
physicians in the instant case should have called back. Moreover, Dr.
Weissman’s later testimony in response to counsel for Dr. Decker noting Dr.
Decker had no outstanding tests on Decedent, reaffirmed Dr. Weissman’s
earlier opinion that Decedent and her care were still outstanding, and the
defendant physicians should have called to check on her status. See N.T.,
9/12/13, at 355. Therefore, I conclude the minor divergence in the part of
Dr. Weissman’s testimony regarding the nursing staff notifying physicians,
when viewed against his testimony, as a whole, did not sufficiently
compromise his testimony on direct to justify the removal of the issue from
the jury’s consideration. See Brannan, supra.
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Accordingly, based on the foregoing discussion, it is my view that the
two expert witnesses’ testimony did not present an absolute contradiction
nor did the experts so vitally disagree on essential points as to effectively
neutralize the other’s opinion. See id; Brodowski, supra. Because I
conclude the conflicts in the testimony of Drs. Lipsky and Weissman were
not absolute, I believe any minor conflicts in their testimony should have
been considered and resolved by the jury. See Brannan, supra. Likewise,
giving Executor the benefit of all the favorable evidence and reasonable
inferences derived therefrom, I conclude Executor has established a right to
relief rendering the grant of compulsory nonsuit an error of law. See
Staiger, supra. Consequently, I would reverse the order of the trial court
and remand for a new trial. I respectfully dissent.
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