Slee, T. v. Mozdy, F.

J-A26008-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THOMAS SLEE AND KEVIN R. MILEY AND IN THE SUPERIOR COURT OF
FRANK B. MILEY, JR., ADMINISTRATORS PENNSYLVANIA
OF THE ESTATE OF MARY SLEE,
DECEASED
Appellants
v.
FRANK MOZDY, M.D. AND THE
CHAMBERSBURG HOSPITAL
Appellees No. 613 MDA 2014
Appeal from the Judgment Entered March 27, 2014
In the Court of Common Pleas of Franklin County
Civil Division at No(s): 2011-2593
BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED DECEMBER 05, 2014
Appellants, Thomas Slee, Kevin R. Miley, and Frank B. Miley, Jr., as
administrators of the estate of Mary Slee (Decedent), appeal from the March
27, 2014 judgment entered in favor of Appellees, Frank Mozdy, M.D. and the
Chambersburg Hospital. After careful review, we affirm.
The trial court succinctly summarized the relevant factual and
procedural background of this case as follows.
This medical malpractice case was tried before
a jury on November 18 and 19, 2013. Prior to trial,
Frank Mozdy, M.D. (“Dr. Mozdy”) stipulated to a
breach in the standard of care of [Decedent] during
her hospitalization in May 2008. The trial was solely
on the issues of causation and damages. The jury
found that Dr. Mozdy’s conduct was not a factual
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cause of [Decedent]’s harm and therefore did not
address the issue of damages.
After previously having a nodule on her left
upper arm frozen, in 2006 when the nodule returned
[Decedent] had it surgically removed. In addition to
removing the entire tumor, the doctor also removed
two sentinel lymph nodes. Pathology results
indicated that Mary had melanoma, but that no
metastases had occurred through her lymphatic
system.
On May 30, 2008, [Decedent] was admitted to
Chambersburg Hospital for shortness of breath. A
CT scan of her chest was performed in order to rule
out a pulmonary embolism. While the CT scan did
not reveal a pulmonary embolism, it did show a 6.4
mm nodule in the right lower lobe of [Decedent]’s
lung. The radiologist recommended a follow-up in
three months. However, [Decedent] was never
informed of the radiologist’s findings or
recommendation, nor were they noted in her
discharge summary prepared by Dr. Mozdy [Dr.
Mozdy stipulated that his failure to inform Decedent
of the recommended follow-up was a breach of the
standard of care]. As a result, [Decedent]’s family
physician, Dr. Anita Chadwick, never scheduled the
recommended follow-up, which she would have done
had she known about the radiologist’s findings.
On July 23, 2009, [Decedent] fell while at work
and struck her head. She was brought to the
Chambersburg Hospital where she underwent an MRI
… at the [insistence] of her family. The MRI revealed
that [Decedent] had fifteen masses in her brain,
some of which had bleeding and some of which had
swelling. A CT scan of her chest showed that the
nodule in her lung had increased in size since it was
identified in 2008.
[Decedent] was transferred to Johns Hopkins
Hospital …. The tumors in [Decedent]’s brain were
biopsied and found to be metastatic melanoma. The
nodule in [Decedent]’s lung was never biopsied;
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however, the experts agree to a reasonable amount
of medical certainty that it was metastatic
melanoma. Sadly, [Decedent] … died … on August
11, 2011.
Three expert witnesses testified at trial. Dr.
Russell Fuhrer, a board certified radiation oncologist
testified on behalf of the [Appellants]. Dr. George
Murphy, a board certified pathologist, and Dr.
Michael Mastrangelo, a board certified medical
oncologist, testified on behalf of Dr. Mozdy. The
experts disagreed as to whether [Decedent] had
tumors in her brain when she had the CT scan of her
lung in May 2008.
Trial Court Opinion, 3/12/14, at 1-3 (footnote omitted). On November 19,
2013, the jury found that Dr. Mozdy’s negligence was not a factual cause of
harm to [Decedent]. Verdict Slip, 11/19/13. Appellants filed a motion for a
new trial on November 26, 2013. The trial court denied the motion on March
12, 2014 and entered judgment on March 27, 2014. On April 7, 2014,
Appellants filed a timely notice of appeal.1
On appeal, Appellants raise the following issue for our review.
A. Whether the trial court abused its discretion in
failing to grant a new trial when the medical
testimony in this case was so clear and uniform that
reasonable minds could not have differed on the
question of whether the delay in [Decedent]’s
diagnosis and treatment decreased her life span, and
therefore caused her harm?
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1
Appellants and the trial court have timely complied with Pennsylvania Rule
of Appellate Procedure 1925. Specifically, the trial court adopted the
reasoning set forth in its March 12, 2014 opinion denying Appellants’ post
trial motion.
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Appellants’ Brief at 11.
We begin by noting our well-settled standard of review
with regard to a motion for a new trial.
Our review of the trial court’s denial of a new
trial is limited to determining whether the trial court
acted capriciously, abused its discretion, or
committed an error of law that controlled the
outcome of the case. In making this determination,
we must consider whether, viewing the evidence in
the light most favorable to the verdict winner, a new
trial would produce a different verdict.
Consequently, if there is any support in the record
for the trial court’s decision to deny a new trial, that
decision must be affirmed.
Joseph v. Scranton Times, L.P., 89 A.3d 251, 260 (Pa. Super. 2014)
(citations omitted).
In the instant case, Appellants aver the jury verdict in this case was
against the clear weight of the evidence. Appellants’ Brief at 8. However,
we observe, “[a] new trial based on weight of evidence issues will not be
granted unless the verdict is so contrary to the evidence as to shock one’s
sense of justice; a mere conflict in testimony will not suffice as grounds for a
new trial.” Daniel v. William R. Drach Co., Inc., 849 A.2d 1265, 1267
(Pa. Super. 2004) (citation omitted).
Upon review, the test is not whether this Court
would have reached the same result on the evidence
presented, but, rather, after due consideration of the
evidence found credible by the [jury], and viewing
the evidence in the light most favorable to the
verdict winner, whether the court could reasonably
have reached its conclusion.
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Id. (citation omitted).
Appellants advance the argument that “[t]he testimony was so clear
that the [t]rial [c]ourt’s failure to grant a new trial was a miscarriage of
justice.” Appellants’ Brief at 13. We cannot agree. At trial, the jury heard
testimony from three medical experts. Dr. Russell Fuhrer was qualified as
an expert in radiation oncology and the treatment of metastatic melanoma.
N.T., 11/19/13, at 19. He testified, on behalf of Appellants, as to two
possible scenarios had Decedent received follow-up care three months after
her hospitalization in May 2008, as recommended by the radiologist.
Q. Now Doctor, … you provided two different
scenarios for what if [Decedent] had a proper work-
up in 2008, is that true?
A. Yes.
Q. Can you please tell us what the first one was?
A. So, if she had received the proper work up 11
months prior to 2009, and either there would have
been no metastasis or smaller brain metastasis in
the brain at that point.
…
Q. Do you have an opinion within a reasonable
degree of medical certainty whether under [the first]
scenario she would have had a better chance at
living a longer, healthier life?
A. Yes, she would have. There’s a narrow window in
melanoma where resecting a single site of metastatic
disease gives some patients a benefit in their
survival advantage if it’s caught in just one site and
it’s successfully operated on.
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…
Q. Now Doctor, based on [the second] scenario, did
you reach a conclusion within a reasonable degree of
medical certainty regarding whether earlier diagnosis
and treatment of [Decedent]’s metastatic melanoma
would have increased her chances of living a longer
healthier life?
A. Nobody can predict the future. You can’t
specifically say, ya know, when we make decisions
about treating an individual patient we base that on
experience with other patients and experiences in
the literature, and had she had just the pulmonary
nodule and that been resected, that outcome could
very well have been different.
…
Q. And based on the first scenario, a tumor in her
lung, but not in her -- but no tumors in her brain,
she had a better chance of avoiding the pain and
suffering she went through?
A. Yes.
Q. The second scenario, she still would have had the
pain and suffering but would have lived longer?
A. There’s a greater likelihood of her living longer,
yes.
Id. at 37-41. On cross-examination, Dr. Fuhrer agreed that metastatic
melanoma is among the more aggressive tumors and “that it generally
responds poorly to most treatments.” Id. at 54.
Dr. George Murphy testified on behalf of Appellees and was qualified
as an expert in the fields of pathology and dermatology, with expertise in
the field of malignant melanoma. Id. at 76-77. He opined, “my experience
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has been that patients with brain metastases have a very poor prognosis in
melanoma. And so therefore, my opinion would be that her prognosis would
have not been a favorable one in 2008.” Id. at 94. He acknowledged his
professional role is to render diagnoses that lead to treatment, to sometimes
advise with regard to treatment, and to assess efficacy of treatment on
occasion. Id. He further acknowledged his expertise was not in medical
oncology by testifying, “[w]ell, my experience in working with medical
oncologists and melanoma oncologists has been that once brain metastases
have occurred, they’re extraordinarily difficult to effectively treat and to alter
quality of life and/or prognosis. That would, of course, need to also be
evaluated from the context of medical oncology.” Id. at 95.
Following the testimony of Dr. Murphy, Dr. Michael Mastrangelo
testified on Appellees’ behalf as an expert witness in the area of medical
oncology, “competent to testify with respect to biology, treatment,
metastasis, and prognosis of the disease.” Id. at 125. Dr. Mastrangelo
testified to a reasonable degree of medical certainty that the cancer spread
to Decedent’s brain prior to 2006. Id. at 128. Dr. Mastrangelo also testified
to the effect a follow-up visit would have had on Decedent’s prognosis.
Q. Okay, and Doctor, do you have an opinion to a
reasonable degree of medical certainty whether any
follow-up of that CT in May of 2008 would have
provided any significant improvement in the overall
prognosis for [Decedent]?
A. Once the tumor metastasizes beyond the primary
site and is not in the regional lymph nodes, these
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people die of their disease. The only question is
when. … [I]t’s difficult to prove more intensive
testing actually changes the outcome.
If you test more intensely, you find the disease
earlier, we initiate the treatment earlier, prolongs life
somewhat; however, it doesn’t cure you. You still
die. The outcome is still the same.
Id. at 129-130.
Based on the aforementioned testimony, the jury found the failure of
Dr. Mozdy to inform Decedent of the recommendation to follow-up within
three months of his treatment of her was not a factual cause of the harm
she suffered. See Verdict Slip, 11/19/13. The evidence revealed that the
type of cancer Decedent had was aggressive. Though Dr. Fuhrer testified on
behalf of Appellants that there was a “narrow window” where treatment may
have provided a benefit under one hypothetical scenario, he also agreed that
this type of cancer “responds poorly to most treatments.” See N.T.,
11/19/13, at 39, 54.
Therefore, viewing this evidence in the light most favorable to
Appellees, as verdict winner, we cannot conclude a new trial would result in
a different verdict. See Joseph, supra. The jury in this case found that Dr.
Mozdy’s departure from the standard of care was not the factual cause of
Decedent’s harm. After due consideration of the evidence, we conclude this
was a reasonable conclusion. See Daniel, supra. Therefore, we reject
Appellants’ argument that the jury verdict was against the clear weight of
the evidence. See Appellants’ Brief at 8.
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Based on the foregoing, we conclude the trial court did not abuse its
discretion when it denied Appellants’ motion for a new trial and entered
judgment in accordance with the jury’s verdict. See Joseph, supra.
Accordingly, the trial court’s March 27, 2014 judgment is affirmed.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/2014
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