Yacoub v. Lehigh Valley Medical Associates, P.C.

Dissenting opinion by

DEL SOLE, P.J.

¶ 1 While I agree with the Majority’s ruling that Appellant has pled sufficient facts to support her claim of ostensible agency and the trial court erred in precluding her from establishing this theory of liability, I cannot agree that this error may not have had an effect on the jury’s verdict.

¶ 2 Appellant sought to present a claim of ostensible agency against LVH based upon the alleged negligence of Drs. Bruce Yeager and Mark Osborne, radiologists who interpreted the October 27, 1994, and November 1, 1994, CT scan performed on Mr. Yacoub. The Majority writes that the trial court’s erroneous limitation on Appellant’s ability to present this claim was harmless error because the neurosurgeons’ own reading of these same films “would not have altered their course of treatment” and it was ultimately the neurosurgeons’ call as to the proper diagnosis. Majority Opinion at 18. The Majority states “Moreover, even if the radiologists had concluded that the mass was more likely an abscess there is no evidence that the neurosurgeons would have relied on the radiologists’ interpretation rather than their own interpretation.” Id. In my view, common sense dictates that had the neurosurgeons been alerted by a radiologist’s report that the CT films disclosed the likelihood of an abscess, the neurosurgeons would have utilized this information when making their own interpretation. There is nothing to suggest that the neurosurgeons routinely ignore radiology reports and rely solely on their own interpretation of CT films. Thus, I cannot agree with the Majority that the negligence on the part of the radiologists which Appellant was precluded from establishing “could not have affected the jury’s determination of causation.” Majority Opinion at 19.

¶ 3 Secondly, I disagree with the Majority’s conclusion that the trial court did not err when it precluded Dr. Romy, a neurosurgeon, from opining regarding the standard of care applicable to internal medicine physicians or special care nurses. The Majority finds that Appellant failed to lay a proper foundation to qualify Dr. Romy based either on his experience or an overlap of his field with their related fields of medicine.

¶4 Dr. Romy, a board-certified neurosurgeon, was questioned about his neuro-surgical background and his knowledge regarding the standard of care for doctors in other specialties who care for a neurosurgical patient. He advised the court that he was knowledgeable regarding the standard of care for any doctor who undertakes the care and treatment for a patient who has a brain tumor or a brain abscess. N.T., 3/7/00, at 26. Dr. Romy testified that he was knowledgeable as to the skills doctors in other specialties must possess in order to care for a neurosurgical patient and that there are differences in the standard of care between an internal medicine doctor and a neurosurgeon when treating a brain case. Id. at 25. When asked what the standard of care was for an internal medicine doctor who undertakes to manage and care for a person with a brain tumor or a brain abscess, an objection was lodged. The court sustained the objection, finding that the questioning was moving away from an examination of qualifications into the standard of care. Id.

¶ 5 With respect to Dr. Romy’s expertise regarding nursing care, he testified that he was very familiar with the job duties of nurses who care for a neurosurgical patient with a brain tumor or abscess and with them standard of care. Id. at 26. In Taylor v. Spencer Hospital, 222 Pa.Super. 17, 292 A.2d 449 (1972), this Court considered whether the trial court committed reversible error where it refused to permit a physician to testify as to the standard of care for nurses treating a patient. The Superior Court held that the doctor was a qualified expert and stated:

It is evident that the nurses in the instant case made decisions involving the medical treatment of [the plaintiff], and that these decisions were not uniquely administrative or outside the knowledge of a medical doctor. All areas of medical expertise within the knowledge of nurses are also within the knowledge of medical doctors. This issue has never been considered or decided before in Pennsylvania, but our Supreme Court has, by implication, approved the use of the testimony of a medical doctor to establish acceptable standards of nursing care. Baur v. Mesta Machine Co., 405 Pa. 617, 176 A.2d 684 (1961).

Id. 452-453.

¶ 6 In Chanthavong v. Tran, 452 Pa.Super. 378, 682 A.2d 334 (1996), the plaintiff sought to admit the expert testimony of a board certified general practitioner regarding the condition of his spine and the subsequent treatment necessary to treat this injury. The trial court found that the general practitioner did not possess the necessary qualifications to offer his expert opinion on these matters. Upon review the Superior Court noted that the doctor regularly received CAT scan reports and used them in the course and scope of his treatment of patients. This Court ruled that the combination of his training and experience with patients who had sustained personal injuries qualified him to aid the jury in its deliberations. As has been noted by this Court:

Different doctors will have different qualifications, some doctors being more qualified than others to testify about certain medical practices. It is, however, for the jury to determine the weight to be given to expert testimony, in light of the qualifications shown by the expert witness.

Bindschusz v. Phillips, 771 A.2d 803 (Pa.Super.2001) (quoting Taylor v. Spencer Hospital, 292 A.2d at 453 n. 2).

¶ 7 Appellant’s proposed expert, Dr. Romy, had been a board-certified neurosurgeon since 1980. His training enabled him to address cranial problems, spinal problems, disc problems and nerves in the body, which training enabled him to know the skills necessary to be possessed by doctors in other specialties. N.T., 3/7/00, at 24. He testified as to his experience and education regarding the reading of CAT scans and MRIs and noted that he integrated the scanners in his usual practice of medicine where it involved the head or spine. Id. at 22. Dr. Romy testified that although he did not keep current generally on medical literature regarding internal medicine, he did so when this literature had importance for a neurosurgeon and concerned the basic core of brain surgery. Id. at 32.

¶ 8 Based upon Dr. Romy’s background and education as presented, I believe the trial court abused its discretion in refusing to permit him to testify as an expert on the standard of care to be used by internal medicine physicians and special care nurses. Had such testimony been permitted, it would then be for the jury to weigh this testimony in light of all the testimony offered at trial.

¶ 9 Accordingly, I would vacate the judgments entered in favor of the Appel-lees and remand for a new trial involving all parties.