Case Information
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37 THERESA ADAMS [1] THE IN SUPERIOR COURT OF PENNSYLVANIA
Appellant
v.
DAVID A. VAUGHN, M.D., AND
SURGICAL SPECIALISTS OF LANCASTER
Appellee No. MDA 2016 Appeal from the Judgment Entered August 17, 2016 In the Court of Common Pleas Lancaster County Civil Division at No(s): CI -13-03124 BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J. FILED APRIL 06, 2017
MEMORANDUM BY OTT, J.: Theresa Adams appeals judgment entered August 17, the Court of Common Pleas of Lancaster County after court granted David A. Vaughn, M.D.'s Surgical Specialists of Lancaster's (collectively Vaughn or Defendants) motion for compulsory nonsuit at close of Adams' case -in -chief. In timely appeal, Adams raises three issues; she claims the trial court erred: (1) determining plaintiff's expert liability did testify reasonable degree certainty, (2) granting defendant's motion for nonsuit where plaintiff provided prima facie case against Surgical Specialists of Lancaster, (3) striking affidavit Plaintiff's counsel, April L. Strang-Kutay. After thorough review of the submissions the parties, the certified record, relevant law, we affirm.
We adopt the factual and procedural history of this matter as recited by trial judge, the Honorable James P. Cullen, Opinion and Order of August 5, 2016,1 denying Adams' motion remove nonsuit and for a new trial. February 13, 2012, [Adams] presented at the Lancaster
General Hospital Emergency Department complaining abdominal pain. After an ultrasound revealed that [Adams] suffered from gallstones, Dr. Vaughn advised [Adams] she needed to have her gallbladder removed and the procedure done laparoscopically. This procedure was performed by Vaughn on February 14, 2012.
Following surgery, [Adams] continued experience severe pain and remained hospitalized. A CT scan, performed on February 16, 2012, showed she a pelvic abscess, which was drained the same day. Tests revealed the contents of the abscess included bile and feces, indicative of bowel perforation. A second CT scan on February 18, 2012, located .2 cm hole [Adams'] bowel, which was surgically repaired. After second [Adams] treated for peritonitis, continued to surgery, experience pain and other symptoms missed time from work.
At trial, on February 9, 2016, [Adams] produced expert on liability, I. Michael Leitman, M.D., who testified reviewed [Adams'] medical records Lancaster General Hospital and other hospitals, the deposition Vaughn and Dr. Leslie, and the reports other physicians who reviewed the case. Based on review of these items, testified he had formed opinion concerning the alleged breach of the standard of care within reasonable degree medical certainty. He then went define reasonable degree of meaning "based upon evidence records reviewed that, more likely than not the Although judgment not entered the docket until August 17, 2016, court's order opinion were dated August 2016. supported by records and materials." The remainder of Leitman's devoted to development of expert opinion. February 11, 2016, at the close [Adams'] case, Defendants
moved orally for compulsory nonsuit and subsequently filed a for compulsory nonsuit. supplemental motion Following argument the parties, the Court granted the nnotion.[2] Order and Opinion, 8/5/2016, at 1-3.
Adams' first two issues can be resolved together. Our standard of review regarding the refusal to remove a nonsuit follows:
An order denying a motion to remove a compulsory nonsuit will be reversed appeal only for abuse of discretion or error law. A trial court's entry of compulsory nonsuit proper where plaintiff not introduced sufficient evidence to establish the necessary elements to maintain a cause of action, and is duty of the trial court make a determination prior to submission of the case a jury In making determination plaintiff must be given the benefit of every fact and all reasonable inferences arising from the evidence all conflicts evidence must resolved plaintiff's favor. Additionally, compulsory nonsuit valid only clear case where the facts circumstances lead conclusion-the absence liability.
Neidert v. Charlie, 143 A.3d 387-88 (Pa. Super. 2016) (citations and quotation marks omitted).
Instantly, trial court granted nonsuit favor Vaughn because Adams' expert, Leitman, failed give professional opinion Here, court added footnote indicating the argument was conducted chambers not recorded. We also note Adams' counsel was offered time to respond to written supplemental motion for nonsuit, but declined.
to the requisite degree of certainty. The trial judge explained his basis for analysis in Opinion Order.
[I]t is settled law that if the circumstances of a medical malpractice action are beyond the knowledge of a layperson, the plaintiff must present an expert to testify to a reasonable degree of medical certainty that the actions of the defendant deviated the standard of care that deviation caused from the plaintiff's injury. Vicari v. Spiegel, 936 A.2d 503, 510 (Pa. Super. 2007), aff'd 989 A.2d 1277 (Pa. 2010). An expert is not required testify with absolute certainty or rule out all alternative causes of injury, Winchel v. Jain, 925 A.2d 782, 794 (Pa. Super. 2007), but the expert's testimony, taken in its entirety, must express reasonable certainty that acts complained of were a substantial factor bringing about the injury. Hreha v. Benscoter, 554 A.2d 527, 527 (Pa. Super. 1989). As Pennsylvania Supreme Court has explained, "[t]he issue is not merely semantics." McMahon v. Young, 442 Pa. 484, 486, 276 A.2d 535 (1971). If fact -
The opinion of a medical expert is evidence. finder chooses to believe it, he can find as fact what the expert gave as an opinion. ... Perhaps the world of medicine, nothing absolutely certain. Nevertheless, doctors must make decisions their own profession every day based their own expert opinions. Physicians must understand it intent of our law if the plaintiff's medical expert cannot form with sufficient certainty so as make judgment, there nothing record with which jury can make decision with sufficient certainty so to make a legal judgment.
Id. term "reasonable degree of medical certainty" clearly
defined case law. However, it been noted "an expert fails the standard if testifies alleged cause 'possibly' or 'could have' led the result, or even it 'very properly account' for the result, or even it 'very highly probable' caused result." Griffin v. Univ. Pittsburgh Med. Ctr.-Braddock Hosp., 950 A.2d - 1000 (Pa. Super. 2008). Additionally, expert fails to satisfy the standard of where that expert's testimony is framed in terms "more likely than not." Id. (citing Corrado v. Thomas Jefferson Univ. Hosp., 790 A.2d 1022, 1031 (Pa. Super. 2001) (holding that, viewed its totality, medical expert's testimony did not rise to the requisite level certainty where he testified that "more likely than not in my opinion [defendant] deviated the standard of care")).
Order and Opinion, 8/5/2016, at 4-5. We find no error law in trial court's use of this analytic basis.
Initially, we examine Dr. Leitman's direct redirect testimony regarding standard of care. direct examination, Dr. Leitman testified: And in your opinion, Dr. Leitman, did Dr. Vaughn meet the
standard of care the performance of the surgery? A: Dr. Vaughn did not meet the standard of care performing the surgery. And on do you base opinion?
A: It's based upon following: That bowel was injured. That there no other circumstance, my opinion, would have caused bowel to injured, didn't go back check area where the instruments were placed to make sure the intestine not injured prior concluding the operation. [3]
N.T. Trial, 2/9/2016 119. We do not quote Dr. entire herein. We note Dr.
Leitman point any specific action documented medical records demonstrated Dr. Vaughn's negligence. Essentially, Dr. Leitman opined Vaughn to have misplaced at least of the laparoscopic instruments, outside the field of view of the surgical camera, to have punctured the bowel. Further, opined injury could only occurred during Vaughn's laparoscopic surgery. redirect, Dr. Leitman testified similarly:
Q: And you have indicated that a perforation of the bowel a laparoscopic procedure is a very remote rare circumstance?
A: It is. And when that circumstance happens does happen where patient is more complex, adhesions, infection, other
problems?
A: Yes. And so, if patient undergoes a procedure with a virgin
abdomen, never having this type surgery before with any adhesions or any anomalies could confuse surgeon, if a bowel puncture made during surgery, evidence of substandard care?
A: It is.
Id. 166-67.
This review of direct redirect testimony shows his injury suffered by Adams could only happen through substandard (negligent) care.4 However, apparent confidence belied when examining the totality light of the standard certainty required medical negligence action.
Even prior testifying opinion, Leitman was asked following questions direct examination. essentially provided res ipsa loquitor testimony. He not
opine with which of the laparoscopic instruments caused injury, only of them must have caused injury the only way an instrument can cause injury negligent placement. Following review of those items, Leitman, were you able
to form opinions and conclusions within reasonable degree of medical certainty concerning this matter?
A: Yes. And how to you define reasonable medical certainty?
A: What I define reasonable medical is based upon evidence and the records I have reviewed that, more likely than not the opinion I is supported records and materials.
Defense Counsel: Your Honor, I would object to the witness giving statement what law is with regard to reasonable degree of medical certainty.
The Court: Your response?
Plaintiff's Counsel: My response is when the doctor is giving his reasonable medical certainty, he should know what it means order formulate his answer. Court: Well, ladies and gentlemen, the doctor may believe
what he wishes about the law; I will tell you what law is. You must follow only my instructions law. So he is certainly permitted to give you understanding about what he doing what he views the standard but, again, will tell you legal standard the standard you must apply.
Id., 99-100.
Here, we note clearly asked what "reasonable certainty" meant him, when he stated he testifying that standard. Leitman clearly stated believed opinion, based upon evidence medical records, more likely than not. This was unambiguous testimony. Adams' counsel explicitly told court that information she was seeking Leitman's working definition "reasonable certainty." Id. 100. standard of "more likely true than not" was raised again during Dr. cross-examination.
Q: I want talk little bit about whether injury could have happened at some time other than during the lap chole.E51 In your initial report dated March 15th, page 2.
A: Can I my reports back? Sorry. Page 2?
Q: Page 2, about halfway down page, under Opinion Care Rendered.
A: Yes. Numbered paragraph No. 4. I'm going to read first part sentence. And please tell me if I misstate it. I
sometimes do when I'm trying to stand look read all at the same time.
More likely than not the perforation small intestine "ileum" occurred during the operation of 2/14/12.
Did I read part of the sentence correctly?
A: You did. More likely than not it happened during surgery.
That would suggest to me, if understand your use of the English language, it's possible happened at some time other than that surgery? "Lap chole" shortened version of laparoscopic cholecystectomy, which formal name of the surgery Vaughn performed which at
issue.
A: Possibly, but less likely.
Id. at 151-52.
Finally, this exchange took place redirect then re -cross examination:
Q (redirect): Doctor, having reviewed the materials this case having issued two reports well before Leslie [Defendants' medical expert] gave testimony, it been your opinion from the very beginning bowel puncture was made during the laparoscopic surgery?
A: Yes.
Q: And do you hold within reasonable medical certainty?
A: I do.
Q: No further questions. Court: Any recross?
Q (recross): last point I want to make sure we are clear. You acknowledged under oath possible that that injury happened at some time other than the lap chole; right? A: Possibly, but much less likely. In fact, your terminology more likely than not?
A: That's testified to. And that's best you can testify to?
A: It is.
Id. 168-69.
Our review of the certified record demonstrates repeatedly testified that, to him, reasonable degree meant that his was "more likely than not." In addition testimony, Dr. Leitman also agreed that, contrary his direct testimony, it was indeed possible injury did not occur during Dr. Vaughn's laparoscopic procedure.6 Accordingly, Dr. Leitman contradicted own that injury only occurred through Dr. Vaughn's negligent care.
In light of the foregoing, we find trial court did not err in determining testimony was not provided to sufficient level of certainty. Therefore, there no error in granting the compulsory nonsuit favor of Vaughn.
Finally, Adams argues the trial court erred striking the affidavit Attorney Strang-Kutay detailed her recollection of the argument held in chambers the motion for compulsory nonsuit regarding whether the doctor testified the requisite degree of certainty. trial judge has opined he did need counsel's recollection of the argument. Specifically,
While affidavit reasonable representation [Adams'] counsel's recollection what took place chambers after close of [Adams'] case, Defense counsel asserts differs in some respects recollection. (Defendants' Motion to It likely differs from the Court's Strike Affidavit, '11 23). recollection some respects well. Notwithstanding such differences, the fact remains the parties present chambers all recall said and affidavit does not [6] cross-examination, also agreed literature admitted the possibility injury small bowel during laparoscopic cholecystectomy, although still claimed negligence was the only instant possibility. N.T. Trial, 2/9/2016, 146-47. -
change each recalls. Court discretion in deciding to admit or exclude affidavit. See Stumpf v. Nye, 950 A.2d 1032, 135-36 (Pa. Super. 2008). In the present case, because affidavit does not add to the understanding of what took place and fully detail unnecessary more the circumstances, the Court will exclude it.
Opinion Order, 8/5/2016, at 4.
We reviewed the affidavit of the argument which held chambers does nothing to dissuade us our conclusion the trial court properly determined failed to meet the proper standards certainty. Other issues raised in affidavit are irrelevant counsel made no objections at the time of trial.' Therefore, we discern no abuse of discretion on part of trial court striking the affidavit. Adams not entitled relief issue.
Because court did not abuse its discretion or commit error law either denying Adams' motion remove nonsuit or striking affidavit, Adams entitled relief.
Judgment affirmed. There no indication the certified record Plaintiff's counsel requested argument placed record or such request was denied.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 4/6/2017 -
