MARSHA AND KENNETH KLEIN, HUSBAND AND WIFE v. CRAIG ARONCHICK, M.D. & PA. HOSPITAL GASTRO ASSOCIATES, LTD. PA HOSPITAL OF THE UNIVERSITY OF PA.
No. 852 EDA 2012
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED JANUARY 07, 2014
2014 PA Super 3
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, and FITZGERALD, JJ.
J. A04009/13. Appeal from the Judgment Entered February 23, 2012, in the Court of Common Pleas of Philadelphia County Civil Division at No. December Term, 2008, 5164
I respectfully concur in part and dissent in part. I join the majority‘s disposition of Appellants’ first issue. I note, however, that in the two decades since Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888 (1990), was decided, no Pennsylvania appellate court has explicitly ruled in a published opinion that in the context of a medical malpractice action, a party can simultaneously pursue direct causation and increased risk of harm. Indeed, the trial courts and the Superior Court, in non-precedential memorandum decisions, have construed Mitzelfelt as precluding such simultaneous pursuit. I agree, however, that our Supreme Court in Jones v. Montefiore Hosp., 494 Pa. 410, 431 A.2d 920 (1981), stated the following:
“Undoubtedly, an unsuccessful effort to prove that [the defendants‘] conduct was the direct and only cause of harm might well have succeeded in persuading the jury that [the defendants‘] conduct at least increased the risk of the particular harm inflicted and was a substantial factor in bringing it about.” Id. at 418, 431 A.2d at 924 (emphases added) (reversing Superior Court‘s holding that trial court did not err by refusing to give jury charge of increased risk of harm); accord Restatement (Second) of Torts § 323(a).
Appellant also challenges the trial court‘s admission of Ms. Klein‘s history of bulimia. Unlike the majority, I would hold that such evidence was relevant to impeaching her credibility and I would not disturb the trial court‘s admission of it. See generally
Finally, with respect to Appellants’ contention that Dr. Roberts testified to the truth of the matter asserted regarding the Lembo study published in the New England Journal of Medicine,1 which was introduced into evidence, I agree with the majority‘s disposition. Under the unique facts of this case, I would further conclude that Appellants have established prejudice and the trial court committed reversible error. See Majdic v. Cincinnati Mach. Co., 370 Pa. Super. 611, 622, 537 A.2d 334, 340 (1988) (en banc) (holding trial court did not err by prohibiting expert witness from reading contents of treatises into evidence and by not admitting treatises into evidence); see also Aldridge v. Edmunds, 561 Pa. 323, 330-35, 750 A.2d 292, 296-99 (2000) (holding trial court committed harmless error by permitting expert to support his opinion by referring to excerpts from two learned treatises and by admitting them into evidence; in finding harmless error, Aldridge Court reasoned that opposing party‘s expert had earlier referred to one treatise and that both treatises were used for propositions undisputed by either party). Instantly, based on, inter alia, the Lembo study, Dr. Roberts opined that “not a single expert in this world” believes Visicol causes kidney failure. N.T., 3/30/11 (afternoon), at 64. The Lembo study from the New England Journal of Medicine—similar to the treatises introduced into evidence in Aldridge—was also introduced into evidence. Similar to the plaintiff‘s counsel in Aldridge, Appellants’ counsel was unable to cross-examine the authors of the New England Journal of Medicine study.
Appellees counter that Appellants’ counsel used the Lembo study during Dr. Roberts’ cross-examination and failed to object to the introduction of the Lembo study at trial. I discern no merit to those arguments, however, as Appellants preserved the issue in their pretrial motion in limine to preclude the use and introduction of such evidence. See generally
For these reasons, I concur in part and dissent in part.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/7/2014
* Former Justice specially assigned to the Superior Court.