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

regard interest to court also award with separation and find no abuse to of the date of inter- property. other marital Husband’s of discretion. very pension and are two est in ZA his ¶ preference for “Despite marital The types property. of different the valuing marital assets at or near time recognize to that husband’s court appears distribution, circum of there be throughout pension plan accrued interest it more to appropriate stances where is judg- and separation period the between sepa of the date of value marital assets as to for wife proper ment deemed was Smith, v. ration.” Smith court, trial in the increase. The share (1995). 1259, 1270 “The 653 A.2d however, fair that it was “determined objective selecting a date lower court’s grant interest just pre-judgment not to marital is to for valuation of assets the valuation wife’s respect with [to] justice select date works economic for accounting in the firm interest parties.” McNaughton between the Opinion, Trial period question.” Court McNaughton, 412 Pa.Super. 2/11/02, As has failed to at 9-10. wife (1992). 646, 649 any compelling with present this Court ¶ 12 The trial court “determined pre-judgment why reason she is entitled to in ZA husband’s interest was marital asset to on marital that ceased interest separation; asset as of the date howev- find no abuse judgment, exist to we prior er, his interest is ZAC not marital [is] [a] of discretion. 2/11/02, Trial Opinion, Court at asset[].” affirmed. 14 Order 11. It impossible would be use the date of distribution value husband’s interest

ZAin it no longer as existed. Husband’s

interest in ZA to exist the ceased moment

he into purchasing agreement entered his acquired ZAC. Since husband in- funds,

terest in ZAC with non-marital of the utilization date distribution YACOUB, Rima Administratrix of in a non-marital give wife interest asset. Yacoub, Estate of Bashar agree We the trial court that the use Deceased, Appellant, separation date as date of valua- tion is the one likely “most achieve justice.” economic Id. at 8. As we find VALLEY MEDICAL ASSOCI LEHIGH classifying court did not err Tretter, D.O., ATES, P.C., Margaret S. setting marital property or the date for McNelis, D.O., T. Allen Neuro James

valuation, there no need to address Elias, Association, Inc., Zev surgical wife’s third issue. Hospital, Ap M.D., Lehigh Valley event that this Court pellees. asset, ZAC a non-marital determines to be Pennsylvania. Superior Court argues wife she should at least awarded be respect interest “with pre-judgment 20, 2001. Argued Nov. accounting Ap firm ZA.” valuation of Aug. Filed pellant’s disagree. Brief 23. We fact awarded pre-judgment that wife was regard her

interest with share hus the trial pension require

band’s does Silva, appel- Philadelphia, F. for

Edward lant. Allentown, Procyk, appel- for

Frank G. lees. Stevens, Philadelphia, ap-

Howard S. pellees. Newman, appel- Philadelphia, for

Abbie lees. SOLE, P.J., DEL

Before CAVANAUGH, HUDOCK, JOHNSON, STEVENS, MUSMANNO, JOYCE, ORIE LALLY-GREEN, JJ. MELVIN MELVIN, J. ORIE ¶ Yacoub, Appellant, Rima Administra- husband, Bashar trix of the estate her Yacoub, July appeals from the Appellees, judgment entered favor D.O., Tretter, S. James T. Margaret McNelis, D.O., Valley Medical As- Lehigh sociates, P.C., Neurosurgical Allen Associ- ation, Inc., Elias, Lehigh Zev M.D. and malprac- Valley Hospital, this medical following action. For the reasons we tice affirm.

¶ procedural background 2 The facts and as fol- matter summarized of this be Yacoub lows. In October Bashar headaches and experiencing terrible began an initial evaluation at After dizziness. Emergi-Center, he was re- Crest Cedar Hospital Osteopathic Allentown ferred to 26, 1994. Dr. scan on for a CT October Tretter, medicine Margaret an internal Valley Medical Lehigh with practitioner Associates, (LVMA), Mr. P.C. examined hospital. Dr. Tretter’s re- at the Yacoub large a brain of the CT scan revealed view a mass, thought to be tumor. which was Tretter, Mr. Yacoub of Dr. On the advice Valley Hospital Lehigh transferred (LVH) Yacoub, for a MRI and a consultation examining Mr. Dr. Elias asserted neurologist. that he was verbally by informed Dr. Les- ter finding about the MRI of October ¶ LVH, Upon his admission to However, Dr. Lester testified that Lester, Mark a neurosurgeon with Allen he did not see film the MRI until report Neurosurgical Association, (ANA), Inc. ex- 2,1994. November amined Mr. Yacoub. Dr. Lester noted awake, that he was Shortly alert and conversant. after his release from the III, 3/3/00, N.T. Trial Volume at 204. At hospital Mr. Yacoub’s condition continued that time the performed CT scan at Allen- Approximately to deteriorate. one hour reviewed, Osteopathic Hospital town discharge, after Mr. Yacoub’s brother and it was believed that the brain mass called the number discharge written likely was most a malignant glioma. Id. at speak form and asked to with Dr. McNelis 205-206, 226. Dr. Lester did not note the or Dr. Elias. He was advised that some- possibility of a call; brain abscess his differ- however, one would return his a re- ential diagnosis. On October turn call forthcoming. was not He called transported nurse Mr. Yacoub via a wheel- again following morning, physi- and a chair for the MRI in building another on cian still Finally, did not return his call. hospital’s campus connected on October 30th Dr. McNelis called and causeway. hospital contracted with him informed that there was nothing more (LMIC) Lehigh Magnetic Imaging Center just could be done and that he should for this Yeager, service. Dr. Bradford give continued to his pain brother extra LMIC, radiologist interpreted the re- medication. sults. Dr. Yeager “[a]nalogous noted early morning of November change CT,” reported as seen on a 1994, Mr. Yacoub was taken back to the ring enhancing “lobulated in mass the left emergency room of LVH. Another CT temporal measuring approximately lobe Osborne, scan was ordered. Dr. Mark

2.7 3.7 centimeters in diameter.” N.T. radiologist, analyzed the CT scan and not- VII, 3/9/00, Trial Volume at 125. His im- incorrectly ed that no recent films were pression was primary glial tumor is “[a] available for comparison. Dr. Tretter ex- likely. felt most possi- Cerebral abscess is amined Mr. Yacoub at 10:00 and indi- a.m. ble, but likely.” considered less Id. at 127. cated to Dr. Elias that she wanted to Elias, 4 On October Dr. expedite Zev the biopsy due to the increased ANA, another neurosurgeon with exam- headaches. At approximately p.m. 12:45 ined Mr. Yacoub and told him that either Dr. Elias reviewed the CT scan and asked craniotomy films, or a biopsy per- prior should be for the but he told that However, formed. Dr. Elias did not they be- were not After examining available. procedure Yacoub, lieve the needed be done on Mr. he noted that apart from an emergency headaches, placed basis therefore worsened his condition had not him on surgery changed. his elective schedule for morning On the of November Further, following week. because Mr. 1994 Mr. Yacoub could not be awakened. examination, Yacoub wished to hospital Upon leave the Dr. Lester him found McNelis, practic- James another internist requiring emergency comatose and sur- Tretter, ing with Dr. him. Dr. gery. Following surgery released it was deter- McNelis instructed Mr. Yacoub’s brother mined that Mr. Yacoub had a brain ab- that he him bring hospi- should back to the than a scess rather tumor and that tal if his condition worsened. Prior to ruptured abscess had into the ventricle THE TRIAL I. WHETHER system. Yacoub died November Mr. REVERSIBLE COURT COMMITTED regained having never conscious- THE AP- ERROR IN PRECLUDING ness. INTRODUCING PELLANT FROM subsequently 7 Appellant commenced THAT THE RADIOLO- EVIDENCE malpractice alleging this action medical GISTS, AND YEAGER DR. BRUCE Appellees negligent failing were OSBORNE, DR. MARK WERE OS- diagnosis promptly treat a brain APPELLEE OF TENSIBLE AGENTS abscess, thereby causing the Mr. Yacoub’s AND LEHIGH VALLEY HOSPITAL precluded Appel- death. trial court IN INTER- WERE NEGLIGENT lant a claim of presenting ostensible OF PRETING THE STUDIES OCTO- agency based the al- against LVH NOVEMBER BER 1994 AND leged of two who negligence radiologists 1994?

interpreted Mr. Yacoub’s MRI October THE TRIAL II. WHETHER 27,1994 1,1994. and CT scan November AN ABUSE OF COURT COMMITTED The trial court also found that Appellant’s IN FAILING TO FIND DISCRETION expert, neurosurgeon, qualified THE THE JURY VERDICT OF WAS regarding opinion render an the stan- THE AGAINST THE WEIGHT OF THERE applicable dard care of inter- WAS doctors EVIDENCE WHEN THE AMONG PAR- employees nal AGREEMENT medicine or nurse of LVH. THE FAILURE TIES THAT TO expert Absent evidence Appellant this A TIMELY AND TREAT DETECT liability could not establish the of Drs. BRAIN ABSCESS WOULD EFFEC- Thus, Tretter and McNelis LVMA. A TERMINATE PATIENT’S TIVELY the trial court entered a directed verdict INJURY? CHANCES OF AVOIDING Subsequently their the jury favor. found III. THE TRIAL WHETHER ANA, Drs. through Elias and Lester and COURT REVERSIBLE COMMITTED employees, negligent its but did not find ERROR PRECLUDING DR. IN that their negligence was substantial fac- ROMY, A BOARD MAURCE [SIC] tor causing the Mr. Yacoub’s death. NEUROSURGEON, CERTIFIED Since negligence their was not determined THE FROM OPINING AS TO STAN- abe factor in Mr. substantial Yacoub’s DARD OF APPLICABLE TO CARE death, jury question the never decided the McNELIS, TRETTER AND DRS. Elias and Lester whether Drs. were the AND TO THE EMPLOYEES NURSE 22, agents ostensible of LVH. On March HOSPITAL, OF LEHIGH VALLEY 2000, filed a Motion for Post- Appellant ALL PROVIDING OF WERE WHOM Relief, 28, Trial denied which was on June ATO NEUROSURGI- HEALTHCARE Accordingly, 2000. the trial court entered CAL PATIENT? judgment Appellees July in favor of the on THE TRIAL IV. WHETHER 19, Thereafter, Appellant perfected 2000. AN ABUSE OF COURT COMMITTED 14, appeal May her to this Court. On 2001 AP- IN RESTRICTING DISCRETION a decision was affirm- memorandum filed EXAMINATION CROSS PELLANT’S judge ing judgment with one dissent- EXPERT, DR. APPELLEES’ OF en banc for ing. application Appellant’s OSTERHOLM, RE- WITH JEWELL 10, July review on granted THAT AP- THE FACT SPECT TO COUNSEL, presents POST & appeal Appellant 8 On PELLEES’ SCHELL, REP- HAD PREVIOUSLY questions for our review: following 586 DR. of an court appellate pass

RESENTED OSTERHOLM IN the role on CASES, MORE THAN FIFTY AND credibility of witnesses or to act as the fact, THE REPORT appellate WITH RESPECT TO trier of and an court not will OF DR! MARK MISHKIN? for judgement substitute its that of the (citing fact-finder.” Id. at 1165 Ludmer v.

Y. THE TRIAL WHETHER 316, Nernberg, 433 640 A.2d 939 COURT COMMITTED AN ABUSE OF (1994)). IN DISCRETION AP- RESTRICTING QUESTIONING Further, PELLANT FROM if request for a basis EXPERT, HER ACTUARIAL ROYAL rulings trial is- the trial court’s new BUNIN, ON REDIRECT EXAMINA- evidence, rulings then such must be TION A RE- WITH RESPECT TO only not shown have been erroneous PORT OF TIMOTHY THAT BROPHY also harmful complaining par- but to the WAS UP IN EX- BROUGHT CROSS Evidentiary rulings ty. which did not BY THE AMINATION APPELLEES? provide the verdict not affect will basis disturbing jury’s judgment. VI. THE TRIAL WHETHER Wheeling Pittsburgh Ratti Steel COURT COMMITTED AN ABUSE OF (Pa.Super.2000) 758 A.2d Corp., 707 IN AP- DISCRETION REFUSING denied, [appeal 567 Pa. 785 A.2d 90 REQUEST PELLANT’S DISMISS TO (2001)] (quoting Foflygen Allegheny THE ARRAY FEB- OF JURORS ON (Pa.Su- Hosp., A.2d 705 General RUARY WHEN COUNSEL denied, per.1999), appeal 559 Pa. FOR APPELLEE LEHIGH VALLEY (1999)). A.2d 233 HOSPITAL INCORRECTLY IN- FORMED THE PANEL THAT THE Inc., Dodge, Detterline v. D'Ambrosio’s HOSPITAL AWAS NONPROFIT (Pa.Super.2000). Keep CHARITABLE ORGANIZATION mind, ing this standard in we will now THAT DID NOT ISSUE BONDS? Appellant’s address claims. brief, at 4-5. ¶ 10 begin by addressing Ap We Preliminarily, note pellant’s we our second issue that she is entitled

standard of review a trial trial concerning to a new because the verdict was on a ruling weight court’s motion for trial is against Appel new evidence. as follows. This Court will not reverse a lant asserts the issue causation was trial regarding grant court’s decision at trial contested since neurosur of new trial geons refusal absent an abuse of and their own testified witnesses perforates discretion or error of law. Gunn v. a brain once abscess (Pa.Su Grossman, A.2d strong Consequently, likelihood is death. per.2000). argues jury The decision to grant new that the was without weight challenge based on basis conclude that neurosur negligence the within discretion not a substantial geons’ evidence is the sound was causing disagree of the trial court. Vattimo v. Eaborn in death. We with factor (Pa.Su Service, Inc., Truck that causation was not con the contention per.2001). only by conceded It is well that tested. The fact the established jury’s contrary neurosurgeons where a verdict is so was that when an abscess justice likely of is death. perforates prognosis evidence as to shock one’s sense the any so not a concession that actions or imperative, the award of a new is This is a right given part that be on their substantial opportuni another omissions were However, ty to in death. prevail. resulting Id. is not factor Mr. Yacoub’s “[i]t IV, 3/6/00, Rather, Typically, at 87. neurosurgeons maintained that the N.T. Volume presenting with abscesses have patients their of a con- diagnosis brain tumor was system in compromised immune had their symptoms Yacoub ex- sistent with the Mr. fashion, patient such a who has some as lack of risk attributable hibited and factors AIDS, diabetes, organ transplant, an had to an abscess. Instantly, dialysis. Mr. renal Id. or agree Appellant’s would We with any of present did not these Yacoub with only argument if the reasonable conclusion at factors. Id. 116-117. There risk finding jury’s drawn from could be the testimony probability that the of was also neurosurgeons of was the negligence in a excess of being the tumor was lesion capable diagnosing were of a brain abscess (99%) Id. at 117. ninety-nine percent. from information at disposal the their Osterholm, Moreover, L. M.D. testi- Jewell they promptly to do so and effectu- failed by of comparison that a side the fied side However, Ap- ate appropriate treatment. 26, 1994 and November October pellant allegations neg- made numerous of a only films demonstrated small increase ligence, dealing and we are with a here that such in size of the mass and general rather than verdict answers of diagnosis is consistent finding with jury interrogatories delineating written VII, 3/9/00, tumor. N.T. brain Volume Appellant’s allegations negli- each of of Thus, as to ultimate factual find- gence. Under these circumstances the diagno- of the ing regarding propriety jury reasonably could have concluded that of province sis it was well within the negligent regard, doctors were in one Yacoub’s jury to conclude that Mr. clinical in proce- instance not following proper the diag- was with presentation consistent by procuring dures all comparing tumor, not which did re- nosis of a brain film studies Yacoub’s available of Mr. quire emergency intervention. Since brain, and nonetheless determined free to the defendants’ jury accept this failure was not cause of substantial evidence, definitively cannot ascertain we legally sup- death. This is a viable and negli- finding not the jury’s whether or in portable conclusion of the fact light rejec- represents acceptance gence presented evidence was that even diagno- the doctors’ of their tion of defense film comparison of the studies definitive context, say cannot this we sis. Viewed distinction between a abscess tumor and jus- our sense that the verdict shocks revealed, and, would no not be therefore court did not Accordingly, the trial tice. course of action have been different denying a new trial. its discretion abuse taken. ¶ Next, claim Appellant’s we address Furthermore, the evidence revealed erroneously precluded from that she that Mr. Yacoub did at the present establishing that evidence presenting any time examinations agents radiologists were ostensible warning signs typically or risk factors they in- negligent and that were LVH Specifi- 27, 1994, associated with a brain abscess. MRI the October terpreting cally, patients Elias testified that suf- re- November CT scan. fering generally brain have filed abscesses a motion in limine sponse to factors, pen- LVH, certain which include a this claim precluded risk the trial court injury, complaint a bullet etrating head such as basis on the trauma, to Drs. surgery pa- respect brain or with specificity wound or lacked being the ostensible suffering systemic Yeager tients infection and Osborne body. agents an in another of LVH. part infection of 588

¶ reviewing rulings agency 14 an relationship “When ostensible rela- limine, radiologists Lehigh on in tive to the apply scope motions we Val- Therefore, ley Hospital. of review this Court appropriate particular evi- Nemetz, used its common sense and concluded dentiary Delpopolo matter.” “ Plaintiff 92, allege had the intended to 94 'A (Pa.Super.1998). mo an agency relationship ostensible be- tion in a procedure obtaining limine is Lehigh Valley Hospital tween and the a ruling admissibility on the of evidence specific radiologists, language the same trial, prior during to or but before the ” pleading would have been embodied (quoting evidence has Id. been offered.’ within Complaint. Enters., Meridian & Inc. v. Penn Oil Gas 231, Corp., Cent. 614 Pa.Super. 418 A.2d 6/28/00, Opinion, Trial at Court 16. While 246, (1992)), denied, appeal 534 Pa. agree we could have identi- 649, (1993). reviewing 627 A.2d 180 In LVH, alleged agents fied the ostensible evidence, challenge admissibility to the disagree we that such nec- specificity was only ruling by we will reverse a trial in essary this case to raise a vicarious upon showing court that it abused its liability against claim LVH based on the discretion or committed error of law. radiologists. actions of the Bank, Packages, Fidelity Kehr Inc. v. ¶ purpose plead 16 The of the 1169, A.2d 1172 (Pa.Super.1998). “Fur ings place is to the defendants on notice of ther, if request the basis of the for a new they will claims have evidence, rulings trial is the trial court’s defend. McClellan v. Health Mainte rulings then such must be shown to have Organization Pennsylvania, nance harmful only been not erroneous but also 128, (1992), ap 604 A.2d 1053 complaining to the party.” Ratti v. Wheel denied, 664, peal 532 Pa. 616 A.2d 985 ing Pittsburgh Corp., Steel A.2d (1992). A complaint give must the defen (Pa.Super.2000) (quoting Foflygen fair plaintiffs dants notice of the claims Allegheny Hospital, 723 A.2d 705 General summary and a of the material facts denied, (Pa.Super.1999), appeal 559 Pa. Id.; support those claims. Pa.R.C.P. (1999)). 740 A.2d 233 1019(a), Here, Pa.C.S.A. court only following focused on the contested motion, support 15 In of its portion Appellant’s complaint: argued specificity LVH alleged 19. All of the acts to have been complaint respect to the other defen by done or not to have been done defen- that, dants us if the Appellant tells had dant, Inc., Valley Lehigh Hospital, were agency wanted to an ostensible establish defendant, done or not done said its relationship radiologists with the and Le- servants, agents, agents, ostensible high Valley Hospital, then she would have in employees, acting workmen and/or agency done so as with the ostensible alle scope employ- the course and of their 9, 11, 13, gations paragraphs contained ment with and on behalf said defen- and 18 of Fourth dant. Complaint. granting Amended the mo Fourth Amended Certified Record accepted tion limine the trial court ¶at Complaint, argument, stating: LVH’s specific language 17 The trial court found this lan Unlike clear and sufficiently paragraphs [relating guage specific found in the was not because LVH], plaintiff alleged other defendants and the Fourth failed name ostensi agents preceding Amended failed to set forth ble as she had Complaint However, surrounding afflicting plain- it to edema paragraphs.1 enough is with decedent; portion complaint. one focus tiffs Rather, determining particu- whether a 27, (y) respect In to the MRI of October paragraph complaint lar in a has been 1994, failing to see an abscess and the necessary stated with the specificity, such herniation; possibility of a transtentorial paragraph must be read in context with all (z) 27, respect In to the MRI of October allegations complaint. Only other 1994, failing to record an abscess and then can the court determine whether the possibility of a transtentorial hernia- put upon adequate defendant has been no- tion; against tice of the claim he must (aa) respect to the MRI of October Wagner, defend. See Smith 403 Pa.Su- impart failing neu- (1991) (stat- per. rosurgeons treating physi- and other ing through “when one wades the sea cians there was abscess of information contained in com- Smith’s possibility of a transtentorial her- plaint, possible to find concealed niation so that immediate action legally cognizable therein a cause of ac- could be taken. tion.”). Record at Fourth Certified Amended ¶ Notably, the following allegations of Complaint, allegations at These can 32. negligence, in part, relevant were asserted clearly be into calling question read as against LVH: hospital’s conduct through radiology its de- negligence, carelessness and Thus, partment. paragraph when 19 is malpractice defendants, Lehigh allegations, read in context with the other Inc., Valley Hospital, consisted of (z) 32(m), (y), especially paragraphs following: (aa), sufficiently complaint put we find the (j) Failing recognize that there awas upon adequate LVH notice of claim brain; curable abscess against which it must defend. (m) Failing to read the MRI films so as ¶ Moreover, if did not know LVH

to determine that there was possibil- from the Fourth Complaint Amended who ity herniation; of a transtentorial agents its were it could have ostensible (n) Failing to recognize that there could objection in preliminary filed another herniation; a be transtentorial request specific nature of a for a more (r) Failing recognize that there was a pleading portion or moved to strike that potentially explosive danger in respect Appellant’s complaint. LVH did neither abscess; to the brain allega- and thus understood the apparently (t) Failing timely properly diag- tions of Fourth Amended Com- temporal enough deny nose the left well it in its plaint simply brain abscess McNelis, D.O., example, Paragraph provides: Ngo, 1. For James T. Dr. Hieu Elias, Lester, Zev Dr. Mark C. Dr. John alleged All of the acts to have been done defendant, Lehigh Yeager, by McCarthy, not to have been done Dr. Bradford Dr. Mark Associates, Valley Medical [the P.C. Tretter responsible read- Osborne or other doctor Group], were done or not done said defen- ing performed Lehigh Valley the CT scan at dant, servants, agents, agents, its ostensible Hospital at 7:45 a.m. on November employees, acting workmen and/or including person who verified it with the scope employment course and of their initials JAN. agents, and on behalf of said defendant. The Certified Record Fourth Amended servants, agents, ostensible workmen and/or added). (emphasis Complaint, at 18 Tretter, D.O., employees Margarete are S. 590 6/28/00,at 17. find this Opinion, the Court We timely calling Rather than

answer. misplaced. trial rationale specificity lack of to the alleged attention, allowing the thereby court’s following 21 record reflects the opportunity file an to Appellant colloquy: chambers amendment, of LVH waited until the eve And I think —and MR. FEINBERG: specificity contest of trial to yesterday, I talk here heard some other Complaint. these Fourth Amended Under I’m not may interpreting be that any objection speci- circumstances your rulings, I think correctly some of has waived. ficity complaint of the been you radiologists that the are have ruled Sokol, 587, 592-93, Pa. 96 See Arner v. 373 to as the ostensible not be considered (1953) (quoting v. Brill King A.2d any parties. of the Is that agents (1921)) hart, 114 A. 271 Pa. correct, Judge? (stating [plaintiffs statement] “[T]he my THE That was under- COURT: statement, in a concise and not be such standing as well. form, facts summary material MR. NACE: Yes. ...; but, not, if it plaintiff which the relies Yes, my that’s under- MR. PROCYK: to and [answer] waived defendant’s was ruling. standing of the Court’s upon the going [A] to trial merits.... MR. Yes. STEVENS: may move to strike off an insuf- defendant exactly THE That’s what COURT: or, indefinite, statement, if it is too ficient my understanding was. specific. rule for one may obtain a more either, MR. So that based on do he will not be entitled FEINBERG: Failing to going that is not to ruling Piwoz] nonsuit because of the compulsory [Dr. testify general plaintiffs state- as to the standard care of character ment.”). Further, radiologists? at the time of this mo- depositions tion in limine were concluded THE That’s correct. COURT: expert had Appellant’s radiology and the VII, 3/9/00, at 4-5. There- N.T. Volume Yeager report opining that Drs. filed his fore, say court cannot that there negligent. were and Osborne Since jury facts from which a were insufficient it parties were not named as radiologists agency could conclude that an ostensible readily apparent should have been its rul- relationship pre-trial existed when into only being was called their conduct ings precluded Appellant going liability question support vicarious agency claim forward with ostensible Thus, cannot claim that theory. LVH now After review radiologists. relative to the find out surprised Appellant Appellant find has pleadings, we radiologists to claim that intended ample facts plead satisfied her burden agents. were its ostensible agency. claim of ostensible support her abused dis- Accordingly, the trial court its ¶20 Alternatively, the trial court rea- cretion in from estab- precluding developed at trial soned that the “evidence agency theory of La- lishing an ostensible al- supported [Appellant’s] not have bility. legation [Appellant husband] her Nonetheless, we further Valley of Lehigh the abilities relied on did not affect the ver find that this error to the defendant hos- and looked Hospital Ratti, harmless. Furthermore, dict was therefore Defendant pital for care. Edmunds, also, supra; Aldridge did hold the see Valley Hospital Lehigh (2000) (holding Trial Pa. employees.” as its radiologists out ruling only jury’s an erroneous affected the determination of causa- require will grant of a new trial if it harmful or tion. prejudice). caused Under doctrine ¶23 it Appellant next claims agency hospital may ostensible be held preclude Romy opin Dr. from was error negligent

liable for the acts or of omissions ing as to the internists and nurses deviat independent physicians. The relevant fac- ing applicable from the standard of care. in establishing agency tors an ostensible proof, In meet her order to burden “(1) are: patient whether the looks to the required provide expert Appellant was institution, phy- rather than the individual establish, reasonably to a de (2) testimony hospital sician for care and whether the gree certainty, of medical that the acts of physician employee.” ‘holds out’ the as its and nurses deviated from Isdaner, 654, the internists Goldberg v. 780 A.2d 660 HMO, acceptable medical standards and that (Pa.Super.2001) (citing McClellan v. 128, such 1053, proximate deviation was cause Pa.Super. 413 604 A.2d 1057 (1992)). Zeluck, Gregorio “A the harm suffered. v. holding out occurs ‘when the 154, (1996), hospital Pa.Super. acts or 451 678 A.2d 810 way omits to act some denied, 681, patient appeal which leads the Pa. to a reasonable 546 686 A.2d 1311 (1996). belief he is being hospital Determining treated or whether a witness employees.’” one of its (quoting may testify expert Id. Ca an a matter as within pan court, v. Divine Hospital, Providence 287 the sound discretion of the trial 364, (1980)). 647, Pa.Super. 430 A.2d 649 only whose decision will reversed for a be case, Given the facts of this in order to Flanagan clear abuse of discretion. v. LVH, impute liability (1997). Appellant Labe, 254, 547 Pa. 690 A.2d 183 In only have had to not show that the radiolo- qualify expert given order to as an in a gists were agents, they LVH’s ostensible field, possess exper a witness must more would have also required been to establish ordinary range tise than is within the that the radiologists negligent were in training, knowledge, intelligence, expe reading the films negligence such Graham, 205, rience. Bennett v. 552 Pa. contributed to neurosurgeons making (1998). 714 A.2d 395 “The test to faulty diagnosis. already As we have dis- applied qualifying be when a witness to cussed, evidence, there was jury which the testify expert anas witness is whether the did, was apparently free to believe and pretension witness has reasonable the neurosurgeons’ own reading of specialized knowledge subject these film same studies would not have investigation.” Whittington under v. altered their course of treatment. More- (Pa.Su 1144 Episcopal Hosp., 768 A.2d over, if radiologists even the had concluded per.2001) Rail (quoting Miller Brass that the was likely mass more an abscess Tavern, Inc., Pa.

there is no evidence that the neurosur- (1995)). possesses If a witness geons would have relied on the radiolo- experience neither nor education gists’ interpretation rather than their own subject investigation, matter under interpretation. ultimately Since was qualify should be found not to as witness neurosurgeons’ proper diag- call as to the Slade, expert. Dierolf jury nosis and the found their conduct was (1990). A.2d causing Appel- not a substantial factor in Dr. harm, 24 An examination of any negligence lant’s and his own voir dire Romy’s curriculum precluded establishing was with re- testimony following: Romy Dr. spect radiologists could not have shows 3/9/00, Schell, VII, N.T. neurosurgeon and P.C. Volume was a board certified accepted expert acknowledged therefore as an 150-51. Osterholm neurosurgery area of and the standard familiar the firm. Id. he was well neurosurgeon. For the last sev- care of fact then a matter of “[as] Counsel stated spine. years subspecialty eral his mat- you in more than 50 they represented years, opened In recent he a number Id. at years, isn’t that true?” ters over rarely hospital in a practiced clinics and and sus- objection 151. An was raised setting. fact he could not remember Nonetheless, coun- Id. at 151-52. tained. nurses the last time he interacted with sel continued as follows: Romy working Special in a Care Unit. Dr. the law Q. You have been involved with regarding nurs- published anything never years, in firm of Post & Schell over only ing. Similarly, his interaction matters, true? many is that in the doctors of internal medicine was referring patients. Romy of Dr. context A. In a few. in in- never or became certified practiced few, it, Well, Q. more than a isn’t it’s medicine, regularly and he did not ternal Doctor? only journals topic. on this ex-

read No, you I elaborate them if A. could medicine was perience relative to internal like. “moonlighted” from to 1976 when he 1973 resi- Emergency during in the Room his that Q. you Haven’t been involved with we dency at the Cleveland Clinic. While 50 years firm in at least law over in

recognize experts one field of medi- matters? qualified cine be found to address objec- Whereupon Id. at 152-53. another specialization where the other areas of tion was raised sustained. spe- in specialties overlap practice or the experience in a related field cialist has had ¶ scope 27 The of cross-exami Pew, medicine, Pa.Super. of Estate 409 of the nation is within the sound discretion denied, (1991), 530 appeal 598 A.2d 65 court, not the trial and we will reverse (1992), Pa. 607 A.2d 255 we find in of discretion absence court’s exercise lay proper failed to foun- Appellant of that discretion. Collins an abuse Romy on over- qualify dation to Dr. based Cooper, (Pa.Super.2000). 617 experience in internal medicine or lap acknowledge expert that an witness We nursing. Accordingly, Special Care Unit any can cross-examined as to facts be abuse his discretion judge the trial did not part on the partiality tend to show Romy opining Dr. from as to precluding in may include a expert, and that examination of care in these applicable standards party’s counsel. prior relationship with of medicine. fields Montgomery, 452 Pa.Su Tiburzio-Kelly v. claims that Appellant 25 next (1996). However, A.2d 757 per. wrongfully prevented explor from she was limits. See has such cross-examination ing personal relationship between Ins. Equipment General Westfield Mfrs. Dr. Oster- neurosurgeons’ expert, Jewell (1993) Co., 635 A.2d 173 holm, represent firm that was and the law setting limits on cross-exam (stating: “[i]n neurosurgeons. disagree. We ing the ination, may consider the trial court be would whether the cross-examination Appel- During cross-examination jury.”). mislead the likely to confuse or if he asked Dr. Osterholm lant’s counsel evidence, to be type As with other the law firm of Post & was familiar with admissible, based, part, it must in express opinions be relevant and also which are unfairly prejudicial. evidence, not See Pa.R.E. 4032. in upon reports which are not customarily upon by but which are relied ¶ Here, Appellant permitted profession.” in experts practice previous show that Dr. Osterholm in- had Primavera, Appellant A.2d at volvement with counsel for the neurosur- however, correctly proposition, states geons. merely The trial court restricted application has no Dr. Osterholm’s Appellant asking about the total testimony in this case. Our review indi- number of matters in which Post & Schell Dr. cates Osterholm never testified he represented Dr. Osterholm. The trial Dr. in report rendering relied on Mishkin’s court found that testimony such would im- Moreover, opinion. his medical Dr. Mish- properly that Dr. imply Osterholm had kin radiology expert, report is a and his represented been “in at least 50” medical type that Dr. medical record malpractice actions. Since Osterholm, expert neurology, opportunity afforded the to cross-examine customarily rely upon formulating his regarding Osterholm Post & Schell’s opinion concerning neurosurgeons’ representation merely but was limited Accordingly, conduct. the trial court did questioning him in a way implied mal- not an commit error of law or abuse its practice representation, we find the trial in restricting Appellant’s discretion cross- court not did abuse its discretion. examination of Dr. Osterholm with respect ¶29 Appellant argues also Dr. pre-trial report of Mishkin. the trial restricting court erred in the cross-examination of Dr. Osterholm re ¶ Appellant 31 makes a similar garding report by Dr. written Mark respect claim with to the trial court’s deci Mishkin, expert by an Appel- retained the to restrict her redirect examination of sion lees but who was testify. not called to expert. Appellant presented actuarial her Appellant claims that the opened door was expert-actuarial testimony Royal from Mr. to cross-examination concerning Dr. Mish- cross-examination, Bunin Bunin. On Mr report Appellees’ kin’s when counsel asked was asked: another if witness he knew of Dr. Mishkin Q. you What other information were though even the witness made no refer given? find report. ence to the We A an report A. vocational from individ- argument is misplaced. by Timothy Brophy ... ual the name of ¶ Appellant 30 cites v. Commonwealth [sic]3, vocational consultation services. Thomas, 436, (1971), 444 Pa. 282 A.2d 693 VIII, 3/10/00, N.T. at 116. This Primavera v. Volume Corp,, Pa.Super. Celotex 415 41, (1992), questioning regard- was the extent of the 608 A.2d 515 v. and Cohen Ctr., ing report by Timothy Bruffey, the who Pa.Super. Albert Einstein Med. 405 392, (1991), proposi- 592 A.2d 720 for was identified as defense vocational ex- the Bunin, experts permitted pert. Appellees’ tion that “medical to Neither Mr. nor are memorandum, relevant, Appellees provides: "Although pre-trial 2. evi- 3. their Rule probative dence be excluded its value if Drs. Tretter and McNelis and LVMAindicate outweighed by danger preju- of unfair spelling proper that the of their vocational dice, issues, misleading confusion of the or Timothy Bruffey. expert's name is C.R. jury, delay, or consideration of undue Therefore, proper spell- we will use the time, presentation waste of or needless ing hereinafter. cumulative evidence.” 594 ability to jurors information of the their be

counsel introduced from redirect, Impelliz Appel- impartial.’ into On Commonwealth v. report evidence. Bunin began questioning zeri, lant’s counsel Mr. A.2d Pa.Super. 443 296 [661 Bruffey (1995)]. of Mr. regarding report 427 trial determi [The court’s] objections During raised. were nation ... will be reversed absent the trial court was side-bar conference Com ‘palpable abuse discretion.’ Bruffey go- made aware that Mr. was not Marshall, Pa. monwealth witness; nothing to be called ing as (1993). 1100, 1104 497, A.2d evidence, report was into entered Blasioli, Commonwealth say that he on it the witness did not relied (1996), 151, 159 affirmed, 552 A.2d opinion. The trial there- to form his court (1998). Instantly, Pa. objection. after sustained the For counsel to correct the trial court instructed expressed respect reasons same permitted Appellant’s his statement Mishkin, report we find no error inquiry opportunity into counsel Furthermore, or abuse of discretion. jurors of the bonds from any whether held jury’s determination that a light that a LVH whether held the belief question lacking nexus causal organization did not non-profit charitable Thus, if damages was not reached. even pay According money have claims. harmless. there was error it was ly, no abuse discretion we find Finally, Appellant takes issue jurors’ trial determination that the court’s with the court’s refusal dismiss judgment ability impartial to render jury upon a venire based misstatement compromised. was not by hospital counsel that the made LVH’s ¶ Judgment affirmed. During did not issues voir dire bonds. mistakenly jury told counsel LVH’s HUDOCK, STEVENS, LALLY- a venire that was non LVH charitable JJ., GREEN, CAVANAUGH, join the and that profit organization without shares did majority. in not issue fact did issue bonds when P.J., SOLE, Dissenting a DEL files being apprised After of the mis bonds. JOHNSON, joined Opinion by which is statement, the trial court ordered counsel JOYCE, MUSMANNO, and JJ. go to for LVH before the venire and cor The Trial then rect his mistake. Court MUSMANNO, Dissenting J. files a question to allowed counsel SOLE, Opinion joined by DEL any to jury panel prejudice. determine P.J., JOHNSON, JOYCE, and JJ. argues prejudiced that she was Appellant SOLE, Dissenting opinion by DEL P.J. thought a jury may have that since no to organization money has charitable ¶ Majority’s agree I While judg judgment awarding or that a pay Appellant pled has sufficient ruling that away money from a char ment take facts her claim of ostensible support find merit. ity. We this contention lacks in pre- the trial court erred agency and establishing theory this cluding her ¶ 33 is as Our standard review I cannot that this error liability, agree follows: jury’s had an on the not have effect a trial court’s action re- reviewing verdict. selection, jury great deference garding sought a claim present in judge, ‘is is afforded to the who agency against LVH based credibility of ostensible position the best to assess ¶4 Romy, a neuro- alleged negligence of Drs. Bruce Dr. board-certified his neuro- surgeon, questioned was about Osborne, Yeager radiologists and Mark background knowledge and his re- surgical 27, 1994, interpreted who the October and in garding the standard of care for doctors performed November CT scan on specialties neurosurg- other who care for a Majority Mr. Yacoub. The writes ical the court that he patient. He advised Appel- trial court’s erroneous limitation on regarding the standard knowledgeable was ability lant’s claim present this was who undertakes the care doctor neurosurgeons’ harmless error because the patient care and treatment for a who has reading own of these same films “would N.T., tumor or a brain brain abscess. not have altered their course treatment” 3/7/00, Romy that he at 26. Dr. testified ultimately and it neurosurgeons’ was knowledgeable was as to the skills doctors proper diagnosis. Majority call as to the specialties possess other must order Opinion at Majority 18. The states “More- neurosurgical patient to care for a over, radiologists even if the had concluded there are differences the standard of that the likely mass was more an abscess care between an internal medicine doctor there is no evidence that the neurosur- neurosurgeon treating and a when a brain geons would have relied on the radiolo- case. Id. at 25. asked what the When gists’ interpretation rather than their own standard of care was for an internal medi- interpretation.” view, In my Id. common manage cine doctor who undertakes to sense dictates that had neurosurgeons with a brain tumor or a person care for been radiologist’s report alerted abscess, objection lodged. brain was the CT films disclosed the likelihood anof objection, finding The court sustained the abscess, neurosurgeons would have uti- questioning moving away lized this making information when their qualifications from an examination of into interpretation. own There is nothing the standard of care. Id. suggest that the neurosurgeons routinely Romy’s respect expertise 5 With

ignore radiology reports rely solely care, regarding nursing he testified that he their interpretation own of CT films. very job familiar with the duties of Thus, agree I cannot Majority with the neurosurgical pa- nurses care for a who negligence the on part the of the tient with a tumor or abscess and brain radiologists Appellant In precluded with them standard of care. Id. at 26. Taylor Spencer Hospital, v. establishing from “could not have affected (1972), consid- 292 A.2d 449 this Court jury’s the determination of causation.” the trial court committed ered whether Majority Opinion at 19. permit error it refused to reversible where ¶ Secondly, disagree Majori- I the with physician testify to as to the standard of ty’s conclusion that the trial court did not treating patient. for nurses The care precluded err Romy, when Dr. a neuro- Superior held that the doctor was a Court surgeon, opining regarding the stan- qualified expert and stated: of applicable dard care to internal medi- in- that the nurses in the It is evident physicians special cine or care nurses. involving the stant case made decisions Majority to finds failed and plaintiff], [the medical treatment of lay proper qualify foundation to Dr. uniquely not that these decisions were Romy experience based either on his or an knowledge the administrative or outside overlap of his field with their related fields All areas of medi- of a medical doctor. knowledge of expertise of medicine. cal within the possessed by knowledge necessary to be are also the the skills nurses within N.T., 3/7/00, specialties. doctors. issue has never in other medical This doctors in experience considered decided before to his been or at 24. He testified as Pennsylvania, Supreme reading but our Court regarding the and education has, by implication, approved the use of and and noted that he CAT scans MRIs testimony doctor the of a medical to prac- the in his usual integrated scanners acceptable of nurs- establish standards involved the tice of medicine where it head Co., ing care Baur Mesta Machine Romy spine. . Id. 22. Dr. testified (1961). 617, 176 405 Pa. A.2d 684 keep gen- he current although did not regarding in- erally on medical literature Id. 452-453. medicine, this he did so when litera- ternal ¶ Tran, 452 Pa.Su- Chanthavong neurosurgeon importance ture had for (1996), plaintiff the per. of brain sur- concerned the core and basic testimony of a sought expert to admit the Id. at 32. gery. re- general practitioner certified board and spine the condition of his the garding Romy’s background 8 Based necessary to treat subsequent treatment as I the presented, and education believe injury. The found that this trial court in refusing court abused its discretion possess general practitioner did expert on testify him to as an permit qualifications expert his necessary to offer by standard of care to be used internal opinion Upon on these matters. review care physicians special medicine nurs- that the doctor Superior Court noted permitted, it testimony es. Had such been reports regularly received CAT scan jury weigh be for this then scope used them the course and his testimony of- testimony light of all the patients. This Court ruled treatment at trial. fered training his combination of ¶ Accordingly, vacate I would patients sus- who had experience Appel- of the judgments entered in favor injuries him personal qualified tained involving remand a new trial lees and for jury in its As aid the deliberations. has parties. all by this been noted Court: have different Different doctors will MUSMANNO, Dissenting opinion by J. being more qualifications, some doctors by my join 1 I filed es- dissent testify than about qualified others Judge colleague, President Del teemed is, practices. It certain medical howev- my to state separately I also write Sole. er, jury weight to determine Majority’s Ap- resolution dissent light testimony, given expert to be claim to the restriction pellant’s related expert qualifications shown of Dr. Osterholm. the cross-examination witness. A.2d Phillips, v. 771 803 Bindschusz ¶2 trial, to sought At intro- Appellant Taylor Spencer v. (Pa.Super.2001) (quoting and bias partiality duce evidence 2). A.2d n. Hospital, 292 at 453 witness, Dr. Osterholm. expert Appellees’ ¶ However, Appel- the trial court sustained expert, Dr. Appellant’s proposed 7 objection regarding question a neuro- lees’ a Romy, had been board-certified Dr. of cases in which Osterholm training enabled number since 1980. His surgeon by Appellees’ law spinal represented had been problems, address cranial him to firm, Appel- appeal, in Post and On nerves Schell. problems disc problems, challenged ruling. him to lant this enabled know body, training

597 ¶ Majority 3 The concludes that the trial been involved with Post & Schell “over in years, many court did not abuse its discretion limit- in matters” to which Dr. Os- ing replied the cross-examination of Dr. Oster- terholm “a few.” Id. at 152-53. holm. regal’d, Majority attempted this states counsel When few,” “merely probe that Dr. of “a response limited Osterholm’s objec- questioning. way Appellees’ the trial court sustained [Dr. that Osterholm] implied malpractice tion. Id. at 153. representation[.]” However, Slip Opinion the trial ¶ Thus, merely the trial court did not ruling precluded any court’s evidence as to previ- limit that questioning imply the extensive nature of Dr. Osterholm’s malpractice against ous suits Dr. Oster- Appellees’ involvement with law firm. holm, evidence re- precluded but trial, 4 At Appellant sought to cross- garding potential resulting bias from Dr. regarding examine Osterholm the total Osterholm’s extensive involvement with number of matters in which firm the law Schell, precluded Appellant’s Post & represented Post & Schell Dr. Osterholm. impeachment of Dr. Osterholm’s statement objection, Upon Appellees’ parties dis- they had been involved in “a few” admissibility cussed the of this evidence at matters.

sidebar, following and the discourse tran- ¶ 7 “A judge trial has considerable lati- spired: tude in determining scope of cross- [Appellees’ object I I counsel]: said examination and his determination will not question. I think entirely that’s be reversed in the of an abuse of absence inappropriate. party discretion unless a suffers obvi- THE COURT: relevancy? What is the ous disadvantage.” Steinhouse v. Herman

[Appellant’s It shows there counsel]: is Miller, Inc., Pa.Super. 661 A.2d closeness this doctor to the law firm (1995). However, party of Post and Schell. I proof have expert entitled to cross-examine an wit- court, me in they represented have explore credibility ness to of the wit- him in 51 matters. bias, inquire any potential ness and to into THE COURT: There relationship, is a closeness. interest or which could [a]f- relevant, testimony How is that I’m not following Spino fect the of the witness. you? Co., Tilley John S. Ladder (1996). 671 A.2d [Appellant’s It shows as to his counsel]: impartiality and motivation. permissible impeach 8 It is an ex- [Appellees’ Honor, Your counsel]: pert by demonstrating witness that he or purpose of trying what he is to do is party he partiality she has whom this guy show has been sued 51 testifying. Brady by Brady she is times. Thornton, Assocs., Ballay, Maloney Med. [Appellant’s say I counsel]: didn’t he (Pa.Super.1997). sued, I they represented you Moreover, said professional relationship be- than more 50 matters. experts attorneys, tween and defense be- case, yond present the confines of a N.T., 3/9/00, at 151-52. court proper subject be the of cross-examination. objection. sustained defense counsel’s Id. Id. at 152. discussion, Following present this 9 The case turned credibility expert

counsel asked whether Dr. Osterholm had witnesses. These experts regarding testified whether

Appellees failing diag- were liable abscess,

nose and Mr. brain treat Yacoub’s

thereby his I causing death. believe that nature of the

evidence the extensive

relationship between Osterholm and

Post & Schell was admissible as evidence bias, preclu- its partiality Moreover,

sion constituted error. because experts,”

this case involved “battle of

I cannot conclude this error was

harmless. I therefore dissent from the issue,

Majority’s this holding on as well as Judge

those cited in President Del Sole’s

Dissenting Opinion. Pennsylvania,

COMMONWEALTH

Appellee, NOBALEZ, Appellant.

Brahulio

Superior Pennsylvania. Court 6,May 2002.

Submitted Aug.

Filed

Case Details

Case Name: Yacoub v. Lehigh Valley Medical Associates, P.C.

Court Name: Superior Court of Pennsylvania

Date Published: Aug 1, 2002

Citation: 805 A.2d 579

Court Abbreviation: Pa. Super. Ct.