Heddleston v. Obstetrical & Gynecological Assocs. of Pittsburgh

NON-PRECEDENTIAL DECISION

Appeal from the Judgment entered September 30, 2020 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD-12-10765.

Joseph D. Seletyn, Esq.

BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.^[*]

MEMORANDUM

NICHOLS, J.:

Appellant Brian Heddleston, individually and as administrator of the estate of Maria Heddleston (decedent), appeals from the judgment^[1] entered

after a jury found in favor of Appellees Obstetrical and Gynecological Associates of Pittsburgh Inc. d/b/a OB/GYN Associates of Pittsburgh, Renata Hoca, M.D. (Dr. Hoca), Pediatric Alliance, P.C., d/b/a The Breastfeeding Center of Pittsburgh, Nancy Brent, M.D. (Dr. Brent), Lucas Godinez, D.O. (Dr. Godinez), Alicia Hartung, D.O. (Dr. Hartung), Magee-Womens Hospital-UPMC, and UPMC.^[2] Appellant claims that the trial court erred in its rulings on the parties' standard of care evidence and when overruling his objections to electronic medical records templates and other medical records. We affirm.

The parties are familiar with the factual and procedural history of this matter. We briefly note that Appellant and his wife, the decedent, commenced this medical malpractice action in 2012. They asserted that shortly after the birth of their second child, Nathan, the decedent experienced severe pain in

her left breast. They claimed, in part, that the defendant-physicians failed to take appropriate steps to determine that the decedent's pain resulted from cancer while the decedent was in their care from September to October 2009. The decedent was diagnosed with Stage IV metastatic breast cancer in her left breast on October 29, 2010. Appellant and the decedent commenced their action while the decedent received cancer treatment.

In 2014, a jury issued a verdict for all defendants. On July 22, 2016, this Court remanded the case for a new trial. Heddleston v. Obstetrical & Gynecological Assocs. of Pittsburgh, Inc., 443 WDA 2015, 471 WDA 2015, 490 WDA 2015, 2016 WL 4920304 (Pa. Super. filed July 22, 2016) (unpublished mem.), appeal denied, 169 A.3d 25 (Pa. 2017), appeal denied 169 A.3d 26 (Pa. 2017).^[3]

Following this Court's remand, the decedent passed away on January 22, 2018. On August 2, 2018, the trial court granted Appellant leave to file a third amended complaint to substitute himself as the administrator of the decedent's estate and include wrongful death and survival causes of action. See R.R. at 450a-454a (Mot. to Amend Compl.), 537a (Order, 8/2/18).^[4] The trial court also allowed Appellant to add Drs. Godinez and Hartung as

defendants. See id. Appellant withdrew his claims against Diana Jordan, a non-physician consultant at Pediatric Alliance. See id. at 606a-607a (Order, 9/17/18).

On January 9 and January 10, 2020, the trial court held a pre-trial conference on the parties' motions in limine. At trial, the parties presented competing fact and expert testimony concerning the nature of the decedent's pain and the significance of her pain as a symptom of breast cancer.^[5]Additionally, Appellant disputed the authenticity and accuracy of Pediatric Alliance's medical records and documents. Appellant also asserted that

Pediatric Alliance failed to disclose certain documents before the second trial. The parties further presented the jury with conflicting interpretations of terms and phrases used in the medical records and other documents.

Appellant presented an expert witness, Alan Kessler, M.D. (Dr. Kessler) concerning the standard of care owed by the defendant-physicians, Drs. Brent, Godinez, Hartung, and Hoca. Dr. Kessler concluded that the defendant- physicians failed to take actions to properly address the decedent's pain. Specifically, Dr. Kessler asserted that the defendant-physicians failed to take adequate histories at the decedent's visits, conduct physical examinations, and seek imaging studies. R.R. at 4246a. Dr. Kessler emphasized that the defendant-physicians should have ordered imaging studies to rule out the

most serious problem and "make sure that there was no cancer." Id. at 4251a. Dr. Kessler also stated that Dr. Godinez breached the standard of care by failing to prepare and send a physician's note to Dr. Hoca. Id. at 4254a.

The defense called three experts to testify concerning the standard of care. First, Maya Bunik, M.D. (Dr. Bunik) testified as Dr. Brent's standard of care expert. Second, Ann Kellams, M.D. (Dr. Kellams) testified as the standard of care expert for Drs. Godinez and Hartung. Third, Jay Goldberg, M.D. (Dr. Goldberg) testified as Dr. Hoca's standard of care expert. Additionally, Drs. Brent, Godinez, Hartung, and Hoca all testified at trial. We note that Mark Pearlman, M.D. (Dr. Pearlman) testified at the first trial as Drs. Hoca and Brent's standard of care expert. However, none of the defendants called Dr. Pearlman at the second trial, although the defendants indicated Dr. Pearlman would testify.

As to causation, Appellant called Paul Tartter, M.D. (Dr. Tartter) as an expert to testify that the failure to diagnose the decedent's cancer in 2009 increased the risk of harm to the decedent. The defense called Dr. William Farrar, M.D. (Dr. Farrar) as their expert on causation.

On January 31, 2020, the jury found in favor of all defendants. Specifically, the jury determined that Drs. Brent, Hartung, and Hoca did not violate the standard of care. The jury found that Dr. Godinez was negligent, but his negligence was not a factual cause of any harm to the decedent.

Appellant timely filed post-trial motions on February 10, 2020, as well as a supplemental post-trial motion on March 4, 2020. The trial court did not

consider the timeliness of the March 4, 2020 supplemental post-trial motion, but convened a hearing on July 23, 2020 at which Appellant argued all of his issues. The trial court denied post-trial relief on September 25, 2020. The defendants praeciped for the entry of judgment on September 29 and September 30, 2020.

Appellant timely appealed and complied with the trial court's order to file and serve a Pa.R.A.P. 1925(b) statement. The trial court filed a Rule 1925(a) opinion.

Appellant presents the following questions for review:

1. Is [Appellant] entitled to a new trial as a result of the trial court's error in permitting defendant Drs. Hoca, Brent, Godinez and Hartung to testify as experts on the standard of care and to also exceed the scope of their pretrial testimony by altering it?

2. With respect to the applicable standard of care, whether the trial court committed reversible error in incorrectly permitting defense expert William Farrar, M.D. to testify outside the scope of his report while simultaneously limiting the testimony of [Appellant's] expert, Paul Tartter, M.D.?

3. Is [Appellant] entitled to a new trial as a result of the trial court's error in not permitting him to authenticate, use / publish to the jury Mark Pearlman, M.D.'s medical literature which had been authenticated, was represented as authoritative by the defense and was repeatedly referred to and relied on by the defense during the trial?

4. Is [Appellant] entitled to a new trial as a result of the trial court's error in deferring ruling on his motion in limine to limit cumulative expert testimony and then permitting Defendants' / Appellees' experts to testify cumulatively outside the scope of their expert reports as to a medically unsubstantiated "persistent pain" defense over multiple objections?

5. Is [Appellant] entitled to a new trial as a result of the trial court's error in permitting the defense to utilize and admit various medical records in direct violation of multiple rules of the Pennsylvania Rules of Evidence, including the admission of: "hyperlinked"^[6] purported "medical records" that had not been produced in discovery or in response to court orders and not properly authenticated and were improper hearsay; as well as unauthenticated / not properly authenticated Pediatric Alliance records; and Nathan Heddleston's records which also violated the best evidence rule?

Appellant's Brief at 4-5.

Standard of Care Evidence

In his first four claims, Appellant challenges several evidentiary rulings concerning the standard of care.^[7] Appellant's Brief at 21-23. Appellant

asserts that the trial court erred in permitting the defense to present repeated testimony that breast cancer manifests as "persistent pain." Id. Appellant claims that the trial court's rulings allowed the defense to present cumulative, "medically unsubstantiated" opinion evidence based on a "manufactured" defense. Id. at 24, 33.

Appellant specifically contends that the trial court erred by (1) allowing the defendant-physicians to testify as to the standard of care, (2) precluding Appellant from using a learned treatise, (3) allowing defense-experts Drs. Bunik, Goldberg, Kellams, and Farrar to testify beyond the scope of their expert reports, (4) limiting Appellant's counsel's examination of Dr. Tartter while allowing Dr. Farrar to testify concerning the standard of care, and (5) deferring Appellant's motion in limine seeking to limit the number of standard of care witnesses called by the defense.^[8]

Appellant continues that the defense exploited the trial court's improper rulings and that the jury could not have fairly considered the proper standard of care. See id. at 26, 33, 42, 49. Appellant concludes that...