Jacobs v. Chatwani

922 A.2d 950

Sharon JACOBS a/k/a Sharon Burton v. Ashwin CHATWANI, M.D. and Temple University Hospital Appeal of: Sharon Burton.

No. 2855 EDA 2005.

Superior Court of Pennsylvania.

Argued October 31, 2006.

Filed April 13, 2007.

Jane B. Marton, Philadelphia, for appellant.

Deborah M. Knight, Philadelphia, for appellees.

BEFORE: BENDER, BOWES, JJ., and McEWEN, P.J.E.

OPINION BY BENDER, J.:

¶ 1 The plaintiff in this medical malpractice case, Sharon Jacobs a/k/a Sharon Burton (hereinafter "Plaintiff"), appeals from the September 26, 2005 judgment¹ entered in favor of the defendants, Ashwin Chatwani, M.D., ("Dr. Chatwani") and Temple University Hospital ("Hospital"), (collectively, "Defendants"). Plaintiff alleged that Dr. Chatwani was negligent in his performance of her hysterectomy, claiming that he injured her left ureter during the procedure resulting in the formation of a ureteral vaginal fistula and leakage of urine into her vagina. Following a jury verdict in favor of Defendants, Plaintiff took the instant appeal, in which she, inter alia, challenges the qualifications of Defendants' urology expert and various other evidentiary rulings. We affirm.

¶ 2 The trial court set forth the following factual summary of this case:

In 1996, Plaintiff first came under the care of Dr. Chatwani, a Board-certified [obstetrician/gynecologist] and surgeon, after she developed fibroids of the uterus. [Plaintiff], who was overweight, was suffering from cardiomyopathy, and was anemic[,] was a practicing Jehovah's Witness, whose religious beliefs ruled out blood transfusions. As a consequence of this, Dr. Chatwani began a course of treatment that did not involve surgery. It, however, was unsuccessful. There was evidence presented indicating that Plaintiff did not fully comply with the recommended course of treatment.

In November of 2000, Plaintiff agreed to undergo surgery to treat her fibroids. She was advised by Dr. Chatwani of the mechanics of the procedure he intended to perform upon her as well as the risks involved in the surgery, including possible harm to her ureter. Upon being so advised, Plaintiff agreed to undergo the surgery.

During the performance of the surgery, Dr. Chatwani took precaution to avoid injuring Plaintiff's ureters. When he completed the hysterectomy, Dr. Chatwani checked both ureters to ascertain whether they had suffered any injury. The tests were negative for injury, including a ureto-vaginal fistulae.

Plaintiff next saw Dr. Chatwani on January 12, 2001, for post-surgical examination. On that date, Plaintiff complained of persistent fevers, chills, sweating, and a pus discharge and odor from the surgical incision. She however, did not have a fever on the 12th.

On January 13, 2001, Plaintiff telephoned Dr. Chatwani's office and advised him that she passed clear fluid four or five times since the previous evening. Dr. Chatwani had her come to his office immediately, where he performed a test to ascertain whether Plaintiff had developed a vesico-vaginal fistula. The test was negative and the doctor surmised that the fluid discharge had been caused by something else. He advised the Plaintiff that he would keep her under observation for a couple of days.

Plaintiff continued to leak fluid and on January 16, 2001, she underwent a retrograde urogram and during the procedure, she had a Double J stent inserted by Michael Pontari, M.D., Board-certified urologist, which remained in place until March 21, 2001.

On April 2, 2001, Plaintiff saw Dr. Chatwani. His examination of her revealed nothing abnormal. In a subsequent follow-up visit with Dr. Pontari, he noted that Plaintiff complained of left lower abdominal discomfort that dissipated with the use of an over-the-counter analgesic. Subsequent thereto, in March and May of 2001, Plaintiff underwent two IVP procedures. In addition, in May of 2001, testing showed that Plaintiff had left-kidney caliectasis that resolved with Lasix. She did not appear for a third IVP procedure scheduled some three months thereafter.

Plaintiff saw a Dr. Bagley on January 30, 2003, because she felt discomfort in her left lower quadrant and sometimes suffered from the frequent urge to urinate. Dr. Bagley did not recommend a course of treatment or suggest a follow-up. Since that time, Plaintiff has not receive[d] any care. She has not suffered any other symptoms following the removal of the stent which occurred in March of 2001.

Trial Court Opinion (T.C.O.), 6/30/06, at 2-3.

¶ 3 Plaintiff filed a complaint against Dr. Chatwani and Hospital on November 27, 2002. Defendants filed preliminary objections. On January 21, 2003, the trial court granted Defendants' preliminary objections insofar as to strike allegations of gross negligence and recklessness in the complaint. On March 7, 2003, Defendants filed their answer to the complaint.

¶ 4 Plaintiff filed a motion in limine on April 15, 2005, in which she sought to exclude evidence that she is a Jehovah's Witness and was uncooperative with presurgical treatments. She also sought to exclude the testimony of Defendants' urology expert, Irvin H. Hirsch, M.D. As further explained below, Dr. Hirsch opined that the injury to Plaintiff's ureter was not due to any negligence in the performance of the hysterectomy but, rather, was the result of a known risk involved in this type of surgery from temporary loss of blood supply to the ureters occurring when the uterine arteries are clamped-off in order to remove the uterus. In any event, the trial court denied Plaintiff's motions in limine. Trial commenced on May 3, 2005, and ended with a jury verdict in Defendants' favor on May 5, 2005. The trial court denied Plaintiff's post-trial motions, and judgment was entered on the verdict on September 26, 2005.

¶ 5 Plaintiff filed the present appeal on September 30, 2005. She sets forth the following "Statement of Questions Involved" in her brief:

1. Was Irvin H. Hirsch, M.D. qualified to testify as an expert on behalf of the defendants?

2. Did the trial court err when it permitted Dr. Hirsch to testify as to his ureteral devascularization theory?

3. Did the trial court err when it permitted evidence to be admitted to the effect that (1) plaintiff is a Jehovah's Witness and (2) plaintiff was uncooperative with presurgical care?

4. Did the trial court err when it refused to allow plaintiff's counsel to cross-examine Dr. Belford-Budd on a learned treatise?

5. Did the trial court err when it refused to allow plaintiff's counsel to cross-examine Dr. Belford-Budd concerning medical malpractice lawsuits against her?

Plaintiff's brief at 4 (suggested answers omitted).

¶ 6 In her first issue, Plaintiff asserts that the trial court erred by qualifying Dr. Hirsch, a board-certified urologist, to testify as a defense expert on the standard of care pertaining to an obstetrician/gynecologist performing a hysterectomy. She contends that he was not qualified to do so under both common law standards and under the Medical Care Availability and Reduction of Error Act (MCARE Act), 40 P.S. §§ 1303.101-1303.1115. In reviewing this issue, we first note that "[w]hether a witness has been properly qualified to give expert witness testimony is vested in the discretion of the trial court. It is well settled in Pennsylvania that the standard for qualification of an expert witness is a liberal one." Wexler v. Hecht, 847 A.2d 95, 98 (Pa.Super.2004) (citations and quotation marks omitted). Thus, we may reverse the trial court's decision regarding admission of expert testimony only if we find an abuse of discretion or error of law. Smith v. Paoli Mem'l Hosp., 885 A.2d 1012, 1016 (Pa.Super.2005). Furthermore, because the issue regarding an expert's qualifications under the MCARE Act involves statutory interpretation, our review is plenary. Id.

¶ 7 In response to Plaintiff's claim, the trial court stated that Plaintiff was mistaken in her assertion that Dr. Hirsch testified on the standard of care applicable to an obstetrician/gynecologist performing a hysterectomy. T.C.O. at 3. The trial court explained that Dr. Hirsch "did not testify about the standard of care of an obstetrician/gynecologist but rather about the standard of care involved in avoiding uretal injury during abdominal surgery and about a diagnostic test used to determine whether a ureter was damaged during surgery, subjects which surely were within his area of expertise." Id. at 3-4. We agree, and we conclude initially that Dr. Hirsch was qualified to provide this testimony under both the MCARE Act and common law standards.

¶ 8 Since 2002, section 1303.512 of the MCARE Act has delineated requirements for qualifying experts in medical malpractice cases. In pertinent part, this statutory provision reads as follows:

(a) General rule.—No person shall be competent to offer an expert medical opinion in a medical professional liability action against a physician unless that person possesses sufficient education, training, knowledge and experience to provide credible, competent testimony and fulfills the additional qualifications set forth in this section as applicable.

(b) Medical testimony.—An expert testifying on a medical matter, including the standard of care, risks and alternatives, causation and the nature and extent of the injury, must meet the following qualifications:

(1) Possess an unrestricted physician's license to practice medicine in any state or the District of Columbia.

(2) Be engaged in or retired within the previous five years from active clinical practice or teaching.

(c) Standard of care.—In addition to the requirements set forth in subsections (a) and (b), an expert testifying as to a physician's standard of care also must meet the following qualifications:

(1) Be substantially familiar with the applicable standard of care for the specific care at issue as of the time of the alleged breach of the standard of care.

(2) Practice in the same subspecialty as the defendant...