Lazorka v. UPMC Bedford

1

MITCHELL LAZORKA Appellant v. UPMC BEDFORD D/B/A UPMC BEDFORD MEMORIAL AND UPMC, INC.

No. 1509 WDA 2021

No. J-A03038-24

Superior Court of Pennsylvania

April 25, 2024

NON-PRECEDENTIAL DECISION

Appeal from the Judgment Entered December 15, 2021 In the Court of Common Pleas of Bedford County Civil Division at No(s) 2017-00753

Benjamin D. Kohler, Esq.

BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM

MURRAY, J.

Mitchell Lazorka (Appellant) appeals from the judgment entered following the jury's verdict against him, and in favor of defendants UPMC Bedford d/b/a UPMC Bedford Memorial (UPMC Bedford) and UPMC, Inc. (collectively, UPMC), in this medical negligence action. Upon careful consideration, we reverse and remand for a new trial.

On May 8, 2015, Appellant sustained a head injury after falling off of his skateboard. The next day, because of a persistent headache, nausea, and vomiting, Appellant sought treatment at Temple University Hospital's (Temple) emergency department. While there, a CT scan revealed Appellant suffered a brain injury, i.e., "multicompartmental hemorrhagic parenchymal contusions, as well as subdural and subarachnoid blood collections."

Complaint, 10/26/17, ¶ 9. Appellant was admitted to Temple. A repeat CT scan disclosed no acute changes in Appellant's cerebral brain pattern. Appellant was discharged on May 11, 2015.

The evening of May 15, 2015, Appellant experienced changes in his mental status, exhibiting slurred speech and confusion. The next day, early in the afternoon, Appellant went to the emergency department at UPMC Bedford. Mohammed Arshad, M.D., treated Appellant. Appellant underwent a CT scan; Dr. Arshad commented that the images "appeared much better than before[.]" Id. ¶ 22. UPMC Bedford discharged Appellant that same day, at approximately 4:00 p.m.

The late morning of May 17, 2015, Appellant's condition worsened. He displayed difficulty walking, trouble with coordinated hand movements, and garbled speech. Appellant's parent took him to UPMC Altoona. An MRI disclosed Appellant had an

acute [cerebral vascular accident (CVA),] probably 24-36 hours onset. CVA possibly due to vasospasm post trauma. In other words, [Appellant] was experiencing the stroke at the time he was seen by Dr. Arshad and the Hospital staff at UPMC Bedford the previous day.

Id. ¶¶ 33-34 (paragraph numeral omitted). Appellant was life-flighted to UPMC Presbyterian Hospital for treatment for a stroke. Appellant sustained permanent neurological damage.

On October 26, 2017, Appellant filed the instant medical negligence action against UPMC, based on the actions of its doctors and personnel.

Appellant claimed that UPMC Bedford's failure to diagnose and treat his ongoing stroke caused him

[s]evere physical injuries, mental injuries, pain, suffering, mental anguish, humiliation, loss of the capacity for the enjoyment of life, and loss of earning capacity.

Id. ¶ 45; see also id. ¶ 55 (same). Appellant sought damages, as well as costs, exemplary damages, and any other relief deemed appropriate by the trial court. Id. (prayer for relief).

UPMC subsequently answered Appellant's complaint. Additionally, UPMC claimed in new matter that Appellant had a preexisting condition that caused or contributed to his injury; Appellant failed to mitigate; and the damages were the result of superseding or intervening causes. UPMC New Matter, ¶¶ 57-60.

Following the close of discovery and pre-trial motions in limine, the matter proceeded to trial in November 2021. On November 17, 2021, a jury rendered a verdict against Appellant and in favor of UPMC. Specifically, the jury found the conduct of Nurse Melissa Phillips and UPMC Bedford did not fall below the standard of care. The jury found Dr. Arshad violated the standard of care, but this negligence did not cause Appellant's injuries. Appellant filed a motion for post-trial relief, which the trial court denied. Thereafter, Appellant filed the instant timely appeal. Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant presents the following issues:

1. Did the trial court abuse its discretion in erroneously limiting the expert testimony of Michael McCue, Ph.D.?

2. Did the trial court abuse its discretion when it erroneously admitted testimony pertaining to [Appellant's] alleged chronic use of alcohol or [m]arijuana?

3. Did the trial court commit an error of law or abuse its discretion when it erroneously precluded Nancy Futrell, M.D.'s rebuttal testimony?

Appellant's Brief at 6 (issues renumbered).

Appellant challenges the trial court's denial of a new trial based upon allegedly improper evidentiary rulings. Our standard of review over a trial court's decision to grant or deny a new trial is whether the trial court abused its discretion. Steltz v. Meyers, 265 A.3d 335, 344 (Pa. 2021). Appellant first argues that the trial court improperly limited the testimony of his neuropsychology expert, Michael McCue, Ph.D. Id. at 17. Appellant asserts,

[w]hile Dr. McCue was literally on the witness stand, and despite earlier overruling a pre-trial objection related to his anticipated testimony, the trial [c]ourt ruled that Dr. McCue, a neuropsychologist with nearly forty years of experience assessing and treating patients with cognitive disorders, including stroke, was not qualified to offer opinions or conclusions relating to [Appellant's] cognitive and mental disabilities from (i.e. damages) from the stroke at issue….

Id. at 17-18. Appellant compares the proposed testimony of Dr. McCue to that deemed admissible in McClain v. Welker, 761 A.2d 155 (Pa. Super. 2000). Appellant's Brief at 19. Appellant claims that in McClain, this Court "specifically rejected the argument advanced by [UPMC Bedford] that the expert could not render such opinions because he did not hold a medical degree - the same basis for [UPMC Bedford's] objection, and the trial court's ruling[.]" Id. (emphasis omitted).

Appellant relies on the "long-standing principle" that "the standard for qualification of an expert witness is a liberal one[.]" Id. (citing Miller v. Brass Rail Tavern, 664 A.2d 525 (Pa. 1995)). According to Appellant, Dr. McCue should have been permitted to testify that Appellant's damages resulted from a stroke, because Dr. McCue's "primary areas of research throughout his career were the assessment and rehabilitation of individuals with cognitive disorders, and the rehabilitation of stroke patients." Appellant's Brief at 24 (emphasis omitted). Appellant details Dr. McCue's education and lengthy experience in neuropsychology. See id. at 23-25. According to Appellant, Dr. McCue's profession "involves assessing cognitive functions that are secondary to brain impairments[,] such as strokes." Id. at 26 (internal quotation marks omitted). In particular, Dr. McCue "did research regarding, and worked directly with, stroke patients." Id.

At trial, Appellant informed the trial court that Dr. McCue would testify only regarding damages. Id. at 28-29. Appellant directs our attention to the following argument he presented at trial:

[Appellant's counsel]: [Dr. McCue is] a damages witness, your honor…. But he has to be allowed to say that my evaluation indicated that [Appellant] was suffering from a stroke. … He's going to say [Appellant's] symptoms were consistent with a stroke.

THE COURT: Didn't you say in response to the motions in limine and from McCue [sic] that he is a damages witness?

[Appellant's counsel]: Yes.

THE COURT: Okay. So why aren't you limiting it to damages then?

[Appellant's counsel]: Because … the assessments that he's doing on this patient, the findings he's making are consistent with someone who suffered a stroke. That's what he's going to say.

… All of his testimony is related to the … the current and future issues [Appellant] had which[,] in [Dr. McCue's] opinion[,] are stroke-related. And he's treated patients for years that have suffered stroke that have stroke symptoms consistent with [Appellant's].

Appellant's Brief at 29 (citations omitted). Appellant claims that notwithstanding this explanation, the trial court improperly disallowed Dr. McCue to opine "to a reasonable degree of professional neuropsychological certainty," whether Appellant "suffers from any cognitive impairments related to [his] stroke that occurred in May of 2015[.]" Id. at 30 (citations omitted).

According to Appellant, this error "was hugely damaging, insofar as Jurors were not permitted to hear Dr. McCue's answer to [Appellant's] counsel's question: Were these permanent neurological deficits related to [Appellant's] stroke?" Id. at 31. According to Appellant, jurors were thus "left to speculate about the cause of [Appellant's] neurological impairments." Id.

Appellant acknowledges Dr. McCue testified "at length regarding [Appellant's] impairments[.]" Id. at 32. However, Appellant contends that,

because of the trial court's erroneous ruling, Dr. McCue's testimony was given in a vacuum - the jury had no basis to link [Appellant's] severe cognitive impairments to the stroke that UPMC Bedford's [Emergency Department's] provider failed to recognize. Worse, by virtue of the ruling, [Appellant's counsel] could not ask Dr. McCue if [Appellant's] cognitive disabilities were related to anything else other than his stroke....

Id. at 34. Appellant asserts that UPMC exploited the lack of this testimony during cross-examination. Id. According to Appellant, UPMC's counsel "attempted to establish that [Appellant's] cognitive impairments may have been caused by a traumatic brain injury, or some other event that pre-dated his stroke." Id.

In addressing Appellant's issue, we first observe that

[i]n order to state a cause of action for negligence, a plaintiff must allege facts which prove the

...