Smith v. Paoli Memorial Hosp.

885 A.2d 1012

Donald J. SMITH, Administrator of the Estate of Maureen T. Smith, Deceased v. PAOLI MEMORIAL HOSPITAL, Main Line Health Radiology, David H. Forsted, M.D., F.A.C.R., Valerie T. Hunt, M.D., Donald G. Samuelson, M.D., Elise Shreck, M.D., Jefferson Health System, Main Line Gastroenterology Associates, P.C., Matthew R. Astroff, M.D., Richard D. Tolin, M.D., Surgical Specialists of the Main Line, P.C., Timothy Fox, M.D., Presbyterian Medical Center, Andrea Russo, M.D., Nicholas C. Battafarano, M.D., and N.C. Battafarano, M.D., P.C.

Appeal of: Matthew R. Astroff, M.D., Richard D. Tolin, M.D. & Main Line Gastroenterology Associates, Appellants.

Superior Court of Pennsylvania.

Argued May 10, 2005.

Filed October 18, 2005.

Barbara S. Magen, Philadelphia, for appellants.

David C. Federman, Philadelphia, for Smith, appellee.

BEFORE: FORD ELLIOTT, JOYCE, and MONTEMURO,¹ JJ.

OPINION BY FORD ELLIOTT, J.:

¶ 1 The pivotal issue in this case is whether the plaintiff's expert medical witnesses qualified to testify as to the standard of care of defendant physicians pursuant to the requirements of the MCARE Act, 40 P.S. §§ 1303.101-1303.910.² Finding that the experts were qualified, we affirm.

¶ 2 Appellee Donald J. Smith ("administrator") filed a wrongful death and survival action on his own behalf and on behalf of the estate of his late wife, Maureen Smith ("decedent"), claiming that appellant/physicians and others breached the standard of care in failing timely to diagnose and treat decedent's small bowel leiomyosarcoma, thereby resulting in her untimely death. In support of his claim, administrator retained W. Stuart Battle, M.D., a board-certified general surgeon; and Allen Krutchik, M.D., a board-certified oncologist and internist. Appellant physicians, Matthew R. Astroff, M.D., and Richard D. Tolin, M.D., are board-certified gastroenterologists.

¶ 3 According to decedent's primary care physician, Nicholas C. Battafarano, M.D., because he was aware of the history of cancer in decedent's family, he immediately referred decedent to Timothy Fox., M.D., a general surgeon, when decedent presented at Dr. Battafarano's office on May 26, 1998 with rectal bleeding. (Deposition testimony of Nicholas Battafarano read into the record at notes of testimony, 11/18/03 at 150-151.) Decedent, who was 61 years old at the time, experienced a significant episode of rectal bleeding at Dr. Fox's office; therefore, he immediately admitted decedent to Paoli Memorial Hospital ("hospital") under his service as attending physician the same day. During her hospitalization, decedent received approximately three to four pints of blood.

¶ 4 Dr. Fox attempted to perform a colonoscopy, but due to equipment failure, called in Dr. Astroff and his group, Main Line Gastroenterology, to assist in the testing and diagnosis. Despite performing numerous tests, the physicians involved in decedent's care were unable to determine the exact cause of her bleeding; however, two tests indicated the probable source of the bleeding as the mid to distal ileum portion of the small bowel. Following her discharge, decedent underwent further outpatient tests in June of 1998, including an endoscopy, small bowel enteroclysis, and other tests; however, none of those tests established the cause of her bleeding. Because all of the tests the physicians performed viewed the inside of the colon and small bowel, however, none of the tests could rule out the possibility of an extrinsic tumor.

¶ 5 In November of 1998, decedent again experienced rectal bleeding and returned to hospital, where she was admitted under the service of Dr. Tolin, also of Main Line Gastroenterology. Dr. Tolin performed another colonoscopy and discharged decedent the next day with no definitive diagnosis, although he indicated the possibility of a "right-sided diverticulum." In November of 1999, decedent again experienced rectal bleeding and was admitted to hospital under Dr. Astroff's care. Following another colonoscopy, decedent was again discharged without a definitive diagnosis. According to Dr. Astroff, his working hypothesis during the November 1999 hospitalization was that decedent suffered from an arteriovenous malformation or AVM. AVM's, according to Dr. Astroff, are "like little dilated veins on your face, they are flat to the surface. It can't show something flat on the surface, so often when all the tests are done, if we find no other source, often we have to presume it was an AVM." (Notes of testimony, 11/17/03 at 145.)

¶ 6 Following an unrelated hospitalization in December 1999, decedent presented to Dr. Battafarano on March 25, 2000 with lower abdominal pain and fever and was admitted to hospital. A CT scan done the following day revealed a large pelvic and mesenteric mass extrinsic to the ileum of the small bowel. The tumor was diagnosed as a high-grade GIST, or stromal tumor of the gastrointestinal tract. Additional testing and surgery at Sloan-Kettering Memorial Hospital, to which decedent transferred, revealed the tumor was a leiomyosarcoma. Despite several surgeries, the cancer had metastasized to several of decedent's other organs, and she died on December 14, 2000.

¶ 7 On June 14, 2001, administrator filed a complaint sounding in negligence, naming numerous physicians, medical centers, medical practices, and hospital as defendants, and including counts for wrongful death and survival. Administrator retained the services of the two expert medical witnesses noted supra to address the standard of care for determining the cause of occult gastrointestinal bleeding. Specifically, the experts addressed whether Drs. Tolin and Astroff, the two gastroenterologists ("gastroenterologists"), and others breached the standard of care by failing to order a CT scan to investigate the possibility of a source extrinsic to the GI tract. Dr. Battle filed his report on April 1, 2003 and Dr. Krutchik filed two reports, one on April 15, 2003, and one on October 31, 2003, after he had reviewed the reports of Emanuel Rubin, M.D., one of the gastroenterologists' experts, who determined that the tumor was a leiomyosarcoma, not a GIST.

¶ 8 It was not until November 4, 2003, however, ten days before trial commenced, that gastroenterologists filed their motion in limine, seeking to preclude administrators' experts from testifying based upon their purported lack of qualification pursuant to the MCARE Act. To support their motion, gastroenterologists appended their curricula vitae as well as those of Drs. Battle and Krutchik. (Plaintiff's Response to Motion in Limine, 11/10/03, R. at 55.) Administrator then filed a response, attaching the reports and curricula vitae of his two medical experts. The court heard argument on the motion after the jury had been selected, on November 14, 2003, after which it entered an order denying the motion. (Notes of testimony, 11/14/03 at 13-23.)

¶ 9 On November 25, 2003, following a jury trial during which several of the remaining defendants were granted motions for compulsory nonsuit or were dismissed by stipulation, the jury returned a verdict in favor of administrator, finding gastroenterologists negligent and apportioning 50 percent of the damages, or $500,000, to each, for a total of $1,000,000. Gastroenterologists filed a post-trial motion on December 4, 2003, and administrator filed a motion for delay damages. The trial court granted administrator's motion and molded the verdict to $1,077,725.88.

¶ 10 According to the trial court, it did not decide the post-trial motion, however, because gastroenterologists failed to order the transcripts in a timely manner, thereby precluding the court from filing a briefing order and/or disposing of the motion within the prescribed 120 days. (Trial court opinion, 6/3/04 at 3 n. 1 and 2, 6.) Our review of the record indicates, to the contrary, that gastroenterologists included a request for transcripts with their December 4, 2003 post-trial motion and also moved for leave to specify additional grounds after the motion clerk notified counsel that the requested transcript had been transcribed. Additionally, administrator included in its response to the post-trial motion a motion that the entire transcript, including the arguments and objections of counsel and the rulings of the court, be transcribed. Administrator filed its response on December 12, 2003.

¶ 11 On December 6, 2004, having received the certified record as well as a motion from gastroenterologists' counsel for leave to complete the record, this court granted the motion and remanded to the trial court to complete the record. (Per curiam order, No. 1187 EDA 2004, 12/6/04.) Gastroenterologists' counsel then hand-delivered to the trial court a request for that court to forward numerous items that were missing from the certified record when this court received the record on November 23, 2004. Included among those items are both the post-trial motion and the response thereto. They are located in Part 3 of the certified record, but are not numbered. ¶ 12 Regardless of the cause, the post-trial motion was denied by operation of law on or about April 4, 2004, and administrator entered judgment on the verdict on April 6, 2004. This timely appeal followed, in which gastroenterologists raise the following issues:

A. DID THE LOWER COURT ERR IN FAILING TO AWARD DEFENDANTS RELIEF IN THE NATURE OF A JUDGMENT N.O.V. OR A NEW TRIAL AS THE VERDICT RENDERED WAS IMPROPER AND UNSUPPORTED BY THE REQUISITE COMPETENT EXPERT EVIDENCE?

1. Are defendants entitled to appellate relief since the trial court erred in denying their Motion in Limine and in allowing plaintiff's expert witnesses to testify against these healthcare providers, in contravention of Section 512 of Pennsylvania's Medical Care Availability and Reduction of Error Act,[Footnote 2] since those experts were not Board Certified or practicing in the field of gastroenterology or in a subspecialty with a substantially

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