Sutch v. Roxborough Mem'l Hosp., Solis Healthcare, LP

151 A.3d 241

Rosalind W. SUTCH, as Executrix of the Estate of Rosalind Wilson, Deceased

v.ROXBOROUGH MEMORIAL HOSPITAL, Solis Healthcare, LP, Andorra Radiology Assoc., Tenet Healthsystem Roxborough, LLC, Tenet, Inc., Tenet Group, LLC, Roxborough Emergency Physician Associates, LLC, Barbara Robins, M.D., Jeffrey Geller, M.D., and Melanio D. Aguirre

Appeal of: Nancy K. Raynor, Esquire

Rosalind W. Sutch, as Executrix of the Estate of Rosalind Wilson, Deceased

v.Roxborough Memorial Hospital, Solis Healthcare, LP, Andorra Radiology Assoc., Tenet Healthsystem Roxborough, LLC, Tenet, Inc., Tenet Group, LLC, Roxborough Emergency Physician Associates, LLC, Barbara Robins, M.D., Jeffrey Geller, M.D., and Melanio D. Aguirre, M.D.

Appeal of: Jeffrey Geller, M.D. and Roxborough Emergency Physician Associates, LLC

No. 1836 EDA 2015

No. 1852 EDA 2015

Superior Court of Pennsylvania.

Argued June 8, 2016

Filed November 15, 2016

Reargument Denied January 12, 2017

Maureen M. McBride, West Chester, for Raynor, appellant.

Carolyn B. Sollecito, Malvern, for Geller and Roxborough Emergency Physician Assoc., appellants.

Joseph L. Messa, Jr., Philadelphia, for Sutch, appellee.

BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J.

OPINION BY JENKINS, J.:

In this contentious medical malpractice action, Jeffrey Geller, M.D. ("Dr. Geller") and Roxborough Emergency Physician Associates, LLC ("REPA") appeal at 1852 EDA 2015 from a judgment of $778,643.85 entered in favor of Rosalind Sutch, personal representative of the Estate of Rosalind Wilson, deceased ("the Estate").¹ Dr. Geller and REPA argue, among other things, that the trial court abused its discretion by disqualifying their attorney, Nancy Raynor, Esquire, from representing them during the second trial in this case.

Raynor herself appeals at 1836 EDA 2015 from an order directing her to pay $44,693.25 in counsel fees to the Estate.

On August 17, 2015, we consolidated these appeals sua sponte. For the reasons that follow, we affirm.

Factual and Procedural History

Decedent's illness and lawsuit . On May 3, 2007, Rosalind Wilson ("Decedent"), then 68 years old, visited the emergency room of Roxborough Memorial Hospital ("Hospital") due to a headache, chest pains and shortness of breath. Jeffrey Geller, M.D. ("Dr. Geller") saw Decedent and ordered a chest x-ray. A radiologist, Barbara Robins, M.D., reviewed the x-ray and noted a suspicious 2.3 centimeter nodule on both a hospital STAT sheet and in her preliminary and final reports. Dr. Robins also recommended a CT scan.

During Decedent's overnight stay, Hospital physicians ruled out cardiac problems and pulmonary embolism. But at discharge, neither Dr. Geller nor the attending physicians, including Melanio Aguirre, M.D., advised Decedent of her lung nodule or her need for a CT scan.

Twenty months later, in January 2009, Decedent learned that she had Stage IV lung cancer. The malignant lung nodule had grown to 8 centimeters and metastasized to her brain. In early July 2009, Decedent filed a writ of summons against Hospital, Dr. Geller, REPA and other defendants. On July 21, 2009, Decedent passed away. After her death, her personal representative ("the Estate") filed a complaint alleging that all defendants breached their duty to tell Decedent about her lung nodule during her hospitalization in May 2007.

Raynor's and Packett's letters to HUP . On July 21, 2009, attorney Raynor of the law firm of Raynor & Associates ("the Raynor firm") entered her appearance for Dr. Geller and REPA in the medical malpractice action. Trial was originally scheduled for December 6, 2011, but another defendant, Dr. Aguirre, had a medical emergency which necessitated a continuance until May 21, 2012.

On January 13, 2012, four months before the new trial date, Raynor sent a letter to general counsel for HUP, a non-party in the medical malpractice action. Raynor's letter attacked the anticipated testimony of the Estate's expert witness on emergency medicine, Stefanie Porges, M.D., whom HUP employed as an emergency room physician. Raynor labeled Dr. Porges' opinion "untenable" and wrote: "I thought you might want to know that, if this is [Dr. Porges'] position and plaintiff[s'] attorneys become aware of it, it could expose [HUP] to significant liability ... I find it very difficult to believe that [Dr. Porges' opinion] could be the official position of [HUP] under these circumstances ..."

The head of HUP's Emergency Department contacted Dr. Porges about Raynor's letter, and Dr. Porges in turn notified the Estate's attorney. The Estate filed a motion seeking monetary sanctions and Raynor's disqualification from representing Dr. Geller and REPA. Undaunted, Raynor had an associate in her law firm, Judy May Packett, send letters to the Estate's attorney in March and April of 2012 inquiring whether Dr. Porges would remain as the Estate's expert.

On April 19, 2012, Raynor and Packett attended a hearing before the Honorable Jacqueline Allen concerning the Estate's motion for sanctions. Raynor stated that she "simply just said to someone outside the course of what [Dr. Porges] did in this case that hey, this is an opinion that's out there." N.T., 4/19/12, at 47. Raynor contended that her letter to HUP "is the type of thing that happens all the time. It could have been information relayed at lunch or at a cocktail party." Id. at 18.

On April 30, 2012, Judge Allen granted the Estate's motion in part and ordered Raynor to refrain from contacting the Estate's expert witnesses and/or their employers about any matter relating to the Estate's case. Judge Allen determined that another hearing was necessary to determine the proper sanction but stayed the hearing pending the disposition of the upcoming trial.

First trial. Prior to trial, the Honorable Paul Panepinto, the assigned trial judge, granted the Estate's motion in limine to preclude all references to Decedent's long history of smoking.

During trial, Dr. Porges testified for the Estate as an expert witness on emergency room medicine. Raynor called John Kelly, D.O., as a defense expert on the same subject. During direct examination, Raynor asked Dr. Kelly whether Decedent had any cardiac risk factors. Dr. Kelly responded that Decedent was a smoker and was hypertensive. At the conclusion of Dr. Kelly's testimony, the Estate's attorney requested a sidebar conference. Judge Panepinto dismissed the jury and asked Dr. Kelly whether Raynor made him aware of the order banning all mention of Decedent's smoking. Dr. Kelly answered that he did not remember discussing the order with Raynor.

The next day, the Estate moved for a mistrial. Judge Panepinto denied the motion but gave a curative instruction to the jury. Several days later, on June 8, 2012, the jury returned a verdict for the Estate in the amount of $190,000 against Roxborough Memorial Hospital and Dr. Aguirre, but not against Raynor's clients, Dr. Geller and REPA. The Estate filed post-trial motions requesting a new trial on the ground that the court erroneously denied its motion for mistrial.

Further sanctions proceedings before Judge Allen . While post-trial motions were pending before Judge Panepinto, the Estate filed a supplemental memorandum with Judge Allen in support of its motion for sanctions against Raynor. The supplemental memorandum contended that the Estate incurred $45,694.25 in fees due to the hearings and motions necessitated by Raynor's letter to HUP. The Estate also claimed in the supplemental memorandum that Raynor committed misconduct during the "smoking" incident in the first trial.

Judge Allen held a sanctions hearing, and on August 28, 2012, she entered an order (1) directing Raynor to pay $44,693.25 in counsel fees to the Estate and (2) disqualifying Raynor—but not other attorneys in the Raynor firm—from further representation of Dr. Geller and REPA.

Raynor filed an interlocutory appeal from Judge Allen's sanctions order, which this Court quashed.

New trial granted and interlocutory appeal . On October 22, 2012, Judge Panepinto granted the Estate's motion for a new trial. All defendants appealed at 3246, 3249, 3255 & 3257 EDA 2012 (including Dr. Geller and REPA at 3246 EDA 2012).² On November 4, 2013, this Court affirmed, stating that "the trial court properly reasoned [that the Estate] would suffer unfair prejudice if the jury discovered that [Decedent] was a smoker for approximately 50 years, in that this information might lead the jury to hold [D]ecedent accountable, to some extent, for contributing to the cause of her death, i.e., lung cancer." Sutch v. Geller, et al. , 3246 EDA 2012 et al., at 15–16, 2013 WL 11250979 (Pa.Super., 11/4/13). None of the parties filed a petition for allowance of appeal with our Supreme Court.³

Proceedings before second trial. Although Raynor herself was disqualified as counsel, two attorneys from the Raynor firm, Packett and Carolyn Sollecito, continued to represent Dr. Geller and REPA. Sollecito drafted all memoranda relating to the second trial, and she continues to represent Dr. Geller and REPA in this appeal. Packett served as trial counsel for Dr. Geller and REPA during the second trial.

The Honorable Frederica Massiah–Jackson presided over the second trial. The parties filed multiple pretrial motions in limine , including the Estate's Motion In Limine To Enforce Pennsylvania Superior Court Order As The Law Of The Case And To Preclude Any Reference to Decedent's Smoking. On October 17, 2014, Judge Massiah–Jackson granted this motion in part and denied it in part, ordering that the parties could not use Decedent's smoking history with regard to causation but could use it with regard to damages. The judge also held that the Superior Court opinion at 3246 EDA 2012 was "the law of the case."

Second trial. The second trial began on October 21, 2014. Thus, Sollecito and Packett had over two years following Raynor's disqualification to prepare for trial and/or to obtain new counsel for Dr. Geller and REPA.

Dr. Geller's defense was that he never...