Whitaker v. Frankford Hosp.

984 A.2d 512

2009 PA Super 216

Joan P. WHITAKER and Barbara V. Leezer, Guardians Ad Litem for Caroline Monaghan, Appellees v. The FRANKFORD HOSPITAL OF the CITY OF PHILADELPHIA d/b/a Frankford Hospital-Frankford, The Frankford Hospital of the City of Philadelphia d/b/a Frankford Hospital-Torresdale, Robert T. Smith, M.D., Harold J. Gauthier, M.D. and Diagnostic Imaging, Inc., Appeal of Robert T. Smith, M.D., Appellant.

Caroline Monaghan, Appellee v. Frankford Hospital, Frankford Division, Frankford Hospital, Torresdale Division, Carl S. Rubin, D.O., Medical Imaging Associates, Hospital Medical Imaging, Inc., Robert T. Smith, M.D., Northeast Philadelphia Vascular Surgeons, P.C., Farouq A. Samhouri, M.D., Harold J. Gauthier, M.D., ABC Emergency Room Services Corp., Michael J. Rosner, M.D., Joseph Nabong, M.D., Neurocare Diagnostics, Inc., and Randy M. Rosenberg, M.D., Appeal of Diagnostic Imaging, Inc., Appellant.

No. 819 EDA 2006.

No. 933 EDA 2006.

Superior Court of Pennsylvania.

Argued February 24, 2009.

Filed November 12, 2009.

Naomi A. Plakins, Doylestown, for Smith.

James E. Kurack, Jr., Philadelphia, for Diagnostic Imaging, Inc.

Charles L. Becker, Philadelphia, for Whitaker, Leezer and Monaghan, appellees.

BEFORE: ORIE MELVIN, BOWES, and DONOHUE, JJ.

OPINION BY BOWES, J.:

¶ 1 Appellants, Diagnostic Imaging, Inc. and its agent Dr. Robert T. Smith, appeal from the judgment entered on a jury verdict in this medical malpractice action. The verdict was entered in favor of the plaintiffs, Appellees Joan P. Whitaker and Barbara V. Leezer, in their capacity as guardians ad litem for Caroline Monaghan. The jury determined that Dr. Smith and Dr. Harold J. Gauthier, who had previously settled with Appellees, were equally responsible for causing the injuries at issue in this case, and it awarded $5,200,000 in damages. After careful review of the record and the arguments presented on appeal, we affirm.

¶ 2 To begin our appellate review, we set forth the trial evidence viewed in the light most favorable to Appellees as verdict winners. In May 2001, Ms. Monaghan was seen by her primary care physician, whose examination revealed the possibility that she had a stenosis, also known as blockage, in her carotid arteries. It is well established that blockage of the carotid arteries creates a risk of a stroke, which results from a restriction of blood flow to the brain; eighty percent of strokes are caused by blockage to the arteries that supply blood to that organ. The carotid and vertebral arteries are the blood vessels that carry the blood from the heart to the brain, and the longer the blood supply to the brain is restricted, the more severely the brain is damaged.

¶ 3 On June 11, 2001, Ms. Monaghan underwent an ultrasound of the carotid arteries to determine whether she had blockage. That ultrasound was interpreted by doctor of osteopathy Carol S. Rubin, who opined that Ms. Monaghan displayed "bilateral soft plaque with 70 plus percent critical left ICA [interior carotid artery] stenosis." N.T. Trial (Jury) Vol. 1, 9/27/04, at 50. This report indicated that Ms. Monaghan had at least seventy percent blockage in her left internal carotid artery. Ms. Monaghan was immediately referred to vascular surgeon Farouq A. Samhouri, who ordered an MRA/MRI study of her neck arteries. That MRA/MRI was performed on June 20, 2001, at Diagnostic Imaging, Inc., and it was interpreted by Dr. Smith. Dr. Smith concluded that the MRA/MRI study demonstrated that Ms. Monaghan's proximal left internal carotid artery had fifty percent blockage and that her common carotid left artery had the same percentage of stenosis.

¶ 4 A carotid artery with fifty percent blockage is treated with monitoring and aspirin therapy. However, if a diagnostic study reveals the existence of seventy percent blockage, there is no way to discern whether the blockage is seventy percent or higher. Thus, the actual degree of stenosis can be as high as ninety-nine percent. Any blockage of seventy percent is critical and calls for surgical intervention. Based on the discrepancy between the ultrasound, which indicated critical blockage, and the MRA/MRI, which called for drug treatment and monitoring, Dr. Samhouri ordered another study to determine which result was correct.

¶ 5 A patient with seventy percent blockage who is asymptomatic does not require emergent treatment. Dr. Samhouri confirmed that he would have performed surgery on the arteries in the event the blockage was seventy percent or more. However, he would not have been able to schedule that surgery until after June 23, 2001. A patient with seventy percent stenosis who is exhibiting symptoms of a stroke requires immediate hospitalization and treatment with intravenous drug therapy.

¶ 6 On the afternoon of June 23, 2001, Ms. Monaghan went to the emergency room of Frankford Hospital, complaining that she had difficulty picking up objects and was experiencing tingling and numbness in her arm. These symptoms, difficulty moving, numbness and tingling, rendered Ms. Monaghan symptomatic.

¶ 7 At the hospital, Ms. Monaghan was treated by Dr. Gauthier. By the time Dr. Gauthier examined Ms. Monaghan, the weakness and loss of sensation in her extremities had resolved. Joan Whitaker, Ms. Monaghan's daughter, informed Dr. Gauthier about the results of both the ultrasound and the MRA/MRI. Dr. Gauthier concluded that Ms. Monaghan had suffered a transient ischemic attack ("TIA") and relying upon the results of the MRA/MRI indicating that she had noncritical stenosis, discharged her at 8:00 p.m. on June 23, 2001. Ms. Monaghan returned to Frankford Hospital at 10:30 p.m.; she had suffered a massive stroke causing severe brain damage.

¶ 8 Appellees instituted this medical malpractice action against numerous physicians and health care facilities. Prior to trial, some defendants were dismissed, and Dr. Gauthier and Frankford Hospital settled with Appellees for $2,600,000. Dr. Gauthier remained a defendant at trial for purposes of apportioning liability. Appellees presented evidence that Dr. Smith had misinterpreted the June 20, 2001 MRA/MRI which clearly revealed that Ms. Monaghan had over seventy percent blockage in her two arteries, as indicated in the June 11, 2001 ultrasound. Appellees also presented evidence that the occurrence of a TIA means that a person with critical stenosis is symptomatic and in need of immediate treatment and that Dr. Gauthier discharged Ms. Monaghan rather than admit her for treatment because he believed that she had non-critical stenosis based upon the MRI study. Finally, Appellees established that had their mother been admitted to Frankford Hospital during the afternoon of June 23, 2001, and treated with Heparin, there was at least a ninety-five percent chance that she would not have suffered the massive stroke that resulted in her severe disability.

¶ 9 The jury determined that Dr. Smith and Dr. Gauthier were equally responsible for Ms. Monaghan's injuries and awarded $5,200,000 in damages. The verdict was molded to reflect the apportionment of liability, and these timely appeals by Diagnostic Imaging, Inc. and Dr. Smith followed.

¶ 10 Appellants present identical arguments on appeal that are framed with slight differences. Their averments can be summarized as follows. Appellants' first position is that they should have been granted either summary judgment or a compulsory nonsuit because Appellees failed to establish that their conduct caused Ms. Monaghan's injuries. There are two aspects to this first issue. Appellants claim both that there was no evidence that Dr. Samhouri would have performed vascular surgery before June 23, 2001, when Ms. Monaghan suffered her stroke, and that there was no evidence that Dr. Gauthier relied upon Dr. Smith's incorrect interpretation of the June 21, 2001 MRA/MRI report when he decided to discharge Ms. Monaghan on June 23, 2001. Next, Appellants complain that Appellees' two expert witnesses, one of whom was a standard-of-care expert witness and the other of whom was a causation expert witness, were improperly permitted to testify about the area of expertise of the other. In addition, Appellants maintain that their expert witness was incorrectly restricted during his direct examination. Finally, Appellants request remittitur of the verdict on the basis of excessiveness.

¶ 11 Before addressing the merits of their first issue, we note that Appellants have incorrectly framed their position. Once this case proceeded to trial and Appellants presented a defense, the trial court's refusal to grant them summary judgment and a compulsory nonsuit became moot. See Gbur v. Golio, 932 A.2d 203 (Pa.Super.2007); Northeast Fence & Iron Works, Inc. v. Murphy Quigley Co., Inc., 933 A.2d 664, 668 (Pa.Super.2007). Once a jury verdict in favor of Appellees was entered, the issue became whether the trial court erred in failing to grant them judgment notwithstanding the verdict. Gbur, supra; Northeast Fence & Iron Works, Inc., supra. We will address Appellants' argument in the proper context. Gbur, supra. Our standard of review is as follows:

[T]he standard of review for an order granting or denying judgment notwithstanding the verdict is whether there was sufficient competent evidence to sustain the verdict. We must view the evidence in the light most favorable to the verdict winner and give him or her the benefit of every reasonable inference arising therefrom while rejecting all unfavorable testimony and inferences. Furthermore, judgment n.o.v. should be entered only in a clear case, where the evidence is such that no reasonable minds could disagree that the moving party is entitled to relief. Review of the denial of judgment n.o.v. has two parts, one factual and one legal:

Concerning any questions of law, our scope of review is plenary. Concerning questions of credibility and weight accorded evidence at trial, we will not substitute our judgment for that of the finder of...