Heddleston, M. v. Obstetrical and Gynecological ( 2016 )

J-A07033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARIA HEDDLESTON AND BRIAN IN THE SUPERIOR COURT OF
HEDDLESTON, HER HUSBAND PENNSYLVANIA
Appellant
v.
OBSTETRICAL AND GYNECOLOGICAL
ASSOCIATES OF PITTSBURGH, INC.,
D/B/A OB/GYN ASSOCIATES OF
PITTSBURGH, RENATA D. HOCA, M.D.;
PEDIATRIC ALLIANCE, P.C. D/B/A THE
BREASTFEEDING CENTER OF
PITTSBURGH, NANCY BRENT, M.D.;
MAGEE WOMEN’S HOSPITAL-UPMC; AND
UPMC
No. 443 WDA 2015
Appeal from the Order of March 2, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD12-10765
MARIA HEDDLESTON AND BRIAN IN THE SUPERIOR COURT OF
HEDDLESTON, HER HUSBAND PENNSYLVANIA
Appellant
v.
OBSTETRICAL AND GYNECOLOGICAL
ASSOCIATES OF PITTSBURGH, INC.,
D/B/A OB/GYN ASSOCIATES OF
PITTSBURGH, RENATA D. HOCA, M.D.;
PEDIATRIC ALLIANCE, P.C. D/B/A THE
BREASTFEEDING CENTER OF
PITTSBURGH, NANCY BRENT, M.D.,
MAGEE WOMEN’S HOSPITAL-UPMC; AND
UPMC
J-A07033-16
APPEAL OF: PEDIATRIC ALLIANCE, P.C.
D/B/A THE BREASTFEEDING CENTER OF
PITTSBURGH AND NANCY BRENT, M.D.
No. 471 WDA 2015
Appeal from the Order of March 2, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD 12-10765
MARIA HEDDLESTON AND BRIAN IN THE SUPERIOR COURT OF
HEDDLESTON, HER HUSBAND PENNSYLVANIA
Appellant
v.
OBSTETRICAL AND GYNECOLOGICAL
ASSOCIATES OF PITTSBURGH, INC.,
D/B/A OB/GYN ASSOCIATES OF
PITTSBURGH, RENATA D. HOCA, M.D.;
PEDIATRIC ALLIANCE, P.C. D/B/A THE
BREASTFEEDING CENTER OF
PITTSBURGH, NANCY BRENT, M.D.;
MAGEE WOMEN’S HOSPITAL-UPMC; AND
UPMC
APPEAL OF: OBSTETRICAL AND
GYNECOLOGICAL ASSOCIATES OF
PITTSBURGH INC. D/B/A OB/GYN
ASSOCIATES OF PITTSBURGH, RENATA
D. HOCA, M.D., MAGEE WOMANS
HOSPITAL-UPMC AND UPMC
No. 490 WDA 2015
Appeal from the Order of March 2, 2015
In the Court of Common Pleas of Allegheny County
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J-A07033-16
Civil Division at No(s): G.D. 12-10765
BEFORE: BOWES, MUNDY, and JENKINS, JJ.
MEMORANDUM BY BOWES, J.: FILED JULY 22, 2016
Appellants Maria Heddleston (“Wife”), and her husband Brian
Heddleston, (“Husband”), appeal from the judgment entered in favor of
defendants in this medical malpractice case based upon a failure to timely
diagnose Wife’s breast cancer. Defendants include Obstetrical and
Gynecological Associates of Pittsburgh, Inc. d/b/a OB/GYN Associates of
Pittsburgh, Renata D. Hoca, M.D., Magee Womens Hospital-UPMC and UPMC
and Nancy Brent, M.D. and Pediatric Alliance, P.C., d/b/a The Breastfeeding
Center of Pittsburgh, and defendants have filed cross appeals. Appellants
assert a number of errors that they maintain necessitate a new trial. We
agree that relief is due on the basis of two of the grounds asserted, and
hence, we vacate the judgment and remand for a new trial. We find no
merit in Appellees’ cross-claims.
In this medical malpractice case, Appellants averred that Appellees
negligently failed to diagnose Wife’s breast cancer in September or October
2009, leading her to progress to Stage IV breast cancer. In September
2009, Wife had a child at UPMC delivered by Dr. Hoca. While in the hospital,
Wife received instructions in pumping during a breastfeeding consultation.
Wife testified that, during September and October 2009, she complained
about severe breast pain when she pumped. Her expert witnesses opined
that these complaints should have alerted Appellees to order diagnostic
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imaging, which would have indicated that Wife suffered from breast cancer.
In November 2010, Wife was diagnosed with metastatic Stage IV breast
cancer. Appellants’ evidence was that the delay in diagnosis led to a
increased risk that Wife will die from her cancer.
The jury returned a ten-to-two verdict in favor of Appellees.
Appellants filed a timely motion for post-trial relief seeking a new trial;
Appellees also filed motions for post-trial relief. On March 2, 2015, after
hearing oral argument on the motions, the trial court entered three orders
denying all post-trial motions. Appellants filed a motion for reconsideration
on March 12, 2015, and, before the trial court ruled, they filed a timely
notice of appeal. The trial court subsequently denied the motion and
ordered Appellants to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Appellants complied. Appellees filed
timely cross-appeals and Rule 1925(b) statements. Appellants present
seven issues for our review:
1. Are [Appellants] entitled to a new trial or, in the alternative,
an evidentiary hearing where there was an undisclosed
financial and professional relationship between a juror and the
Chief Executive Officer of [Appellee] Pediatric Alliance, P.C.
d/b/a The Breastfeeding Center of Pittsburgh, who was
present during trial and introduced to the jury?
2. Are [Appellants] entitled to a new trial or, in the alternative,
an evidentiary hearing where jurors have confirmed the
existence of a second jury question that demonstrated juror
confusion, which was never brought to the attention of
counsel?
3. Are [Appellants entitled to a new trial where, over objection,
the trial court allowed [Wife], a lay witness who is not a
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doctor, to be cross-examined with medical slides taken from
the Susan G. Komen charity’s website?
4. Are [Appellants] entitled to a new trial where the trial court
precluded [Appellants’] oncology expert, Barry Singer, M.D.
from testifying as to whether a tumor would have been
identified had diagnostic imaging been performed in
September or October 2009, even though Dr. Singer was
qualified to render such opinions, and both defense counsel
and the trial court had agreed during motions in limine
argument that Dr. Singer could provide such testimony?
5. Are [Appellants] entitled to a new trial where, over objection,
the trial court allowed [Appellees’] causation expert, William
Farrar, M.D., to give standard of care testimony regarding
when a mammogram is appropriate?
6. Are [Appellants] entitled to a new trial where, over objection,
the trial court allowed [Appellants’] standard of care expert,
Robert Hecht, M.D., to be cross-examined regarding the
irrelevant manner in which William Donaldson, M.D., a non-
party treating physician of [Wife], addressed complaints of
back pain?
7. Are [Appellants] entitled to a new trial where the trial court
precluded [Husband] from testifying that a UPMC doctor
advised [Appellants] to seek counsel to rebut [Appellee]
UPMC’s counsel’s accusations that [Appellants] or their
counsel fabricated the claims in this lawsuit?
Brief of Appellants at 6-8. Appellees have filed cross-appeals raising
three questions:
A. Whether the trial court erred by denying Defendants’ motion
for a compulsory non-suit and/or motion for a directed
verdict, where Plaintiffs’ medical experts contradicted one
another on an essential issue?
B. Whether the trial court erred by denying Defendants’ motion
for a compulsory non-suit and/or motion for a directed
verdict, where Plaintiffs’ expert failed to offer testimony to a
reasonable degree of medical certainty that the alleged
negligence caused the Plaintiffs’ harm?
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C. Whether the trial court erred by denying Defendant Magee
and Defendant UPMC’s motion for a compulsory non-suit
and/pr motion for a directed verdict, where Plaintiffs failed to
offer evidence that Defendant Dr. Hoca was the ostensible
agent of these Defendants?
Brief of Deemed Appellees, Obstetrical and Gynecological Associates of
Pittsburgh, Inc., d/b/a OB/GYN Associates of Pittsburgh, Renata D. Hoca,
M.D., Magee-Women’s Hospital-UPMC and UPMC at 7.
Appellees Pediatric Alliance, P.C. d/b/a The Breastfeeding Center of
Pittsburgh, and Nancy Brent, M.D., raise the following issues in their cross-
appeal:
1. Did the Trial Court err is [sic] denying Motions to Exclude ,
Motions for Non-Suit, and Motions for Directed Verdict when
the Heddlestons’ (Appellants) standard of care expert was not
qualified to offer opinions critical of Dr. Brent and/or the
employees of The Breastfeeding Center of Pittsburgh under
40 P.S. § 1303.512 and/or the Common Law of Pennsylvania?
2. Did the Trial Court err in denying Motions for Non-Suit and
Directed Verdict when the Heddlestons’ (Appellants) experts
offered contradictory and inconsistent testimony on a material
fact forcing the jury to speculate?
3. Did the Trial Court err in denying Motions for Non-Suit and
Directed Verdict as the testimony of the Heddlestons’
(Appellants) causation expert, Barry Singer, M.D., failed to
establish causation or increased risk of harm against the
Appellees?
Brief of Appellee Pediatric Alliance. P.C. d/b/a The Breastfeeding Center of
Pittsburgh, and Nancy Brent at 49.
We will address the Heddlestons’ appeal first, which requires us to
determine whether the trial court erred or abused its discretion in denying
their motion for new trial. In making that determination,
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Our standard of review from an order denying a motion for a
new trial is whether the trial court committed an error of law,
which controlled the outcome of the case, or committed an
abuse of discretion. A trial court commits an abuse of discretion
when it rendered a judgment that is manifestly unreasonable,
arbitrary, or capricious, has failed to apply the law, or was
motivated by partiality, prejudice, bias, or ill will.
Mirabel v. Morales, 57 A.3d 144, 150 (Pa.Super. 2012) (internal citations
and quotation marks omitted). We find that relief is due on Appellants’ third
and fourth issues, and thus, we address those issues first. Both of these
issues involve errors in the admission or exclusion of evidence.
When we review a trial court's ruling on admission of evidence, we
must acknowledge that decisions on admissibility are within the sound
discretion of the trial court and will not be overturned absent an abuse of
discretion or misapplication of law. In addition, for a ruling on evidence to
constitute reversible error, it must have been harmful or prejudicial to the
complaining party. Gaudio v. Ford Motor Co., 976 A.2d 524, 535
(Pa.Super. 2009) (quoting Stumpf v. Nye, 950 A.2d 1032, 1036 (Pa.Super.
2008). Prejudice is suffered when the evidentiary error could have affected
the verdict. Id.Appellants challenge the trial court’s overruling of their objection to
the defense cross-examination of Wife with slides from the Susan G. Komen
website purporting to depict the warning signs of breast cancer. They allege
that this evidence was unauthenticated, it constituted hearsay, and that its
use with a lay witness violated Pa.R.E. 701, 801, 802, and 901.
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Appellants maintain that counsel for UPMC represented initially that his
office prepared the slides. After using them to cross-examine Wife, UPMC’s
counsel orally represented to the jury that the information came from the
Susan G. Komen website, and asked Wife to confirm that the website was
indeed the source of the information. When Wife was unable to do, counsel
sought Wife’s agreement that the slides contained the warning signs and
symptoms of breast cancer. Counsel for Appellee UPMC asked her:
Q: And those are the warning signs and symptoms; correct?
Mr. Archinaco: Objection. Same objection.
The Court: I think that’s a proper question. So ahead. What’s
the answer?
A: I don’t know. Could you say the question again?
Q: Those are the warning signs and symptoms of breast cancer?
A: Those are the warning signs.
Reproduced record (“R.R.”) at 986a-987a.
Appellees counter that Wife confirmed the diagrams were
representative of the signs and symptoms of breast cancer. While
Appellants objected to the diagrams on authentication and hearsay grounds,
UPMC contends that Appellants waived any objection based on improper
factual testimony or lay opinion by failing to assert that basis for objection.
Finally, Appellees argue that any error in this regard was harmless as it was
uncontroverted that the diagrams accurately depicted the signs and
symptoms of breast cancer. We disagree.
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When counsel for Appellee UPMC initially called for the publishing of
the diagrams, Appellants objected to the use of this evidence at sidebar.
Counsel for Appellants stated that defense counsel intended
to question [Wife] using a diagram that he [counsel] prepared
about what he represents are the warning signs of breast cancer.
He has to have someone authenticate -- a doctor authenticate
what the warning signs are of breast cancer. He can’t testify to
what the warning signs are. He can ask her if she knows what
the warning signs are, but she's not a doctor.”
Id. at 981a. Thus, Appellants articulated their objection that Wife was not
qualified to authenticate or otherwise offer medical testimony regarding the
signs and symptoms of breast cancer. We reject Appellees’ contention that
this basis for objection was waived.
Defense counsel insisted, “I’m just going to illustrate to the jury these
are the symptoms.” Id. Appellants’ counsel reiterated, “We have an
objection to him putting up a diagram that he says are the symptoms of
breast cancer and asking her whether to agree.” Id. at 67. Nonetheless,
the trial court permitted defense counsel to ask Wife “whether this is an
accurate depiction.” Id.
Defense counsel represented to Wife and the jury that his office
prepared the slides and proceeded to cross-examine Wife about each of the
signs and symptoms described. Wife denied experiencing any of the
symptoms listed except the symptom described as a new pain in one area
that did not cease. Wife explained that the pain did not cease when she
pumped. Counsel for UPMC confirmed that the pain disappeared, however,
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when Wife stopped pumping, and it dismissed the significance of the pain as
a symptom.
At the end of this line of questioning, defense counsel noted Wife’s
involvement in Susan G. Komen activities and asked her, “If I told you that I
got those from the Susan G. Komen website, you wouldn't disagree with
me?” Again, Appellants objected, but the trial court merely asked counsel to
rephrase. This prompted the line of questioning reproduced supra regarding
Wife’s ability to confirm that this information was on the Susan G. Komen
website.
The trial court’s characterization of the slides containing the signs and
symptoms of breast cancer as demonstrative evidence begs the question.
Even demonstrative evidence is subject to the rules of evidence regarding
authentication, hearsay, and lay opinion. Certainly, if a qualified medical
expert had opined that the signs and symptoms enumerated on the slides
were generally accepted and fairly depicted on those slides, the evidence
would have been admissible. Absent herein was the proper evidentiary
foundation for the admission of the evidence depicted on the slides.
The evidence was improperly admitted and used. Most importantly,
we are not persuaded that error in the admission of this evidence was
harmless. This exchange accomplished two things: it suggested that the
signs and symptoms of breast cancer identified on the slides were both
medically accurate and an exhaustive list, a position contrary to that
advanced by Appellants. Fundamental to Appellants’ theory of liability was
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that Wife’s complaints of deep pain in the left breast while pumping
necessitated additional testing to rule out a malignancy.
Secondly, the chart reinforced Appellees’ contention that they were not
negligent in failing to diagnose breast cancer as Wife did not have any
warning signs or symptoms. The lynchpin of Appellants’ case was that
Appellees deviated from the standard of care when they failed to order and
conduct imaging studies when Wife complained of significant pain, which was
an eight on a scale of one to ten, deep in her left breast when she pumped.
They further alleged that the failure to order the imaging, which would have
revealed breast cancer, led to a delay in cancer diagnosis and increased risk
of death. Appellees used unauthenticated, hearsay evidence, which it
ultimately attributed to the Susan G. Komen website, to bolster its position
that only persistent localized breast pain warranted additional testing, not
pain that dissipated when a woman stopped pumping.
A second evidentiary error presents an even stronger basis for
awarding a new trial in this case. Appellants contend that the trial court
improperly precluded oncologist Barry Singer, M.D., from offering vital
causation opinion testimony regarding what imaging would have shown in
September or October of 2009, if it had been conducted. This issue first
arose when Appellees filed a motion in limine to preclude Dr. Singer from
offering standard of care testimony. Appellants’ counsel represented at that
time that, “We’re not going to ask him to opine on standard of care, but we
are going to ask him if a diagnostic test had been performed at that time,
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what is your opinion that it should have shown, which is causation
testimony, not standard of care testimony.” R.R. at 793a-795a. Counsel for
UPMC stated on the record: “I don’t have a problem with that, Your
Honor[,]” and the trial court agreed. Id. at 794a-795a.
At trial, on direct examination, Appellants’ counsel asked Dr. Singer:
“Doctor, had diagnostic imaging been ordered in September or October
2009, would it have revealed the tumor?” Id. at 1056a. As Dr. Singer
proceeded to state his opinion, Appellees objected, contending that he was
improperly providing standard of care testimony. Id. at 1057a. Appellants’
counsel reminded the court that this was the identical question that
Appellees agreed was not a problem during resolution of the motion in limine
regarding Dr. Singer. Counsel for Appellants argued that Dr. Singer had to
opine about what the imaging studies would have shown. Nonetheless, the
trial court sustained the objection, finding this to be standard of care
testimony. Appellees capitalized on the exclusion of this evidence in closing,
arguing to the jury that Appellants failure to prove what imaging would have
shown was “the gap in their case. Their case has failed. Because they’ve
not come forward with evidence to connect anything.” Id. at 1938a-1939a.
Appellees’ position is, first, that Dr. Singer was not qualified under the
MCARE Act to offer standard of care testimony. See 40 P.S. § 1303.512.
They maintain that their objection was based on Dr. Singer’s response to the
question, which they characterize as venturing into standard of care
testimony. They argue that they objected in anticipation of Dr. Singer
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offering testimony “identifying the specific diagnostic tests which allegedly
should have been done at the time of the subject care.” Appellees’ brief at
46-47. They contend that such testimony would have implicated the
standard of care of a gynecologist. We disagree.
Appellants counsel asked:
Q: Doctor, had diagnostic imaging been ordered in September or
October 2009, would it have revealed the tumor?
A: In my opinion as an oncologist, yes. Because even though she
was Stage IV one year later, I do believe that the cancer was
present back in 2009. It wasn't palpable, obviously, then
because her breasts were engorged. And studies such as
ultrasound or MRI would be able to - -
MS. BELL: Objection.
MR. KACHULIS: May we approach, Your Honor?
THE COURT: Yes.
(Sidebar discussion held as follows.)
MS. BELL: Judge, I object to this, because this is standard of
care. This is backdooring standard of care testimony. If you did
these tests, what would they have shown? Suggesting these
tests should have been done by him answering that question,
which is standard of care testimony.
This is different than just saying,"What stage do you believe her
cancer was?" They're bootstrapping the standard of care of
opinion in the question.
MR. KACHULIS: Because this relates to the specifics of our
motion in limine, which I'm quoting Dr. Singer's report. He says,
"If appropriate work-up had been undertaken, then it would
have been detected earlier at an earlier stage."
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The answer that he just gave responds to the question, falls
right within the ambit of that. And, therefore, it's standard of
care.
MS. BELL: We join in the objection.
MR. BRACKEN: It is not standard of care testimony. What he has
testified to was whether or not the imaging would have shown
the tumor. That is causation testimony. He has not said whether
or not they should have ordered the test. He did not say that. I
even represented to them -- when we were talking about this
motion in limine, I told them the specific question that I was
going to ask. Because he has to be able to say what the imaging
would have shown. That's a causation issue.
MS. BELL: No. He's also not –
MR. BRACKEN: And it's in his report.
MS. BELL: He's also not qualified to say what an imaging would
show. He's not a radiologist. He's not a mammographer.
THE COURT: It seems to me we're talking standard of care here,
so it's out. Sustained.
MR. ARCHINACO: Just note an exception.
(Sidebar discussion concluded.)
R.R. at 1058a.
In order to establish a prima facie case of medical malpractice, “the
plaintiff must prove that 1) the medical practitioner owed a duty to the
plaintiff; 2) the practitioner breached that duty; 3) the breach was the
proximate cause of, or a substantial factor in, bringing about the harm the
plaintiff suffered; and 4) the damages suffered were the direct result of the
harm. Carrozza v. Greenbaum, 866 A.2d 369, 379 (Pa.Super. 2004),
citing Montgomery v. South Philadelphia Medical Group, 656 A.2d
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1385, 1390 (Pa.Super. 1995). Expert testimony is usually required to
establish that the defendant’s conduct deviated from "good and acceptable
medical standards, and that such deviation was a substantial factor in
causing the harm suffered." Id. (citations omitted).
Appellants offered the testimony of Dr. Hecht, a gynecologist, to
establish the standard of care for medical practitioners such as Appellants
based on the facts known to them. He opined that Appellees deviated from
that standard when they failed to order imaging studies to rule out cancer.
Nonetheless, unless an expert provides the causal link between the breach
and the injury, a plaintiff cannot recover.
Dr. Singer was charged with providing the causal link between the
defendants’ negligent failure to do diagnostic testing and the increased risk
of harm to Wife. Assuming that it was a breach of the standard of care not
to order the testing in September or October 2009, Appellants would still
have to prove that testing would have shown the tumor, i.e., that the failure
to timely diagnose Wife’s breast cancer increased the risk of harm to Wife.
Dr. Singer was attempting to offer testimony that Wife’s cancer was
present in 2009, that it was not palpable, and that it was detectable with
imaging studies such as ultrasound or MRI. He did not opine that it was the
standard of care to order such tests, nor did he even suggest that it was a
deviation from the standard of care not to do so. He was merely offering
expert causation testimony to the effect that the cancer was present in
2009, that it would have been visible on imaging or MRI, and that it would
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not have been Stage IV. Without such testimony, Appellants were
prevented for presenting a case for medical malpractice. The trial court
erred in sustaining the defense objections to Dr. Singer’s vital expert
causation testimony on the basis alleged. The defense exploited the error in
closing argument. We find the error was so prejudicial to Appellants as to
require a new trial.
Having identified two bases upon which a new trial is mandated, we
need not address Appellants’ issues regarding the trial court’s refusal to hold
an evidentiary hearing to explore whether there was an impermissible
relationship between a juror and the director of Breastfeeding Center or the
propriety of utilizing jury affidavits to investigate whether there was jury
confusion, as these issues will not recur in a subsequent new trial. In the
event that William B. Ferrar, M.D. is called by the defense to provide expert
causation testimony, he should be directed not to inject his opinion as to
when women should obtain their first screening mammogram, or suggest
that a mammogram was not warranted in Wife’s case because she was only
in her thirties. Similarly, although we find the defense’s cross-examination
of Robert Hecht, M.D., regarding William Donaldson, M.D.’s treatment of
Wife’s back to be irrelevant, it was not so prejudicial as to require a new
trial. Again, such irrelevant testimony should be precluded upon retrial.
Finally, to rebut the inference that Appellants constructed their theory
of liability only after consulting with an attorney, Appellants sought to
introduce through Husband that a UPMC physician advised them to retain a
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lawyer. They asked the trial court for a ruling prior to eliciting such
testimony. The trial court immediately focused on the fact that Husband
would testify that it was a UPMC physician, that UPMC was a defendant in
the case, and refused to permit this line of inquiry. The court advised
counsel for Appellants that “You can ask whatever you want, but we're not
going to go into who recommended them, that somebody from UPMC.” The
court clarified further: “You can ask him ‘Did somebody tell you to get an
attorney?’” R.R. at 1237a-1242a. Counsel was not permitted to ask who
made the recommendation. Appellants abandoned this strategy.
On appeal, Appellants contend that this line of inquiry was fair
comment and did not constitute hearsay, as it was not introduced for the
truth of the matter asserted. We fail to see the relevance of that evidence if
it is not true. We agree with the trial court that it would have been
prejudicial to mention UPMC or identify the physician who made the
recommendation. The trial court made it quite clear that, had an objection
been made to defense counsel’s suggestion in opening statement that
Appellants’ counsel fabricated the case, it would have been sustained. We
find no error or abuse of discretion in this regard. Furthermore, Appellants
have not established prejudice.
In the cross-appeals, three overlapping positions are presented.
Appellees first contention is that Dr. Hecht was not qualified to offer an
opinion related to breastfeeding, that he should not have been permitted to
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offer the opinion that imaging should have been ordered in 2009, and that
they were entitled to a directed verdict. It is settled 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. Furthermore, because the issue
regarding an expert's qualifications under the MCARE Act involves
statutory interpretation, our review is plenary.” Jacobs v.
Chatwani, 922 A.2d 950, 956 (Pa.Super. 2007) (citations
omitted).
Vicari v. Spiegel, 936 A.2d 503, 512–13 (Pa.Super. 2007).
We concur with the trial court that Dr. Hecht was sufficiently qualified
to render an opinion that Wife’s expression of severe pain while breast
pumping should have led Appellees to order diagnostic imaging of the breast
in question. Dr. Hecht was an obstetrician and gynecologist, and opined that
Wife complained about sufficient pain while pumping to suggest that there
was a serious problem warranting diagnostic imaging. A gynecologist is
qualified to offer an opinion as to whether a patient has presented with
symptoms of breast cancer so as to require imaging tests. Hence, we reject
this averment.
Appellees also argue that they were entitled to a directed verdict
based upon disagreements and contradictions between Appellants’ expert
witnesses, Doctors Singer and Hecht. See Mudano v. Philadelphia Rapid
Transit Co., 137 A. 104 (Pa. 1927). Whether there are sufficient conflicts
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between the expert witnesses to warrant a direct verdict under Mudano is a
question of law “subject to de novo review, and our scope of review is
plenary.” Halper v. Jewish Family & Children's Serv., 963 A.2d 1282,
1285 (Pa. 2009). A directed verdict against a plaintiff is appropriate under
Mudano “when the testimony of his two expert witnesses is so contradictory
that the jury is left with no guidance on the issue.” Brannan v. Lankenau
Hosp., 417 A.2d 196, 200 (Pa. 1980). Indeed, the plaintiff's experts must
“so vitally disagree on essential points as to neutralize each other's opinion
evidence.” Id. (citation omitted). A jury is permitted to resolve conflicting
testimony. Id. Conflicts “are fatal only if absolute.” Id.We have examined the testimony of Dr. Hecht and Dr. Singer. We
concur with the characterization of the trial court that there was no
“absolute contraction or vital disagreement” between Appellants’ expert
witnesses such as to warrant application of the Mudano rule. Trial Court
Opinion, 5/19/15, at 9.
In their cross appeals, Appellees also suggest that Dr. Singer’s
testimony regarding causation was so woefully inadequate as to require a
directed verdict.
Our standard[s] of review when considering motions for a
directed verdict and judgment notwithstanding the verdict are
identical. We will reverse a trial court's grant or denial of a
judgment notwithstanding the verdict only when we find an
abuse of discretion or an error of law that controlled the
outcome of the case. Further, the standard of review for an
appellate court is the same as that for a trial court.
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There are two bases upon which a judgment N.O.V. can be
entered; one, the movant is entitled to judgment as a matter of
law and/or two, the evidence is such that no two reasonable
minds could disagree that the outcome should have been
rendered in favor of the movant. With the first, the court reviews
the record and concludes that, even with all factual inferences
decided adverse to the movant, the law nonetheless requires a
verdict in his favor. Whereas with the second, the court reviews
the evidentiary record and concludes that the evidence was such
that a verdict for the movant was beyond peradventure.
Campisi v. Acme Markets, Inc., 915 A.2d 117, 119 (Pa.Super. 2006)
(citation omitted).
Dr. Singer’s testimony on causation would have been clear and precise
if permitted to testify fully. He, as we noted above, should have been able
to state that a diagnostic imaging test in fall of 2009 would have revealed
the existence of breast cancer. Dr. Singer reported that when the cancer
diagnosis was made in November 2010, Wife suffered from Stage IV,
metastatic cancer that had spread throughout Wife’s body. Dr. Singer
observed that Stage IV cancer carries a seriously increased risk of death.
He stated that the failure to diagnose the cancer in fall of 2009 increased the
risk of harm to Wife. Hence, his testimony, even abridged, was sufficient for
Appellants to survive a motion for a directed verdict.
The final issue in the cross-appeals is that the trial court erred in
failing to dismiss defendants Magee Women’s Hospital of UPMC and UPMC
due to an alleged lack of evidence supporting the existence of an agency
relationship between Dr. Hoca and those entities. We reject this position
based upon the trial court’s analysis contained at pages eleven and twelve of
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J-A07033-16
its May 19, 2015 opinion, wherein the court noted that Dr. Hoca reported
that she worked for UPMC since becoming a physician.
Judgment reversed. Case remanded for a new trial. Jurisdiction
relinquished.
Judge Mundy joins the memorandum.
Judge Jenkins files a concurring and dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/22/2016
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