Hickman, L. v. Shor-Conroy, R. ( 2015 )

J-S08035-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LESLIE A. HICKMAN IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DR. ROBYN M. SHOR-CONROY
AND CONROY & ASSOCIATES
Appellee No. 2336 EDA 2014
Appeal from the Order Entered July 15, 2014
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 2013-000787
BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JANUARY 23, 2015
Leslie Hickman appeals from an order granting summary judgment to
Dr. Robyn Shor-Conroy and Conroy & Associates (collectively “Appellees”) in
this medical malpractice action. For the reasons articulated below, we
affirm.
The record reflects that in April 2009, Hickman began treating with her
primary care physician, Dr. Robyn Shor-Conroy, at Conroy & Associates.
During regular wellness visits, Hickman disclosed her medical and surgical
history, which included gastric bypass surgery (also known as bariatric
surgery) in December 2009. Amended Complaint, ¶¶ 8-10.
On January 25, 2011, Hickman complained of left elbow pain, and Dr.
Shor-Conroy prescribed Medrol, an adrenocortical steroid, to relieve
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inflammation and pain. Hickman obtained Medrol and took all tablets as
prescribed. Amended Complaint, ¶¶ 8-12.
At 2:00 a.m. on February 6, 2011, while in New Jersey, Hickman got
out of bed to use the restroom. She began to vomit blood and fainted. She
was transported to Shore Memorial Hospital, where emergency room
physicians diagnosed her with an upper gastrointestinal bleed. She refused
gastrointestinal evaluation and an endoscopy, so the hospital physicians
were only able to speculate as to the cause of her condition. Hickman’s
Response To Motion For Summary Judgment, exhibit “A”.
On February 7, 2011, Hickman was discharged from the hospital in
stable condition. Her discharge summary did not pinpoint the cause of her
condition. It provided the following diagnosis: “Syncope, possible associated
gastrointestinal bleed. The patient refuses gastrointestinal evaluation and
endoscopy at this time … syncope of uncertain etiology. The possibility of
steroid-induced gastrointestinal bleed is entertained along with a syncopal
episode or syncope based on hypotension.” Appellees’ Motion For Summary
Judgment, exhibit “A”.
On March 8, 2011, Hickman had an office visit with Dr. Shor-Conroy.
Hickman’s records from that visit stated that she should not receive steroids.
Dr. Shor-Conroy referred Hickman to a hematologist, Dr. Peter Ennis, for
further treatment. On March 9, 2011, Dr. Ennis wrote in his records that
Hickman “had normal MCV anemia from a steroid-induced upper GI bleed
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requiring result transfusion [on] 2/6/11,” but he added: “Less likely, but in
the differential diagnosis are hypersplenism, hairy cell leukemia, PNH,
myeloma and rare inherited syndromes.” Hickman’s Response To Motion For
Summary Judgment, exhibit “B”.
On January 25, 2013, Hickman commenced a civil action against
Appellees. She alleged that Dr. Shor-Conroy was negligent for prescribing
steroids because this medication was improper for patients with a history of
bariatric surgery. Appellees subpoenaed Hickman’s medical records and
took Hickman’s deposition, but Hickman did not depose Dr. Shor-Conroy or
any other individual involved in her care. Nor did Hickman produce an
expert report critical of the care provided by Appellees. Instead, Hickman
contended that her medical records from February 7, 2011 and March 8-9,
2011 were “expert reports”.
Appellees filed a motion for summary judgment arguing that Hickman
could not establish a prima facie case of medical malpractice due to her
failure to produce an expert report in support of her theories of causation
and breach of the standard of care. Alternatively, Hickman argued that no
expert report was necessary because this matter involved res ipsa loquitur
(also known as “res ipsa”).
On July 16, 2014, the trial court granted summary judgment to
Appellees. Hickman filed a timely notice of appeal, and the trial court filed a
Pa.R.A.P. 1925(a) opinion without ordering Hickman to file a statement of
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matters complained of on appeal. The trial court agreed with Appellees that
the progress notes from Hickman’s treating physicians were not critical of
Appellees and thus failed to establish a prima facie case of medical
malpractice. The court rejected Hickman’s res ipsa claim on the ground that
the issues were beyond the ken of jurors who lacked medical experience or
training, and therefore Hickman’s case ran aground without expert
testimony.
Hickman’s appellate brief lists three issues in the Statement Of
Questions Involved:
1. Did the trial court err in finding that Hickman
failed in a timely manner to provide expert reports
which showed that Dr. Shor-Conroy’s prescription of
oral steroids [] caused Hickman’s injuries?
2. Did the trial court err in finding that there is no
genuine issue of material fact for a jury to consider
when it failed to recognize the application of the
doctrine of res ipsa [] to establish the necessary
causation element of negligence?
3. Did the trial court err in failing to recognize that
the treating physicians were proper experts who
stated in their medical records that the cause of
Hickman’s gastric bleed was due to the improper
prescription of oral steroids by Dr. Shor-Conroy?
Brief for Appellant, p. 5.
Hickman, however, only raises two arguments in the argument section
of her brief. These issues, which we re-order for the sake of convenience,
are as follows: (1) the records of her hospitalization and post-hospitalization
treatments constitute “expert reports” that preclude summary judgment;
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and (2) summary judgment was improper under the res ipsa doctrine. We
will limit our review to these two issues. Harris v. Toys “R” Us-Penn,
Inc., 880 A.2d 1270, 1279 (Pa.Super.2005) (failure to develop argument
with citation to and analysis of relevant authority waives that issue on
review).
At the outset, we note that our scope of review of an order granting
summary judgment is plenary. Fessenden v. Robert Packer Hospital, 97
A.3d 1225, 1229 (Pa.Super.2014). Our standard of review is well-settled:
we will reverse the trial court’s order only when the trial court committed an
error of law or clearly abused its discretion. Id. In evaluating the trial
court’s decision, we focus on Pa.R.Civ.P. 1035.2, which states that the court
may enter summary judgment where there is no genuine issue of material
fact and the moving party is entitled to relief as a matter of law. Id. We
view the record in the light most favorable to the non-moving party and
resolve all doubts as to the existence of a genuine issue of material fact
against the moving party. Id. Where the non-moving party bears the
burden of proof on an issue, he may not merely rely on his pleadings or
answers in order to survive summary judgment. Id. “Failure of a non-
moving party to adduce sufficient evidence on an issue essential to his case
and on which it bears the burden of proof ... establishes the entitlement of
the moving party to judgment as a matter of law.” Id.
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The following standard applies to Hickman’s medical malpractice
action:
Medical malpractice consists of a negligent or
unskillful performance by a physician of the duties
which are devolved and incumbent upon him on
account of his relations with his patients, or of a
want of proper care and skill in the performance of a
professional act. Because medical malpractice is a
form of negligence, to state a prima facie cause of
action, a plaintiff must demonstrate the elements of
negligence: a duty owed by the physician to the
patient, a breach of that duty by the physician, that
the breach was the proximate cause of the harm
suffered, and the damages suffered were a direct
result of harm. With all but the most self-evident
medical malpractice actions there is also the added
requirement that the plaintiff must provide a medical
expert who will testify as to the elements of duty,
breach, and causation.
Quinby v. Plumsteadville Family Practice Inc., 907 A.2d 1061, 1070–71
(Pa.2006) (citations omitted) (emphasis added). Although the expert
medical witness need not use special language or “magic words”, he must
state an opinion within a reasonable degree of medical certainty. Gartland
v. Rosenthal, 850 A.2d 671, 677 (Pa.Super.2004). An expert’s failure to
express an opinion with the requisite certainty makes summary judgment
proper. Id.
Guided by these standards, we address Hickman’s first argument that
the trial court erred by concluding that she failed to provide an expert
opinion that appellees breached the standard of care or that this breach
caused her injuries. She insists that the medical records from February 7,
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2011 and March 8-9, 2011 constitute expert reports which preclude
summary judgment. We disagree. Assuming arguendo that the records
constitute expert reports, none of the records state, within a reasonable
degree of medical certainty, that Hickman’s injuries are the result of a
steroid-induced gastrointestinal bleed. The discharge summary from Shore
Memorial Hospital states that “the possibility of steroid-induced
gastrointestinal bleed is entertained along with a syncopal episode or
syncope based on hypotension.” Appellees’ Motion For Summary Judgment,
exhibit “A” (emphasis added). Dr. Ennis first identifies Hickman’s condition
as “normal MCV anemia from a steroid-induced upper GI bleed” but then
states: “Less likely, but in the differential diagnosis are hypersplenism, hairy
cell leukemia, PNH, myeloma and rare inherited syndromes.” Hickman’s
Response To Motion For Summary Judgment, exhibit “B”. These remarks
are simply too equivocal to constitute an opinion within a reasonable degree
of medical certainty that Hickman’s illness is the result of Dr. Shor-Conroy’s
steroid prescription. Cf. Griffin v. University of Pittsburgh Medical
Center–Braddock Hosp., 950 A.2d 996, 1002-03 (Pa.Super.2008)
(medical expert’s opinion that patient’s shoulder injury was caused either by
grand mal seizure or from medical personnel negligently restraining her,
that, of two possibilities, it was “most likely” restraint attempt, that he gave
51 to 49% consideration in favor of restraint, and that restraint was “least
implausible” consideration, was not opinion that injury was caused by
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restraint to reasonable degree of medical certainty, as required for patient to
sustain claim of medical malpractice against hospital); Hoffman v.
Brandywine Hosp., 661 A.2d 397, 402 (Pa.Super.1995) (expert did not
testify to requisite degree of medical certainty by rendering opinion that
defendant’s negligent treatment of HIV-positive patient “in all likelihood
delayed the administration of anti-viral medication which may have hastened
the onset of opportunistic disease in [the plaintiff] and caused her illness to
progress sooner than it might have”) (emphasis in original).
Second, we reject Hickman’s argument that res ipsa precludes
summary judgment. Res ipsa “is merely a shorthand expression for a rule of
evidence that allows a jury to infer negligence and causation where the
injury at issue is one that does not ordinarily occur in the absence of
negligence.” Bearfield v. Hauch, 595 A.2d 1320, 1322 (Pa.Super.1991).
Section 328D of the Restatement (Second) of Torts defines res ipsa as
follows:
Res Ipsa []
(1) It may be inferred that harm suffered by the
plaintiff is caused by negligence of the defendant
when
(a) the event is of a kind which ordinarily does
not occur in the absence of negligence;
(b) other responsible causes, including the
conduct of the plaintiff and third persons, are
sufficiently eliminated by the evidence; and
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(c) the indicated negligence is within the scope
of the defendant’s duty to the plaintiff.
(2) It is the function of the court to determine
whether the inference may reasonably be drawn by
the jury, or whether it must necessarily be drawn.
(3) It is the function of the jury to determine
whether the inference is to be drawn in any case
where different conclusions may reasonably be
reached.
MacNutt v. Temple Univ. Hosp., Inc., 932 A.2d 980, 983 (Pa.Super.2007)
(citing Restatement (Second) of Torts § 328D).
Res ipsa “is not often applied in medical malpractice actions; except in
the most clear-cut cases, res ipsa [] may not be used in a medical
malpractice action to … shortcut the requirement that causation be
established within a reasonable degree of medical certainty.” Grandelli v.
Methodist Hosp., 777 A.2d 1138, 1147 (Pa.Super.2001). In cases of
obvious medical negligence, i.e., circumstances in which the medical and
factual issues presented are such that a lay juror could recognize negligence
just as well as any expert, res ipsa applies, and no expert medical testimony
is necessary. Fessenden, 97 A.3d at 1230 (patient who underwent surgery
to remove surgical sponge from inside his abdomen and to repair adjacent
abdominal abscess was entitled to res ipsa inference; patient established
that sponges were not usually left inside of a patient’s abdomen following
surgery absent negligence, and there was no explanation for sponge’s
presence inside his abdomen other than negligence by medical defendants,
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and patient’s claims were well within the intended scope of res ipsa
doctrine).
On the other hand, “if there is any other cause to which with equal
fairness the injury may be attributed (and a jury will not be permitted to
guess which condition caused the injury), an inference of negligence will not
be permitted to be drawn against defendant.” MacNutt, 932 A.2d at 987
(res ipsa not applicable in malpractice action brought by patient who
allegedly suffered chemical burn to his shoulder during surgery to correct
thoracic outlet syndrome, since parties’ experts intensely disputed exact
nature of patient’s injury; patient’s expert opined that patient sustained
chemical burn resulting from lying in pool of certain solution for extended
period of time, whereas surgeon’s expert opined that patient suffered
outbreak of herpes zoster or shingles, and because nature of injury was
itself in dispute, injury could have occurred without negligence); see also
Griffin, 950 A.2d at 1005 (res ipsa not applicable in medical malpractice
action; patient’s shoulder injury could have occurred in absence of any
negligence by medical personnel, since patient’s medical expert testified that
shoulder injury could have been caused by patient suffering violent grand
mal seizure).
In this case, Hickman’s medical records do not give rise to a res ipsa
inference against Appellees. Instead of definitively ruling out other causes
of her gastrointestinal bleed, the records state that there are other possible
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causes of her injury, including a syncopal episode and “hypersplenism, hairy
cell leukemia, PNH, myeloma and rare inherited syndromes.” Because
Hickman’s injuries could have resulted from causes other than Appellees’
negligence, a res ipsa inference is not permissible. MacNutt, Griffin,
supra.
For these reasons, we affirm the trial court’s order granting summary
judgment to Appellees.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/23/2015
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