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HomeMy WebLinkAbout97-857 civilJOHN M. STONE and JOYCE V. : IN THE COURT OF COMMON PLEAS OF STONE, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. NO. 97-857 CIVIL : CARLISLE HOSPITAL AND : HEALTH SERVICES, : Defendant : IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Before HOFFER, P.J. and OLER, J. ~ ORDER OF COURT AND NOW, ~'~ ~ ~, I(~?~, pursuant tothe oPinion filed this date, and after hearing oral argument, Defendant's Motion for Summary Judgment is denied. By the Court,  P.J. Wayne F. Shade, Esquire 53 West Pomfret Street Carlisle, PA 17013 For the Plaintiffs Francis E. Marshall, Jr., Esquire Marshall, Smith & Haddick, P.C. 20 South 36th Street Camp Hill, PA 17011 For the Defendant JOHN M. STONE and JOYCE V. : IN THE COURT OF COMMON PLEAS OF STONE, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : v. : NO 97-857 CIVIL TERM : CARLISLE HOSPITAL AND : HEALTH SERVICES, : Defendant : IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Before HOFFER, P.J. and OLER, J. OPINION HOFFER, P.J.: In this opinion, we address Defendant's motion for summar~ judgment. The facts of this case are as follows: Plaintiff, ,John M. Stone, was admitted to Carlisle Hospital, Defendant, on August 21, 1996, suffering from cirrhosis of the liver. Throughout the evening of August 21, 1996, Stone's mental state deteriorated, caused by toxins produced by his diseased liver. Plaintiff was permitted to walk the halls of the medical ward where nurses monitored him. Early in the morning of August 22, 1996, Stone opened the second floor lounge window and climbed out onto the first floor roof of the hospital. A nurse tried, but was unable, to restrain him. Stone sustained cuts and lacerations, including a six centimeter wound that required stitches. The wounds were treated in the emergency room and Stone was sent to the psychiatric ward. Stone remained in the psychiatric ward until August 28, 1996, and was ultimately discharged from the hospital on August 30, 1996. 97-857 CIVIL TERM Plaintiffs filed suit on February 20, 1997, asserting that Defendant was negligent in its care of Stone. Throughout the discovery process, Plaintiffs have never provided Defendant with a medical expert report. Plaintiffs' attorney appears to have taken the position that expert opinion testimony is not required because the negligence in this case is so clear that a lay person can comprehend it without the aid of expert opinion. Defendant has filed this motion for summary judgment contending that Plaintiffs must provide expert medical testimony to present a prima facie case of malpractice. Without expert testimony, Defendant claims it is entitled to summary judgment. Discussion The Pennsylvania Rules of Civil Procedure govern the discovery of medical expert testimony. The rules state: (1) A party may through interrogatories require (a) any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and (b) the other party to have each expert so identified by him state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as 'his answer a report of the expert or have the interrogatories answered by his expert. The answer or separate report shall be signed by the expert. 97-857 CIVIL TERM Pa. R. Civ. P. 4003.5(a). In this nursing malpractice case, Stone claims he was injured while in the care of nurses at the Carlisle Hospital. Defendant filed interrogatories for the purpose of learning the name of an expert to be called, together with the expert report. Plaintiffs responded by supplying the names of three of Stone's treating physicians but forwarded no reports. Defendant believes that Plaintiffs will not have an expert testify at trial. In Pennsylvania, the general rule in medical malpractice actions is that "a plaintiff must present expert testimony to establish to a reasonable degree of medical certainty that the defendant's acts deviated from an accepted medical standard, and that such deviation was the proximate cause of the harm suffered." Welsh v. Bulger, 548 Pa. 504, 513, 698 A.2d 581,585 (1997). An exception to the rule exists where the defendant's act of negligence are so obvious that lay persons can comprehend the negligence without the aid of expert testimony. Id. Cases which have held that expert testimony is necessary to present a prima facie case for medical malpractice include: Brophy v. Brizuela, 358 Pa. Super. 400, 517 A.2d 1293 (1986)(rendering of plaintiff's expert opinion to be inadmissible, for failure to respond to interrogatories, made it impossible to present a prima facie case for medical malpractice where plaintiff became pregnant after undergoing a tubal 3 97-857 CIVIL TERM ligation); Mitzelfelt v, Kamrin, 379 Pa. Super. 121,549 A.2d 935 (1988), rev'd on other grounds, 526 Pa. 54, 584 A.2d 888 (1990)(requiring expert testimony to prove that neurological surgery gone awry was the cause of quadriplegia); Cohen v. Albert Einstein Med. Center., 405 Pa. Super. 392, 592 A.2d 720 (1991)(requiring expert testimony where plaintiff suffered nerve damage after receiving an intramuscular injection). The above cases can be contrasted with cases that have held that expert opinion is not necessary. These cases include: Brannan v. Lankenau Hospital, 490 Pa. 588, 417 A.2d 196 (1980)(finding exception to a rule requiring expert testimony applies where negligence was so obvious that a lay person could comprehend it, because intensive care nursing staff failed to notify treating physician of plaintiff's deteriorating, post operative condition); Gregorio v. Zeluck, 451 Pa. Super. 154, 678 A.2d 810 (1996)(stating that leaving a sponge in a patient after a surgical procedure is such obvious negligence that expert testimony is not required); Brown v. Philadelphia College of Osteopathic Medicine, 449 Pa. Super. 667, 674 A.2d 1130 (1996)(holding that expert testimony is not necessary to present a prima facie case of negligent infliction of emotional distress where plaintiff was left alone in an exam room where she miscarried, the fetus was left on the exam bed for fifteen minutes with the plaintiff, and when the fetus was 97-857 CIVIL TERM removed it was placed, in plaintiff's arms for photos to be taken).1 In the case at bar, Defendant requests summary judgment because it believes that the Plaintiff can not present a prima facie case for nursing malpractice without expert opinion concerning the nursing standard of care. The Pennsylvania Rules of Civil Procedure state: If the identity of an expert witness is not disclosed in compliance with subdivision (a)(1) of this rule, he shall not be permitted to testify on behalf of the defaulting party at the trial of the action. However, if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief. Pa. R. Civ. P. 4003.5(b). According to Pa. R. Civ. P. 4003.5(b), a court may prevent a party from presenting expert testimony at trial if the party has not complied with the discovery rules found in Pa. R. Civ. P. 4003.5(a). The question of whether expert testimony is required in order to present a prima facie case for medical malpractice cannot be addressed by a court until it has decided if the party is permitted to present expert testimony at trial. Defendant's motion for summary judgment, addressed in this opinion, is 'The above cases are along the lines of res ipsa Ioquitur where negligence is so egregious that no expert is needed. These cases all show, beyond a doubt, that the negligence is so clear that at completion of the plaintiff's case in chief at trial, the evidence can clearly withstand a motion for directed verdict. 5 97-857 CIVIL TERM premature. Defendant has not filed a motion to compel the disclosure of an expert who is willing to testify at trial and the expert report. If Defendant files such a motion, the Court may order the Plaintiffs to disclose the identity of an expert within a set number of days. If Plaintiff fails to respond or continues to refuse to name an expert willing to testify at trial, Defendant can file a motion for sanctions to preclude Plaintiffs' presentation of an expert witness at trial. If sanctions are awarded, Defendant could file a second motion for summary judgment, contending that Plaintiffs cannot present a prima facie case for nursing malpractice because Plaintiffs have been .precluded from presenting expert testimony. Until these procedural steps are taken, the question of whether Plaintiffs must present expert testimony to avoid summary judgment cannot be addressed by this Court.2 Because Plaintiffs have not yet been precluded from presenting an expert witness at trial, Defendant's motion for summary judgment is premature and therefore denied. 2Plaintiff may choose to present their negligence case without the use of expert testimony. From our view of the record, it does not appear that the Plaintiffs will be able to take advantage of any charge from the court resembling a res ipsa Ioquitur type of charge and that any requests for a directed verdict may be granted at the close of Plaintiffs' case in chief. However, because the facts are in dispute, we cannot say that a motion for summary judgment is appropriate at this point, regardless of how Plaintiffs choose to present their evidence. 6