HomeMy WebLinkAbout91-630 civilDONALD E. PAGE, Administrator : IN THE COURT OF COMMON PLEAS OF
of the Estate of Brenda L. Page, : CUMBERLAND COUNTY, PENNSYLVANIA
DONALD E. PAGE, individually and :
in his own right, and :
CORY A. PAGE, a minor, by and :
through his father and natural : CIVIL ACTION-LAW
guardian, DONALD E. PAGE, :
Plaintiffs :
v. NO. 630 CIVIL 1991
ROBERT E. GOELTSCH, M.D.,
STANLEY C. BEACHY, M.D., :
Defendants
IN RE: PLAINTIFFS' MOTION FOR POST TRIAL RELIEF
,ORDER OF COURT
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AND NOW, January", 1998, after oral argument and careful consideration
of both parties' briefs, Plaintiffs' Motion for Post Trial Relief is denied.
By the Court,
Cynthia A. Kaylor, Esquire ~"'G .~, .~~'."~ ~0¥'fer, J. )~/
Archie V. Diveglia, Esquire
Diveglia & Kaylor, P.C.
119 Locust Street
Harrisburg, PA 17101
For the Plaintiffs
Evan Black, Esquire Peter J. Curry, Esquire
Post & Schell, P.C. Thomas, Thomas & Hafer
101 North Front Street 305 North Front Street
Harrisburg, PA 17101 PO Box 999
For the Defendant, Harrisburg, PA 17108
Robert E. Goeltsch, M.D. For the Defendant,
Stanley C. Beachy, M.D.
DONALD E. PAGE, Administrator IN THE COURT OF COMMON PLEAS OF
of the Estate of Brenda L. Page, : CUMBERLAND COUNTY, PENNSYLVANIA
DONALD E. PAGE, individually and in :
his own right, and CORY A. PAGE, :
a minor, by and through his father:
and natural guardian, : CIVIL ACTION - LAW
DONALD E. PAGE, :
Plaintiffs :
v. : NO. 630 CIVIL 1991
:
ROBERT E. GOELTSCH, M.D.,
STANLEY C. BEACHY, M.D.,
Defendants :
IN RE: PLAINTIFFS' MOTION FOR POST-TRIAL REUEF
OPINION
HOFFER, J:
In this case we address Plaintiffs' Motion for Post-Trial Relief. This dispute
is a medical malpractice action arising out of the death of a young woman, Brenda
L. Page, following the delivery of her son, Cory A. Page, by Caesarean section on
March 1, 1989. Plaintiffs are Brenda Page's husband, Donald E. Page, and child,
Cory A. Page. Defendants are the physicians who treated Mrs. Page throughout
her pregnancy and delivery of her son.
Dr. Robert E. Goeltsch was Mrs. Page's physician starting in 1988. He
treated her during her pregnancy, starting in late 1988 and continuing into early
1989. Mrs. Page's estimated due date was determined to be March 1, 1989. In
December of 1988, Dr. Goeltsch told Mrs. Page that, if she would require a
630 CIVIL 1991
Caesarean section, his privileges at Carlisle Hospital did not allow him to perform
one. If a C-section appeared necessary, Dr. Goeltsch told Mrs. Page that she
should have the baby at Polyclinic Medical Center, where he had authorization to
do C-sections.
On February 27, 1989, Mrs. Page had an ultrasound to determine the
progress of her pregnancy. Dr. Goeltsch found the baby to weigh less than 4,500
grams, the weight at which a baby is labeled large and a Caesarean delivery would
be required. Dr. Goeltsch assured Mrs. Page that her pregnancy was progressing
normally and a straightforward vaginal delivery was likely.
In the early morning of February 28, 1989, Mrs. Page's membranes ruptured
(water broke). She contacted Dr. Goeltsch and he directed her to Carlisle Hospital,
where she was admitted at about 8:00 a.m. on the same morning. Dr. Goeltsch
examined Mrs. Page and found her to be approximately three centimeters dilated.
Throughout the day, Dr. Goeltsch checked in on Mrs. Page or was in touch with
the hospital concerning her progress.
By early evening, Dr. Goeltsch was concerned that Mrs. Page was not
progressing fast enough. He believed she might need the drug Pitocin to augment
the progress of her labor. Because Dr. Goeltsch's privileges at Carlisle Hospital
prevented him from prescribing Pitocin, he called Dr. Stanley C. Beachy to consult
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on Mrs. Page's case. Dr. Beachy joined Dr. Goeltsch in attending to Mrs. Page
and Pitocin was administered beginning at 8:30 p.m. Dr. Beachy reached the
hospital sometime after 9:00 p.m. and remained there, managing Mrs. Page
throughout the night.
Even with the aid of Pitocin, Mrs. Page's labor did not progress in a
satisfactory manner and, at 1:50 a.m. on March 1, 1989, the decision was made
to do a Caesarean section. Dr. Beachy became her sole attending physician and
he performed the procedure. At 2:32 a.m. Cory A. Page was delivered. As soon
as the cord was clamped, antibiotics were administered to Mrs. Page. Mrs. Page's
skin was warm to the touch as she was taken from the operating reom. After the
procedure, Mrs. Page was transferred to the recovery room where she suffered
some air hunger. She remained in the recovery room until approximately 6:15
a.m., when her condition had stabilized. At 6:45 a.m. Mrs. Page was received in
the maternity ward. Her breathing appeared to be fine and she was given a bath.
Dr. Beachy saw Mrs. Page at 6:50 a.m. and ordered fluids to correct a slight
dehydration problem. A nurse saw her at 7:00 a.m. to change a udne bag and
Mrs. Page was awake and alert and her incision was dry. At 7:07 a.m. Mrs. Page
was found unresponsive with pupils fixed and dilated.
Mrs. Page was taken to the intensive care unit. At 7:30 a.m. she suffered
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a massive bleeding episode. She never regained consciousness. The next day,
March 2, 1989, Mrs. Page was pronounced dead at 9:32 a.m.
Donald Page requested that an autopsy be conducted. The Cumberland
County Coroner asked Dr. Isadore Mihalikis, a pathologist from Reading, to
perform the autopsy. Dr. Mihalakis conducted the autopsy at the Carlisle Hospital.
No obvious cause of death was revealed in the initial proceedings. Dr. Mihalikis
sent Mrs. Page's heart to Dr. Saroja Bharati, a heart specialist, for further testing
to try to determine a cause of death. In May of 1989, Dr. Bharati issued a
preliminary report, stating that Mrs. Page's heart had some abnormalities. Based
upon this report and all other findings from the autopsy, Dr. Mihalakis determined
that Mrs. Page, although a young, healthy person, suffered a sudden, unexpected
cardiopulmonary arrest.
Plaintiffs commenced this action on February 22, 1991. A jury trial was held
from March 18 through March 25, 1996. It was late summer 1997 before counsel
were finally ready for oral argument.
Plaintiffs' theory of the case was that Doctors Goeltsch and Beachy were
negligent in their handling of Mrs. Page because the doctors failed to conform to
the appropriate standard of care. Plaintiffs presented two qualified expert
witnesses to support their claims: Dr. Frederic S. Bongard, a general surgeon, and
630 CIVIL 1991
Dr. Howard N. Smith, a gynecologist and former obstetrician.
Dr. Bongard testified that it was unusual for Mrs. Page to come out of the
operating room with skin warm to the touch. The anesthesiologist had ordered a
blood gas test because he was concerned that Mrs. Page may have been septic,
suffering from an infection in the blood. The test reported that she had excess acid
in her bloodstream. Dr. Bongard testified that the acid problem was caused by
sepsis, which has the potential to be a fatal condition. Dr. Bongard told the jury
that all of these problems should have alerted a reasonably prudent physician to
conduct further tests on Mrs. Page. Plaintiffs assert that Defendants' failure to take
further steps was a departure from the required standard of care and that this
departure increased the dsk of harm to Mrs. Page. In Dr. Bongard's opinion,
acting upon the abnormalities in the blood gas report may have prevented Mrs.
Page from becoming hypotensive and developing sepsis. According to Dr.
Bongard, Mrs. Page's death was ultimately caused by sepsis, which was
preventable if Defendants had adhered to the standard of care.
Dr. Smith testified as to the care Mrs. Page received before the C-section
took place. First, Dr. Smith noted that preliminary indicators, such as Mrs. Page's
small size, a diabetes scare in December of 1988 and denser than normal amniotic
fluid, evident in the February 27, 1989 ultrasound, should have alerted Dr. Goeltsch
63O CIVIL 1991
that a routine delivery was unlikely. Dr. Smith claimed that the time elapsed
between the time Mrs. Page's membranes ruptured and the time that the baby was
delivered by C-section increased the risk that Mrs. Page would develop an
infection. He stated that prolonged rupture of the membranes is an indication that
drug therapy is needed to speed up the delivery time and that antibiotics need to
be administered to reduce the risk of infection. Dr. Smith believed that the time
that passed before Pitocin was administered and the failure to give antibiotics until
the child had been delivered was a deviation from the standard of care and a
significant factor in increasing Mrs. Page's risk of harm.
Defendants' theory of the case centered around the contention that Mrs.
Page died of a sudden cardiac event. Dr. Mihalakis, the pathologist assigned to
do Mrs. Page's autopsy, testified that, in his opinion, Mrs. Page's death was a
result of sudden cardiac dysrhythmia due to abnormal formation of the atrial
septum of her heart. Dr. Mihalakis based his opinion on findings from Dr. Bharati,
a heart expert. Mrs. Page's heart had been sent to Dr. Bharati for testing in the
regular course of the autopsy because Dr. Mihalakis could find no other potential
causes of death. Dr. Mihalakis testified that he found no evidence of infection in
Mrs. Page. Dr. Bharati testified as to her findings and the exact abnormalities
found in Mrs. Page's heart.
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Dr. Michael Weitekamp, Defendants' expert witness, testified that Mrs.
Page's blood gas test and other clinical symptoms did not indicate that she was in
distress that could lead to death. This was in direct contradiction to Plaintiffs'
experts. In Dr. Weitekamp's opinion, the doctors acted within the standard of care
in managing a potential infection. He did not believe that sepsis caused Mrs.
Page's cardiopulmonary arrest because he saw no evidence of an infection.
Another defense expert, Dr. Douglass, presented an altemative theory when he
testified that Mrs. Page's death was caused by an amniotic fluid embolism.
Before the tdal concluded, one of the jurors, a Mr. Quick, reported to the
Court that he had become a defendant in a pending lawsuit. The Court asked
Juror Quick if the case against him would prevent him from being a fair and
impartial juror in the present case. The juror assured the Court that he could
remain impartial. Over Plaintiffs' objection, the Court declined to ask the juror to
descdbe the facts and circumstances of the incident which gave rise to the lawsuit.
The juror remained on the jury and participated in the verdict.
At the conclusion of the trial, the jury was sent out with a two part
interrogatory: Part One: Were the Defendants negligent?; Part Two: Did
Defendants' negligence cause the harm suffered by Mrs. Page? The jury found
that both Defendants had not been negligent in handling Mrs. Page and they never
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reached Part Two, the question of causation. This was the classic scenado in
which the jury did not believe Plaintiffs' theory of the case after all of the evidence
had been presented. In a timely manner, Plaintiffs filed the Motion for Post-Trial
Relief addressed in this opinion.
Discussion
In their Motion for Post Tdal Relief, Plaintiffs alleged thirteen points of error
which, if evident, could medt a new tdal. Pursuant to Cumberland County Rules
of Procedure No. 210-7, any issues raised in Plaintiffs' Motion, but not bdefed, are
deemed abandoned. Issues bdefed by the Plaintiff will be addressed in this
opinion.
Testimony of Dr. Bharati and Dr. Mihalakis
The burden of proving causation rests with the plaintiff. Neal by Neal v. Lu,
365 Pa. Super. 464, 476, 530 A.2d 103, 109 (1987). The "defendant ordinarily
need not prove, with certainty or otherwise, that he or she is innocent of the
alleged wrongdoing." Id.__~. Defendant's case is an attempt to rebut or discredit
plaintiff's case. Id. at 476, 530 A.2d at 110.
In the case at bar, the Plaintiffs allege that reversible error occurred when
the testimony of both Dr. Bharati and Dr. Mihalakis was presented to the jury.
Plaintiffs complain that Dr. Bharati's testimony should have been excluded because
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it was not rendered with the requisite amount of medical certainty and that Dr.
Mihalakis' testimony should have been barred because it was based on Dr.
Bharati's uncertain opinion. ~ Defendants had no duty to prove their theory of the
case with an assigned degree of certainty. Defendants only needed a a basis with
which to challenge Plaintiffs' theory of liability. 2 Using Dr. Mihalkis' and Dr.
Bharati's testimony, based upon the clinical evidence and autopsy results,
Defendants offered a viable theory of sudden cardiopulmonary arrest. No error
was committed by allowing the jury to hear the testimony of both doctors.
To be a "reversible error", a ruling must be erroneous and harmful to the
party complaining of the error. Stem v. Vic Snyder, Inc., 325 Pa. Super. 423, 434,
473 A.2d 139, 145 (1984). A new tdal is inappropriate if the party complaining of
the error does not suffer harm. Id__~.
In the case sub judice, even if error occurred when the testimony of Doctors
Mihalakis and Bharati was presented to the jury, it was harmless. The testimony
~ Similar to all pathologists, Dr. Mihalakis does not personally conduct all the
tests which comprise an autopsy. Dr. Mihalakis' role is to formulate an opinion as to
cause of death based upon all the data, whether it be results of a blood test conducted
by a lab technician or the results of the types of tests Dr. Bharati conducted on Mrs.
Page's heart.
2 In Erkens v. Tredennick, 353 Pa. Super 236, 509 A.2d 424 (1986), plaintiffs had
a theory of liability which the defendants challenged with an expert who did not express
his opinion with medical certainty. The expert's opinion came in because he had a clear
basis for offering an alternative theory.
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of Doctors Mihalakis and Bharati went to the cause of Mrs. Page's death, not the
negligence of the physicians. Any error that may have occurred in admitting the
doctors testimony must be deemed harmless. The jury found that the Defendants
were not negligent and the question of causation was never reached.
Qualifications of Dr. Douglass
In this Commonwealth, the standard for qualification of an expert witness is
a liberal one. Miller v. Brass Rail Tavern, Inc. 541 Pa. 474, 480, 664 A.2d 525,
528 (1995). "The test to be applied when qualifying an expert witness is whether
the witness has any reasonable pretension to special knowledge on the subject
under investigation." Id.
Dr. Douglass was qualified to render an expert opinion with respect to an
amniotic fluid embolism. He has been an obstetrician/gynecologist for twenty-two
years. He is a professor at the University of Pennsylvania in addition to teaching
both nursing students at York College and residents at York Hospital. Two of the
subjects he teaches, which are relevant to this case, are obstetrical infections and
and amniotic fluid emboli. Plaintiffs rely on Dr. Douglass' statement that he did not
consider himself an expert because he has not had a patient suffer an amniotic
fluid embolism. It must be noted that an amniotic fluid embolism is a rare
occurrence and an expert solely in this area may not exist. Dr. Douglass may not
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have witnessed an amniotic fluid embolism firsthand, but his academic pursuits are
clear evidence that he has acquired the specialized knowledge required to qualify
him as an expert. Dr. Douglass' experience and specialized knowledge is more
than sufficient to qualify him as an expert to testify about an amniotic fluid
embolism.
Exclusion of Cross Examination of Dr. Goeltsch Regarding
His Reduction in Staff Privileges at Carlisle Hospital
The tdal judge has broad discretion when it comes to admitting or excluding
evidence. Watson v. Amedcan Home Assur. Co., 454 Pa. Super. 293, 304, 685
A.2d 194, 200 (1996). A tdal judge must make a two step inquiry to determine if
evidence should come in. Henery v. Shadle, 443 Pa. Super. 331,340, 661 A.2d
439, 444 (1995). 'Once the tdal judge determines the evidence is relevant, the
further task of the judge is to balance the probative value of evidence against any
prejudicial effect of that evidence." Id. at 340-41,661 A.2d at 444.
In Defendant's Motion to preclude any testimony concerning Dr. Goeltsch's
reduction in staff privileges, Defendant alleged that the circumstances of the
incident or incidents that led to Dr. Goeltsch's reduced privileges should not come
in because the testimony was protected by the Pennsylvania Peer Review
Protection Act, 63 Pa. C. $. A. Section 425.1 et seq., and there would be prejudice
630 CIVIL 1991
to the Defendant which would outweigh the probative value of the testimony. 3
Plaintiffs answered Defendant's Motion by claiming that the relevance of
testimony about Dr. Goeltsch's privileges outweighed the prejudicial impact.
Plaintiffs contended that the probative value was to show that Carlisle Hospital and
Dr. Beachy were negligent in allowing Dr. Goeltsch to remain on Mrs. Page's case
for as long as he did. 4
The Court gave the Plaintiffs an opportunity, during their case in chief, to
establish why they needed to cross examine Dr. Goeltsch concerning the incidents
which gave rise to the peer review process and they failed to do so. The fact that
Dr. Goeltsch's privileges were reduced was made quite clear to the jury during
Plaintiffs' case. On direct examination, Barbara Huss, Mrs. Page's fdend and
birthing partner, Dr. Smith, Plaintiffs' expert, and Mr. Page all testified that Dr.
Goeltsch's privileges were reduced. Plaintiffs did not claim that anything Dr.
Goeltsch did was patently wrong, only that delays in treatment increased Mrs.
3 Dr. Goeltsch's testimony was not immune under the Peer Review Protection Act
because, as a participant, Dr. Goeltsch is an original source of the incidents. Although
his testimony about the peer review process would have been immune, his testimony
about the incidents which gave rise to the peer review process would not have been
protected under the Act, 63 Pa. C.S.A. Section 425.4, because Dr. Goeltsch could testify
about his personal experiences during the event which gave rise to the peer review
process.
4 Prior to trial the Carlisle Hospital settled with the Plaintiffs. Therefore, the
hospital's alleged negligence is no longer a basis to prove why the probative value
outweighed the potential prejudice of Dr. Goeltsch's testimony.
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Page's dsk of harm. The probative value of testimony regarding the incidents
which gave dse to Dr. Goeltsch's loss of privileges did not outweigh its prejudicial
impact because the testimony would have done nothing more than inflame the jury
and unfairly prejudice them toward the Defendant. s
Time of Ruling on Motions in Umine
Plaintiffs claim they were unfairly prejudiced when this Court delayed ruling
on Motions in Limine until three-fourths of the way through direct examination of
Plaintiffs' final witness. Plaintiffs' argument fails because it was the duty of
Plaintiffs' attorney to anticipate the rulings on admissibility, foresee the fact that the
rulings could be adverse to the Plaintiffs' position, and to prepare accordingly.
Even if Plaintiffs did not prepare for the possibility that the evidentiary rulings would
go against them, rebuttal testimony was available.6
Dr. Bharati's video deposition was taken on March 1, 1996. Plaintiffs filed
their Motion in Limine to exclude all evidence or discussion that Mrs. Page died of
sudden cardiopulmonary arrest on March 11, 1996. Plaintiffs knew the content of
5 In the criminal context, prior bad acts almost never come into evidence. An
exception exists allowing the use of prior bad acts to prove intent and and a course of
conduct, provided that the probative value outweighs the prejudicial impact. See Corn
v. Roefaro, m Pa. Super. _, 691 A.2d 472 (1997).
6 The Court did not force the Plaintiffs to engage certain experts. When Plaintiffs
selected Dr. Bongard and Dr. Smith, they were aware of the time, expense and distance
involved.
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Dr. Bharati's testimony before tdal began. Plaintiffs were not prejudiced by the
time of ruling because Plaintiffs had the opportunity to prepare their experts to
refute Dr. Bharati's testimony before tdal began.
Defendants filed a Motion to exclude cross examination of Dr. Goeltsch on
the circumstances surrounding his reduction in privileges on November 13, 1995.
The issue went undecided until tdal.? The time of the ruling on Defendant's Motion
did not prejudice the Plaintiffs because the timing of the ruling gave the Plaintiffs
an opportunity, dudng their case in chief, to show why they needed to cross
examine Dr. Goeltsch on the status of his staff privileges at Carlisle Hospital.
When the Plaintiffs failed to do so, the Court granted the Defendants' Motion.
The Court's Refusal to Dismiss Juror
The purpose of voir dire is to ensure a jury panel will be fair and impartial
and capable of following instructions on the law given by the tdal court.
DeFeliceantonio v. Armstrong World Industries, 451 Pa. Super. 533, 680 A.2d 893
(1996). A decision by a tdal judge who hears and sees the potential juror as he
or she answers in voir dire will not be reversed absent an obvious error. Id.
The Plaintiffs contend that the facts and circumstances surrounding the
lawsuit in which Juror Quick became involved in, after trial commenced, needed
7 The motion was discussed at the pm-trial conference but the decision was made
to leave it unsettled.
630 CIVIL 1991
to be disclosed before the juror could be trusted to be fair and impartial. Plaintiffs'
expectation is unreasonable. All jurors bring with them unique personalities and
beliefs. A court's duty is to determine if a juror can put aside any biases and give
the parties a fair trial.
The juror came forward with the fact of the lawsuit, voluntarily. The Court
repeatedly asked Juror Quick if he could remain an impartial juror. He responded
affirmatively. The Court believed him to an honest and fair juror. To inquire further
was unnecessary. The Plaintiffs did not suffer any unfair prejudice which would
medt a new trial.
Charcje to the Jury
"If the charge has a tendency to mislead or confuse rather than cladfy a
matedal issue, a new tdal is indicated." Clayton v. Sabeh, 406 Pa. Super. 335,
338, 594 A.2d 365, 366 (1991). In Clayton, plaintiffs brought suit against a doctor
claiming his failure to order tests resulted in a delay in diagnosing a woman's
breast cancer and that the delay resulted in an increased dsk of harm that the
cancer would prove fatal. Id__=. The court in Clayton used the Pennsylvania
Standard Jury Instruction 10.03B (Civ). Id. On appeal, the Superior Court found
it to be "clear that the tdal court's charge was not erroneous." Id. at 340, 594 A.2d
at 367.
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In the case at bar, the Court issued the identical instruction. As in Clayton,
Plaintiffs have alleged, in their Motion for Post Trial Relief, that the charge was not
adequate. It is clear that the charge was in fact appropriate. The charge apprised
the jury of the law, their option to find that an increased dsk of harm created by the
Defendants was a substantial factor in the injudes that Mrs. Page suffered and
their ability to award compensation to the Plaintiffs if they found the Defendants to
be negligent. The charge, used by the Court, was designed to give the jury a
working knowledge of the applicable law. Plaintiffs'argument that a new tdal is
necessary, based upon an inadequate charge to the jury, fails.
Plaintiffs have not shown this Court that a new tdal is necessary based upon
any of Plaintiffs' alleged errors. Therefore, Plaintiffs' Motion for Post Tdal Relief
is denied.
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