Loading...
HomeMy WebLinkAbout00-1020 CIVILPAULINE L. BURLEW, : IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW FAMILY MEDICAL CENTER OF CAMP HILL, DAVID A. LONG, M.D., PINNACLE HEALTH/POLYCLINIC HOSPITAL, and ERIC SAYLOR, Defendants NO. 00-1020 CIVIL TERM IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J., OLER and GUIDO, JJ. OPINION and ORDER OF COURT OLER, J., September 11, 2002. In this medical malpractice action, Plaintiff allegedly sustained a perforation in her left eardrum in the course of a procedure to remove earwax. For disposition at this time is a motion for summary judgment filed by Defendant health care providers, based upon the absence of expert testimony in support of Plaintiff s negligence theory. The matter was argued on August 28, 2002. For the reasons stated in this opinion, Defendants' motion for summary judgment will be granted. STATEMENT OF FACTS On a motion for summary judgment, the record includes the pleadings, depositions, answers to interrogatories, admissions, affidavits, and expert reports. Pa. R.C.P. 1035.1. In the present case, the pertinent factual record consists only of Plaintiff' s amended complaint, Defendants' answer with new matter, and an expert report appended to Defendants' summary judgment motion. This professional negligence action was commenced by the filing of a praecipe for writ of summons on February 23, 2000.~ Plaintiff filed an amended complaint on July 12, 2000,2 and Defendants filed an answer with new matter to the amended complaint on August 14, 2000.3 Plaintiff's amended complaint averred that, on April 3, 1998, Plaintiff visited Defendant Family Medical Center of Camp Hill in Camp Hill, Cumberland County, Pennsylvania.4 It alleged that at the time Plaintiff was under the care and supervision of Defendants--David A. Long, M.D., Eric Saylor, Family Medical Center of Camp Hill, and Pinnacle Health, Polyclinic Hospital.5 According to the amended complaint, Defendant Long was a physician with Defendant Family Medical Center of Camp Hill,6 and Defendant Saylor was a lab technician in its Camp Hill office.7 The amended complaint averred that in the course of utilizing an instrument to remove wax from Plaintiff's ears Defendant Saylor punctured her left eardrum.8 Defendants' answer with new matter denied, inter alia, that any negligence was involved in the procedure.9 For reasons not here pertinent, in 2002 Plaintiff was precluded by court order from presenting expert testimony in support of her claim,l° On July 30, ~ Praecipe for Writ of Summons, filed February 23, 2000. : Plaintiff's Amended Complaint, filed July 12, 2000. Plaintiff's original complaint was filed on March 29, 2000, and was the subject of preliminary objections filed by Defendants on May 22, 2000. ~ Answer of All Defendants to Plaintiff's Complaint, filed August 14, 2000. 4 Plaintiff's Amended Complaint, filed July 12, 2002, paragraph 8. 5 Id., paragraph 6. 6 J[d., paragraph 3. 7Id., paragraph 5. 8 Id., paragraph 10. 9 S~e, e.g., Answer of All Defendants to Plaintiff's Complaint, filed August 14, 2000, paragraphs 9, 19-21, 23-25, 27-28, 31, 35-36, 40-41, 45, 48, 50-55, 58. lo See Order of Court, May 10, 2002; see also Order of Court, July 8, 2002. 2 2002, Defendants filed a motion for summary judgment based upon the absence of expert testimony in support of Plaintiff' s action. ~ Appended to the motion was an expert report submitted by David A. Wiegand, M.D., an otolaryngologist.~2 Excerpts from Dr. Wiegand's report read as follows: Mrs. Burlew underwent water irrigation of the left ear on April 3, 1998 to remove a wax impaction. This procedure was performed by Mr. Eric Saylor, an employee of the Family Medical Center of Camp Hill. The records indicate that Mrs. Burlew apparently sustained a left tympanic membrane perforation as a result of the irrigation procedure .... ... [T]he question centers around the appropriateness of the irrigation procedure, the technical competence of Mr. Saylor's ministrations and the extent to which this tympanic membrane perforation has resulted in injury and hearing loss to Mrs. Burlew. As a practicing otolaryngologist, I am well aware that family practice physicians, medical assistants, and other trained office personnel in primary care groups routinely perform irrigations of the ear in cases of suspected or actual cerumen impaction. This procedure is safely done by someone with minimal training, and although I have no written record of Mr. Saylor's training in this regard, there is no reason to suppose that it is deficient. Even in experienced hands, this procedure has a known complication rate, including tympanic membrane perforation, external otitis, middle ear effusion, edema of the tympanic membrane, etc. Unfortunately, Mrs. Burlew sustained a complication of the procedure, but this should not be interpreted as a reflection of either poor technique or medical negligence. In fact, Mrs. Burlew has a history of chronic ear problems which pre-dated this event, and one predisposing factor which can increase the risk of tympanic membrane perforation in this setting would be chronic ear disease resulting in thinning of the structure of the tympanic ~ Motion for Summary Judgment of Defendants, Family Medical Center of Camp Hill, David A. Long, M.D., Pinnacle Health/Polyclinic Hospital, and Eric Saylor, filed July 30, 2002. ~: Id. exhibit D. 3 membrane, either from chronic ear infections or other causes. Although the documentation in this instance is sketchy, it is certainly a reasonable premise that underlying factors related to Mrs. Burlew's previous ear problems might have contributed to her tympanic membrane perforation even in the most experienced of hands. ~3 Defendant did not file an answer to Plaintiff's motion for summary judgment, nor have any affidavits, answers to interrogatories, or depositions been filed to support Plaintiff's position with regard to the precise manner in which the perforation occurred or its attribution to negligence. DISCUSSION Statement of Law Summary judgment. Under Pennsylvania Rule of Civil Procedure 1035.2, it is provided as follows with respect to summary judgment: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. When considering whether summary judgment is proper, a court must examine the record in the light most favorable to the non-moving party, with all doubts resolved against the moving party. Demmler v. SmithKline Beecham Corp., 448 Pa. Super. 425, 430, 671 A.2d 1151, 1153 (1996) (citing Denlinger, Inc. v. Dend/er, 415 Pa. Super. 164, 170, 608 A.2d 1061, 1064 (1992)). ~3 Id. (emphasis added) 4 On a summary judgment motion, the non-moving party "may not rest upon the mere allegations or denials of the pleadings but must file a response within thirty days after service of the motion" that identifies (1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or (2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced. Pa. R.C.P. 1035.3(a). "Summary judgment may be entered against a party who does not respond." Pa. R.C.P. 1035.3(d). Necessity for expert testimony in medical malpractice actions. The general rule under Pennsylvania law in a medical negligence case is that "a plaintiff cannot establish a prima facie case of malpractice without, inter alia, presenting an expert witness who will testify, 'to a reasonable degree of medical certainty that the acts of the [defendant] deviated from good and acceptable medical standards'.'" Maurer v. Trustees of University of Pennsylvania, 418 Pa. Super. 510, 516, 614 A.2d 754, 757 (1992) (quotingMitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 892 (1990)); see also Brannan v. Lankenau Hospital, 490 Pa. 588, 595, 417 A.2d 196, 199 (1980) (stating that plaintiff must introduce expert testimony to show defendant's conduct varied from "acceptable medical practice"); Lira v. Albert Einstein Medical Center, 384 Pa. Super. 503, 509, 559 A.2d 550, 552 (1989) (stating that expert testimony is required to establish "standard of reasonable medical care"); Brophy v. Brizuela, 358 Pa. Super. 400, 405-06, 517 A.2d 1293, 1296 (1986) (stating that expert testimony is required to establish "standard of care" and deviation therefrom). "The only exception to this otherwise invariable rule is in cases where the matter under investigation is [s]o simple and the lack of skill or want of care [s]o obvious, as to be within the range of the ordinary experience and comprehension 5 of even non-professional persons .... "Lambert v. Soltis, 422 Pa. 304, 308, 221 A.2d 173, 175 (1966) (quoting Demchuk v. Bralorv, 404 Pa. 100, 104, 170 A.2d 868, 870 (1961)). This species of the res ipsa loquitur doctrine, however, is not to be applied in medical malpractice actions "except in the most clear-cut cases." Grandelli v. Methodist Hospital, 777 A.2d 1138, 1147 (Pa. Super. Ct. 2001); see, e.g., Brophy v. Brisuela, 358 Pa. Super. 400, 517 A.2d 1293 (1986) (holding insufficient evidence to eliminate other reasonable causes beyond alleged negligence to support application of res ipsa loquitur in case involving tubal ligation followed by pregnancy; prohibiting use of res ipsa loquitur in place of expert testimony that was barred on account of plaintiff's failure to conduct discovery). Application of Law to Facts In the present medical malpractice case, a number of factors militate in favor of granting Defendants' motion for summary judgment. These include (a) the burden upon Plaintiff to prove negligence on the part of Defendants, (b) the general rule that such proof is dependent upon expert testimony, (c) the absence of such testimony in support of Plaintiff's case, (d) the failure of Plaintiff to file an answer to Defendants' motion, (e) the absence in the record through affidavits, answers to interrogatories or depositions of a version of the events in question in sufficient detail to support application of the res ipsa loquitur doctrine, and (f) the presence in the evidentiary record of an expert opinion that the result in Plaintiff's case can occur notwithstanding compliance with the applicable standard of care, particularly given her prior medical history. Under these circumstances, the court has not been placed in a position to deny Defendants' motion for summary judgment, and the following order will be entered: 6 ORDER OF COURT AND NOW, this 11th day of September, 2002, upon consideration of Defendants' motion for summary judgment, and for the reasons stated in this opinion, the motion is granted and Plaintiff' s complaint is dismissed. BY THE COURT, /s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. William T. Smith, Esq. 3747 Derry Street Harrisburg, PA 17111 Attorney for Plaintiff Lauralee B. Baker, Esq. P.O. Box 932 Harrisburg, PA 17108-0932 Attorney for Defendants 7 PAULINE L. BURLEW, : IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW FAMILY MEDICAL CENTER OF CAMP HILL, DAVID A. LONG, M.D., PINNACLE HEALTH/POLYCLINIC HOSPITAL, and ERIC SAYLOR, Defendants NO. 00-1020 CIVIL TERM IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J., OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this 11th day of September, 2002, upon consideration of Defendants' motion for summary judgment, and for the reasons stated in this opinion, the motion is granted and Plaintiff's complaint is dismissed. BY THE COURT, J. Wesley Oler, Jr., J. William T. Smith, Esq. 3747 Derry Street Harrisburg, PA 17111 Attorney for Plaintiff Lauralee B. Baker, Esq. P.O. Box 932 Harrisburg, PA 17108-0932 Attorney for Defendants