HomeMy WebLinkAbout2006-5424 Civil
JANET L. RITTER, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION – LAW
:
ARUN KAPOOR, M.D., :
Defendant : NO. 06-5424 CIVIL TERM
IN RE: DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S
CERTIFICATE OF MERIT AND FOR ENTRY OF JUDGMENT
OF NON PROS
BEFORE OLER and EBERT, JJ.
OPINION and ORDER OF COURT
Oler, J., May 4, 2007.
In this medical malpractice case a pro se plaintiff has alleged that a physician
acted negligently in connection with the administration of injections of “Depo-Medrol,”
that he failed to obtain Plaintiff’s informed consent for these injections, and that these
1
injections resulted in Plaintiff’s development of arachnoiditis.
Plaintiff filed a certificate of merit asserting that she had in her possession reports
from two licensed professionals who stated that Defendant’s care fell outside acceptable
2
professional standards. Alternatively, Plaintiff’s certificate of merit asserted that expert
3
testimony was unnecessary to her case.
Defendant has filed a motion (a) to strike Plaintiff’s certificate of merit on the
grounds that Plaintiff allegedly failed to serve the certificate of merit on Defendant and
that the certificate of merit was inadequate under Pennsylvania Rule of Civil Procedure
4
1042.3, and (b) for entry of a judgment of non pros.
1
Plaintiff’s Admended [sic] Complaint, filed November 1, 2006.
2
Certificate of Merit, filed November 15, 2006.
3
Id.
4
Motion of Defendant, Arun Kapoor, M.D., To Strike Plaintiff’s Certificate of Merit and [for] Entry of
Judgment [of] Non Pros — Pa. R.C.P. N. 1042.3, filed January 31, 2007 (hereinafter Defendant’s Motion
To Strike).
For the reasons stated in this opinion, Defendant’s motion will be granted and a
judgment of non pros in favor of Defendant will be entered.
STATEMENT OF FACTS
5
The gist of Plaintiff’s pro se complaint may be summarized as follows:
Plaintiff Janet L. Ritter resides at 55 William Drive, Carlisle, Cumberland County,
6
Pennsylvania. Defendant Arun Kapoor, M.D., is employed at the Carlisle Surgery and
7
Pain Clinic, located at 31 Sprint Drive, Carlisle, Cumberland County, Pennsylvania.
Defendant committed medical malpractice with respect to his treatment of Plaintiff
by failing to properly diagnose her, improperly administering injections of “Depo-
Medrol,” and failing to obtain her informed consent for the injections by advising of the
8
risks associated with the treatment. As a result of the treatment, Plaintiff “[d]eveloped
.
9
. .
[a]dhesive arachnoiditis.”
Plaintiff filed with the Prothonotary a Certificate of Merit with two letters from
10
licensed professionals attached to the certificate. Defendant has alleged that the
11
Certificate of Merit was not served on him.
The Certificate of Merit states:
[1] Plaintiff has in her possession reports from two licensed professionals
that state to their knowledge, and belief the care and treatment by the
defendant, in the practice of medicine, skill and knowledge, exercised and
exhibited fell outside acceptable professional standards and that such
conduct was just cause in bringing about the harm, that is the subject of
this complaint.
And/or
5
In reciting Plaintiff’s allegations, the court is not expressing any opinion as to their accuracy.
6
Plaintiff’s Admended [sic] Complaint, filed November 1, 2006.
7
Id.
8
Id.
9
Id.
10
Certificate of Merit, filed November 15, 2006.
11
Defendant’s Motion To Strike, ¶6.
2
[2] Expert testimony or appearance of these licensed professionals
mentioned above are unnecessary for prosecution of the claim against the
12
defendant.
The first letter attached to the Certificate bears the signature of Mark P. Holenick,
D.O., is dated January 14, 2004, and notes that Plaintiff “has seen a dozen doctors over
13
the course of the last several years . . . .” The letter does not mention Defendant, breach
of any appropriate standard of care by Defendant, “Depo-Medrol,” arachnoiditis, or
14
informed consent. In its entirety, the letter reads as follows:
To Whom It May Concern:
Janet Ritter is a 61-year-old female who is doing miserably after two
successive relatively recent lumbar surgical procedures. She has seen a
dozen doctors over the course of the last several years and simply “saw
my opening of practice advertisement in the paper and decided to give me
a try as she does not want surgery and knows I no longer perform it”.
This lady is otherwise in fairly good health and worked for many years
stocking floors and in the central supply aspect of the Carlisle Hospital.
She developed low back and radiative right lower extremity pain in a
sciatic distribution and was sent by Drs. Dell and Daniels, her family
physician, for diagnostic studies and subsequent treatment, ending up at
the Hershey Medical Center under treatment of Dr. Gelb, since moved to
Maryland, and undergoing a decompression laminectomy from L3 to L5
with partial fascectomy as I have reviewed the information. This was
dated 5/2/2000. She received absolutely no relief at all and was actually
worse after the surgery. The spine doctor told her that he did not know
what was wrong and told her to “go back to her family doctor” and she
was placed on strong pain pills and somewhere along the line received an
epidural injection that did not help. She went back to Hershey this time to
a new physician, an orthopedist named Dr. Weiner and she was told that
she had spondylolisthesis or abnormal motion at L4-5 and that she needed
a fusion. I looked at the same x-rays they did, I believe, and see only
about 2-3 mm of translational change at that level but the dictation states
that left iliac bone graft was placed posterolaterally and that a fusion was
performed without instrumentation. She was braced for only a very short
period and immediately placed back on a treadmill and advised to exercise
at home, she states, and she states that within 2 weeks after surgery her
pain was back again worse than ever. The only place she feels good is in a
12
Certificate of Merit, filed November 15, 2006.
13
Id.
14
Id.
3
hot tub. Her right lower extremity symptoms persist. She has tried a
variety of nonsterodial medications and a variety of narcotic medications.
She has tried Neurontin. She most recently has been given Zonogran 100
mg 2 pills at bedtime and has been seeing Dr. McMillan for pain
management here locally. She has another appointment to go back to
Hershey.
Current medications include Hydrochlorothiazide for her blood pressure
and Zocor 10 mg 1 a day. She takes Zoloft 100 mg 1 a day in the
morning, Valium 5 mg 1-2 daily and Premarin 0.625 mg 1 a day.
Her systems review demonstrates a history of hypertension for which she
takes medication. No history of heart attack, murmur, or peripheral
edema. There is no history of liver or kidney disease or blood dyscrasia.
There is no history of diabetes or thyroid disease and no history of seizure
or stroke. No history of ulcer, hematemesis, or rectal bleeding. No
history of dysuria, hematuria, or incontinence. She has had 6 pregnancies
with 5 living children. She ambulates with a single point cane. No history
of transfusion, hepatitis, HIV, or cancer.
She had two back surgeries an also a hysterectomy and some vocal cord
nodes excised. She has undergone a bladder suspension. Father is
deceased of a heart attack and mother deceased of bowel cancer. She has
four sisters who are still alive and two deceased brothers, one age 46 of a
myocardial infarction and one deceased at age 58 of lung cancer with three
brothers remaining alive. She is a retired homemaker and married with
five children and she lives with her husband at home. She smokes 1 pack
of cigarettes per day and does not drink.
Clinically she is 5 feet 2 inches tall and weighs 145 pounds and is 61 years
of age. Her physical exam is markedly abnormal. In a level stance phase
a plumb line from the base of her skull falls through the mid right gluteal
fold and she has marked right sided paraspinal spasm and perhaps this
represents a chronic right sciatic scoliosis convex away from the radicular
side but she certainly has marked postural asymmetry and 4+
thoracolumbar paraspinal spasm. She is virtually unable to heel to toe
walk secondary to weakness and pain and is able to flex in a level stance
phase bringing her fingertips to the proximal thigh before diffuse midline
and right sided low back pain intervenes. Extension is possible to 15
degrees shy of neutral again with a midline low back pain endpoint. She
has marked weakness of her left hip flexors and also has pain to internal
robation of the left hip and I have to wonder if she has some degree of
osteoarthritis there as she does not have hip radiographs today. What also
concerns me is that she has rather marked hyper-reflexia at the patellar
jerk level at 5/4+ bilaterally and absent Achilles reflexes with negative
straight leg raise bilaterally. She has no signs of pigmentation or
ulceration of the legs and no signs of cutaneous abnormaility associated
with poor circulation.
4
I believe this lady deserves diagnostic testing to at least establish a firm
diagnosis before further treatment is offered. I am sending her for a low
pelvic AP radiograph with bilateral frog x-rays of the hips. I am sending
her for a cervical and thoracic MRI looking for possible cord compression
of those areas as I am not at all impressed with either her pre or
postoperative lumbar MRI’s relative to degree of stenosis of either
foramen or central canal. If she did not get any better at all after surgery
even for a brief time I would have to wonder what the surgical objective
was and she certainly does not have anything that resembles a degree of
translational change necessary in my former surgical practice to have
required a posterolateral fusion and I may be missing something or
missing some of the salient or pertinent radiographs.
DIAGNOSIS: Post laminectomy syndrome with persistent right lower
extremity sciatic pain as well as left hip pain of possible articular origin
15
and bilateral hyper-reflexia of the knees unexplained.
The second letter attached to the certificate of merit bears the signature of Peter A.
Pahapill, MD, FRCSC, is dated September 8, 2005, and is in the nature of a report to one
16
of Plaintiff’s treating physicians. The letter does not mention Defendant, breach of any
17
appropriate standard of care by Defendant, arachnoiditis, or informed consent. The
18
letter notes that Plaintiff has “an adverse reaction to Depro-Medrol.” In its entirety, this
correspondence reads as follows:
Dear James:
We had the pleasure of seeing your patient, Janet Ritter, in the
Neurosurgery clinic today. She comes in for evaluation of her persistent
low back pain. She was seen in conjunction with Amber L. Thomas, PA-
C and the attending physician, Dr. Peter A. Pahapill.
She states that she has had this low back pain since 2000. She states that
she has constant low back pain that is sharp with constant right buttock
and proximal right posterior thigh pain. She states that nothing makes this
better. She states that she has had three surgeries and this seems to be
progressively getting worst after each of these surgeries. She states that
she is very tired of having to take medication constantly for this and it not
helping. She denies any numbness or tingling in her legs. She denies any
bowel or bladder control issues with the exception of urge incontinence.
15
Id. (emphasis added).
16
Id.
17
Id.
18
Id.
5
She denies any weakness of the lower extremities. She denies having any
falls. She does not walk with a cane or a walker. She had had epidural
injections recently and she states that these did not help and in fact she
thinks they made her worse.
Surgical history includes a hysterectomy in 1970, bladder tuck in 1992,
one back surgery in 2000 and another one in 2003 and another one in
2004.
Current medications include Valium (5 mg, as needed), Zoloft (100 mg,
qd), and HCTZ (25
mg, qd), Premarin (0.625 mg, qd), Zocor (40 mg, qd) and she states that
she stopped this two months ago. She also takes Fish Oil, Garlique, B12,
and Glucosamine/Chondroitin (qd). She has no known drug allergies.
She does have an adverse reaction to Depro-Medrol.
Family history is positive for hypertension in her mother, diabetes in her
sister and cardiac disease in her father and brother. She also has a family
history positive of cancer in her brother and mother of the lump, colon and
liver type. She denies a family history of neurosurgical problems.
Social history shows that she does smoke approximately 1 pack or less per
day. She does not drink alcohol and does not use illicit drugs. She is
currently a housewife and is not working due to her chief complaint. She
does state that she wants to return back to work. She is married with five
children and several grandchildren.
Her past medical history is positive for bronchitis, sore throat and sleep
disturbance as well as dentures. She denies any neurologic problems. She
does have a history of high blood pressure. She does have a history also
of diarrhea, constipation and a blood transfusion. Nervous review is
positive for numbness and weakness as described in the HPI and she
denies any other seizures, epilepsy, paralysis, stroke, TIA, increased
sensation or muscle wasting. Endocrine review is positive for steroid
treatment in the form of epidurals and weight change. Kidney and bladder
is positive for infections and urge incontinence. She denies full
incontinence when awake or asleep. Cancer history is negative. She did in
the past have irregularity in her menstrual cycle. General review is
negative for fainting, dizziness, head injuries or headaches.
On physical examination today, she is a well-developed, well-nourished
sitting in the exam chair today and does appear to be in mild distress
especially when moving around the chair and standing up and walking
about the room. Her vital signs are blood pressure 120/62, pulse 60 and
regular, weight 130 prounds, and height 62”. She does keep good
personal hygiene. She does have pain with right straight leg raising. Of
note, she also has decreased full extension of the right knee, which may be
adding to her pain in the hamstring muscles. She does have tenderness on
palpation of the low back musculature, right side greater then left. She
6
does have tenderness on palpation in the right buttock along the sciatic
area and she states that this does cause pain in the proximal right posterior
thigh. She does have some tenderness in the area of the SI joint, not as
bad as on the right side. Sensation is intact throughout with no sensory
levels detected. DTR’s show 2+ at the patellas and 1+ at the achilles
bilaterally. Strength testing with knee flexion/extension and ankle
dorsiflexion, plantar flexion, inversion and eversion was 5/5 bilaterally.
Her skin is arm and dry without rashes or lesions. Peripheral pulses are
intact.
She does bring with her today the most recent MRI of the lumbar spine
which was done on August 18, 2005 at Walnut Bottom Radiology, which
was done without contrast. I essentially do not agree with the
interpretation of the various radiologists’ over the years and do not think
that there is any evidence of a surgical lesion that requires any form of
decompression. The fact that she has a constant pain syndrome and that
the pain is more deep, burning and aching in nature and does have a
significant component involving her buttock and thigh area as opposed to
only being in her low back area, that this picture makes her a good
candidate for at least a trial of epidural spinal cord stimulation. I suspect
that there is about a two-thirds chance that we would be able to reduce her
buttock and thigh pain by about 50% and the chances of reducing her low
back pain are much more variable. I went over the procedure itself as well
as the risks and benefits. The biggest risk is that it essentially does not
help. The other risks are those that are very similar to a standard epidural
steroid injection. I emphasized to her that if this does help her she is not
committed to have an implant, but at least she will be aware of how this
can help her so that she can make an informed decision. I consider spinal
cord stimulation as being similar to adding another medication onto the
medical therapy that she already is receiving. I will not manage her
medications in any way. I would manage her spinal cord stimulation
dosages, however. She is quite anxious to go ahead with the trial and we
19
will try to provide this for her in the upcoming weeks.
Upon discovering that Plaintiff had filed a certificate of merit and of its substance,
Defendant filed a moton to strike the filing, based upon Plaintiff’s failure to serve it and
20
for substantive reasons. In the latter regard, Defendant contended that the certificate
was not compatible with Pennsylvania Rule of Civil Procedure 1042.3, inasmuch as
Plaintiff had “not filed a document which establishes that any healthcare professional has
issued a statement that any care rendered by Dr. Kapoor fell below the applicable
19
Id.
20
Defendant’s Motion To Strike.
7
21
standard of care.” As a consequence of these deficiencies, Defendant requested that a
22
judgment of non pros be entered with respect to Plaintiff’s claim.
Defendant’s motion was argued before an en banc court on April 4, 2007.
Plaintiff failed to submit a brief for the argument.
DISCUSSION
Pennsylvania Rule of Civil Procedure 1042.3 relates to malpractice claims and
requires that allegations of professional malpractice be accompanied by the filing of a
certificate of merit. The rule provides, in material part:
(a) In any action based upon an allegation that a licensed professional
deviated from an acceptable professional standard, the attorney for the
plaintiff, or the plaintiff if not represented, shall file with the complaint or
within sixty days after the filing of the complaint, a certificate of merit
signed by the attorney or party that either
(1) an appropriate licensed professional has supplied a written
statement that there exists a reasonable probability that the care,
skill or knowledge exercised or exhibited in the treatment, practice
or work that is the subject of the complaint, fell outside acceptable
professional standards and that such conduct was a cause in
bringing about the harm, or
(2) the claim that the defendant deviated from an acceptable
professional standard is based solely on allegations that other
licensed professionals for whom this defendant is responsible
deviated from an acceptable professional standard, or
(3) expert testimony of an appropriate licensed professional is
unnecessary for prosecution of the claim.
Pa. R.C.P. 1042.3.
The purpose behind the certificate of merit requirement is to “assure that the
plaintiff has a reasonable basis for pursuing a claim. . . .” Salamoni v. Karoly, 74 Pa. D.
th
& C.4 378, 387 (Lehigh Cty. 2005); see also Womer v. Hilliker, 589 Pa. 256, 908 A.2d
21
Defendant’s Motion To Strike, ¶15.
22
See generally, id.
8
269, 275 (2006). Failure to file a proper certificate of merit warrants entry of a judgment
23
of non pros. Pa. R.C.P. 1042.6.
To establish a prima facie case of medical malpractice expert testimony is
generally necessary. Hoffman v. Mogil, 445 Pa. Super. 252, 258, 665 A.2d 478, 481 (1995);
Lira v. Albert Einstein Medical Center, 384 Pa. Super. 503, 559 A.2d 550 (1989). Expert
testimony is also generally necessary to establish an informed consent claim.
With regard to informed consent, it may be noted that, under the Medical Care
Availability and Reduction of Error Act, expert testimony is “required to determine whether
the procedure constituted the type of procedure [requiring informed consent] and to identify
the risks of that procedure, the alternatives to that procedure and the risks of these
alternatives.” Act of March 20, 2002, P.L. 154, §504, 40 P.S. §1303.504(c). A physician
has a duty to “obtain the informed consent of the patient” for the following procedures:
(1) Performing surgery, including the related administration of anesthesia.
(2) Administering radiation or chemotherapy.
(3) Administering a blood transfusion.
(4) Inserting a surgical device of appliance.
(5) Administering an experimental medication, using an experimental
device or using an approved medication or device in an experimental
manner.
Act of March 20, 2002, P.L. 154, §504, 40 P.S. §1303.504(a).
In this case, Plaintiff’s certificate of merit alleged that she had in her possession
reports of two licensed professionals to the effect that Defendant’s care and treatment fell
outside the acceptable professional standards. An examination of the attachments to the
certificate, however, reveals that this was a patent misrepresentation. Alternatively,
Plaintiff’s certificate of merit asserted that no expert testimony was necessary to support
24
her complaint. However, an indicated above, Pennsylvania law holds otherwise.
23
With respect to a claimant’s failure to serve a properly filed certificate of merit, see Salamoni v. Karoly,
th th
74 Pa. D. & C.4378, 387 (Lehigh Cty. 2005); Helfrick v. UPMC Shadyside Hospital, 65 Pa. D. & C.4
420, 426 (Allegheny Cty. 2005).
24
In view of the court’s disposition of Defendant’s motion upon these grounds, it would be superfluous to
further consider the issues of (a) whether a claim based upon informed consent is legally cognizable
9
For the foregoing reasons, the following order will be entered:
ORDER OF COURT
th
AND NOW, this 4 day of May, 2007, upon consideration of the Motion of
Defendant, Arun Kapoor, M.D., To Strike Plaintiff’s Certificate of Merit and [for] Entry
of Judgment [of] Non Pros—Pa. R.C.P. 1042.3, and for the reasons stated in the
accompanying opinion, Plaintiff’s certificate of merit is stricken and a judgment of non
pros is entered against Plaintiff and in favor of Defendant.
The Prothonotary shall give notice of this order pursuant to Pa. R.C.P. 236.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Janet L. Ritter
55 William Drive
Carlisle, PA 17013
Plaintiff, pro se
Michael M. Badowski, Esq.
3510 Trindle Road
Camp Hill, PA 17011
Attorney for Defendant
where the treatment alleged involves epidural injections of Depo-Medrol, and (b), whether a plaintiff’s
failure to serve a certificate of merit upon a defendant is fatal to the plaintiff’s claim.
10
11
JANET L. RITTER, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION – LAW
:
ARUN KAPOOR, M.D., :
Defendant : NO. 06-5424 CIVIL TERM
IN RE: DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S
CERTIFICATE OF MERIT AND FOR ENTRY OF JUDGMENT
OF NON PROS
BEFORE OLER and EBERT, JJ.
ORDER OF COURT
AND NOW, this day of May, 2007, upon consideration of the Motion of
Defendant, Arun Kapoor, M.D., To Strike Plaintiff’s Certificate of Merit and [for] Entry
of Judgment [of] Non Pros—Pa. R.C.P. 1042.3, and for the reasons stated in the
accompanying opinion, Plaintiff’s certificate of merit is stricken and a judgment of non
pros is entered against Plaintiff and in favor of Defendant.
The Prothonotary shall give notice of this order pursuant to Pa. R.C.P. 236.
BY THE COURT,
______________________
J. Wesley Oler, Jr., J.
Janet L. Ritter
55 William Drive
Carlisle, PA 17013
Plaintiff, pro se
Michael M. Badowski, Esq.
3510 Trindle Road
Camp Hill, PA 17011
Attorney for Defendant
13