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HomeMy WebLinkAbout96-4556 CivilLARRY NORTON and ALISA NORTON, Plaintiffs Vo SHASHIKANT B. PATEL, MD.,: ANDREWS & PATEL ASSOCIATES, P.C., ANASTASIUS O. PETER, M.D.,: SUSQUEHANNA SURGEONS, LTD., STEPHENSON SWAMIDOSS, M.D., DEAN G. TAYLOR, M.D., and CYTOMETRY ASSOCIATES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-4556 CIVIL TERM ALISA NORTON, Individually and as Executrix of the ESTATE OF LARRY NORTON, Deceased, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo CIVIL ACTION - LAW KLAUS F. HELM, M.D., THE HERSHEY MEDICAL CENTER,: HIM G. KWEE, M.D., HARRISBURG HOSPITAL, and: HOLY SPIRIT HOSPITAL, Defendants NO. 97-7057 CIVIL TERM IN RE: MOTION FOR SUMMARY JUDGMENT OF STEPHENSON SWAMIDOSS, M.D. BEFORE HOFFER, P.J., OLER and GUIDO, JJ. OPINION and ORDER OF COURT OLER, J., October 15, 2002. In this medical malpractice case, Plaintiff,~ representing the estate of the decedent, Larry Norton, has sued, inter alia, Defendant Stephenson Swamidoss, M.D., a pathologist who served as a consultant in the diagnosis of Mr. Norton. In Plaintiff's complaint, it was alleged that Defendant Swamidoss, who was provided with a lymph node specimen taken from Mr. Norton by his treating physicians, "was negligent in his treatment and care" of Mr. Norton based on his incorrect diagnosis of the cancer present in the specimen as lymphoma, the type of cancer for which Mr. Norton was treated, and on his failure to recommend further testing on the specimen to exclude the possibility of leukemia, the type of cancer from which Mr. Norton actually suffered and eventually died) Plaintiff did not submit an expert report critical of Defendant Swamidoss with respect to his conduct in examining the specimen.3 However, shortly before the close of discovery in this case, Defendant Cytometry Associates submitted an expert report that asserted that Defendant Swamidoss, in failing to recommend additional testing in the 4 specimen, did not act within the applicable standard of care. ~ Larry Norton died shortly after commencement of the original action in this consolidated case. See supra note 2. Accordingly, although two parties are listed as plaintiffs in this case, the court will use the term in its singular capacity, and, for purposes of this opinion, all references to Plaintiff should be construed as meaning Alisa Norton. 2 Pl.'s Compl., filed Aug. 14, 1996, paras. 8, 23, 76, 106. This case was originally commenced as two separate actions, docketed at No. 96-4556 Civil Term and at No. 97- 7057 Civil Term. The two actions were later consolidated for purposes of discovery and trial at No. 96-4556 Civil Term. Order of Ct., May 29, 1998. 3 During the discovery phase of this case, Defendant Swamidoss moved for court approval of a discontinuance of the action as to Defendant Swamidoss on the ground that no expert reports had been produced that were critical of Defendant Swamidoss. Plaintiff did not object to the discontinuance, and the motion was granted by the court conditioned on the continued lack of expert reports critical of Defendant Swamidoss. Order of Ct., June 5, 2002. Following this order, Defendant Cytometry produced expert reports critical of Defendant Swamidoss with respect to his participation in the care of Mr. Norton, and, as such, the discontinuance as to Defendant Swamidoss was vacated by a subsequent order of court. Order of Ct., July 16, 2002. 4 See Mot. for Summ. J. of Stephenson Swamidoss, M.D., filed July 17, 2002, ex. 2 (expert report of Kenneth M. Algazy, M.D., on behalf of Defendant Cytometry). 2 Soon after the close of discovery, Defendant Swamidoss filed a motion for summary judgment with respect to Plaintiff's claims against him. Presently, no other claims are outstanding against Defendant Swamidoss. In his briefs and at oral argument, Defendant Swamidoss advanced two principal arguments in favor of summary judgment: (1) although Defendant Cytometry submitted an expert report critical of Defendant Swamidoss, summary judgment is appropriate because Plaintiff, who bears the burden of proof for its claims, failed to submit an expert report critical of Defendant Swamidoss and, thus, failed to establish a primafacie cause of action for medical malpractice; and, (2) if the court does consider, for purposes of ruling on the motion for summary judgment as to Plaintiff's claims, the expert reports submitted by Defendant Cytometry, summary judgment is appropriate because the assertions of negligence contained in the expert report do not relate, and are not material, to the theories of liability suggested by the allegations in PlaintiWs complaint, and, as such, a prima facie cause of action has not been established. For the reasons stated in this opinion, the motion will be denied. STATEMENT OF FACTS In the context of a motion for summary judgment, the record, defined as "any" pleadings, depositions, answers to interrogatories, affidavits, admissions, and expert reports, see Pa. R.C.P. 1035.1, "must be viewed in the light most favorable to the [non- moving] party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." Dean v. Commonwealth, 561 Pa. 503, 507, 751 A.2d 1130, 1132 (2000). Upon application of this standard of review to the record as it has developed, the relevant facts of this case may be summarized as follows: In 1995, Larry Norton, the decedent, consulted physicians concerning, inter alia, skin lesions on various parts of his body and was initially diagnosed with lymphoma, a type of cancer affecting the lymph nodes.5 After taking a biopsy of Mr. Norton's lymph 5 P1.'s Compl., filed Aug. 14, 1996, paras. 2-4, 14, 16; Answer and New Matter of Defs. Shashikant B. Patel, M.D. and Andrews and Patel Associates, P.C., filed Oct. 23, 1996, paras. 2-4, 14, 16; Answer and New Matter of Def., Stephenson Swamidoss, M.D. to 3 nodes, the treating physicians sent a specimen to Defendant Stephenson Swamidoss, M.D., a pathologist, who also concluded that the lymph nodes showed signs of lymphoma.6 The specimen was then forwarded to Defendant Cytometry Associates, an organization that, among other things, provides laboratory evaluations on biopsied materials to detect indications of various types of cancers, including lymphoma and leukemia.7 Following initial testing, Defendant Cytometry reported to Defendant Swamidoss that the specimen was consistent with lymphoma, but additional testing was being conducted to confirm this conclusion.8 In approximately July 1995, Defendant Swamidoss reported this finding to the treating physicians, who began a procedure referred to as "CHOP" chemotherapy, a procedure used to treat lymphoma, but not leukemia.9 In late July 1995, while Mr. Norton was being treated through CHOP chemotherapy, Defendant Cytometry sent to Defendant Swamidoss the final results of the testing, which suggested only an eleven-percent likelihood that the specimen exhibited Pls.' Compl., filed Sept. 26, 1996, paras. 2-4, 14, 16; see a/xo Pl.'s Expert Submissions, filed Feb. 11, 2002, pts. 1, 5. 6 Pl.'s Compl., filed Aug. 14, 1996, paras. 22-23; Answer and New Matter of Defs. Shashikant B. Patel, M.D. and Andrews and Patel Associates, P.C., filed Oct. 23, 1996, paras. 22-23; Answer and New Matter of Def., Stephenson Swamidoss, M.D. to Pis.' Compl., filed Sept. 26, 1996, paras. 22-23; see a/xo Pl.'s Expert Submissions, filed Feb. 11, 2002, pts. 1, 5. 7 Pl.'s Compl., filed Aug. 14, 1996, paras. 10, 25; Answer and New Matter of Defs. Shashikant B. Patel, M.D. and Andrews and Patel Associates, P.C., filed Oct. 23, 1996, paras. 10, 25; Answer and New Matter of Def., Stephenson Swamidoss, M.D. to Pis.' Compl., filed Sept. 26, 1996, paras. 10, 25; see a/xo Pl.'s Expert Submissions, filed Feb. 11, 2002, pts. 1, 5. 8 Pl.'s Expert Submissions, filed Feb. 11, 2002, pts. 1, 5; see Mot. for Summ. J. of Stephenson Swamidoss, M.D., filed July 17, 2002, ex. 2 (expert report of Kenneth M. Algazy, M.D., on behalf of Defendant Cytometry). 9 Pl.'s Expert Submissions, filed Feb. 11, 2002, pts. 1, 5; see Mot. for Summ. J. of Stephenson Swamidoss, M.D., filed July 17, 2002, ex. 2 (expert report of Kenneth M. Algazy, M.D., on behalf of Defendant Cytometry). 4 signs of lymphoma, rather than another condition such as leukemia,l° Defendant Swamidoss forwarded these results to the treating physicians without requesting additional explanation or further testing by Defendant Cytometry and without advising physicians to stop the CHOP chemotherapy. The treating physicians received the report but proceeded with the chemotherapy treatments for lymphoma. ~ In 1996, after it became clear that the chemotherapy treatments were unsuccessful, Mr. Norton visited Johns Hopkins Medical Center, where he was diagnosed with "acute myelogenous leukemia" (AML). At this stage of the disease, several treatment options had been foreclosed because of the delay in diagnosis and the inappropriate use of CHOP chemotherapy. Mr. Norton died later that year. DISCUSSION With respect to Defendant Swamidoss's first argument, that summary judgment should be granted because Plaintiff did not submit an expert report critical of Defendant Swamidoss, the court is of the opinion that it would be improper to grant the motion for summary judgment solely on that basis when a co-defendant has introduced an expert report that supports a finding of liability against the moving defendant. Pennsylvania Rule of Civil Procedure 1035.2, which establishes the procedure and standards applicable to a motion for summary judgment, provides as follows: 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 l0 Pl.'s Expert Submissions, filed Feb. 11, 2002, pt. 5. ~ Pl.'s Expert Submissions, filed Feb. 11, 2002, pts. 1, 5; see Mot. for Summ. J. of Stephenson Swamidoss, M.D., filed July 17, 2002, ex. 2 (expert report of Kenneth M. Algazy, M.D., on behalf of Defendant Cytometry). ~2 Pl.'s Expert Submissions, filed Feb. 11, 2002, pt. 1. 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. Pa. R.C.P. 1035.2. Under subparagraph (2), summary judgment is proper if the record, defined as "any" pleadings, depositions, answers to interrogatories, affidavits, admissions, and expert reports, see Pa. R.C.P. 1035.1, "contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to a jury." Pa. R.C.P. 1035.2 note. As stated in Rule 1035.2, summary judgment is proper when the record presents insufficient evidence to "require the issues to be submitted to a jury." Pa. R.C.P. 1035.2(2). Several courts have recognized that this language essentially equates the standard to be applied in the context of a motion for summary judgment with that of a motion for compulsory nonsuit at trial. See, e.g., Schindler v. Sofamor, Inc., 774 A.2d 765, 775 n. ll (Pa. Super. Ct. 2001); Berman Props., Inc. v. Delaware County Bd of Assessment & Appeals', 658 A.2d 492, 494 (Pa. Commw. Ct. 1995). Although the latter may be made only at the close of the plaintiff's case-in-chief, whereas a motion for summary judgment must be made before trial, the standard applicable to each is "substantially the same," and both challenge the sufficiency of the evidence with respect to one or more claims as against any or all defendants. Schindler, 774 A.2d at 775 n. ll; see also Gallagher v. Harleysville Mut. Ins. Co., 421 Pa. Super. 192, 202, 617 A.2d 790, 796 (1992). Therefore, in determining whether summary judgment should be granted, it is appropriate to consider whether, on the basis of the existing record taken in the light most favorable to the non-moving party, the moving party would be entitled to a compulsory nonsuit at trial. Pennsylvania Rule of Civil Procedure 230.1, which establishes the standard applicable to a motion for compulsory nonsuit at trial, provides, in pertinent part, as follows: (c) In an action involving more than one defendant, the court may not enter a nonsuit of any plaintiff prior to the close of the case of all plaintiffs against all defendants. The nonsuit may be entered in favor of 6 (1) all of the defendants, or (2) any of the defendants who have moved for nonsuit if all of the defendants stipulate on the record that no evidence will be presented that would establish liability of the defendant who has moved for the nonsuit. Pa. R.C.P. 230.1. Under this rule, granting compulsory nonsuit in favor of a single defendant is proper only if it is clear that other defendants will not introduce evidence tending to establish liability of the moving defendant. See id; see also Frank v. 144. S. Losier & Co., Inc., 361 Pa. 272, 276, 64 A.2d 829, 830-31 (1949) (stating that the rule permitting compulsory nonsuit to be granted in favor a single defendant "certainly was not intended to deprive a defendant of the right to present testimony before a co- defendant should be relieved from liability by a nonsuit or a directed verdict in his favor"). Thus, the summary judgment standard under Pennsylvania Rule of Civil Procedure 1035.2(2), as informed by the rule relating to compulsory nonsuits at trial, may be stated as follows: Summary judgment is proper "if, after the completion of discovery relevant to the motion, including the production of expert reports," the record, including pleadings, depositions, answers to interrogatories, affidavits, admissions, and expert reports submitted by "any" party, "contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to a jury.''13 Pa. R.C.P. 1035.1-.2. Because Defendant Cytometry has submitted an expert report allegedly critical of Defendant Swamidoss, summary judgment should not be granted solely on the ground that Plaintiff has not submitted an expert report critical of Defendant Swamidoss. With respect to Defendant Swamidoss's second argument, that summary judgment should be granted because the assertions of negligence contained in the expert report 13 The conclusion that the court should consider evidence presented by other defendants on ruling on a motion for summary judgment is also supported by the definition of "record" in Rule 1035.1, which includes "any" of the pleadings, depositions, answers to interrogatories, affidavits, admissions, and expert reports, not merely those submitted by the plaintiff. 7 submitted by Defendant Cytometry are not material to the theories of liability suggested by Plaintiff's complaint, the court is of the opinion that Defendant Swamidoss has failed to show clearly that the expert reports, considered in the light most favorable to the non- moving parties, could not support the allegations of Plaintiff's complaint. "Summary judgment may be granted only in those cases where the right is clear and free from doubt," Laich v. Bracey, 776 A.2d 1022, 1024 (Pa. Commw. Ct. 2001), and when the record "contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to a jury." Pa. R.C.P. 1035.2 note. Generally, in order to establish a prima facie cause of action in circumstances in which the "alleged negligence is medical in nature," the non-moving parties are required to introduce expert reports that, when considered "in the light most favorable" to the non- moving parties, support the allegations of the complaint. Watkins v. Hosp. of Univ. of Pa., 737 A.2d 263,265-66 (Pa. Super. Ct. 1999); see also Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 891 (1990); Beach v. Burns Int'l Sec. Servs., 406 Pa. Super. 160, 164, 593 A.2d 1285, 1286 (1991). At this stage, the court is unable to find, with the degree of certainty required to entitle Defendant Swamidoss to judgment as a matter of law, that the expert report introduced by Defendant Cytometry could not reasonably support the allegations of the complaint. In the expert report introduced by Defendant Cytometry, the following assertions regarding Defendant Swamidoss are made: The pathologist, Dr. Swamidoss, was acting as a consultant in analyzing the tissue and ordering appropriate tests. [Dr. Swamidoss] failed to recommend definitive testing to rule out AML. This fell below the standard of care for pathologists working in concert with an oncologist on a differential diagnosis of lymphoma vs. leukemia. Furthermore, Dr. Swamidoss failed to secure an expert consultation from Cytometry Associates or others concerning interpretations of the test results, while admitting he was unfamiliar with the same. Upon receipt of the final test results, Dr. Swamidoss, should have recommended stopping CHOP until flow cytometry was performed on the bone marrow to rule out alternative disorders (AML). This action is below the standard of care particularly when the therapies for the disorder are so mutually exclusive. ~4 In the view of the court, this language may support a finding of negligence based on "failing to diagnose [Mr. Norton's] AML leukemia," "erroneously interpreting bone marrow aspirate as a lymphoma rather than a leukemia," and "[erroneously] recommending 'CHOP' chemotherapy without ruling out AML leukemia," all of which are allegations pertaining to Defendant Swamidoss included in Plaintiff's complaint.~5 Because the assertions in the report potentially may have a "direct" effect on the disposition of these allegations, Defendant Swamidoss has not proven the lack of any issue of material fact or entitlement to judgment as a matter of law. 16 As such, in the view of the court, it would be inappropriate to foreclose consideration of the merits of these issues at trial. For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 15th day of October, 2002, upon consideration of the "Motion for Summary Judgment of Stephenson Swamidoss, M.D.," and for the reasons stated in the accompanying opinion, the motion is denied. ~4 See Mot. for Summ. J. of Stephenson Swamidoss, M.D., filed July 17, 2002, ex. 2 (expert report of Kenneth M. Algazy, M.D., on behalf of Defendant Cytometry). ~ See Pl.'s Compl., filed Aug. 14, 1996, para. 106. 16 Defendant Swamidoss also argued, in a supplemental brief, that federal law prohibits pathologists such as Defendant Swamidoss from ordering additional testing without a request from the treating physicians, see 42 U.S.C. § 1395nn(h)(5)(c), and, as such, Defendant Swamidoss cannot be held liable for failing to order testing to rule out the possibility of leukemia. Assuming argttendo that federal law would prohibit recovery on a claim that a pathologist failed to order such testing, the expert report submitted on behalf of Defendant Cytometry suggests that Defendant Swamidoss was negligent for failing to recommend, not necessarily to order, additional testing. As such, the statutory provisions cited by Defendant Swamidoss do not entitle him to judgment as a matter of law. 9 BY THE COURT, /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Joseph M. Melillo, Esq. 4503 North Front Street Harrisburg, PA 17110 Attorney for Plaintiff Randall G. Gale, Esq. 305 North Front Street 6th Floor P.O. Box 999 Harrisburg, PA 17108 Attorney for Defendants Shashikant B. Patel, MD., Andrews & Patel Associates, P.C. Andrew H. Foulkrod, Esq. 1800 Linglestown Road Suite 305 Harrisburg, PA 17110 Attorney for Defendant Stephenson Swamidoss, M.D. Katherine B. Kravitz, Esq. 126 East King Street Lancaster, PA 17602 Attorney for Defendant Holy Spirit Hospital Sharon M. O'Donnell, Esq. Timothy J. McMahon, Esq. 4200 Crams Mill Road Suite B Harrisburg, PA 17112 Attorneys for Defendant Cytometry Associates 10 LARRY NORTON and ALISA NORTON, Plaintiffs Vo SHASHIKANT B. PATEL, MD.,: ANDREWS & PATEL ASSOCIATES, P.C., ANASTASIUS O. PETER, M.D.,: SUSQUEHANNA SURGEONS, LTD., STEPHENSON SWAMIDOSS, M.D., DEAN G. TAYLOR, M.D., and CYTOMETRY ASSOCIATES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 96-4556 CIVIL TERM ALISA NORTON, Individually and as Executrix of the ESTATE OF LARRY NORTON, Deceased, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo CIVIL ACTION - LAW KLAUS F. HELM, M.D., THE HERSHEY MEDICAL CENTER,: HIM G. KWEE, M.D., HARRISBURG HOSPITAL, and: HOLY SPIRIT HOSPITAL, Defendants NO. 97-7057 CIVIL TERM IN RE: MOTION FOR SUMMARY JUDGMENT OF STEPHENSON SWAMIDOSS, M.D. BEFORE HOFFER, P.J., OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this 15th day of October, 2002, upon consideration of the "Motion for Summary Judgment of Stephenson Swamidoss, M.D.," and for the reasons stated in the accompanying opinion, the motion is denied. BY THE COURT, J. Wesley Oler, Jr., J. Joseph M. Melillo, Esq. 4503 North Front Street Harrisburg, PA 17110 Attorney for Plaintiff Randall G. Gale, Esq. 305 North Front Street 6th Floor P.O. Box 999 Harrisburg, PA 17108 Attorney for Defendants Shashikant B. Patel, MD., Andrews & Patel Associates, P.C. Andrew H. Foulkrod, Esq. 1800 Linglestown Road Suite 305 Harrisburg, PA 17110 Attorney for Defendant Stephenson Swamidoss, M.D. Katherine B. Kravitz, Esq. 126 East King Street Lancaster, PA 17602 Attorney for Defendant Holy Spirit Hospital Sharon M. O'Donnell, Esq. Timothy J. McMahon, Esq. 4200 Crams Mill Road Suite B Harrisburg, PA 17112 Attorneys for Defendant Cytometry Associates