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HomeMy WebLinkAbout2006-4995 Civil EILEEN BATKA, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : THOMAS W. ALDOUS, M.D., : DEFENDANT : 06-4995 CIVIL TERM IN RE: MOTION OF PLAINTIFF FOR A NEW TRIAL OPINION AND ORDER OF COURT Bayley, J., July 15, 2009:-- Plaintiff, Eileen Batka, filed a complaint alleging that defendant, Thomas W. Aldous, M.D., was negligent in providing her care when she presented at the emergency room of Holy Spirit Hospital on December 22, 2004. On April 15, 2009, a jury found that defendant was not negligent. Plaintiff filed a motion for a new trial averring: 1. The decision of the jury was against the weight of the evidence given the fact that the Defendant admitted on the witness stand that he did not order an MRI and/or use the on-call list, both of which were violations of the standard of care. Defendant also admitted that he should have ordered an MRI, and that in treating the patient he did not “put two and two together”. 2. Plaintiff asserts that the Court erred if [sic] failing to instruct the jury that in addition to adhering to the Standard of Care, a physician, in the treatment of a patient, must also act as a reasonable man. This omission was preserved on the record prior to the jury exiting to deliberate. The issues were briefed and argued on July 9, 2009. The evidence at trial included the following: 06-4995 CIVIL TERM On December 22, 2004, Eileen Batka underwent an epidural injection to relieve pain in her thoracic region. The procedure was done as an outpatient at the Frederickson Center after which she returned to her home. As the day progressed her legs became paralyzed and her ability to urinate was impaired. That evening she was brought by ambulance to the emergency department of the Holy Spirit Hospital with loss of feeling and paralysis of her legs and a deficit in her bladder function. She was seen by a nurse at 9:35 p.m., and at approximately 10:45 p.m., by Thomas W. Aldous, a board certified emergency physician. Dr. Aldous understood that this was an emergency that needed urgent care. At 11:10 p.m., he called Batka’s primary care physician, Dr. Young, an internist, but talked with his cover, Dr. Binder, an internist. Dr. Binder suggested that he call a neurosurgeon. Dr. Aldous called Dr. Beutler, a neurosurgeon, and got his cover, Dr. Peppelman, a neurosurgeon. Dr. Peppelman said that he was not on the staff at Holy Spirit and could not admit Batka, but he wanted her treated at Holy Spirit. He told Dr. Aldous to contact an orthopedic surgeon, Dr. Wolf. Dr. Aldous called Dr. Wolf, and got his cover Dr. Yucha, an orthopedic surgeon. Dr. Yucha said that Batka was not his patient and he would not care for her. Dr. Aldous again called Dr. Binder. At 12:25 p.m., Dr. Binder said that he would admit Batka to Holy Spirit and that he would consult a neurosurgeon. Dr. Binder had Batka admitted to the hospital. The next morning he had an MRI done, and he contacted Dr. Ostdahl who went immediately to Holy Spirit Hospital and performed surgery on Batka. The surgeon relieved the depression on her spinal cord -2- 06-4995 CIVIL TERM caused by a hematoma (blood clot) that was a complication from the epidural injection. Batka regained the use of her legs with some deficit in motor function. She regained bladder function but has some continuing problems. Plaintiff claimed that Dr. Aldous was negligent for failing to have treatment for her paralysis provided to her in a timely manner. She presented the testimony of Ira Mehlman, M.D., who is board certified in emergency medicine. He offered an opinion that Dr. Aldous did not meet the standard of care required by an emergency room physician. Dr. Mehlman testified that when plaintiff presented as a neurosurgical emergency, the standard of care required was that Dr. Aldous order an MRI and arrange for her immediate care by a neurosurgeon. When he was turned down by Dr. Peppelman and Dr. Yucha he should have arranged to have the on-call neurosurgeon for Holy Spirit Hospital undertake Batka’s care. Dr. Aldous testified and denied that his care of plaintiff fell below the required standard of care for an emergency room physician. He presented the testimony of Dean Dobkin, M.D., a board certified emergency room physician. Dr. Dobkin offered an opinion that the conduct of Dr. Aldous complied with the standard of care required of an emergency room physician. As to the allegations of negligence against Dr. Aldous, plaintiff’s counsel submitted the following point for charge: A physician must have the same knowledge and skill and use the same care normally used in the medical profession. A physician whose conduct falls below this standard of care is negligent. -3- 06-4995 CIVIL TERM A physician who professes to be a specialist in a particular field of medicine must have the same knowledge and skill and use the same care as others in that same medical specialty. A specialist whose conduct does not meet this professional standard of care is negligent. A physician must also keep informed of the contemporary developments in the medical profession or his specialty and must use current skills and knowledge. In other words, a physician must have up- to-date medical skills and knowledge, and if he or she fails to keep or fails to use current knowledge in the medical treatment of the patient, the physician is negligent. A physician must also use the same degree of care as a reasonable person would under the circumstances, and if the physician fails to do so, he or she is negligent. (Emphasis added.) The jury was charged as follows: Only causal negligence may form the basis for recovery of damages, and negligence may not be inferred merely because of an unfortunate result. A physician is neither a warrantor of a cure or a guarantor of the results of the treatment of care. You must examine the conduct of defendant to determine if he was negligent in his treatment and care of plaintiff. This case does not involve criticism of the professional abilities of defendant beyond the allegations herein, and any rights he may have as a licensed physician are not at issue. Negligence is carelessness, and medical negligence consists of careless or unskilled performance by a physician of the duties imposed in that physician's professional relationship with his patient. Negligence is when a physician shows a lack of proper care and skill in the performance of a professional act. That may constitute an actual act or acts or an omission to act where there is a duty to do so. Stated another way, negligence is the failure of a physician to do something that the standard for that physician requires in the treatment and care of the patient or in doing of something that the standard of care of that physician requires not to be done based upon the circumstances. A physician must keep informed of the A physician must use contemporary developments in the profession. the same knowledge and skill and exercise the same standard of -4- 06-4995 CIVIL TERM care as that which is usually had and exercised in that physician's medical specialty during the time the patient was under that physician's care. In the context of this case, of course, Dr. Aldous' medical specialty is emergency medicine. A physician must use the standard of care that a reasonable physician would use at the time and under the circumstances; and if a physician fails to do so, that would constitute negligence. Therefore, you must examine the standard of care required of defendant in this case based upon the particular circumstances presented in order to determine if he met that standard of care or was negligent. Again, plaintiff claims that defendant was negligent in failing to provide her the required standard of care in his medical specialty. Defendant denies plaintiff's claims and maintains that his performance was within the standard of care required. It is for you to determine, based on all of the evidence presented, weighing the credibility and weight of all of the testimony and evidence in this case, if the required standard of care was met or whether defendant was negligent. At the end of the charge, plaintiff’s counsel made the following objection: On the issue of negligence, I'm MR. ROVNER: not sure I heard whether you said a physician must also use the same degree of care as a reasonable person under the circumstances. (Emphasis added.) THE COURT: No, he doesn't have to use the same degree of care as a reasonable person. He must use the same standard of care which is required within his profession. I do not use that reasonable person because reasonable person -- we are talking standard of care here. I do not charge that. MR. ROVNER: All right. I am objecting to that then. THE COURT: Okay. MR. ROVNER: Preserving it as we talked about it. THE COURT: I understand. In support of her position that it was error for the court to not add a second legal basis for a finding of negligence against Dr. Aldous, i.e., if he failed to use the same degree of care as a reasonable person would under the circumstances, plaintiff cites -5- 06-4995 CIVIL TERM Grubb v. Albert Einstein Medial Center, 255 Pa. Super. 381 (1978), in which it is stated: The plaintiff in a malpractice action must prove either that (1) the physician did not possess and employ the required skill and knowledge, or (2) that he did not exercise the care and judgment of a reasonable man in like cases and that the injury complained of either (1) resulted from the failure on the part of the physician to possess and employ the required skill and knowledge, or (2) resulted from his failure to exercise the care and judgment of a reasonable man in like circumstances. Notwithstanding this statement in a plurality opinion of the Superior Court of Brannan v. Pennsylvania in 1978, the Supreme Court of Pennsylvania has stated in Lankenau Hospital, 490 Pa. 588 (1980): Appellant must satisfy the burden of proving that the act of the physicians or hospital fell below the standard of care owed him. Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978); Incollingo v. Ewing, 444 Pa. Donaldson v. Mafucci, 263, 282 A.2d 206 (1971); 397 Pa. 548, 156 A.2d 835 (1960). To satisfy his burden of proving Drs. Rex and West negligent in failing to administer antibiotics earlier, appellant must introduce expert testimony to show that appellee physicians’ conduct varied from accepted medical practice. Chandler v. Cook, 438 Pa. 477, 265 A.2d 794 (1970); Dornon v. Johnston, 421 Pa. 58, 281 A.2d 808 (1966). This requirement stems from judicial concern that, absent the guidance of an expert, jurors are unable to determine relationships among scientific factual circumstances. McMahon v. Young, 442 Pa. 484, 267 A.2d 534 (1971); Florig v. Sears, Roebuck and Co., 388 Pa. 419, 130 A.2d 445 (1957). Mitzelfeft v. Kamrin, In 526 Pa. 54 (1990), the Supreme Court stated: In order to establish a prima facie case of malpractice, the plaintiff must establish (1) a duty owed by the physician to the patient (2) a breach of duty from the physician to the patient (3) that the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient, and (4) damages suffered by the patient that were a direct result of that harm. See, Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983); Prosser, Law of Torts, Section 30 at -6- 06-4995 CIVIL TERM th 143 (4 ed. 1971). A plaintiff is also required to present an expert witness who will testify, to a reasonable degree of medical certainty, that the acts of the physician deviated from good and acceptable medical standards . . . . Montgomery v. South Philadelphia Medical Group, Inc., In 656 A.2d 1385 (Pa. Super. 1995), the Superior Court stated: Where the events and circumstances of a malpractice action are beyond the knowledge of the average lay person, the plaintiff must present expert testimony that the acts of the medical practitioner deviated from good and acceptable medical standards . . . . In the case present case,in order to find Dr. Aldous negligent the jury had to find that in caring for plaintiff he failed to use the standard of care that a reasonable physician would use which is the standard of care usually had and exercised in that physician’s medical specialty. That basis for establishing negligence was charged as specifically requested in a point for charge by plaintiff. It was not error to not charge the jury that in addition to having to adhere to the standard of care required of an emergency room physician, an independent basis of negligence could be established if Dr. Aldous failed to exercise the care and judgment of a reasonable person under the circumstances. That did not accurately set forth a legal standard for establishing medical negligence in this case. Plaintiff further maintains that the finding of the jury that Dr. Aldous was not Burrell v. Philadelphia Electric negligent was against the weight of the evidence. In Co., 438 Pa. 286 (1970), the Supreme Court of Pennsylvania stated: “A new trial should not be granted because of a mere conflict in testimony -7- 06-4995 CIVIL TERM or because the trial judge on the same facts would have arrived at a different conclusion: [citation omitted]. Neither should it ordinarily be granted on the ground that the verdict was against the weight of the evidence where the evidence is conflicting and the jury might have found for either party.” Carroll v. Pittsburgh, 368 Pa. 436, 445-6, 84 A.2d 505 (1951). A new trial should be awarded on the ground that the verdict is against the weight of the evidence only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. Jones v. Williams, 358 Pa. 559, 564, 58 A.2d 57; Carroll v. Pittsburgh, supra, at 447; Brown v. McLean Trucking Co., 434 Pa. 427, 429-30, 256 A.2d 607 (1969). In the present case, to prove that Dr. Aldous was negligent plaintiff was required to present expert testimony that his care of her did not meet the standard of care required of an emergency room physician. The expert called by plaintiff was of the opinion that the care provided by Dr. Aldous fell below that standard. However, Dr. Aldous and the expert called by him were of the opinion that the care provided to plaintiff met that standard. The evidence was conflicting. Under these circumstances, the finding by the jury that Dr. Aldous was not negligent was not against the weight of the evidence. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this day of July, 2009, the motion of plaintiff for a new IS DENIED. trial, By the Court, -8- 06-4995 CIVIL TERM Edgar B. Bayley, J. -9- 06-4995 CIVIL TERM Neil J. Rovner, Esquire For Plaintiff Thomas M. Chairs, Esquire For Defendant :sal -10- EILEEN BATKA, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : THOMAS W. ALDOUS, M.D., : DEFENDANT : 06-4995 CIVIL TERM IN RE: MOTION OF PLAINTIFF FOR A NEW TRIAL ORDER OF COURT AND NOW, this day of July, 2009, the motion of plaintiff for a new IS DENIED. trial, By the Court, Edgar B. Bayley, J. Neil J. Rovner, Esquire For Plaintiff Thomas M. Chairs, Esquire For Defendant :sal