HomeMy WebLinkAbout2001-2947 Civil
BRUCE DAVID KENT
and JOYCE BAUER
KENT, his wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION-LAW
ROBERT D. McINROY,
M.D.,
Defendant
NO. 01-2947 CIVIL TERM
IN RE: OPINION PURSUANT TO P A. R.A.P. 1925
OLER, 1., February 22,2005.
In this medical malpractice case, involving an alleged failure to timely
diagnose acromegaly (a condition resulting from the overproduction of growth
hormone), and following a jury trial in which a verdict was returned in favor of
Defendant Robert D. McImoy, M.D., an endocrinologist, Plaintiffs Bruce David
Kent and Joyce Bauer Kent (hereinafter Plaintiff when referencing Dr. Kent, and
Plaintiffs when referencing both) have appealed to the Pennsylvania Superior
Court. 1
The appeal has been taken from this court's denial of Plaintiffs' Motion for
Post- Trial Relief? In the motion, Plaintiffs had sought judgment notwithstanding
the verdict or, in the alternative, a new trial?
The issue being pursued by Plaintiffs on appeal has been expressed in a
statement of matters complained of on appeal as follows:
1 See Notice of Appeal, filed September 17, 2004. This appeal, filed from a denial of post-trial
relief, was interlocutory. However, judgment was eventually entered on October 20, 2004,
pursuant to a praecipe. See Jones v. Rivera, 2005 P A Super. 17 n.l, 2005 WL 78351 n.l (2005)
(citing Dominick v. Hanson, 753 A2d 824, 825 n.l (Pa. Super. Ct. 2000) (entertainment of appeal
by Superior Court where judgment entered subsequent to filing of appeal).
2 Order of Court, August 17,2004.
3 See Motion for Post-Trial Relief on Behalf of Bruce Kent and Joyce Bauer Kent, filed March
24, 2004. However, in the Plaintiffs' Concise Statement of Matters Complained of on Appeal,
Plaintiffs frame their requested relief in terms of the motion for a new trial. See Plaintiff s
Statement of Matters Complained of on Appeal Pursuant to Pa. RAP. 1925(b), filed Oct. 25,
2004. Therefore, the opinion which follows will address the motion for a new trial.
1. Did both the experts for Plaintiffs and Defendant
agree that, if the Defendant Dr. McImoy had
indication that the patient had a pituitary tumor and
sleep apnea, then Dr. McImoy, as the consulting
endocrinologist, should have advised the internist
and/or the patient to have follow up and be tested
for growth hormone if the condition of sleep apnea
was confirmed?
2. Assuming that the answer posed in question one is
"yes", did the jury reject the uncontested evidence
of Dr. McImoy's failure to so advise either the
internist or the patient, and find that there was no
negligence and no breach of the standard of care?
3. Assuming that the record demonstrates that the
answer to paragraph 2. is "yes", is it the duty of the
court to set aside the verdict and grant a new trial,
based on the verdict being against the weight of the
evidence ?4
This opinion in support of the court's denial of Plaintiffs' request for a new
trial is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
The evidence presented by Plaintiffs at trial consisted of, inter alia, testimony
by ( a) Plaintiff, (b) Thomas Walter Donner, M.D., a witness specializing III
endocrinology, 5 and (c) Lawrence Chin, M.D., a witness specializing III
6
neurosurgery.
The Plaintiff IS Bruce David Kent, a resident of 6640 Terrace Way,
Harrisburg, Dauphin County, Pennsylvania,7 and husband of Joyce Bauer Kent.
4 Plaintiffs Statement of Matters Complained of on Appeal Pursuant to Pa. RAP. 1925(b), filed
Oct. 25, 2004.
5 Notes of Testimony, In Re: Testimony of Thomas Walter Donner, M.D., at 3-4, Trial, March 16,
2004 (hereinafter Donner NT ~.
6 Notes of Testimony, In Re: Testimony of Lawrence Chin, M.D., at 3, Trial, March 17, 2004
(hereinafter Chin N T ~.
7 Notes of Testimony, In Re: Testimony of Plaintiff Bruce David Kent, at 3, Trial, March 18,
2004 (hereinafter Bruce Kent NT ~.
2
From 1980 until May 4, 2001, Plaintiff was engaged in a private dental practice in
Harrisburg, Dauphin County, Pennsylvania. S
Plaintiff s testimony concerning his medical history, including an
examination by Defendant, endocrinologist Robert D. McImoy, was as follows: In
1997 Plaintiff went to his family physician, Dr. John Goldman,9 an internist,
complaining of a sore neck that he had suffered as a result of a go-kart accident in
1995.10 As part of the treatment for his neck, Dr. Goldman referred Plaintiff to a
Dr. Brown for a pain workup. 11 Dr. Brown ordered an MRI to check the condition
of Plaintiff s neck and spine; however, this MRI also showed that Plaintiff had an
enlargement of his pituitary gland.12 Another MRI of Plaintiff s brain was then
taken on October 22, 1997, revealing that Plaintiff had a pituitary tumor. 13
After discovery of the tumor, Plaintiff was referred to Defendant, who saw
him on November 7, 1997.14 A week before going to see Defendant, Plaintiff had
consulted Dr. Maria L. Michalek,15 a sleep specialist, due to trouble he was having
sleeping.16 Dr. Michalek suggested that Plaintiff have a sleep study performed to
determine if Plaintiff had sleep apnea. 17
During the examination at Defendant's office on November 7, 1997,
Defendant performed what Plaintiff regarded as an excellent examination. IS
8Id. at 4-5.
9 See Plaintiffs' Exhibit 19(a), Trial, March 15,2004 (hereinafter Plaintiffs'/Defendant's Exhibit
~.
10 Kent NT 5.
11Id.
12Id. at 6.
13 Id.
14Id.
15 See Plaintiffs' Exhibit 23.
16 Kent NT 7.
17Id.
18Id. at 29.
3
Defendant checked Plaintiffs reflexes and drew three vials of blood for testing. 19
Once Defendant received the blood test results, he notified Plaintiff that all the
results were normal. 20 Defendant then recommended that Plaintiff s family
physician, Dr. Goldman, follow the condition of Plaintiffs pituitary tumor. 2 1
Plaintiff, despite what he felt was an entirely satisfactory examination given by
Defendant, decided after this first visit that he would not go back to Defendant if
further treatment by an endocrinologist were needed because he regarded their
personalities as less than compatible. 22
After the examination by Defendant, a sleep study was performed on
Plaintiff by Dr. Michalek, which revealed that Plaintiff had mild to moderate sleep
apnea?3 Dr. Michalek suggested that Plaintiff use a CP AP machine to aid his
breathing; however, this treatment was not successful.24 On December 31, 1998,
Plaintiff underwent a laser-assisted uvulaplasty performed by Dr. Harry Meyers,
an oral surgeon, which involved the removal of Plaintiff s uvula and reshaping of
soft tissue at the top of his mouth. 25 This surgery was performed because one
morning Plaintiff awoke to find his uvula had swollen dramatically?6
In September of 1999, Plaintiff was in a car accident, which increased the
pain he was feeling in his lower back and neck. 27 Plaintiff began seeing Dr.
19Id. at 9.
20 Id. at 11.
21 Id. at 30.
22 Id. at 12, 29-30.
23Id. at 13-14.
24Id. at 15-16.
25Id. at 16-17, 40-44, 46.
26Id. at 17,45-46. The acute change in the size of the uvula does not appear to have been a direct
result of the tumor. See, e.g., Goren NT. 40.
27 Kent NT 47-48.
4
Nelson Gantz, the director of medicine at an entity known as Pinnacle, for these
problems, as well as a Dr. Wolf, who was a back specialist. 28
Plaintiff began seeing Dr. Mark Potter, an endocrinologist, in November of
2000 because he believed he noticed an increase in the size of his mandible,
leading Plaintiff to believe he had acromegaly?9 Dr. Potter eventually performed
an Igf-l test on Plaintiff to determine whether or not he had acromegaly, and the
result indicated that Plaintiff s Igf-l level was well above the normal range,
revealing that Plaintiff did have acromegaly. 30
After being diagnosed with acromegaly, Plaintiff went to see Dr. Lawrence
Chin, a brain surgeon, to determine what should be done about Plaintiff s pituitary
tumor. 31 Because Plaintiff s Igf-l level was significantly elevated, Dr. Chin
determined that he would have to go in and remove the tumor. 32 Dr. Bert
O'Malley assisted Dr. Chin in this procedure by creating access to the base of
Plaintiff s skull. 33 The procedure was performed twice because Plaintiff's IGF-l
level did not decrease to a significant degree after the first procedure, probably
because some of the tumor cells had been left behind. 34
The testimony of Dr. Thomas Donner, an endocrinologist whom Plaintiff was
under the care of for acromegaly, may be summarized as follows: Dr. Donner first
saw Plaintiff in April of 2001, after being contacted by Plaintiffs' attorney, who
asked that he evaluate the Plaintiff and render an opinion with respect to the earlier
care the Plaintiff had received.35 With respect to the applicable standard of care of
28Id. at 47.
29Id. at 21,56,58.
30Id. at 22.
31 Id. at 23.
32Id. at 23-25.
33Id. at 24, 77-78.
34Id. at 25-26, 73.
35 Donner N.T. 13.
5
the endocrinology community in 1997, Dr. Donner testified that, in determining if
a pituitary tumor was secreting an excess of growth hormone in a patient who
exhibited symptoms thereof, the standard required testing the blood for growth
hormone levels. 36
With respect to the disease of acromegaly, Dr. Donner testified that changes
in patients with this condition were gradual; indeed, typically a patient would have
acromegaly for five or ten years before its diagnosis. 37 Additionally, at the very
advanced stages of acromegaly, an endocrinologist would recognize the physical
traits of an acromegalic patient fairly easily.38 Besides the physical
symptomatology associated with acromegaly, headaches could also accompany
the disease, caused by enlargement of the associated tumor, which, in turn, would
press against an abutting nerve, or by the development of bony overgrowth in the
back of the head, which would then press on the nerves of the spinal cord.39
According to Dr. Donner, sleep apnea was associated with approximately fifty
percent of acromegaly cases,40 and resulted from enlargement of the soft tissues of
h . d 41
t e upper airway an tongue.
Dr. Donner testified that, in his opinion, because Plaintiff had a pituitary
micro adenoma, headaches and fatigue, and was being examined for the possibility
of sleep apnea, Defendant should have ordered tests for growth hormone levels in
addition to the tests actually ordered at the time of the visit. 42 More specifically,
Dr. Donner testified that, under the standard of care expected of endocrinologists
in 1997, if a patient had a pituitary micradenoma, and was also being examined for
36Id. at 26-27. Dr. Donner testified that the best screening test for excess growth hormone was
the Igf-l screen. Id. at 27.
37Id. at 30-31.
38Id. at 33.
39Id. at 33-34.
40Id. at 35.
41 Id. at 36-37.
42Id. at 39.
6
possible sleep apnea, a treating endocrinologist should have tested for elevated
growth hormone levels.43
Dr. Donner conceded that headaches and fatigue were non-specific
conditions, and that sleep apnea was not an uncommon disorder. 44 Dr. Donner
further testified that, if he had felt a patient probably did not have sleep apnea, he
would have waited for confirmation of the sleep apnea disorder before ordering an
Igf-l screening.45 Dr. Donner further testified that, in his opinion, if an Igf-l test
had been ordered at the time of Plaintiff s initial visit with Defendant, the test
results would have shown elevated levels of growth hormone. 46
Dr. Donner also testified that, in his opinion, Defendant's letter to Dr.
Goldman was vague and inadequate in the sense that it did not specifically instruct
Dr. Goldman which hormone levels to follow, nor did it provide what symptoms
to watch for. 47 He further testified that he felt that he would have included an
instruction to order an Igf-l test if Plaintiff was later diagnosed with sleep apnea
disorder.48 However, Dr. Donner's expert report had not mentioned this omission
in evaluating unfavorably Defendant's performance.49 Additionally, when asked if
an internist, such as Dr. Goldman, would have knowledge of the symptoms of
acromegaly, as well as the connection between sleep apnea and acromegaly, Dr.
Donner expressed the view that an internist would learn the basic symptoms and
the connection between sleep apnea and acromegaly in medical school and
perhaps in lectures during a residency program. 50
43 See id. at 39-40.
44 Id. at 39.
45 See id. at 40; see also id. at 63-64 (stating that it was debatable whether or not to order growth
hormone testing prior to the positive diagnosis of sleep apnea).
46Id. at 42.
47Id. at 44-45, see also Plaintiffs' Exhibit 1.
48 See Donner NT 48.
49 See Plaintiffs' Exhibit 1.
50 Donner NT 47.
7
The testimony at the trial provided by the Defendant, in pertinent part, was to
the following effect: On November 7, 1997, Plaintiff was examined by the
Defendant. 51 Plaintiff had been referred to Defendant by Plaintiff s internist, Dr.
Goldman, and, prior to the visit, Defendant had been made aware that Plaintiff had
a microadenoma52 pituitary tumor. 53 Defendant received Dr. Kent as a patient to
determine, inter alia, the effects of the tumor, if any, on the function of the
pituitary gland, as well as to ascertain if the tumor was secreting a hormone. 54
In order to aid in determining this, Defendant asked Plaintiff questions about
his sexual functions and libido, which were as yet unaffected. 55 In attempting to
determine the effects of the tumor, if any, on the function of the pituitary gland,
Defendant also questioned Plaintiff with regard to presyncope-i.e., a feeling of
faintness or dizziness-and, again, Plaintiff responded in the negative. 56 At the
time of the visit, Plaintiff did not complain of, nor did Defendant observe, any
enlargement of the acral areas of the body-i.e., the hands or feet-which could
have indicated acromegaly. 57
Defendant testified that he had made a notation in his records, composed
contemporaneously with the Plaintiff s first visit, that Plaintiff also complained of
51 Notes of Testimony, In Re: Testimony of Robert D. McInroy, M.D., at 9, Trial, March 15,2004
(hereinafter McInroy NT~.
52 A microadenoma is a tumor which is less than or equal to, one centimeter in size, as opposed to
a macroadenoma, which is greater than one centimeter in size. Id. at 6. An adenoma is defined
as a benign tumor. Id. at 10-11.
53 Id. at 10. The tumor was discovered through an MRI which was conducted after Dr. Kent
complained of pain in the neck and head. Id. at 11; see also id. at 17. The pituitary gland is
located in the pituitary fossa, a cup-like bony structure ebryologically separate from the brain,
located in the midline of the calverium, or scull. Id. at 44.
54Id. at 11, 14.
55Id. at 13-14.
56 Id. at 14-15. Defendant testified that the pituitary gland controls the adrenal glands, which in
turn regulate the release of cortisol, which is important in maintaining blood pressure. Id. A
deficiency of the adrenal glands with respect to the production of cortisol is termed adrenocortical
insufficiency. Id.
57 See id. at 24,49.
8
exhaustion and fatigue by the end of the day, a condition which had begun within
the three months preceding the visit. 58 In relation to these symptoms, Defendant
had made a notation of sleep apnea, along with a question mark, in his notes.59
Defendant testified that he knew at the time of the visit that sleep apnea was a
condition associated with the extremely rare condition of acromegal/o and was a
symptom or sign of a pituitary tumor which was producing an excess of growth
hormone.61
Defendant testified that, despite the foregoing relating to the existence of a
pituitary tumor and the potential relationship between headaches and pituitary
tumors secreting a growth hormone-as well as the Plaintiff s ongoing evaluation
for the possible diagnosis of sleep apnea-Defendant did not suspect a growth
hormone secreting tumor. 62 Defendant further testified that, as between
micro adenomas and macro adenomas, sleep apnea caused by growth hormone
secretion was far more commonly related to a macro adenoma (which Plaintiff did
not have) than a micro adenoma (which Plaintiff did have).63 Additionally,
Defendant testified that acromegaly was similarly more common in cases of
58Id. at 20-21.
59 Id. at 21. Defendant was aware Plaintiff had been under evaluation for possible sleep apnea at
the time of the visit but that a diagnosis had not yet been made. Id. at 23.
60 Id. at 39. However, acromegaly, as a cause of sleep apnea, is extremely rare. Id. at 22.
Acromegaly, in the rare cases where it is the cause of a patient's sleep apnea, is caused by the
increased level of growth hormone, secreted by an adenoma, almost always a macroadenoma,
which stimulates the soft tissues of the hypopharynx, which, after becoming enlarged,
intermittently obstructs the individual's airway while sleeping, causing the patient to awaken.
See id.
61 Id. at 21-22.
62Id. at 23-24. Indeed, even as late as the trial, Plaintiff was not exhibiting the typical physical
signs associated with acromegaly. Goren NT 31-35. Specifically, Dr. Goren did not see a
change in the spacing of Plaintiff s teeth, nor did he see changes to the hands or the lips when
comparing a photograph of Plaintiff from 1994 (Plaintiffs' Exhibit 55) to Plaintiffs appearance
as he appeared in court. Id. at 32-34.
63 McInroy NT 48.
9
macro adenomas than micro adenomas, and that the vast majority of individuals
with sleep apnea did not have problems with their growth hormone levels. 64
Defendant did, however, order several blood analyses which, inter alia,
tested for the presence of prolactin, a hormone frequently secreted from
microadenomas.65 None of the tests ordered by Defendant would have detected
whether the pituitary tumor in Plaintiff was secreting growth hormone. 66
Based on the results of the tests ordered, Defendant concluded that Plaintiff s
tumor was nonfunctional, or non-secreting, and Plaintiff was told to follow up
with his family physician, Dr. Goldman. 67 In a letter to Dr. Goldman dated
November 13, 1997, written shortly after relating the results of the tests to
Plaintiff, Defendant informed him of his diagnosis of a non-functional
micro adenoma of the pituitary gland with normal pituitary function. 68
The letter also advised Dr. Goldman to follow the Plaintiff and watch for any
change in the size of the micro adenoma, which, according to the Defendant,
clearly suggested to Dr. Goldman that he should employ a series of MRI imaging
studies to track any changes. 69 Defendant did not expressly refer in the letter to
any need to reevaluate Plaintiff for the growth hormone if Plaintiff were later
diagnosed with sleep apnea. 70 As noted previously, after the first meeting with
64Id.
65 Id. at 27. Defendant also ordered a test for thyroid dysfunction. Id. at 28. Prolactin is a
hormone produced naturally by the pituitary gland, and can be produced by microadenoma as
well. Id. at 45. Its function in females is to aid in the proliferation of the mammary ducts in
anticipation of breast feeding. Id. at 45-46. Its function in males is not clear; however, its
presence in elevated levels inhibits the production of male sex hormones such as testosterone. Id.
at 46.
66Id. at 28. However, Dr. Goren, a Defense expert witness, testified that Defendant was acting
within the standard of care by not ordering every conceivable test for any number of possible
causes, and, rather, waiting and watching the patient for changes. Goren NT. 31-32.
67 McInroy N.T. 31.
68Id. at 32-33; see also Plaintiffs' Exhibit 20.
69Id. at 33-34.
70Id. at 36. Dr. Goren testified that sleep apnea is associated with acromegaly; specifically, sleep
apnea is caused by the thickening of the soft tissues of the throat, tongue and lips. Goren NT. at
10
Defendant in 1997, Plaintiff resolved not to return to Defendant again.71
Accordingly, Defendant did not have an opportunity to consult with the Plaintiff
again for approximately four years.72
In 2001, Plaintiff contacted Defendant again and informed him that his jaw
was growing.73 In response to that new information, Defendant suspected that the
pituitary tumor was secreting the growth hormone.74 Defendant ordered a test for
the growth hormone, specifically an Igf-l test, as well as a test for testosterone, the
results of which confirmed Plaintiff's pituitary tumor was, in fact, secreting the
growth hormone and that Plaintiff had acromegaly. 75
With respect to the specific issue of sleep apnea, and what effect a diagnosis
of sleep apnea would have had on Defendant's treatment of Plaintiff, Defendant
testified that it would have been important. 76 The future diagnosis of sleep apnea
would have pointed the Defendant toward an evaluation for a growth hormone
35. With respect to the Plaintiff, Dr. Goren testified that as late as December of 2000, when
Plaintiff was being evaluated for the possibility of sleep apnea, Dr. Potter saw no signs of soft
tissue thickening and did not suspect acromegaly as a possible cause of any sleeping disorder. Id.
at 35. The specific physical symptomatology of Plaintiff was also highly unusual in the sense
that, instead of the acromegaly affecting all soft tissue simultaneously-as is usually the case-
Plaintiffs acromegaly (if actually present for the three years between 2000 and the date of
Plaintiffs surgery to address the sleep apnea caused by an enlarged uvula) only caused the
enlargement of one single tissue area, the uvula. Id. at 49-50.
71 Kent NT 12,29-30.
72 McInroy NT 37.
73Id.
74Id. at 37-38.
75Id. at 38-39. Acromegaly, if left untreated, can cause serious injury and premature death. Id. at
40-43. The disease can cause excess bone growth, and, as related to bone growth of the cranium,
can cause severe headaches. Id. The disease can also cause enlargement of the body's organs, as
well as cause the jaw bones to grow. Id. at 41-42. Acromegaly has negative effects on the
cardiovascular system, and, if left untreated, can cause cancers in the gastrointestinal tract. Id. at
41. As a result of the Plaintiffs acromegaly, his jaw had in fact grown, and required surgery to
address the abnormality. Id. at 41-42.
76Id. at 26.
11
producing tumor. 77 Defendant noted, however, that he had not been afforded the
opportunity to follow-up with Plaintiff on the issue of sleep apnea.78
Based upon all the information gathered, including the test results,
Defendant, in his professional medical opinion, concluded that Plaintiff had a non-
functioning pituitary adenoma, i.e., one that was not secreting the growth
hormone. 79 Accordingly, Defendant advised Plaintiff to follow with Plaintiff s
family physician, Dr. Goldman, whom he advised by letter to follow the size of
the Plaintiff s micro adenoma for changes. 80 In so advising, Defendant believed
that Dr. Goldman would understand that a series of MRI images would need to be
developed and interpreted for changes in the tumor's size.81
In Defendant's letter to Dr. Goldman, Defendant did not include an express
instruction to Dr. Goldman that, if Plaintiff were subsequently diagnosed with
sleep apnea, Plaintiff would need to be reevaluated for acromegaly, either by
Defendant or by another endocrinologist. 82 In this regard, it may be noted that
Plaintiff did not have an established diagnosis of sleep apnea at the time
Defendant saw him, that, among the causes of sleep apnea, acromegaly was
extremely rare,83 and that some awareness on the part of an internist of the
potential symptoms of acromegaly could, at least arguably, be inferred. 84
Defendant's clinical opinion was that Plaintiff did not have a functioning
. d 85
mIcroa enoma.
77 Id.
78 See id. at 26-27.
79Id. at 31-32.
80Id. at 32-34.
81 Id. at 33.
82Id.
83Id. at 35-36.
84 Donner NT 47.
85 McInroy NT 36.
12
Doctor Elihu Goren, M.D., Ph.D., an endocrinologist86 with extensive clinical
experience,87 testified as an expert witness for Defendant to the following effect:
With respect to the standard of care applicable at the time of the contact between
Plaintiff and Defendant, Dr. Goren testified that-based upon his review of
twenty-seven discrete sets of documents, including, inter alia, doctors' notes, test
results and depositions-Defendant had met the standard of care of the
endocrinology community.88 Dr. Goren testified that the Defendant had proceeded
in precisely the manner recommended by the endocrinology community, both at
the time of his treatment of Plaintiff and as of the date of the trial. 89 With respect
to the connection between acromegaly and pituitary adenomas, Dr. Goren's
testimony paralleled that of Defendant, i.e., that, of all the individuals diagnosed
with acromegaly, at least 99 percent of those individuals have a pituitary
macro adenoma, as opposed to a micro adenoma. 90
In discussing the connection between sleep apnea and acromegaly, Dr. Goren
noted that Plaintiff was under observation for sleep apnea at the time of Plaintiff s
visit with Defendant, and that no diagnosis had yet been made.91 Dr. Goren
further testified that many people have sleep apnea; however, of those individuals,
an extremely small number have acromegaly. 92 Additionally, he testified that
every patient he had treated who had been diagnosed with sleep apnea, as caused
86 Goren N.T. 3.
87 See generally id. at 3-7.
88Id. at 14-15, 22-23.
89Id. at 22. Dr. Goren also testified that the tests ordered by Defendant were precisely the ones
suggested by the endocrinology community at the time of Plaintiff s treatment by Defendant. Id.
at 48-50.
90Id. 17-18.
91 Id. at 39.
92 Id. at 36.
13
by acromegaly, exhibited clear visual evidence of thickening of the tissue at the
back of the throat, thickening of the tongue, of the lips, the ears and the nose.93
Dr. Goren also testified hypothetically that, if Defendant wanted to test for
growth hormone following a subsequent diagnosis of sleep apnea, Defendant
should have informed Plaintiff or Dr. Goldman. 94 However; when asked to
speculate what the results of the test, if ordered, would have indicated, Dr. Goren
was of the opinion that, based upon the two actual tests ordered by Dr. Potter years
after Defendant's interaction with Plaintiff, and their results (each showing below
normal levels), the results would have been below normal, indicating a non-
secreting pituitary micro adenoma. 95
The testimony of Dr. Lawrence Chin, a neurosurgeon testifying as an expert
witness for Plaintiff,96 may be fairly summarized as follows: Plaintiff was first
seen by Dr. Chin in January of 2001,97 after being referred to him by the national
director of the International Radiosurgery Support Association. 98 In initially
evaluating Plaintiff, who had been diagnosed with acromegaly, Dr. Chin examined
him for physical signs of the disease, including the hands, face and neck. 99 Dr.
Chin also took a complete medical history, and performed a neurological
examination, which involved examining the eyes, ears and nose.100
93 Id. at 35; see also id. at 30-31 (noting that, absent physical symptoms, as a community
endocrinologists simply did not think of acromegaly).
94Id. at 58-60.
95Id. at 66-67. Additionally, Dr. Goren testified that Plaintiff had been referred by Dr. Goldman
to other endocrinologists; however, Plaintiff did not pursue these referrals. Id. at 69. Dr. Goren
was unable to speculate as to whether the tumor was functioning in 1997 at the time of Plaintiffs
visit with Defendant. Id. at 72.
96 Chin NT 3-4.
97Id. at 27.
98Id. at 26.
99Id. at 27.
100 Id.
14
Based upon Dr. Chin's experience with acromegalic patients, he concluded
that Plaintiff did have acromegaly. 101 Dr. Chin testified that, based upon his
experience and the particular circumstances of the Plaintiff s case, he
recommended surgery to remove the micro adenoma, as opposed to gamma knife
treatment. 102 Although Plaintiff expressed a preference for the gamma knife
procedure, 103 Dr. Chin recommended, and Plaintiff agreed to, the surgery
. 104
optlOn.
On February 15, 2001, Plaintiff was operated on by Dr. Chin, who was
assisted by an ear, nose and throat surgeon, Dr. Bert O'Malley.l05 After the
procedure, Dr. Chin examined radiological studies and retested growth hormone
levels. 106 Based on these-which did not show significant signs of
improvement-Dr. Chin was not satisfied with the results of the surgery and
recommended to Plaintiff a second operation. 107
Dr. Chin operated on Plaintiff a second time on February 22, 2001.108 During
this surgery, Dr. Chin attempted to move closer to the tumor, which was situated
adjacent to the carotid artery.l09 Dr. Chin removed a slight amount of tumor
material; however, he was again not satisfied with the result.110 Despite the two
surgeries, Plaintiff s micro adenoma was still secreting the growth hormone. III
101 Id. at 28.
102Id. at 31. For a detailed description of a gamma knife instrument and its application, see id. at
24-27.
103 Id. at 27.
104Id. at 34.
105Id. at 35-36; see also Plaintiffs' Exhibit 7.
106Id. at 39-40.
107Id. at 40.
108Id. at 41; see also Plaintiffs' Exhibit 8.
109Id. at 42.
110 Id.
III Id. at 43.
15
Dr. Chin continued to treat Plaintiff, along with Dr. Donner, following the
two surgeries.112 The treatment included the use of medication to try to reduce the
level of growth hormone, as well as the performance of a gamma knife procedure
on Plaintiffs micro adenoma on March 27, 2001.113 Following the gamma knife
treatment, Dr. Chin turned Plaintiff over to Dr. Donner. 114 Dr. Chin testified that it
was his medical opinion that Plaintiff s micro adenoma was secreting in 1997
when it was first found.115 At the time of the trial, the Plaintiff s growth hormone
levels had returned to normal; 116 however, Plaintiff had retired from dentistry and
complained of experiencing continuing pain.117
DISCUSSION
Statement of Law
"A new trial should not be granted because of a mere conflict
in testimony or because the trial judge on the same facts would
have arrived at a different conclusion . . .. 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." Burrell v.
Philadelphia Elec. Co., 438 Pa. 286, 289, 265 A.2d 516, 518
(1970) (quoting Carroll v. City of Pittsburgh, 368 Pa. 436, 445-
46, 84 A.2d 505, 509 (1951)).
l12Id.
113 Id. at 43-44; see also Plaintiffs' Exhibit 9.
l14Id.44.
l15Id. at 44-45. Defendant's cross examination of Dr. Chin could be characterized as effective
and persuasive. See generally id. at 50-118.
116 See Donner NT 57, 70.
117 Id. at 60. Plaintiff, however, had a history of headaches which dated back to 1991, six years
before his visit with Defendant. See id. at 73.
16
"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." Id. (emphasis
supplied) (citing Jones v. Williams, 358 Pa. 559, 564, 58 A.2d
57; Carroll, 368 Pa. at 447, 84 A.2d at 505; Brown v. McLean
Trucking Co., 434 Pa. 427, 429-30, 256 A.2d 606 (1969)).
Moreover, "the jury is free to believe all, some, or none of the
testimony presented by a witness." Neison v. Hines, 539 Pa.
516, 520, 653 A.2d 634, 637 (1995); see also Gaita v. Pamula,
385 Pa. 171, 174-75, 122 A.2d 63, 63 (1956) (quoting Ray, to
use of Miller v. City of Philadelphia, 344 Pa. 439, 442, 25 A.2d
145, 146 (1942)).
Application of Law to Facts
In this case, the court was of the view that the jury's failure to be persuaded
by Plaintiffs' position as to Defendant's negligence was justifiable. Plaintiff s
expert, Dr. Donner, although opining that Defendant breached the standard of care
in not ordering an Igf-l test at the time of his initial visit with Plaintiff, as well as
in failing to specifically direct Dr. Goldman to watch for specific indicia and test
specific hormone levels, nonetheless, qualified those opinions by stating that the
decision as to whether to order the test was debatable and that Dr. Goldman should
have been aware of the basic symptoms of acromegaly and the connection
between the disease and sleep apnea. Dr. Donner also testified that if he, in
treating a patient, felt that a patient probably did not have sleep apnea, even
though he was under evaluation for the disorder, he might have waited until after
the diagnosis to order an Igf-l test.
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Defendant's expert, Dr. Goren, broadly testified that in all respects Defendant
met the standard of care for the endocrinology community, both as it existed at the
time of Defendant's examination of Plaintiff and as it continued to exist at the time
of trial, and that Defendant had proceeded in precisely the manner the witness
himself would have with respect to Plaintiff s case. His response to a question
relating to follow-up care by Defendant's internist was hypothetical in nature and
fell considerably short of constituting an opinion that Defendant had materially
breached the applicable standard of care.
Based upon the foregoing, it cannot be said that the verdict, as rendered by
the jury in this case, was "so contrary to the evidence as to shock one's sense of
justice. . . ." Burrell, 438 Pa. at 289,265 A.2d at 518. The main focus of the trial
with respect to negligence on the part of Defendant was whether he should have
ordered a growth hormone test when he saw Plaintiff in 1997. As the recitation of
facts above indicates, Plaintiffs' evidence on this point was, to say the least, not
overwhelming. As to the more peripheral issue of what could reasonably have
been expected with regard to the follow-up care by the Plaintiff s internist, and the
complicating factor of Plaintiff s decision at the conclusion of Defendant's
examination not to further treat with him, the jury was, in the court's VIew,
understandably not convinced of Defendant's negligence.
F or the foregoing reasons, the court was not able to agree with Plaintiffs that
the jury's verdict warranted a new trial on the basis of the weight of the evidence.
BY THE COURT,
1. Wesley Oler, Jr., 1.
April L. Strang-Kutay, Esq.
Goldberg, Katzman & Shipman, P.C.
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P.O. Box 1268
Harrisburg, P A 17108
Attorney for Plaintiffs
Peter 1. Curry, Esq.
Thomas, Thomas & Hafer, LLP
P.O. Box 999
Harrisburg, P A 17108
Attorney for Defendant
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