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HomeMy WebLinkAbout1999-4784 Civil BARBARA WAGNER and DANIEL WAGNER, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. WILLIAM F. CARR, M.D., OBSTETRICS- : GYNECOLOGY, INC.; CENTRAL PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC., and HOLY SPIRIT: HOSPITAL, DEFENDANTS 99-4784 CIVIL TERM IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS BEFORE BAYLEY. J. AND EBERT. J. ORDER OF COURT AND NOW, this 8th day of March, 2006, the Joint Motion for Summary Judgment on behalf of all Defendants IS GRANTED. By the Court, M.L. Ebert, Jr., J. Robin J. Marzella, Esquire For Plaintiffs Thomas R. Miller, Esquire For Defendant William F. Carr, M.D. Karen E. Minehan, Esquire For Defendants William F. Carr, M.D., Obstetrics-Gynecology, Inc. and Central Pennsylvania Obstetrics-Gynecology, Inc. Craig A. Stone, Esquire For Defendant Holy Spirit Hospital BARBARA WAGNER and DANIEL WAGNER, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. WILLIAM F. CARR, M.D., OBSTETRICS- : GYNECOLOGY, INC.; CENTRAL PENNSYLVANIA OBSTETRICS- GYNECOLOGY, INC., and HOLY SPIRIT: HOSPITAL, DEFENDANTS 99-4784 CIVIL TERM IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS BEFORE BAYLEY. J. AND EBERT. J. OPINION AND ORDER OF COURT Ebert, J., March 8, 2006:-- I. STATEMENT OF FACTS On September 25, 1997, Barbara Wagner was evaluated by Defendant Carr at Defendant Obstetrics-Gynecology, Inc. ("Ob-Gyn, Inc.") as a referral patient for her annual Pap smear and pelvic exam. During the visit, Mrs. Wagner expressed concern over her irregular periods, heavy bleeding and pain during ovulation. After examining Mrs. Wagner, Defendant Carr suspected endometriosis and suggested laparoscopy to diagnose the problem. On October 28, 1997, Mrs. Wagner underwent a medical procedure, which the Plaintiffs' complaint describes in part as a "diagnostic laparoscopy and endothermal coagulation of suspected endometriosis implants on an outpatient basis,,1, on the premises of Defendant Holy Spirit Hospital ("HSH"). Based on the Plaintiff's highly technical recitation of this operation, it is clear that this procedure is fraught with medical complexity. 1 Complaint, filed August 9, 1999, p. 3. On August 9, 1999, Plaintiffs filed this medical malpractice suit. They allege that during the procedure, and acting within the scope of his employment with and/or agency of Ob-Gyn, Inc. and/or Central Pennsylvania Obstetrics-Gynecology Inc., and HSH, Defendant Carr negligently "burned, injured and/or punctured Mrs. Wagner's bowel/rectum" without her informed consent to the procedure? After five years of written discovery and the depositions of numerous parties and witnesses, on August 31, 2004, counsel for Defendant Carr filed a Motion to Compel Production of Plaintiffs' Expert Reports. A hearing was set for October 21, 2004. Rather than attend the scheduled hearing, Plaintiffs counsel agreed to provide the expert reports within sixty days, or by December 21, 2004. When the Plaintiffs failed to produce the expert reports by this deadline, a Case Management Conference was conducted on April 8, 2005, by the Honorable Kevin A. Hess. At this conference Plaintiffs' Counsel requested and was granted the right to withdraw as counsel3, and Judge Hess signed an order requiring the Plaintiffs to produce expert reports against the various Defendants within sixty days.4 Plaintiffs again failed to produce expert reports by the deadline. On July 5, 2005, the Defendants filed a Joint Motion for Summary Judgment which plainly disclosed the Defendants' position that the plaintiff could not present a prima facie case without expert testimony. This motion was served on the plaintiffs individually. The case was then listed by the Defendants for argument court on September 15, 2005, and the argument was heard on October 20, 2005. As of October 20, 2005, the Plaintiffs had still provided no expert reports. On October 26, 2005, Judge Hess dismissed the defendant's Motion for Summary Judgment as being premature 2 Complaint at 4. 3 Order of Court, dated April 8, 2005, Hess, J. 4 Order of Court, dated April 8, 2005, Hess, J. 2 because "no order has been entered in the case precluding the plaintiffs from adducing expert testimony".5 In response to this order, the defendants then filed a Motion for Sanctions pursuant to Pa.R.C.P. 4019, on November 7,2005. On November 10,2005, the Court granted the Motion for Sanctions and precluded the Plaintiffs from adducing any expert testimony at trial in this action. On January 26, 2006, the Defendants filed the present Joint Motion for Summary Judgment. The Plaintiffs filed no response to the motion and did not appear for argument on February 15, 2006. Defendants maintain that discovery in this case is now closed, that in the absence of competent medical expert opinion, the Plaintiffs cannot establish a prima facie case, and that the granting of summary judgment is therefore mandated. II. DISCUSSION Summary judgment is available to a party "if, after completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action". Pa. R. C. P. 1035.2(2). The purpose of Rule 1035.2 "is to eliminate cases prior to trial where a party cannot make out a claim or a defense after relevant discovery has been completed". Miller v. Sacred Heart Hospital, 753 A.2d 829, 833 (Pa. Super. 2000). A. REQUIREMENT FOR EXPERT TESTIMONY 1. Medical Neqliqence Cases To establish a prima facie case of medical malpractice, the plaintiff must establish (1) duty owed by physician to patient, (2) breach of duty from physician to patient, (3) that breach of duty was the proximate cause of, or substantial factor in, bringing about harm suffered by 5 Order of Court, dated October 26, 2005, Hess, J. 3 the patient, and (4) that damages suffered by the patient were the direct result of that harm. Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888 (1990). To meet this burden, it is necessary to introduce expert testimony to establish that the Defendant negligently carried out his professional duties and departed from the standard of care exercised by other physicians. Chandler v. Cook, 438 Pa. 447, 265 A.2d 794 (1970), Freed v. Priori, 247 Pa. Super. 418, 372 A.2d 895 (1997). In an action for medical malpractice, expert testimony is an indispensable requirement of establishing a right to recovery. Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968), Hoffman v. Mogul, 445 Pa. Super. 252, 665 A.2d 478 (1995). The jury is not permitted to presume or infer negligence merely because the medical care or surgical procedure terminates in an unfortunate result which might have occurred even though proper skill and care has been exercised. This standard of care must be established by expert testimony. Lambert v. Sotis, 422 Pa. 304, 221 A.2d 173 (1966), Demchuk v. Bralow, 404 Pa. 100, 170 A.2d 868 (1961), Robinson v. Werts, 387 Pa. 291,127 A.2d 706 (1956). 2. Informed Consent Cases In informed consent cases, expert testimony is required not only by case law, but was specifically required by statute under the Health Care Services Malpractice Act, 40 P.S. S1301.811-A(c) (1996), in effect when this action was filed. While that act was repealed in 2002, it was immediately replaced by the Medical Care Availability and Reduction of Error (MCARE) Act, 40 P.S. S1303.504(c) (2002), which retains the exact same requirement for expert testimony. In order for consent to be informed, it must be shown that the physician disclosed all those facts, risks and alternatives that a reasonable person in the situation which the 4 physician knew or should have known to be the plaintiff's, would deem material in making a decision to undergo the recommended treatment. Nogowski v. Alemo-Hammad, 456 Pa. Super. 750, 691 A.2d 950 (1997). The determination of what is a "material risk" is a question for the jury. Id., Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003 (1992). By statute since 1996, and continuing to this day, expert testimony in an informed consent case is required to determine whether the procedure is one covered by the Act and to identify risks of that procedure, the alternatives to that procedure, and the risks of these alternatives. 40 P.S. S1301.811-A(c) (1996), 40 P.S. S 1303.504(c) (2002). The average juror, without knowledge of the nature and probability of risk involved in the procedure, and the existence of and risk associated with alternatives, cannot make the determination of what information is "material." Festa v. Greenberg, 354 Pa. Super. 346, 511 A.2d 1371 (1986), Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003 (1992). The Plaintiffs have failed repeatedly to produce expert testimony as to the risks and alternatives to the "diagnostic laparoscopy and endothermal coagulation of suspected endometriosis implants" and are now precluded from doing so. Our courts have held that because "the complexities of the human body place questions as to the cause of pain or injury beyond the knowledge of the average layperson," a medical malpractice plaintiff generally must produce the opinion of a medical expert to demonstrate the elements of his cause of action. Miller v. Sacred Heart Hospital, 753 A.2d at 833, citing Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280, 1285 (1978). The average juror, unaided by expert testimony as to the nature and probability of the risks involved, is without the requisite information to conclude whether or not those risks are material to the decision to undergo the procedure. 5 An exception to the requirement of expert testimony may exist where the physician's departure from acceptable medical standards is so pronounced, or the matter is so simple, or lack of skill or want of care is so obvious, as to be within the comprehension of ordinary laypersons. Smith v. Yohe, 412 Pa. 94, 194 A.2d 167 (1963). However, even in the relatively simple case of a doctor leaving a sponge in a patient's surgical cavity, the Superior Court stated that the doctor in question was entitled to judgment on an informed consent issue because the plaintiff patient did not present expert testimony. Nogowski v. Alemo- Hammad, 456 Pa. Super. 750, 691 A.2d 950 (1997). In the case at bar, given its complexity, the Plaintiffs were required to present expert testimony. B. DEFENDANT'S ENTITLEMENT TO SUMMARY JUDGMENT Summary judgment is appropriate if, after completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. 1035.2. Specifically, summary judgment is allowed where the record is insufficient for the opposing party to sustain a prima facie case. Wolloch v. Aiken, 572 Pa. 335, 815 A.2d 594 (2002). The 1996 Explanatory Comment to Rule 1035.2 makes clear that the rule is intended to foster, not inhibit the discretion of trial court. The purpose of the rule is to weed out meritless cases after relevant discovery has been completed; not to eliminate meritorious claims prematurely before relevant discovery has been completed. Id. In Walloch, a medical malpractice action very similar to the present case, the Pennsylvania Supreme Court upheld summary judgment for the defendants after the plaintiff 6 failed to produce expert reports during three years of discovery and missed two separate deadlines imposed at case management conferences after the close of discovery. Id. The Court noted that the proper issue before it was a motion for summary judgment, and not discovery sanctions, where the question of harshness would have been relevant. Id. The only relevant question in determining the timeliness of a motion for summary judgment is whether discovery was complete at the time of the motion. Id. at 341. This determination must be made based on the record of the case and establishes the timeliness or prematurity of the motion for summary judgment under Rule 1035.2. Id. Here, the record establishes that discovery was complete, for purposes of Rule 1035.2, at the time Defendants filed their motion for summary judgment, to which Plaintiffs failed to make a timely response though Rule 1 035.3(b) permits such a response. In contrast are the facts of Steinfurth v. LaManna, 404 Pa. Super. 384, 590 A.2d 1286 (1991). There the plaintiffs failed to submit their expert report within sixty days pursuant to a court-imposed deadline and the defendant filed motions for sanctions. Id at 1288. Ultimately the plaintiffs produced the report, prior to trial, and in time to give the defendants' sufficient opportunity to review of the report. However, the trial court still dismissed the action. Id. The Superior Court recognized that although the order had been entered as granting summary judgment, it was in reality a response to the plaintiffs' violation of discovery rules and defendants' motion for sanctions. Id. Following application of the test for appropriateness of sanctions, the Superior Court reversed and allowed the case to proceed. Id. The present case is distinguishable from Steinfurth in that we are asked to consider not the procedural violations leading to the imposition of sanctions but the substantive deficiency of proof in the cause of action. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 7 2000). In the case at bar, the Plaintiffs have never produced the required expert testimony even after being given numerous opportunities to do so. At this stage, the proper law to be applied is Rule 1035.2 and the cases interpreting it. III. CONCLUSION Here, with discovery completed, and a record lacking the required expert reports and precluding expert testimony, Plaintiffs are unable to establish the elements necessary to maintain this medical malpractice action. The Defendants are entitled to summary judgment as a matter of law. ORDER OF COURT AND NOW, this 7th day of March, 2006, the Joint Motion for Summary Judgment on behalf of all Defendants IS GRANTED. By the Court, M.L. Ebert, Jr., J. Robin J. Marzella, Esquire For Plaintiffs Thomas R. Miller, Esquire For Defendant William F. Carr, M.D. Karen E. Minehan, Esquire For Defendants William F. Carr, M.D., Obstetrics-Gynecology, Inc. and Central Pennsylvania Obstetrics-Gynecology, Inc. Craig A. Stone, Esquire For Defendant Holy Spirit Hospital 8