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HomeMy WebLinkAbout98-3107 CivilBETTY K. DORSEY, Plaintiff Vo IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MARK E. PINKER, D.P.M. and CARLISLE HOSPITAL, Defendants NO. 98-3107 CIVIL TERM IN RE: MOTIONS OF DEFENDANT CARLISLE HOSPITAL TO PRECLUDE EXPERT TESTIMONY AND FOR SUMMARY JUDGMENT; JOINT MOTIONS OF DEFENDANTS TO STRIKE PLAINTIFF'S EXPERT REPORTS BEFORE HOFFER, P.J., OLER and GUIDO, JJ. OPINION and ORDER OF COURT OLER, J., June 27, 2001. This professional negligence action against a podiatrist and hospital arises out of surgery allegedly performed upon Plaintiff's right foot by the podiatrist, at the hospital, with unsatisfactory results, in 1996.~ The action does not include a claim based upon lack of informed consent. For disposition at this time are a motion by the hospital to preclude Plaintiff' s use of expert testimony, a motion by the hospital for summary judgment in anticipation of the preclusion of Plaintiff's use of expert testimony, and a joint motion by Defendants to strike expert reports submitted by Plaintiff. For the reasons stated in this opinion, the motion to preclude expert testimony will be denied, the motion for summary judgment will be denied, and the motion to strike will be granted to a limited extent. PROCEDURAL HISTORY; STATEMENT OF FACTS This action was commenced by the filing of a praecipe for writ of summons on June 3, 1998. Plaintiff identified her expert witness, Jeffrey L. Adler, DPM, in answers to interrogatories on June 28, 1999. By letter dated June 22, 2000, Plaintiff's amended complaint, paragraphs 1-17. counsel for Defendant Carlisle Hospital requested that Plaintiff provide copies of any expert reports to be used at trial within 30 days.2 No such reports were produced within the 30-day period. On October 18, 2000, in response to a motion by Defendant Carlisle Hospital, and pursuant to an agreement of counsel following a discovery conference, the court issued an order directing that Plaintiff provide to Defendants copies of the report of Plaintiff's expert, and indicating that if the report were not supplied within 45 days (i.e., by December 4, 2000) the court would entertain a motion to exclude expert testimony on behalf of Plaintiff.3 Prior to the expiration of this 45-day period, on November 6, 2000, the liability insurance carrier for Defendant podiatrist, which was based in Ohio, was placed under the control of a Rehabilitator in the person of that state's Superintendent of Insurance, due to its financial situation.4 The Order Appointing Rehabilitator of the Ohio court included this provision: Any action or proceeding in any Court or arbitration proceeding in which [the insurer] ... is obligated to defend a party ... is hereby stayed for a period of ninety days and such additional time as is necessary for the Rehabilitator to obtain proper representation and prepare for further proceedings .... 5 This provision of the order was consonant with Pennsylvania legislation respecting insolvency of insurance companies and assumption of their obligations by the Pennsylvania Property and Casualty Guaranty Association. The Pennsylvania statute provides as follows: All proceedings in which the insolvent insurer is ... obligated to defend a party in any court in this Commonwealth shall be stayed for ninety (90) days from the date the Letter from Stephanie Carfley, Esquire, to James J. Kayer, Esquire, dated June 22, 2000. Order of Court, October 18, 2000. Order Appointing Rehabilitator, Court of Common Pleas, Franklin County, Ohio, No. 00CVH 1-9867, filed November 6, 2000. Id., paragraph 15. 2 insolvency is determined to permit proper defense by the association of all pending causes of action.6 This stay affecting the case sub judice was brought to the attention of counsel for Plaintiff and counsel for Defendant hospital by letter from counsel for Defendant podiatrist, dated November 28, 2000.7 A second order, liquidating the insurer and providing for a stay of an additional 90 days, was entered by the Ohio court on January 5, 2001.8 This stay would expire by its terms after April 4, 2001. This court informally recognized the stay by not acting upon a motion to preclude expert testimony and a motion for summary judgment premised upon the preclusion of expert testimony, filed by Defendant hospital on January 24, 2001.9 These motions were based upon Plaintiff's failure to supply the aforesaid expert report,l° The court formally recognized the stay by order dated March 12, 2001.~ In the interim, on or about January 12, 2001, and notwithstanding the stay, Plaintiff had supplied counsel for Defendants with a report of her expert, Jeffrey L. Adler, DPM, reading as follows: I have reviewed all the medical records provided to me pertaining to the treatment of [Plaintiff] by [Defendant podiatrist] and I have reached the following opinion. In my opinion, with a reasonable degree of Podiatric certainty, based on my background, education and training, [Defendant podiatrist's] care and treatment of this patient deviated from 6 Act of May 17, 1921, P.L. 682, as amended, 40 P.S. §991.1819. The legislation providing for a guaranty association encompasses medical malpractice insurers. See, e.g., Strickler v. Desai, 768 A.2d 862 (Pa. Superior Ct. 2001). An attorney obtained by the Pennsylvania guaranty association has replaced the original attorney for Defendant podiatrist, as of March 1,2001. See Praecipe for entry of appearance, filed March 1,2001. 7 Letter from John F.X. Monaghan, Jr., Esquire, to Cumberland County Court Administrator, dated November 28, 2000. 8 Final Order of Liquidation and Appointment of Liquidator on Behalf of Credit General Insurance Company, Court of Common Pleas, Franklin County, Ohio, No. 00CVH 11-9867. 9 Defendant Carlisle Hospital's Motion To Preclude Expert Testimony and Motion for Summary Judgment, filed January 24, 2001. ~° Id' Order of Court, March 12, 2001. 3 the standard of care required in the Podiatric community. [Defendant podiatrist] was negligent in his treatment of [Plaintiff] as a result of this deviation from the standard of care. [Defendant podiatrist's] negligence, in my Podiatric opinion, was the proximate cause of [Plaintiff's] injuries. I reserve my right to clarify or amend my opinions based on any additional information I may receive or review in the future. ~2 This report was supplemented by a report dated April 2, 2001, received by defense counsel on April 4, 2001, still within the period of the stay, which provided more detail as to the basis for the expert's opinion: I have reviewed all the medical records provided to me pertaining to the treatment of [Plaintiff] by [Defendant podiatrist] and I have reached the following opinion. In my opinion, with a reasonable degree of Podiatric certainty, based on my background, education and training, [Defendant podiatrist's] care and treatment of this patient deviated from the standard of care required in the Podiatric community. [Defendant podiatrist] was negligent in his treatment of [Plaintiff] as a result of this deviation from the standard of care. These deviations from the standard of care include but are not necessarily limited to the following: (1) Inadequate treatment and evaluation of [Plaintiff] by [Defendant podiatrist]. Including but not limited to: (A) Not performing non-invasive vascular testing, (specifically Doppler Arteriography with ABI and Digital plethysmography), pre-operatively on a patient with known heart disease. (B) Failing to attempt conservative treatments prior to surgery including but not limited to: physical therapy and functional orthotics. (2) [Defendant podiatrist] performed the surgery in the most invasive and traumatic method on June 4, 1996. This Letter from Jeffrey L. Adler, DPM, to James J. Kayer, Esq., dated January 30, 2001. 4 amount of trauma is contraindicated and a less tissue destructive method should have been performed. (3) Failing to obtain informed consent for this procedure since the operation was written in medical not lay terms on the June 4, 1996 surgical consent form. [Defendant podiatrist's] negligence, in my Podiatric opinion, was the proximate cause of [Plaintiff's] injuries. I reserve my right to clarify or amend my opinions based on any additional information I may receive or review in the future.~3 On April 12, 2001, a joint motion to strike Plaintiff's expert reports, based upon the failure of Plaintiff to submit them by December 4, 2000, in accordance with the order of court dated October 18, 2000, and the allegedly conclusory and general nature of the reports, was filed by Defendants.TM The motions of Defendant hospital to preclude expert testimony and for summary judgment, and the joint motion of Defendants to strike Plaintiff's expert reports, were argued on May 23, 2001.~5 DISCUSSION With respect to discovery orders in general and the timeliness of the submission of Plaintiff's expert report, the Pennsylvania Rules of Civil Procedure provide that "[t]he court may, on motion, make an appropriate order if ... a party ... fails to make discovery or to obey an order of court respecting discovery." Pa. R.C.P. 4019(a)(1)(viii). In entering an appropriate order, the court may adopt such order with regard to the failure "as is just." Pa. R.C.P. 4019(c)(5). A purpose of the Rules of Civil Procedure, of course, is "to secure a just, speedy and inexpensive determination of every action or proceeding to which they are applicable." Pa. R.C.P. 126. In the present case, in view of (1) the stay ordered by the Ohio court prior to the due date for submission of Plaintiff's expert report herein, (2) Pennsylvania ~ Letter from Jeffrey L. Adler, DPM, to James J. Kayer, Esq., dated April 2, 2001. 14 Defendants' Joint Motion To Strike Plaintiff's Expert Reports, filed April 12, 2001. ~s The record was also supplemented at a hearing held on June 21, 2001. 5 legislation recognizing and sanctioning such stays where the Commonwealth's guaranty association is to assume responsibility for a defendant's insolvent insurer, (3) the recognition of the validity of the stay by this court, and (4) the submission of the final expert report by Plaintiff prior to expiration of the stay, the court is of the view that an order which would strike in their entirety Plaintiff's expert reports, preclude expert testimony on behalf of Plaintiff, and grant summary judgment against Plaintiff solely on the ground that Plaintiff had not submitted the reports by a certain date within the period of the stay would not be appropriate. With respect to the sufficiency of Plaintiff's expert reports, it may be noted that Pennsylvania "favors the liberal discovery of expert witnesses and disfavors unfair and prejudicial surprise." Jones v. Constantino, 429 Pa. Super. 73, 86, 631 A.2d 1289, 1296 (1993), appeal denied, 538 Pa. 671, 649 A.2d 673 (1994). In general, an expert report will be sufficient for this purpose when "the report provides sufficient notice of the expert's theory to enable the opposing party to prepare a rebuttal witness." Feden v. Conrail, 746 A.2d 1158, 1162 (Pa. Superior Ct. 2000). In the context of a medical malpractice case, the report of plaintiff's expert must identify with reasonable certainty both the nature of the breach by defendant and the standard of care, and it must state with reasonable certainty that the breach was the proximate cause of the injury. Eaddy v. Hamathy, 694 A.2d. 639, 642-43 (Pa. Superior Ct. 1997). In addition to the requirement of a certain degree of specificity in an expert report, a further protection against unfair and prejudicial surprise is provided by the general rule that, to the extent that an area has been covered in a party's discovery request, an expert will not be permitted to exceed the scope of his or her submission in response to the request in testimony at trial. See Brady v. Ballay, Thornton, Maloney Medical Associates, Inc., 704 A.2d 1076 (Pa. Superior Ct. 1997), appeal denied, 725 A.2d 1217 (Pa. 1998). 6 In the present case, the second report of Plaintiff's expert serves to place Defendants on notice of his opinion, expressed to a reasonable degree of podiatric certainty, that Plaintiff's treatment fell below the applicable standard of care in that it did not include vascular testing prior to surgery, that surgery should not have been undertaken in the absence of an attempt to amelioriate the condition by physical therapy, that the surgery exceeded the physical scope appropriate to Plaintiff's condition, and that these breaches were a proximate cause of the harm complained of. These statements, in the court's view, satisfy the criterion of notice as discussed above, and may be subject to further exploration by Defendants at a deposition authorized pursuant to Pennsylvania Rule of Civil Procedure 4003.5(a)(2). On the other hand, the introduction of the section of the report which lists purported "deviations from the standard of care" with the words "include but are not necessarily limited to," and the introduction of the section of the report which lists purported deficiencies in "treatment and evaluation" with the words "including but not limited to" are, by their unlimited nature, incompatible with the purpose of notice and should not be given effect. Similarly, the "reservation" of a right to clarify or amend the opinions expressed in the report should not, absent a favorable ruling by the trial judge over Defendants' objection, be construed as permission for Plaintiff to elicit testimony from the expert inconsistent with, or beyond, the scope of his report. In addition, the portion of the second report relating to informed consent proposes a theory of liability not advanced in Plaintiff's pleading and will be stricken. Finally, the initial report submitted by Plaintiff's expert is almost wholly conclusory and will also be stricken, by reason of its failure to serve the purpose of notice discussed above. For the foregoing reasons, the following order will be entered: 7 ORDER OF COURT AND NOW, this 27th day of June, 2001, upon consideration of the motion of Defendant Carlisle Hospital to preclude expert testimony, the motion of Defendant Carlisle Hospital for summary judgment, and the joint motion of Defendants to strike Plaintiff's expert reports, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Defendant's motion to preclude expert testimony is denied; 2. Defendant's motion for summary judgment is denied; and 3. Defendants' motion to strike Plaintiff's expert reports is granted to the extent that a. Plaintiff's expert report dated January 30, 2001, is stricken; b. The import of the words "include but are not necessarily limited to" and "including but not limited to" in Plaintiff' s expert report dated April 2, 2001, shall be disregarded; c. The "reservation" of a right to clarify or amend the report of Plaintiff' s expert dated April 2, 2001, shall not be construed to permit Plaintiff to elicit testimony on the part of the witness inconsistent with, or beyond the scope of, the report, over Defendants' objection, in the absence of a ruling of the trial court to that effect; and d. The following words in Plaintiff's expert report dated April 2, 2001, are stricken: "(3) Failing to obtain informed consent for this procedure since the operation was written in medical not lay terms surgical consent form." on the June 4, 1996 BY THE COURT, James J. Kayer, Esq. 4 Liberty Avenue Carlisle, PA 17013 Attorney for Plaintiff Andrew Briggs, Esq. 240 Grandview Avenue Camp Hill, PA 17011 Attorney for Defendant Mark E. Pinker, D.P.M. Stephanie Carfley, Esq. 126 East King Street Lancaster, PA 17602-2893 Attorney for Defendant Carlisle Hospital /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 9 10 BETTY K. DORSEY, Plaintiff Vo IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW MARK E. PINKER, D.P.M. and CARLISLE HOSPITAL, Defendants NO. 98-3107 CIVIL TERM IN RE: MOTIONS OF DEFENDANT CARLISLE HOSPITAL TO PRECLUDE EXPERT TESTIMONY AND FOR SUMMARY JUDGMENT; JOINT MOTIONS OF DEFENDANTS TO STRIKE PLAINTIFF'S EXPERT REPORTS BEFORE HOFFER, P.J., OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this day of June, 2001, upon consideration of the motion of Defendant Carlisle Hospital to preclude expert testimony, the motion of Defendant Carlisle Hospital for summary judgment, and the joint motion of Defendants to strike Plaintiff's expert reports, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Defendant's motion to preclude denied; and expert testimony is 2. Defendant's motion for summary judgment is denied; 3. Defendants' motion to strike Plaintiff's expert reports is granted to the extent that a. Plaintiff's expert report dated January 30, 2001, is stricken; b. The import of the words "include but are not necessarily limited to" and "including but not limited to" in Plaintiff's expert report dated April 2, 2001, shall be disregarded; c. The "reservation" of a right to clarify or amend the report of Plaintiff' s expert dated April 2, 2001, shall not be construed to permit Plaintiff to elicit testimony on the part of the witness inconsistent with, or beyond the scope of, the report, over Defendants' objection, in the absence of a ruling of the trial court to that effect; and d. The following words in Plaintiff's expert report dated April 2, 2001, are stricken: "(3) Failing to obtain informed consent for this procedure since the operation was written in medical not lay terms on the June 4, 1996 surgical consent form." BY THE COURT, James J. Kayer, Esq. 4 Liberty Avenue Carlisle, PA 17013 Attorney for Plaintiff Andrew Briggs, Esq. 240 Grandview Avenue Camp Hill, PA 17011 Attorney for Defendant Mark E. Pinker, D.P.M. Stephanie Carfley, Esq. 126 East King Street Lancaster, PA 17602-2893 Attorney for Defendant Carlisle Hospital J. Wesley Oler, Jr., J. 13