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HomeMy WebLinkAbout2002-1311 Civil PATTI J. GUMBERT, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF RICHARD K. GUMBERT, DECEASED, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. HOLY SPIRIT HOSPITAL, PENNSYLVANIA NEUROLOGICAL ASSOCIATES, LTD., CHARLES S. YANOFSKY, M.D., ALBERT W. HECK, M.D., FRANCIS J. JANTON, III, M.D., and JON L. VICKERY, M.D.; INTERNISTS OF CENTRAL PENNSYLVANIA; MICHAEL L. GLUCK, : M.D. AND PETER M. BRIER, M.D., DEFENDANTS 02-1311 CIVIL TERM IN RE: MOTION OF DEFENDANT. JON L. VICKERY. M.D. FOR SUMMARY JUDGMENT BEFORE BAYLEY. J. AND HESS. J. OPINION AND ORDER OF COURT Bayley, J., December 19, 2006:-- On March 18, 2002, Patti J. Gumbert, Individually and as Administrator of the Estate of Richard K. Gumbert, deceased, filed a writ of summons against various medical providers of Richard K. Gumbert. A complaint was filed on June 3, 2002. An amended complaint was filed on December 16, 2002. On August 16, 2006, defendant, Jon L. Vickery, M.D., filed a motion for summary judgment which was briefed and argued on December 6, 2006. In Washington v. Baxter, 719 A.2d 733 (Pa. 1998), the Supreme Court of Pennsylvania set forth the standard for deciding a motion for summary judgment. A court: 02-1311 CIVIL TERM . .. must view the record 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. Pennsylvania State University v. County of Centre, 532 Pa. 142, 143-145,615 A.2d 303,304 (1992). In order to withstand a motion for summary judgment, a non-moving party "must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Ertrel v. Patriot-News Co., 544 Pa. 93,101-102,674 A.2d 1038,1042 (1996). Richard K. Gumbert, at age 48, was admitted to the Holy Spirit Hospital on March 15, 2001. He remained there until he died on March 27, 2001. During that period, he received medical care from Drs. Charles S. Yanofsky, Albert W. Heck and Francis J. Janton, III, of Pennsylvania Neurological Associates, LTD. Plaintiff has produced four reports by Roger E. Farber, M.D., FAAN, of Pennsylvania Headache and Pain Center, PC, Bala Cynwyd, Pennsylvania, in support of the claim of medical negligence of Pennsylvania Neurological Associates, LTD., and its physicians.1 Dr. Vickery maintains that these reports do not set forth an opinion that there was any medical negligence on his individual part that was a substantial factor in increasing a risk of harm resulting in the death of Richard Gumbert. As set forth in Carrozza v. Greenbaum, 866 A.2d 369 (Pa. Super. 2004), to establish a prima facie case of medical malpractice, a plaintiff must prove that the medical practitioner owed a duty to plaintiff and breached that duty, the breach was a substantial factor in bringing about harm to plaintiff, and the damages were suffered as a direct result of the harm. If the circumstances surrounding the claim of medical negligence are beyond the knowledge of the average 1 The reports are dated February 28, April 1 0, April 28 and October 7, 2005. -2- 02-1311 CIVIL TERM layperson, the plaintiff must present expert testimony that the conduct of the practitioner deviated from good and acceptable medical standards, and that such deviation was a substantial factor in causing the harm suffered. Id. The opinion of an expert demonstrating an increased risk of harm caused by medical negligence furnishes a basis for the factfinder to find that such increase risk of harm was in turn a substantial factor in bringing about the resultant harm. Id.2 During his thirteen days as an inpatient at the Holy Spirit Hospital, Richard Gumbert did not receive any medical care from Dr. Vickery. Dr. Farber never mentions Dr. Vickery in his reports.3 He offers an opinion that there was "critical error" in Gumbert's care during his hospital stay by his treating physicians, who were Drs. Yanofsky, Heck and Janton, in that they did not conduct an appropriate workup including a failure to order a spinal tap. These factors, in the opinion of Dr. Farber, resulted in the failure to properly diagnose the full nature 2 In the present case, on June 3, 2005, following a status conference, an order was entered providing that all expert reports of the plaintiff shall be filed within 60 days, of defendants within 120 days, and any rebuttal reports within 150 days. On August 23, 2005, an order was entered extending by 90 days all of the deadlines in the order of June 3, 2005. On January 13, 2006, an order was entered extending a discovery deadline until February 17, 2006, with all other deadlines extending accordingly. All expert reports have been filed by the final extended deadline. 3 Inexplicably, plaintiff, in her brief, makes a flat-out misrepresentation to the court by stating that "the reports that Dr. Farber has provided [which she identified as Exhibits "C," "D," "E," and "F" attached to defendant's motion for summary judgment] indicate that Dr. Vickery breached the standard of care in making his telephone diagnosis of Mr. Gumbert's condition based on his review of Mr. Gumbert's chart." There is nothing in any of Dr. Farber's reports referring to any telephone diagnosis, much less that Dr. Vickery provided less than the required standard of care to Gumbert. -3- 02-1311 CIVIL TERM of the stroke Gumbert suffered for which he did not receive adequate care, and which increased the risk of harm resulting in his death.4 Pa. Rule of Civil Procedure 4003.5(a)(1 )(b) provides that an expert shall state the "substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion." An expert may testify within the fair scope of the expert's report. See Schaaf v. Kaufman, 850 A.2d 655 (Pa. Super. 2004). An expert's testimony is within the fair scope of the report if the report sufficiently apprised the opposing party of the expert's theory such that the opponent can prepare a meaningful response. Id. There is nothing in Dr. Farber's report with respect to Dr. Vickery providing any care to Richard Gumbert, much less care that was below the required standard and which increased a risk of harm to him that resulted in his death. Therefore, he cannot offer an opinion at trial that any care by Dr. Vickery was below the required standard because it would not be within the fair scope of his report. To survive this motion for summary judgment, plaintiff has the burden of producing evidence from an expert that care provided by Dr. Vickery to Richard Gumbert was below the required standard and increased a risk of harm. Plaintiff having failed to produce such evidence, Dr. Vickery is entitled to summary judgment. 4 In the words of Dr. Farber: "he was not given any chance to fight back and have his health back and hence by omission and lack of understanding, this gentleman was allowed to go downhill and die." "It is a classic in neurology. One must always with a negative CAT scan and a headache with a stroke do a spinal tap to look for the subarachnoid hemorrhage that must have happened and then go on to extremely careful angiography." ". . . he was allowed to slide downhill because of a lack of understanding and a lack of sufficient sophistication to appropriately evaluate and prevent this current horrible outcome in this unfortunate gentleman." -4- 02-1311 CIVIL TERM -5- 02-1311 CIVIL TERM ORDER OF COURT AND NOW, this day of December, 2006, the motion of defendant, Jon L. Vickery, M.D., for summary judgment, IS GRANTED. By the Court, Edgar B. Bayley, J. Paul F. D'Emilio, Esquire Stephanie E. Chertok, Esquire For Plaintiff Lauralee Baker, Esquire Shaun J. Mumford, Esquire For Charles S. Yanofsky, M.D., Albert W. Heck, M.D., Francis J. Janton, III, M.D., Jon L. Vickery, M.D. and Pennsylvania Neurological Associates, LTD. Craig A. Stone, Esquire For Holy Spirit Hospital Michael D. Pipa, Esquire For Michael L. Gluck, M.D., Peter M. Brier, M.D. and Internists of Central Pennsylvania :sal -6- PATTI J. GUMBERT, INDIVIDUALLY IN THE COURT OF COMMON PLEAS OF AND AS ADMINISTRATOR OF THE CUMBERLAND COUNTY, PENNSYLVANIA ESTATE OF RICHARD K. GUMBERT, DECEASED, PLAINTIFF V. HOLY SPIRIT HOSPITAL, PENNSYLVANIA NEUROLOGICAL ASSOCIATES, LTD., CHARLES S. YANOFSKY, M.D., ALBERT W. HECK, M.D., FRANCIS J. JANTON, III, M.D., and JON L. VICKERY, M.D.; INTERNISTS OF CENTRAL PENNSYLVANIA; MICHAEL L. GLUCK, : M.D. AND PETER M. BRIER, M.D., DEFENDANTS 02-1311 CIVIL TERM IN RE: MOTION OF DEFENDANT. JON L. VICKERY. M.D. FOR SUMMARY JUDGMENT ORDER OF COURT AND NOW, this day of December, 2006, the motion of defendant, Jon L. Vickery, M.D., for summary judgment, IS GRANTED. By the Court, Edgar B. Bayley, J. 02-1311 CIVIL TERM Paul F. D'Emilio, Esquire Stephanie E. Chertok, Esquire For Plaintiff Lauralee Baker, Esquire Shaun J. Mumford, Esquire For Charles S. Yanofsky, M.D., Albert W. Heck, M.D., Francis J. Janton, III, M.D., Jon L. Vickery, M.D. and Pennsylvania Neurological Associates, LTD. Craig A. Stone, Esquire For Holy Spirit Hospital Michael D. Pipa, Esquire For Michael L. Gluck, M.D., Peter M. Brier, M.D. and Internists of Central Pennsylvania :sal -2-