Opinion
368 MDA 2022 370 MDA 2022 J-A09024-23
01-18-2024
MARLENE PRICE, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF JAMES S. PRICE, JR., DECEASED Appellant v. DAVID J. ABRAHAM, M.D., THE READING NECK & SPINE CENTER, P.C., KEYSTONE ORTHOPAEDIC SPECIALISTS GROUP, LLC AND/OR KEYSTONE ORTHOPAEDIC SPECIALISTS LLC T/D/B/A THE READING NECK & SPINE CENTER, LLC, AND ST. JOSEPH MEDICAL CENTER MARLENE PRICE, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF JAMES S. PRICE, JR., DECEASED Appellant v. DAVID J. ABRAHAM, M.D., THE READING NECK & SPINE CENTER, P.C., KEYSTONE ORTHOPAEDIC SPECIALISTS GROUP, LLC AND/OR KEYSTONE ORTHOPAEDIC SPECIALISTS, LLC T/D/B/A THE READING NECK & SPINE CENTER, LLC AND ST. JOSEPH MEDICAL CENTER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
Appeal from the Judgment Entered April 21, 2022 In the Court of Common Pleas of Berks County Civil Division at No(s): 172193
BEFORE: PANELLA, P.J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM
OLSON, J.
Appellant, Marlene Price, individually and as executrix of the Estate of James S. Price, Jr., deceased, appeals from the judgment entered on April 21, 2022, in favor of David J. Abraham, M.D., The Reading Neck & Spine Center, P.C., Keystone Orthopaedic Specialists Group, LLC and/or Keystone Orthopaedic Specialists, LLC t/d/b/a The Reading Neck & Spine Center, LLC and St. Joseph Medical Center (hereinafter, collectively, "the Defendants"). We affirm, in part, vacate, in part, and remand for a new trial.
"[I]n a case where nonsuit was entered, the appeal properly lies from the judgment entered after denial of a motion to remove nonsuit." Billig v. Skvarla, 853 A.2d 1042, 1048 (Pa. Super. 2004). We amended the caption accordingly.
On May 11, 2022, Appellant filed a praecipe to discontinue her appeal against St. Joseph Medical Center. On May 20, 2022, this Court entered an order declaring that Appellant's appeal against St. Joseph's Medical Center was discontinued. See Order at 369 MDA 2022, 5/20/22, at 2.
Appellant commenced this medical malpractice action on February 17, 2017, by filing a praecipe for a writ of summons. Within Appellant's amended complaint, Appellant averred that, on February 19, 2015, Dr. David J. Abraham (hereinafter "Dr. Abraham") performed spinal surgery upon her husband, James S. Price, Jr. (hereinafter "Mr. Price"). Specifically, Dr. Abraham performed "a decompressive lumbar laminectomy on the left L4-5 with discectomy." Appellant's Amended Complaint, 10/23/17, at ¶ 14. According to Appellant, a few days after surgery, Mr. Price noticed drainage emanating from the surgical site. Id. at ¶ 16. Appellant claimed that this drainage continued for months and, despite repeated visits to Dr. Abraham and members of Dr. Abraham's practice, the Defendants failed to timely diagnose and treat Mr. Price. See id. at ¶ 84. Appellant alleged that, as a result of this failure, Mr. Price developed an infection in his vertebrae, the infection spread, and Mr. Price died on April 10, 2015. See id.
Appellant brought a wrongful death and survival action against the Defendants. Among other things, Appellant claimed that Dr. Abraham breached the standard of care owed to Mr. Price, that his negligence "increased the risk of harm to [Mr. Price] and was a substantial factor in causing his death," and that the negligence caused Mr. Price severe pain and suffering. See id. Further, Appellant claimed that the remaining defendants were all directly negligent or vicariously liable for Mr. Price's pain, suffering, and death. See id. at ¶¶ 92-145.
The case proceeded to a jury trial, which began on September 14, 2021. The following evidence was presented during the trial.
On February 19, 2015, Dr. Abraham performed spinal surgery on Mr. Price. N.T. Trial, at 62. Appellant testified that, after the surgery, she spoke with Dr. Abraham. She testified: "[h]e called me to tell me that everything had gone well. Except I should not follow the written instructions that would be given to me. That he had possibly nicked - I forget the word. But he had nicked it and that Jim should" lie flat on his back for a few days. See id. at 64 and 205.
Appellant testified that Mr. Price followed Dr. Abraham's instructions; however, on February 25, 2015, Mr. Price noticed that "his pajamas in the back were soaked" around the incision site. Id. at 206. As Appellant testified, Dr. Abraham saw Mr. Price that day and Dr. Abraham "told [Mr. Price] go home and lay down. It will take time." Id.
Appellant testified that she telephoned Dr. Abraham's office on March 3, 2015, "begging for an appointment . . . because [Mr. Price] was still having leakage and it was getting worse." Id. The Prices returned to Dr. Abraham's office that day and saw Certified Registered Nurse Practitioner ("CRNP") Courtney Bates. CRNP Bates noted that Appellant "reported clear drainage from the incision with a positional headache." Id. at 67. According to Appellant, CRNP Bates "said the same thing that Dr. Abraham said. Just go home and lay down. It will be fine . . . [but] we needed to come back the next day if we felt that it was still leaking." Id. at 207.
As Mr. Price's incision was still leaking the next day, the Prices returned to Dr. Abraham's office on March 4, 2015. After seeing Mr. Price, Dr. Abraham testified that he suspected Mr. Price was suffering from a cerebrospinal fluid ("CSF") leak and that the drainage was CSF. Id. at 74-75. Dr. Abraham advised Mr. Price to "do bed rest until Monday," March 9, 2015, when Mr. Price was scheduled to return to Dr. Abraham's office for suture removal. Id. at 73 and 76. As Dr. Abraham testified, he hoped that this bed rest would "alleviate . . . [Mr. Price's] headaches" and "lessen the pressure" so that the CSF leak would have a chance to seal on its own. Id. at 73-74.
When the Prices returned to Dr. Abraham's office on March 9, 2015 for the planned suture removal, Dr. Abraham inspected the incision site and decided that the sutures should not be removed, as the Prices were still reporting drainage from the wound. Id. at 79 and 87. Dr. Abraham prescribed antibiotics for Mr. Price and then told the Prices "that he would be going away for a few days." Id. at 209.
Appellant testified that, after the March 9 appointment, Mr. Price "was getting more pain and physically weaker" every day. Id. Then, on March 11, 2015, the Prices' daughter noticed "yellow pus coming out" of the wound. Id. at 210. Appellant telephoned Dr. Abraham's office and, since Dr. Abraham was still away from the office, the Prices were seen on Friday, March 13, 2015, by CRNP Zenadia Kutz, who was working under Dr. Stephen Banco's team at Reading Neck and Spine Center. Id. at 362. CRNP Kutz noted that Mr. Price had a temperature of 99.4 degrees and reported intermittent chills, as well as a worsening, yellow drainage from the incision site, and "low back pain around his incision." Id. at 107 and 370. Further, CRNP Kutz observed a "pinpoint opening at the distal end of the incision" that was "draining scant white/yellow" liquid. Id. at 109 and 370.
Dr. Banco's recorded deposition testimony was played during trial. N.T. Trial, at 411. Dr. Banco explained that, in 2015, Reading Neck and Spine Center was a part of Defendant Keystone Orthopaedic Specialists, LLC. Dr. Banco's Deposition, Joint Trial Exhibit 54, 2/26/19, at 8-10 and 44.
At the end of the appointment, CRNP Kutz telephoned Dr. Banco. Dr. Banco's Deposition, Joint Trial Exhibit 54, 2/26/19, at 22. Although Dr. Banco did not see Mr. Price that day, CRNP Kutz consulted with Dr. Banco and Dr. Banco "told her what to do." Id. at 15, 22, and 25. Specifically, Dr. Banco "ordered a visiting nurse to come to the house," Dr. Banco ordered the visiting nurse to perform "wet-to-dry dressing changes" with "sterile cotton tip applicator soaked in peroxide to the distal incision," and the Prices were told to come back to the office on Monday, March 16, 2015. Id. at 26; N.T. Trial, at 212-213 and 381.
The visiting nurse arrived over the weekend and "milked" Mr. Price's wound by "putting her hands at the bottom and pushing up until this thick pus stuff was coming out." N.T. Trial, at 212-213. When the Prices returned to see CRNP Kutz on Monday, March 16, 2015, CRNP Kutz undressed the wound and observed that the wound "got significantly worse. It was not what it looked like on Friday." Id. at 384. CRNP Kutz then called Dr. Banco, Dr. Banco saw Mr. Price, and, that day, Dr. Banco admitted Mr. Price to St. Joseph's Medical Center. Dr. Banco's Deposition, Joint Trial Exhibit 54, 2/26/19, at 30-35.
On March 20, 2015, Dr. Abraham performed a second surgery upon Mr. Price, with the stated intent of "fix[ing] a small leak in the spinal area." N.T. Trial, at 126. During the surgery, however, Dr. Abraham "searched and searched and didn't find [any] leak." Id. at 171. Further, Dr. Abraham testified that he cultured the wound and the cultures did not show signs of infection. Id. at 173.
Appellant testified that, following the surgery, Mr. Price "seemed good." Id. at 216. However, from March 24 to April 2, 2015, Appellant testified that Mr. Price "was getting worse and worse" and that the "pain was getting worse every day." Id. at 218. On April 2, 2015, the visiting nurse called an ambulance for Mr. Price and, that morning, Mr. Price arrived at St. Joseph's Medical Center Emergency Department. While there, Appellant demanded that Mr. Price's care be transferred from Dr. Abraham to a different doctor. Id. at 268. Mr. Price then died on the early morning of April 10, 2015.
Dr. Jorge Arboleda was the hospitalist at St. Joseph's Medical Center when Mr. Price died. Id. at 937. Dr. Arboleda testified that Mr. Price's April 10, 2015 "discharge summary" reported: "osteomyelitis with spine abscess, status post aspiration with concern for a neurogenic involvement," as well as "cardiopulmonary arrest with pulmonary edema, suspected meningitis from lumbar abscess and suspected septicemia for known underlying abscess with seeding of the infection into the bloodstream." Id. at 161 and 939-944.
During cross-examination, the defense observed that, on April 9, 2015, the doctors treating Mr. Price at St. Joseph's Medical Center had ordered a "hold" on all opioid medication to Mr. Price and had also given Mr. Price Narcan, "to try to reverse the effect of opioids." Id. at 947. Dr. Arboleda testified that the "hold" order on the opioids and the administration of Narcan were done "[b]ecause there was a concern that [Mr. Price] may be having confusion because of the use of opioids." Id. at 948.
Dr. Arboleda testified that, at 12:20 a.m. on April 10, 2015, Mr. Price was administered the antipsychotic drug Zyprexa. Id. at 949. Further, and notwithstanding the hold order on the opioids, "another nurse gave [Mr. Price] a dose of [the opioid] Dilaudid intravenously at 50 minutes past midnight" on April 10, 2015. Id. Within one hour, Mr. Price went into respiratory distress and died. Id.
With this background, Dr. Arboleda testified in the following manner on cross:
[Defense Counsel]: If one were to mix an opioid with an antipsychotic, what it could do to a patient is to depress their respiratory status and they could go into respiratory distress and arrest; correct?
[Dr. Arboleda]: It's a possibility, yes.
[Defense Counsel]: . . . Dr. Arboleda, you recognize this as being a part of the code sheet; correct?
[Dr. Arboleda]: Yes.
[Defense Counsel]: Can we agree that the wording of the code was respiratory and status [sic]?
[Dr. Arboleda]: Yes.
[Defense Counsel]: That would be consistent with someone who was given an opioid and an antipsychotic who has an underlying history of severe COPD; correct?
[Dr. Arboleda]: It's a possibility.
[Defense Counsel]: . . . Dr. Arboleda, I want you to understand I'm not blaming you for this. You had to do a discharge summary, but the fact of the matter is when you did this discharge summary, you didn't see the notes we just went over in formulating these diagnoses; correct?
[Dr. Arboleda]: That is correct.
[Defense Counsel]: With this additional information, is it possible your thoughts on the cause of death may change?
[Dr. Arboleda]: It's hard to make a - I wasn't there for this. [Defense Counsel]: That's all I have. Thank you.Id. at 955-956.
Appellant presented the testimony of two expert witnesses during trial. The first was Dr. Kern Singh, who was accepted as an expert in the field of orthopedic surgery and the evaluation and treatment of patients with post-operative lumbar wounds. Id. at 293-295. As Dr. Singh testified, on February 19, 2015, Dr. Abraham performed a decompressive lumbar laminectomy on Mr. Price. Id. at 291. In explaining the procedure, Dr. Singh testified:
So I always tell people that, you know, the spine - inside the spine is kind of like a balloon. That's the sac that holds the nerve roots. And inside that balloon, there's fluid. And in that balloon of fluid, there's spaghetti strands, literally nerve roots in that sac look exactly like pasta.
So that sac, that balloon, is actually held or protected by a surrounding circle of bone. And when we do a laminectomy, we take off the bone on the back side. So when you push on your back and you feel that bump there or the back of your neck, that's part of the bone that goes to the lamina. That's what we take out. And we take it out. And what it does is, it creates - it takes off the roof. So you open up the space.
So that sac that may have been compressed with that fluid on that nerve root has space to expand again. And so the laminectomy part means removing that piece of bone and the associated bone spurs that build up over time to help avoid or remove the pressure on the nerve roots which are those noodles inside that sac of the balloon.Id. at 291.
According to Dr. Singh, a dural tear occurred during Mr. Price's February 19, 2015 surgery. Id. at 307. As Dr. Singh explained, a "dural tear" means that the "balloon" sac, holding the spinal nerve roots, either popped or tore during the surgery; this then allowed the CSF - which was held inside of the spinal "balloon" sac - to leak from the surgical incision. Id. at 298-300.
Although Dr. Singh did not fault Dr. Abraham for causing the dural tear, as "[t]hat can happen to anybody," Dr. Singh testified that a dural tear poses certain risks to a patient. Id. at 308-309. He testified:
So you have to understand what CSF is. So it's not just the fluid around the nerves. It's the fluid that goes from your brain down to your spine. And it has particular purpose. Aside from providing nutrients and the nutrition for the nerves and the brain, it prevents clotting. You don't want a clot in your brain. You don't want a clot in your spinal cord.
It prevents clot formation. Why is that important? When CSF leaks, it prevents the healing of wounds. And so that same process is the same process involved in clotting. So when a CSF tear occurs or a leak occurs, a wound can be compromised. And then that wound doesn't heal. And as I mentioned before, fluid coming out allows for bacteria to go in. So it increases the likelihood for a postoperative infection.
. . .
[T]here's a rule or there [is] a saying what gets out allows things to come in. So if a CSF is leaking outside, it means bad stuff, bacteria can get in. So the risk is always further
neurological worsening that leads to weakness. There is a worsening or an increasing chance for an infection if the wound doesn't heal. And then different things can develop[] from that infection, the severity of which could be a [disc] infection, a bone infection, an abscess around the nerves. All of those things can occur.Id. at 299 and 308.
Dr. Singh testified that "post-op day 11 or so, 10, 11, in that area" was the time that Dr. Abraham's conduct fell below the standard of care. Id. at 310-311. According to Dr. Singh, at this point "there's enough information, a patient had surgery, there was a concern for a leaking wound. You don't have to physically see the leaking wound. . . . At that point, something more should have been done." Id. at 310-311. As to what "more should have been done," Dr. Singh testified:
Well, there are attempts at something to be done. There's a let's observe this wound for 24 hours and see if it's getting better or not. There's a telling her, [Appellant] and her husband, to lay flat for now what is two weeks. There's generalized attempts. But if there's a genuine concern on the patient and the family and there's a wound that is leaking - and how do we know? We don't have to physically see it. We know from [Appellant] and Mr. Price that they have to change dressings. That's not normal.
She's not a nurse. She shouldn't be changing dressings over and over again. She shouldn't be even talking to the wound care nurse about milking something. That milking didn't cause the wound to worsen. That infection was - that CSF was progressing leading to the infection.
At that point, [Appellant's] concerns and [Mr. Price's] deteriorating picture should have led to at least . . . an admission for observation so that the nurses could have seen overnight or 24 hours watched him. It should have led to some additional work-up, an MRI or something because there was a genuine concern for a CSF tear at the very beginning.
And we should have the spine surgeon as a baseline, those two together with the patient who has medical issues, who is susceptible, doesn't have the critical reserves that maybe I have or somebody else has that's healthy, should have led to something more investigative that should have been done earlier.Id. at 311-312.
Dr. Singh testified that Mr. Price suffered from an ever-worsening bacterial infection, which eventually infected Mr. Price's intervertebral disc space, causing discitis, and Mr. Price's vertebrae, causing osteomyelitis. Id. at 317. Dr. Singh testified:
[T]hese things that happened [to Mr. Price] could have been identified and should have been identified earlier and prevented earlier. And I really do believe there were multiple opportunities for Dr. Abraham and the Reading Spine Center . . . to have made a difference in the life of Mr. Price and ultimately the life of Mrs. Price.Id. at 322.
Dr. Singh also testified that the conduct of CRNP Zenaida Kutz of the Reading Neck and Spine Center fell below the standard of care. According to Dr. Singh:
[CRNP] Kutz sees a wound that is not normal and is not right. It is only one of two things, it's an infection or a CSF leak or both. The patient - by the time she sees the patient several days out from surgery and a deteriorating picture of Mr. Price, she should have known something was not right, contacted her supervising physician who should have seen that patient at that point and ultimately engaged in additional care, whether that have been a hospital admission, a work-up, or intervention, I believe would have altered the care and the course of Mr. Price's postoperative care.Id. at 312-313.
According to Dr. Singh, the negligence of both Dr. Abraham and CRNP Kutz was a factual cause and a substantial factor in causing Mr. Price's suffering and death. Id. at 322.
Further, during Dr. Singh's testimony, Appellant began to ask questions related to whether "anyone's actions increased the risk of harm to Mr. Price." See id. at 303-304. Defense counsel immediately objected to this line of questioning and claimed that the issue was irrelevant because:
This is a factual cause case. This isn't an increased risk of harm case. The allegation in this case is specific. They allege that [Mr. Price] died from an infection. Either he died from an infection because of negligence or he did not. It's not increased risk of harm. It is factual cause.Id. at 305.
Appellant's counsel retorted that "part of this case involves a failure to diagnose an individual who had signs and symptoms of infection and signs [and] symptoms of CSF fluid and what that caused in the end. And that's always an increased risk of harm case." Id.
The trial court nevertheless sustained the Defendants' objection and precluded Appellant from eliciting any testimony on the issue of increased risk of harm. Id. at 306.
Next, Appellant presented the testimony of Dr. Gary Simon, whom the trial court accepted as an expert in the field of infectious disease. Id. at 845. Dr. Simon testified that he reviewed Mr. Price's medical records and concluded that "there's no question [Mr. Price] had an infection prior to his death." Id. at 847. Further, Dr. Simon opined that Mr. Price's infection resulted from his initial, February 19, 2015 surgery, that this "infection was never resolved," and that Mr. Price died as a result of the infection. Id. at 847-851. Specifically, Dr. Simon testified, "bacteria got into the site at the time of" the initial, February 19, 2015 surgery, the bacteria caused an infection, and the infection eventually progressed to where Mr. Price "had sepsis, . . . he had a systemic infection, and he had a lumbar abscess," which caused his death. Id. at 848 and 881. Dr. Simon also testified that "[e]arlier diagnosis and earlier treatment of the abscess [] would have altered the outcome and would have prevented [Mr. Price's] death on that day." Id. at 884.
Dr. Simon testified that, although he believed that "the bacteria got into the site at the time of surgery," the infection was not "evident immediately." Id. at 848. Instead, he testified, an infection "takes time to develop. So when - there is a time when the infection begins to suggest itself, and that happened later." Id. Specifically, he testified:
Mr. Price has fluid draining a couple of weeks after surgery. That's late. That's a long time. . . . So that's sort of the first suggestion that there might be an infection, and that happened, what, I think on the 3rd of March which is two weeks after surgery. That's a long time to be having serous drainage, at least in my experience.Id. at 853.
Dr. Simon testified that "there's only a couple of things you can really do" to determine whether Mr. Price had an infection. Id. at 854. He testified: "[y]ou can get a blood count, you can measure some inflammatory markers, or you can do an MRI or a CT, but, as I said, MRI is better." Id.
During cross-examination, Dr. Simon testified that he disagreed with Dr. Singh's opinion that "the clear drainage that was being seen from Mr. Price's lumbar incision" was CSF. According to Dr. Simon, the drainage was only serous fluid. Id. at 884-886. As Dr. Simon explained, "serous fluid" "is part of the natural inflammatory process of the body" and, when serous fluid collects, it forms a seroma. Id. at 884-885. Dr. Singh earlier explained that a seroma:
is a fluid collection after surgery. It typically occurs because there may be a space or an opening. It can be mixed with blood. It can be mixed with different things inside of it. The easiest way to understand it is like a postoperative bruise.Id. at 331.
Further, during cross-examination, Dr. Simon reiterated his belief that "the bacteria got in there at the time of" the initial, February 19, 2015 surgery - and not, as Dr. Singh opined, at some later date from a CSF leak. Id. at 886-887.
At the close of Appellant's case, the Defendants moved for the entry of compulsory nonsuit in their favor. On September 21, 2021, the trial court granted the Defendants' motions and entered nonsuit in favor of all Defendants. See Trial Court Order, 9/21/21, at 1. Appellant filed timely post-trial motions, where she sought the removal of the nonsuits. The trial court denied Appellant's post-trial motions on January 26, 2022. See Trial Court Order, 1/26/22, at 1.
On February 24, 2022, Appellant filed her notices of appeal and, on March 3, 2022, the trial court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Trial Court Order, 3/3/22, at 1.
Appellant complied with the trial court's Rule 1925(b) order and, on April 11, 2022, the trial court issued its opinion in the matter, where it first explained the underlying bases for its entry of nonsuit. As the trial court explained, it entered nonsuit against Appellant and in favor of Defendant Keystone Orthopaedic Specialists Group because: 1) Appellant "had not established agency regarding Dr. Abraham" and 2) "the testimony of [Appellant's orthopedic] surgery [] expert, Dr. Kern Singh, did not have a factual basis." Trial Court Opinion, 4/11/22, at 3. Further, the trial court explained, it entered nonsuit against Appellant and in favor of Dr. Abraham because: 1) the April 10, 2015 administration of antipsychotic and opioid medication, by agents of St. Joseph's Medical Center, constituted a superseding cause of Mr. Price's harm and 2) Appellant's two expert witnesses contradicted themselves in their essential conclusions. Id. at 3-9. As the trial court also explained, it did not allow Appellant to present evidence that Dr. Abraham increased the risk of harm to Mr. Price because "[Appellant] presented no evidence of an existing condition present in this case that was reasonably inevitable and that increased the risk of harm." Id.
Judgment was entered and the current appeal is properly before this Court. Appellant raises four claims on appeal:
See Pa.R.A.P. 905(a)(5) ("[a] notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof").
1. Whether the trial court erred in granting nonsuit where [Appellant's] experts' testimony did not irreconcilably conflict on fundamental issues?
2. Whether the trial court erred by denying the motion to remove nonsuit and for a new trial, where a prima facie case was presented against Dr. Abraham?
3. Whether the trial court erred by granting nonsuit and denying the motion to remove nonsuit where Appellant established causation through an increased risk of harm theory?
4. Whether the [trial] court erred by denying the motion to remove nonsuit and for a new trial, where the evidence of record supported a prima facie case against the agents and employees of Defendant Keystone Orthopaedic Specialists Group, LLC?Appellant's Brief at 6 (some capitalization omitted).
For ease of discussion, we have renumbered Appellant's claims on appeal.
First, Appellant claims that the trial court erred when it entered a nonsuit in favor of Dr. Abraham on the ground that Appellant's expert witnesses irreconcilably conflicted. As this Court has explained:
In reviewing the entry of a nonsuit, our standard of review is well-established: we reverse only if, after giving appellant the benefit of all reasonable inferences of fact, we find that the factfinder could not reasonably conclude that the essential elements of the cause of action were established.
Indeed, when a nonsuit is entered, the lack of evidence to sustain the action must be so clear that it admits no room for fair and reasonable disagreement. The fact-finder, however, cannot be permitted to reach a decision on the basis of speculation or conjecture.
Stated differently: [o]n appeal, entry of a compulsory nonsuit is affirmed only if no liability exists based on the relevant facts and circumstances, with appellant receiving the benefit of every reasonable inference and resolving all evidentiary conflicts in appellant's favor. The compulsory nonsuit is otherwise properly removed and the matter remanded for a new trial.
The appellate court must review the evidence to determine whether the trial court abused its discretion or made an error of law.Munoz v. Children's Hosp. of Phila., 265 A.3d 801, 805-806 (Pa. Super. 2021) (quotations, citations, and brackets omitted); see also Barnes v. Alcoa, Inc., 145 A.3d 730, 735 (Pa. Super. 2016) ("[a] nonsuit is proper only if the jury, viewing the evidence and all reasonable inferences arising from it in the light most favorable to the plaintiff[], could not reasonably conclude that the elements of the cause of action had been established. Furthermore, all conflicts in the evidence must be resolved in the plaintiff['s] favor"); Pa.R.C.P. 230.1(a)(2) ("[t]he [trial] court in deciding the motion [for entry of a compulsory nonsuit] shall consider only evidence which was introduced by the plaintiff and any evidence favorable to the plaintiff introduced by the defendant prior to the close of the plaintiff's case").
"Medical malpractice is a form of negligence." Rolon v. Davies, 232 A.3d 773, 777 (Pa. Super. 2020). As with any negligence case, a prima facie case of medical malpractice requires that a plaintiff "establish that the physician owed the plaintiff a duty and breached it; that the breach was the proximate cause of the plaintiff's harm; and that the alleged damages were a direct result of the harm." Id. Expert testimony is necessary where "the circumstances surrounding the malpractice claim are beyond the knowledge of the average layperson." Id. "An expert must testify, to a reasonable degree of medical certainty, that the defendant physician deviated from acceptable standards, and that the deviation was the proximate cause of the plaintiff's harm." Id.
In Mudano v. Philadelphia Rapid Transit Co., our Supreme Court held that a plaintiff cannot sustain his or her burden of proof upon the presentation of expert testimony that is "so contradictory and conflicting as to present to the jury no basis for a finding, except a mere guess." Mudano v. Phila. Rapid Transit Co., 137 A. 104, 107 (Pa. 1927). In particular, the Mudano Court held that if expert testimony is
so conflicting regarding the proper inference to be drawn as to render either one of two inconsistent inferences possible of adoption, the adoption of the one or the other would be nothing more than a guess, and, under such circumstances, [the] plaintiff fails to sustain the burden of proof which the law casts upon him [or her].Id. at 106.
In the case at bar, the trial court concluded that Appellant's two experts - Drs. Singh and Simon - "presented conflicting testimony . . . on the nature of the fluid leaking from [Mr. Price's] surgical wound during the time that he was under Dr. Abraham's care." Trial Court Opinion, 4/11/22, at 6. Therefore, the trial court reasoned, under the Mudano rule, it was required to enter a nonsuit in favor of Dr. Abraham and against Appellant. Id. On appeal, Appellant claims that the trial court erred when it entered the nonsuit. Appellant's Brief at 40. We agree with Appellant.
As our Supreme Court has explained, the Mudano rule is limited to instances where "the plaintiff's experts [] so vitally disagree on essential points as to neutralize each other's opinion evidence." See Brannan v. Lankenau Hosp., 417 A.2d 196, 200 (Pa. 1980). Thus, our Supreme Court recognized that, since Mudano was issued, the Supreme Court "has allowed juries to consider and resolve conflicts among expert witnesses." Id. (citing cases). Stated another way, "relatively minor divergence[s] in only a part of [an] expert's testimony, when viewed against the testimony as a whole" will "not justify removal of [a party's negligence] from jury consideration:" "conflicts in [expert] testimony are fatal only if absolute." Id.; see also Brodowski v. Ryave, 885 A.2d 1045, 1061 (Pa. Super. 2005) (holding that the experts' testimony "did not present an irreconcilable conflict such that the Mudano rule would apply to neutralize their opinions").
Dr. Singh testified that, in his opinion, a dural tear occurred during Mr. Price's initial, February 19, 2015 surgery. Dr. Singh testified that this tear allowed CSF to leak from the area of the surgical incision and that the CSF leak prevented clot formation, thus allowing bacteria to enter and infect Mr. Price's body. N.T. Trial, 307-312.
Dr. Singh further testified that Dr. Abraham was not negligent in creating the dural tear, but that Dr. Abraham's conduct fell below the standard of care "post-op day 11 or so, 10, 11, in that area." Id. By the calendar, "post-op day ten or 11" was either March 1 or 2, 2015. However, Appellant testified that she did not call Dr. Abraham's office until March 3, 2015 - and that the Prices were seen by CRNP Bates that day. See id. at 206. Further, Dr. Abraham did not examine Mr. Price until March 4, 2015. Id. at 74-75. Therefore, according to the uncontradicted evidence in this case, Dr. Singh opined that Dr. Abraham breached his standard of care to Mr. Price on either March 3 or 4, 2015.
Dr. Singh further testified that on either March 3 or 4, 2015, "there's enough information, a patient had surgery, there was a concern for a leaking wound. You don't have to physically see the leaking wound. . . . At that point, something more should have been done." Id. at 310-311. He testified that, at that point, "[Appellant's] concerns and [Mr. Price's] deteriorating picture should have led to at least . . . an admission for observation so that the nurses could have seen overnight or 24 hours watched [Mr. Price]. It should have led to some additional work-up, an MRI or something." Id. at 311-312.
Finally, Dr. Singh testified that Mr. Price was suffering from an ever-worsening bacterial infection, which eventually caused an infection of Mr. Price's intervertebral disc space, causing discitis, and Mr. Price's vertebrae, causing osteomyelitis. Id. at 317. Dr. Singh testified:
[T]hese things that happened [to Mr. Price] could have been identified and should have been identified earlier and prevented earlier. And I really do believe there were multiple opportunities for Dr. Abraham and the Reading Spine Center . . . to have made a difference in the life of Mr. Price and ultimately the life of Mrs. Price.Id. at 322.
Appellant also presented the expert testimony of Dr. Simon. On direct examination, Dr. Simon testified that "bacteria got into the site at the time of" the initial, February 19, 2015 surgery, the bacteria caused an infection, and the infection eventually progressed to where Mr. Price "had sepsis, . . . he had a systemic infection, and he had a lumbar abscess," which caused his death. Id. at 848 and 881. Dr. Simon also testified on direct that "[e]arlier diagnosis and earlier treatment of the abscess [] would have altered the outcome and would have prevented [Mr. Price's] death on that day." Id. at 884.
Although Dr. Simon believed that the fluid leaking from Mr. Price's surgical site was serous fluid - and not, as Dr. Singh opined, CSF - Dr. Simon testified that "the first suggestion that there might be an infection" occurred on March 3, 2015. He testified:
Mr. Price has fluid draining a couple of weeks after surgery. That's late. That's a long time. . . . So that's sort of the first suggestion that there might be an infection, and that happened, what, I think on the 3rd of March which is two weeks after surgery. That's a long time to be having serous drainage, at least in my experience.Id. at 853.
He also testified that, at this point, "there's only a couple of things you can really do" to determine whether Mr. Price had an infection: "[y]ou can get a blood count, you can measure some inflammatory markers, or you can do an MRI or a CT, but, as I said, MRI is better." Id. at 854.
Therefore, although Drs. Singh and Simon disagreed on the nature of the fluid leaking from Mr. Price's surgical site and on the origin of Mr. Price's infection, neither expert opined that Dr. Abraham was negligent for simply allowing the bacterial infection. Further, both experts agreed: that Mr. Price's surgical site became infected with bacteria; that this infection was first evident on March 3 or 4, 2015; that the ongoing leaking wound was "a concern" that Mr. Price was suffering from a bacterial infection; and, that Mr. Price was harmed because Dr. Abraham failed to timely diagnose the ever-worsening bacterial infection.
Moreover, and importantly, Dr. Singh's opinion that Dr. Abraham breached the standard of care was not based solely upon the nature of the fluid that was being secreted from Mr. Price's surgical site. Rather, Dr. Singh expressly testified:
[Appellant's] concerns and [Mr. Price's] deteriorating picture should have led to at least . . . an admission for observation so that the nurses could have seen overnight or 24 hours watched [Mr. Price]. It should have led to some additional work-up, an MRI or something.Id. at 311-312 (emphasis added).
Therefore, according to Dr. Singh, Dr. Abraham breached his standard of care because he failed to take action when confronted with "[Appellant's] concerns and [Mr. Price's] deteriorating picture." Id. This basis for Dr. Singh's standard of care opinion exists independently of his opinion that Mr. Price was suffering from a CSF leak - and, thus, precluded the entry of a nonsuit in this case.
Given the testimony in this case, we conclude that the trial court erred when it entered a nonsuit in favor of Dr. Abraham and against Appellant on the ground that Appellant's expert witnesses offered irreconcilably conflicting testimony on a fundamental issue. While Drs. Singh and Simon might have disagreed on the nature of the fluid leaking from Mr. Price's surgical site and on the origin of Mr. Price's infection, both experts argued that Mr. Price's condition on or about March 3 or 4, 2015 should have caused Dr. Abraham to take further steps to diagnose and treat Mr. Price's infection. Thus, in the context of this case the disagreements were not "so contradictory and conflicting as to present to the jury no basis for a finding, except a mere guess." Mudano, 137 A. at 107.
Next, Appellant claims that the trial court erred when it granted Dr. Abraham's motion to enter a nonsuit on the ground that the April 10, 2015 administration of antipsychotic and opioid medication, by agents of St. Joseph's Medical Center, constituted a superseding cause of Mr. Price's harm. See Appellant's Brief at 6 and 64.
Dr. Abraham contends that Appellant waived this claim on appeal, as it was not contained in Appellant's statement of matters complained of on appeal. See Dr. Abraham's Brief at 33 n.1. There is no waiver in this case, as Appellant did not have an opportunity to raise the issue in her concise statement. Dr. Abraham moved for entry of nonsuit on one ground: that Appellant's experts irreconcilably conflicted on the issue of whether Mr. Price suffered a CSF leak and, thus, Appellant failed to present a prima facie case of medical malpractice. See Dr. Abraham's Motion for Nonsuit, 9/20/21, at 1-9. Further, when the trial court entered nonsuit and denied Appellant's motion to remove the nonsuit, it did so in orders that did not provide an underlying basis for its reasoning. See Trial Court Order, 9/21/21, at 1; Trial Court Order, 1/26/22, at 1. Appellant then filed timely notices of appeal and the trial court ordered Appellant to file concise statements of errors complained of on appeal. Trial Court Order, 3/3/22, at 1. Only after Appellant filed her concise statements did the trial court file an opinion and explain that it entered nonsuit in Dr. Abraham's favor, in part, because the April 10, 2015 administration of antipsychotic and opioid medication, by agents of St. Joseph's Medical Center, constituted a superseding cause of Mr. Price's harm. Trial Court Opinion, 4/11/22, at 1-9. Therefore, Appellant did not have an opportunity to raise this particular claim of error until she filed her brief to this Court. As such, the claim is not waived. See Riverview Carpet & Flooring, Inc. v. Presbyterian SeniorCare, 299 A.3d 937, 980 n.32 (Pa. Super. 2023) (holding: even though the appellant did not raise a particular claim in its Rule 1925(b) statement, the claim was not waived on appeal because "the trial court did not provide a legal basis for [its order] until its Rule 1925(a) opinion").
We have explained:
"Two or more causes may contribute to and thus be the legal or proximate cause of an injury." Feeney v. Disston Manor Personal Care Home, Inc., 849 A.2d 590, 595 (Pa. Super. 2004). Further, and relatedly, where an act or force "actively operates in producing harm to [the plaintiff] after [the defendant's] negligent act [] has been committed," that intervening force does not necessarily relieve the defendant of liability. Restatement (Second) of Torts § 441. Instead, for an act to break the causal chain and relieve the defendant of liability, the act must be "so extraordinary as not to have been reasonably foreseeable." Von der Heide v. Commonwealth, Dep't of Transp., 718 A.2d 286 (Pa. 1998); Trude v. Martin, 660 A.2d 626, 632 (Pa. Super. 1995). In such a case, the act constitutes a "superseding cause" and, "by its intervention, [the act] prevents the
[defendant] from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about." Von der Heide, 718 A.2d at 288 (quoting Restatement (Second) of Torts § 440). "A determination of whether an act is so extraordinary as to constitute a superseding cause is normally one to be made by the jury." Powell v. Drumheller, 653 A.2d 619, 624 (Pa. 1995).Straw v. Fair, 187 A.3d 966, 995 (Pa. Super. 2018).
The trial court declared that it entered a nonsuit in favor of Dr. Abraham because the April 10, 2015 administration of antipsychotic and opioid medication, by agents of St. Joseph's Medical Center, constituted a superseding cause of Mr. Price's harm. Trial Court Opinion, 4/11/22, at 5-6. Appellant claims that the trial court violated its standard of review in arriving at this conclusion and that the trial court thus erred as a matter of law. Appellant's Brief at 64. We again agree with Appellant.
As explained above, Appellant presented evidence that Mr. Price died as a result of a bacterial infection. To be sure, Dr. Simon testified that "[e]arlier diagnosis and earlier treatment of the abscess . . . would have altered the outcome and would have prevented [Mr. Price's] death on" April 10, 2015. N.T. Trial, at 884. Appellant also presented the testimony of Dr. Arboleda, who testified that he signed Mr. Price's death certificate and, on the death certificate, Dr. Arboleda listed Mr. Price's cause of death as: cardiopulmonary arrest, sepsis, and lumbar abscess. Id. at 943.
On cross-examination, Dr. Arboleda testified that agents of St. Joseph's Medical Center administered antipsychotic and opioid medication to Mr. Price in the hours before he died. Id. at 954. Dr. Arboleda conceded that it was "a possibility" that "[i]f one were to mix an opioid with an antipsychotic," it could cause a patient to "go into respiratory distress and arrest." Id. at 955. He further conceded that it was "a possibility" that "someone who was given an opioid and an antipsychotic who has an underlying history of severe COPD" could enter respiratory distress. See id. at 955-956.
In granting Dr. Abraham's motion for a nonsuit, the trial court essentially ignored Appellant's evidence, usurped the role of the jury, and concluded, as a fact, that Mr. Price died because nurses at St. Joseph's Medical Center administered both antipsychotic and opioid medication on the night of his death. This constitutes a clear violation of the standard of review and the trial court's designated role at trial. To be sure, in ruling on the motion for nonsuit, the trial court was required to "view[] the evidence and all reasonable inferences arising from it in the light most favorable to the plaintiff." Barnes, 145 A.3d at 735. Further, and relatedly, the trial court was not permitted to render credibility determinations at the nonsuit stage. White v. Owens-Corning Fiberglas, Corp., 668 A.2d 136, 142 (Pa. Super. 1995) ("[a] witness's credibility is a determination for the jury and necessarily creates a genuine issue of material fact").
Viewing the evidence in the light most favorable to Appellant, we conclude that Appellant presented sufficient evidence to allow the factfinder to assess whether Mr. Price died as a result of a bacterial infection that resulted from negligent post-surgical care. The trial court violated its standard of review and supplanted the role of the jury when it concluded, as a fact, that the April 10, 2015 administration of antipsychotic and opioid medication, by agents of St. Joseph's Medical Center, constituted a superseding cause of Mr. Price's harm. As such, we conclude that the trial court erred when it entered a nonsuit in favor of Dr. Abraham and against Appellant on the ground of superseding cause.
We also note that, even if the trial court's superseding cause analysis were correct, it would not support the entry of a nonsuit, as it would not eliminate Appellant's claims for relief regarding Mr. Price's pain and suffering.
Next, Appellant claims that the trial court erred when it prohibited her from "eliciting expert causation opinions consistent with an 'increased risk of harm' theory of causation." Appellant's Brief at 55.
Questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and we will not reverse the court's decision absent a clear abuse of discretion. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.Parr v. Ford Motor Co., 109 A.3d 682, 690 (Pa. Super. 2014) (quotation marks and citations omitted).
"All relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is not admissible." Pa.R.E. 402. Relevant evidence, defined as proof that has any tendency to make a consequential fact more or less probable, may be excluded if its probative value is outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or the needless presentation of cumulative evidence. Pa.R.E. 403.
As explained above, during Dr. Singh's testimony, Appellant asked Dr. Singh whether "anyone's actions increased the risk of harm to Mr. Price." See id. at 303-304. Defense counsel immediately objected to this line of questioning and claimed that the issue was irrelevant because:
This is a factual cause case. This isn't an increased risk of harm case. The allegation in this case is specific. They allege that [Mr. Price] died from an infection. Either he died from an infection because of negligence or he did not. It's not increased risk of harm. It is factual cause.Id. at 305.
The trial court sustained the Defendants' objection and precluded Appellant from eliciting any testimony on the issue of increased risk of harm. Id. at 306. On appeal, Appellant claims that the trial court abused its discretion when it prohibited her from "eliciting expert causation opinions consistent with an 'increased risk of harm' theory of causation." Appellant's Brief at 55. We agree.
Essentially, the Defendants and the trial court "view[ed] increased risk [of harm] and direct causation as mutually exclusive." See Klein v. Aronchick, 85 A.3d 487, 495 (Pa. Super. 2014). However, as this Court explained, such a viewpoint is incorrect: "they are alternative theories of recovery" and a "plaintiff is entitled to an instruction on increased risk where there is competent medical testimony that a defendant's conduct at least increased the risk that the harm sustained by the plaintiff would occur." Id.
Here, Appellant's entire theory of recovery was premised upon the allegation that the Defendants failed to properly recognize, diagnose, and treat Mr. Price's bacterial infection; that this failure allowed the infection to spread throughout Mr. Price's body; and that, eventually, the pervasive infection caused Mr. Price's death. In other words, consistent with present Pennsylvania law, Appellant's theory of recovery at trial asserted either that the Defendants' negligence caused or, at least, "increased the risk that the harm sustained by [Mr. Price] would occur." See id. Indeed, Appellant's complaint specifically claimed that the Defendants' negligence "increased the risk of harm to [Mr. Price] and was a substantial factor in causing his death" and, at the beginning of trial, Appellant elicited the following concessions from Dr. Abraham, all of which support Appellant's increased risk of harm theory: "if [a] patient gets an infection . . . the earlier the infection is diagnosed and treated properly, the better the patient's chances of overcoming that infection;" "if there is a delay in the diagnosis and proper treatment of a patient's post-op infection, that increases the chances that it is the bacteria that will win and the patient will lose;" and, "if the infection is not treated promptly and appropriately, it increases the chance that a patient could end up with a bad result up to and including death." Appellant's Amended Complaint, 10/23/17, at ¶ 85; N.T. Trial, at 60-61. Finally, we observe that Dr. Singh's expert report further placed the Defendants on notice that Appellant intended to pursue an increased risk of harm theory of recovery at trial, as Dr. Singh specifically opined: "[i]t is my opinion that the deviations from the standard of care, as noted and detailed in this report, increased the risk of harm to [Mr. Price], and were substantial contributing factors in Mr. Price's complications, infection, severe, unrelenting pain and suffering, and subsequent death." Expert Report of Dr. Kern Singh, 6/11/19, at 8.
The trial court thus abused its discretion when it precluded Appellant from pursuing an "increased risk of harm" theory of recovery at trial. See Klein, 85 A.3d at 495-497.
Finally, Appellant claims that the trial court erred when it entered a nonsuit in favor of Defendant Keystone Orthopaedic and against Appellant on the ground that "[t]here was no factual basis for Dr. Singh's opinion that [CRNP Zenaida] Kutz violated the standard of care by not contacting her supervising physician, Dr. Banco," on March 13, 2015. See Trial Court Opinion, 4/11/22, at 3; Appellant's Brief at 69.
CRNP Kutz saw Mr. Price on both March 13 and 16, 2015. Although Dr. Singh does not specify the date upon which CRNP Kutz was allegedly negligent, Dr. Singh's allegations against CRNP Kutz could only relate to the March 13, 2015 visit, as Dr. Banco personally saw Mr. Price on March 16, 2015 and, that day, Dr. Banco admitted Mr. Price to St. Joseph's Medical Center.
During trial, Dr. Singh testified that both Dr. Abraham and CRNP Kutz's conduct fell below the standard of care. With respect to CRNP Kutz, Dr. Singh testified that her conduct on March 13, 2015 fell below the standard of care because:
[CRNP] Kutz sees a wound that is not normal and is not right. It is only one of two things, it's an infection or a CSF leak or both. The patient - by the time she sees the patient several
days out from surgery and a deteriorating picture of Mr. Price, she should have known something was not right, contacted her supervising physician who should have seen that patient at that point and ultimately engaged in additional care, whether that have been a hospital admission, a work-up, or intervention. I believe, would have altered the care and the course of Mr. Price's postoperative course.N.T. Trial, at 312-313.
However, it is uncontradicted that, on March 13, 2015, CRNP Kutz "contacted her supervising physician," Dr. Banco. See N.T. Trial, at 212 (Appellant admits that CRNP Kutz "talked to" Dr. Banco on March 13, 2015); and 378 (CRNP Kutz testifies that she "spoke with Dr. Banco before [she] wrote the" March 13, 2015 orders); see also Dr. Banco's Deposition, Joint Trial Exhibit 54, 2/26/19, at 15, 22, and 25 (Dr. Banco testified that, on March 13, 2015, CRNP Kutz consulted with him and he "told her what to do").
Notwithstanding the uncontradicted evidence that, on March 13, 2015, CRNP Kutz "contacted her supervising physician," Dr. Banco, Appellant claims that the trial court erred when it granted Defendant Keystone Orthopaedic's motion for nonsuit because Dr. Singh also testified that "further evaluation was required for Mr. Price." Appellant's Brief at 73. Relatedly, Appellant contends that "[t]here is no dispute that Dr. Banco did not see Mr. Price on [March 13, 2015] or that a hospital admission, a workup, or intervention was not done." Id. at 72. Appellant's claim fails.
On appeal, Appellant does not claim that the alleged negligence of Dr. Abraham would support a prima facie case against Keystone Orthopaedic Specialists Group, LLC. See Appellant's Brief at 69-74. Hence, we shall affirm the judgment entered in favor of Keystone Orthopaedic Specialists Group, LLC and its related business entities.
As noted, Dr. Singh testified that CRNP Kutz violated the standard of care because she failed to "contact[] her supervising physician who should have seen that patient at that point and ultimately engaged in additional care, whether that have been a hospital admission, a work-up, or intervention." N.T. Trial, at 312-313. Thus, as is relevant to CRNP Kutz, the only contention which suggested that she violated the standard of care was Dr. Singh's claim that she failed to "contact[] her supervising physician." See N.T. Trial, at 312-313 (CRNP Kutz "should have known something was not right, contacted her supervising physician who should have seen that patient at that point and ultimately engaged in additional care, whether that have been a hospital admission, a work-up, or intervention") (emphasis added). The remainder of Dr. Singh's allegations concern actions that could only have been taken by CRNP Kutz's "supervising physician," Dr. Banco.
It is uncontested that CRNP Kutz "contacted her supervising physician" on March 13, 2015. Further, regarding Dr. Banco, Dr. Singh did not claim that Dr. Banco's conduct fell below the standard of care and Dr. Singh did not testify that Dr. Banco's alleged deviations from the standard of care caused Mr. Price harm.
Thus, as the trial court explained:
[CRNP] Kutz did notify her collaborating doctor, Dr. Banco, about [Mr. Price] on [March 13, 2015]. An expert cannot base his opinion on facts which are not in evidence. City of Phila. v. W.C.A.B. (Kribel), 29 A.3d 762 (Pa. 2011).
Dr. Singh had no factual basis for his conclusion that [CRNP] Kutz failed to contact her supervising physician and that such failure evidenced that the treatment of [Mr. Price] fell below the standard of care owed to [Mr. Price].Trial Court Opinion, 4/11/22, at 4.
We agree with the trial court's able explanation. Therefore, Appellant's final claim on appeal fails.
Judgment vacated as to Defendant David J. Abraham, M.D. Judgment affirmed as to Defendant Keystone Orthopaedic Specialists Group, LLC and/or Keystone Orthopaedic Specialists, LLC t/d/b/a Reading Neck and Spine Center. Case remanded for a new trial. Jurisdiction relinquished.