Opinion
Civil Action No. 01-5355.
May 6, 2004
ORDER
I. INTRODUCTION
Presently before the Court are the Motion for Judgment as a Matter of Law filed by Thomas Jefferson University Hospital ("TJUH") on April 26, 2004 (Doc. No. 79), the Opposition to the Motion for Judgment as a Matter of Law filed by Plaintiff Joseph Maresca ("Plaintiff") on May 3, 2004 (Doc. No. 83), the Motion for Judgment as a Matter of Law filed by Defendant Elliot L. Mancall, M.D. ("Dr. Mancall") on April 28, 2004 (Doc. No. 80), and the Opposition to the Motion for Judgment as a Matter of Law filed by Plaintiff on May 3, 2004 (Doc. No. 84).
II. FACTUAL AND PROCEDURAL HISTORY
Plaintiff, proceeding pro se, initiated this medical malpractice action in state court in September of 2001 against Dr. Mancall and TJUH (together "Defendants"). After the action was removed to this Court by Defendants, Plaintiff filed a Complaint on February 14, 2002, generally alleging that he was examined by Dr. Mancall on or about December 5, 1996; that he was at that time suffering from particular symptoms which Dr. Mancall should have recognized as corresponding to a medical condition called ankylosing spondylitis; that Dr. Mancall failed to diagnose his condition; that he did not realize that he suffered from ankylosing spondylitis until over two years later; and that Dr. Mancall's failure to diagnose his condition resulted in his continued suffering from the condition and the further progression of the condition. The Complaint can be fairly read to set forth three claims: (1) a medical malpractice claim against Dr. Mancall based on his alleged failure to diagnose Plaintiff's condition; (2) a claim against TJUH alleging vicarious liability for Dr. Mancall's actions based upon the theory of respondeat superior; and (3) a claim against TJUH based upon the doctrine of corporate negligence. During discovery, the Plaintiff provided two pre-trial reports from a neurologist, Mitchell S. Felder, M.D., his only medical expert witness. On the basis of these reports, the Court denied summary judgment to both defendants on June 20, 2003. (Doc. No. 47). The parties attended a final pretrial conference on December 11, 2003. (Doc. No. 52). At the second pretrial conference and hearing on May 3, 2004, the Court heard argument on the Defendants' motions filed pursuant to Rule 50 of the Federal Rules of Civil Procedure and concluded that, because trial had not yet commenced, the motions were untimely. At the close of Plaintiff's case, Defendants renewed the motions for judgment as a matter of law. The Court heard oral argument on May 5, 2004. Hrg. Tr. at 2.
Ankylosing spondilitis is a chronic form of arthritis that affects the spine, causing pain, stiffness, swelling, and limited motion in the back, neck, and hips. WJ Koopman, ed., ARTHRITIS AND ALLIED CONDITIONS: A TEXTBOOK OF RHEUMATOLOGY, 14th ed., vol. 1, 1312 — 1323 (2001).
At all stages of the litigation, the Court made every effort to insure that Plaintiff understood the difference between evidence submitted to withstand summary judgment and the burden of proof at trial. See e.g. Hrg. Tr. at 9-10, 14-15.
III. STANDARD OF REVIEW
A motion for judgment as a matter of law should be granted only if, "viewing the evidence in the light most favorable to the non-movant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury could reasonably find liability." Gagliardo v. Connaught Laboratories, Inc., 311 F.3d 565, 568 (3d Cir. 2002) (quotingFultz v. Dunn, 165 F.3d 215, 218 (3d Cir. 1998)); see Hrg. Tr. at 11 (explaining the standard of review for judgment as a matter of law to Plaintiff). "Although a scintilla of evidence is not enough to withstand a motion for judgment as a matter of law, the denial of a motion for judgment as a matter of law is proper unless the record "is critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief." Denneny v. Siegel, 407 F.2d 433, 439-40 (3d Cir. 1969) (citations omitted). The court is not free to weigh the evidence or to pass on the credibility of witnesses or to substitute its judgment of the facts for that of the jury. Lightning Lube v. Witco Corp., 802 F. Supp. 1180, 1885 (D.N.J. 1992) aff'd by 4 F.3d 1153 (3d Cir. 1993). A case may not be taken away from the jury merely because "a measure of speculation and conjecture is required" when facts are in dispute and fair-minded individuals may draw differing inferences." Lavender v. Kurn, 327 U.S. 645, 653 (1946)). The motion must be denied "if there is evidence reasonably tending to support the recovery by [the] plaintiff as to any of [his] theories of liability." Hofkin v. Provident Life Accident Ins. Co., 81 F.3d 365, 369 (3d Cir. 1996).
IV. ANALYSIS
A. Plaintiff Cannot Establish a Prima Facie Case of Medical Malpractice Against Dr. Mancall
In order to establish a prima facie cause of action for medical malpractice, a plaintiff must demonstrate that "(1) the physician owed a duty to the patient; (2) the physician breached that duty; (3) the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient, and (4) the damages suffered by the patient were the direct result of that harm." Billman v. Saylor, 761 A.2d 1208, 1211-12 (Pa.Super. 2000) quoting Eaddy v. Hamaty, 694 A.2d 639, 642 (Pa.Super. 1997). [B]ecause "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. Masgai v. Franklin, 787 A.2d 982, 985 (Pa.Super. 2001) citing Miller v. Sacred Heart Hosp., 753 A.2d 829, 833 (Pa.Super. 2000) (quoting Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280, 1285 (1978)).
The doctrine of res ipsa loquitor under which expert testimony is not required to establish a breach of duty "`where the matter under investigation is so simple, and the lack of skill or want of care so obvious, as to be within the range of the ordinary experience and comprehension of even nonprofessional persons'" is inapplicable to this case. Id. at n. 11, 698 A.2d at 585 n. 11 (quoting Chandler v. Cook, 438 Pa. 447, 451 n. 1, 265 A.2d 794, 796 n. 1 (1970)); see Toogood v. Rogal, 573 Pa. 245, 256-57, 824 A.2d 1140, 1146-47 (E.D. Pa. 2003);Hightower-Warren v. Silk, 548 Pa. 459, 463-64, 698 A.2d 52, 54-55 (1997). The allegations made against both Dr. Mancall and TJUH are well beyond the knowledge of average lay people. Hrg. Tr. at 8-9.
1. Expert Testimony of Dr. Felder Insufficient to Establish Deviation from Medical Standard of Care
To support his medical malpractice case against Dr. Mancall, Plaintiff presented, via videotape trial testimony, the expert medical testimony of Mitchell S. Felder, M.D. In medical malpractice actions, the expert witness must testify, to a reasonable degree of medical certainty, that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause of the harm suffered. Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 892 (Pa. 1990) citing Brannan v. Lakenau Hospital, 490 Pa. 588, 417 A.2d 196 (1980); Eaddy v. Hamaty, 694 A.2d 639, 642 (Pa.Super. 1997); Hrg. Tr. at 22-23. An expert need not testify with absolute certainty or rule out all possible causes of a condition, nor must the expert testify in precisely the language used to enunciate the legal standard. Id.; In re Jones, 432 Pa. 44, 246 A.2d 356 (1968) (medical testimony need not conform to precise statutory definitions). Instead, the Court reviews the expert testimony in its entirety to assess whether it expresses the requisite degree of medical certainty. McCann v. Amy Joy Donut Shops, 325 Pa.Super. 340, 343-44, 472 A.2d 1149, 1151 (1984) (en banc). In this case, Dr. Felder testified only that, though Plaintiff complained only of headaches, Dr. Mancall failed to examine the patient's head movements or conduct examination of the spine, neck posture, pelvis, and thigh rotation. Test. Tr. at 12-14; Hrg. Tr. at 22. Dr. Felder offered his medical opinion that, on the basis of the symptoms presented by Plaintiff, the appropriate diagnosis would have been ankylosing spondylitis.Id. On direct examination, Dr. Felder suggests numerous examinations that Dr. Mancall could have taken to yield such a diagnosis. Id. at 16-20. Finally, Dr. Felder testified that in his opinion, a doctor should respond to written correspondence from a patient and should follow-up with that patient. Id. at 24-25, 53-54, 63; Hrg. Tr. at 24, 31.
But, Dr. Felder later retreated from that position during cross-examination, conceding that: his opinion resulted from medical information not available to Dr. Mancall at the time of his diagnosis; the examination conducted by Dr. Mancall yielded an appropriate diagnosis of chronic tension headaches; nothing in Dr. Mancall's record of December 5, 1996 or in subsequent letters from Plaintiff to Dr. Mancall indicated a history of complaint of progressive neck stiffness or pain by Plaintiff; Dr. Mancall's request for an MRI and perscription for medication were appropriate; some subsequent efforts by Dr. Mancall to follow-up were indicated by the record; and the information available to Dr. Mancall would not suggest the need for a back examination. Id. at 85-86, 92, 96-97; Hrg. Tr. at 25. When reviewed in its entirety, the testimony fails to express the requisite degree of medical certainty as to a failure by Dr. Mancall to perform his examination within the requisite standard of care.
2. Expert Testimony of Dr. Felder Fails to Establish Causation
But, even if, when viewed in the light most favorable to the non-movant, this testimony could be viewed by a reasonable jury to indicate that Dr. Mancall deviated from some medical standard of appropriate care, the necessary showing of causation is wholly absent. In addition to proving that the defendant breached a duty owed, the Plaintiff must also establish that the breach of said duty was the proximate cause of bringing about the harm suffered by the Plaintiff. Joyce v. Boulevard Physical Therapy Rehabilitation Center, P.C., 694 A.2d 648, 657 (Pa.Super.,1997). "An expert fails this standard of certainty if he testifies `that the alleged cause "possibly", or "could have" led to the result, that it "could very properly account" for the result, or even that it was "very highly probable" that it caused the result.'"Kravinsky v. Glover, 263 Pa.Super. 8, 21, 396 A.2d 1349, 1356 (1979) (citations omitted); Hrg. Tr. at 25. At no point did Dr. Felder assert that Dr. Mancall could have prevented or cured Plaintiff's condition had he diagnosed it earlier. Rather, Dr. Felder acknowledged that no cure, definitive treatment, or medication exists for ankylosing spondylitis that can alter the natural progression of the disease. Test. Tr. at 110; Hrg. Tr. at 26-27. During oral argument on the motions before the Court on May 5, 2004, in response to the Court's request that Plaintiff point to any instance in the expert witness' testimony where causation had been remotely discussed, Plaintiff instead read from treatises, pointed to exhibits not in evidence, and conjectured about testimony he expected to elicit from defense witnesses. Hrg. Tr. at 37-47. Therefore, Plaintiff failed to establish that Dr. Mancall's allegedly negligent treatment was the proximate cause of his subsequent condition of ankylosing spondylitis and its related symptoms.
However, in medical malpractice actions involving incurable illnesses, because a causal connection between the care provided by a physician and the resulting injury can often not be established to such a reasonable degree of medical certainty, the Court requires only that the treating physician's negligence was a substantial factor in causing Plaintiff's injury. Joyce, 694 A.2d at 657. In such cases, we require only that the treating physician's negligence was a substantial factor in causing plaintiff's injury. Id. Accordingly, if a plaintiff has proven that the physician's breach increased the risk of harm, then there is sufficient evidence to overcome a motion for judgment as a matter of law. Id.; see Montgomery v. South Philadelphia Medical Group, Inc., 441 Pa. Super. 146, 656 A.2d 1385 (1995); Clayton v. Sabeh, 406 Pa. Super. 335, 594 A.2d 365 (1991). The expert in cases of this nature has been permitted to testify under the relaxed degree of certainty enunciated in Section 323(a) of the Restatement (Second) of Torts, that the defendant's failure to exercise reasonable care in the diagnosis and treatment was a substantial factor that increased the risk of harm. Eaddy 694 A.2d at 642 citing Billman, 761 A.2d at 1212-1213. In fact, Dr. Felder never articulated any difference that would have resulted in Plaintiff's ultimate prognosis had Dr. Mancall diagnosed him on December 5, 1996 or any injuries that resulted from Dr. Mancall's alleged mis-diagnosis. During oral argument, Plaintiff pointed only to Dr. Felder's tenuous conclusion that his Crohn's disease had been exacerbated without any connection between that exacerbation and Dr. Mancall's diagnosis. Test. Tr. at 63; Hrg. Tr. at 33. As a result of Dr. Felder's critically deficient expert testimony, Plaintiff has failed to establish that the care Dr. Mancall provided was a factor in causing or increasing the risk of his illness such that a reasonable jury could find in his favor. Hrg. Tr. at 56-58.
In cases where irrespective of the quality of the medical treatment, a certain percentage of patients will suffer harm, the standard of proof regarding medical expert testimony is "an impossible standard." Mitzelfelt at 62. In such instances, the Plaintiff must show "to a reasonable degree of medical certainty that the physician's actions/omissions increased the risk of harm" in order to proceed to the jury. Billman 761 A.2d at 1213 citing Montgomery v. South Philadelphia Medical Group, Inc., 441 Pa. Super. 146, 656 A.2d 1385 (1995) (Following testimony of a physician's act or omission that "increased the risk that the [plaintiff] would have either a shortened life expectancy or suffered harm," a jury may consider whether the "acts or omissions of the physician were a substantial factor in bringing about the harm."). The Court notes that in Pennsylvania this relaxed standard has traditionally been applied to cancer patients for whom early detection can be lifesaving. It has not generally been applied to degenerative illnesses for which no cure or treatment meaningfully alters the progression of disease.
B. Plaintiff Cannot Establish a Prima Facie Case of Vicarious Liability Against Thomas Jefferson University Hospital
Because Plaintiff fails to establish that Dr. Mancall caused his alleged injuries, any claim of vicarious liability against TJUH must likewise fail. The Pennsylvania Supreme Court has held that because "the corporate hospital of today has assumed the role of a comprehensive health center," it may be subject to liability under the theories of respondeat superior, ostensible agency, and/or corporate negligence. Thompson v. Nason Hosp., 527 Pa. 330, 338-40, 591 A.2d 703, 706-707 (1991). In order to find liability on the part of the TJUH under a theory of respondeat superior, Plaintiff must establish that Dr. Mancall was an agent of the hospital and liable for the injuries claimed. Hannis v. Ashland State General Hosp., 123 Pa. Commw. 390, 397, 554 A.2d 574, 578 (Pa.Cmwlth. 1989)citing Capan v. Divine Providence Hospital, 287 Pa. Super. 364, 430 A.2d 647 (1980). An agency relationship results from (1) the manifestation of consent of one person to another that (2) the other shall act on his behalf and subject to his control, and (3) consent by the other so to act: Id. at 414 citing Chalupiak v. Stahlman, 368 Pa. 83, 81 A.2d 577 (1951); Restatement (Second), Agency § 1(1) (1958). Only an agreement for the creation of a fiduciary relationship with control by the beneficiary creates such agency. Rosenberg v. Cohen, 370 Pa. 507, 88 A.2d 707 (1952). At oral argument, though Plaintiff points to the presence of the TJUH logo on the encounter form completed by Dr. Mancall that does not suffice to establish an agency relationship. Hrg. Tr. at 11-15, 18-21; Tr. Ex. 43. Not only is there no evidence of record that creates an agency relationship, Plaintiff fails to establish his claim of negligence as a matter of law against Dr. Mancall. As such, the claim of vicarious liability against TJUH cannot succeed.
C. Plaintiff Fails to Establish a Corporate Liability Claim Against Thomas Jefferson University Hospital
Similarly, a corporate liability claim cannot be sustained against Thomas Jefferson University Hospital. With respect to corporate negligence, the Pennsylvania Supreme Court explained that:
Corporate negligence is a doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient's safety and well-being while at the hospital. This theory of liability creates a nondelegable duty which the hospital owes directly to the patient. Therefore, an injured party does not have to rely on and establish the negligence of a third party.Thompson, 527 Pa. at 338, 591 A.2d 707 (footnote omitted). The hospital's duties have been classified into four categories: (1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) a duty to select and retain only competent physicians; (3) a duty to oversee all persons who practice medicine within its walls as to patient care; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients. Id. (citations omitted); Hrg. Tr. at 4. To establish a prima facie case of corporate negligence, the plaintiff must prove: (1) one or more of the aforementioned duties of care; (2) the hospital had actual or constructive notice of the defects or procedures that created the harm; and (3) that the conduct was a substantial factor in bringing about the harm. See Whittington v. Episcopal Hosp., 768 A.2d 1144, 1149-50 (Pa.Super. 2001). As with a claim of medical malpractice, a claim of corporate negligence requires that the plaintiff present "expert testimony that [the] hospital's acts deviated from an accepted standard of care and that the deviation was a substantial factor in causing plaintiff's harm." Welsh v. Bulger, 548 Pa. 504, 51214, 698 A.2d 581, 585 (1997); Hrg. Tr. at 5. Dr. Felder, Plaintiff's only expert, never concludes, suggests, or in any way insinuates that TJUH breached a standard of care. Doc. No. 78 at 4; see generally Dep. Tr; Hrg. Tr. at 6. At no point does Dr. Felder mention any duty, breach of that duty, or any negligent conduct on the part of TJUH. Id.; Hrg. Tr. at 7. Further, when asked by the Court what, if anything, Dr. Felder concluded with respect to the duty of care owed and allegedly breached by TJUH, Plaintiff could point to nothing in the videotape trial testimony transcript or in any of the evidence he presented. Id. at 17-18, 20-21. The only tenuous connection, the encounter form, does not remotely suggest that TJUH comported itself in a way that deviated from an accepted standard of care such that its deviation was a substantial factor in causing Plaintiff's harm. Id. As such, the corporate negligence claim fails.
V. CONCLUSION
For all these reasons, the Motion for Judgment as a Matter of Law filed by Thomas Jefferson University Hospital ("TJUH") (Doc. No. 79) and the Motion for Judgment as a Matter of Law filed by Defendant Elliot L. Mancall, M.D. ("Dr. Mancall") (Doc. No. 80) are GRANTED.
ORDER
AND NOW, this day of May, 2004, it is hereby ORDERED that the Motion for Judgment as a Matter of Law filed by Thomas Jefferson University Hospital ("TJUH") (Doc. No. 79) and the Motion for Judgment as a Matter of Law filed by Defendant Elliot L. Mancall, M.D. ("Dr. Mancall") (Doc. No. 80) are GRANTED with prejudice.Pursuant to the provisions of Rule 41.1(b) of the Local Rules of Civil Procedure, it is further ORDERED that this matter is DISMISSED with prejudice. The Clerk of Court is directed to statistically close this matter.