Billman v. Saylor

• Decision Date: 26 October 2000
• Citation: 761 A.2d 1208
• Parties: Robert D. BILLMAN and Arlene R. Billman, H/W, Appellants, v. Richard F. SAYLOR, and Pottstown Memorial Medical Center, Appellees.
• Court: Pennsylvania Superior Court

761 A.2d 1208

Robert D. BILLMAN and Arlene R. Billman, H/W, Appellants, v. Richard F. SAYLOR, and Pottstown Memorial Medical Center, Appellees.

Superior Court of Pennsylvania.

Argued September 13, 2000.

Filed October 26, 2000.

Robert L. Sachs, Philadelphia, for appellants.

Paul E. Peel, Plymouth Meeting, for Saylor, appellee.

BEFORE: DEL SOLE, HUDOCK and STEVENS, JJ.

STEVENS, J.:

¶ 1 This is an appeal from the order entered in the Court of Common Pleas of Montgomery County granting summary judgment in favor of Richard F. Saylor, M.D, thereby dismissing the case against him with prejudice, in an action for medical malpractice.¹ On appeal, Robert D. and Arlene R. Billman allege that summary judgment was improperly granted since (1) the trial court erred in finding Dr. Andrew Roberts' report to be insufficient to establish to a reasonable degree of medical certainty that Dr. Saylor's actions were negligent, and (2) the trial court erred in refusing to consider Dr. James Stinnett's expert report. We reverse and remand for further proceedings.

¶ 2 Our scope of review is plenary when reviewing the propriety of a lower court's entry of summary judgment. Schriver v. Mazziotti, 432 Pa.Super. 276, 638 A.2d 224 (1994). Pursuant to Pennsylvania Rule of Civil Procedure 1035.2, summary judgment shall be rendered whenever (1) there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, or (2) the adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action. We must examine the entire record in the light most favorable to the non-moving party and resolve all doubts against the moving party when determining if there is a genuine issue of material fact. Schriver, supra.

¶ 3 The parties agree that there is no genuine issue of material fact and that the pertinent facts are as follows: On March 1, 1992, Mr. Billman was admitted to Pottstown Medical Center with pancreatitis, an elevated blood sugar level, and renal failure. On March 3, 1992, Dr. Saylor, specializing in vascular surgery, examined Mr. Billman because of vascular changes in Mr. Billman's left foot. An arteriogram² revealed that Mr. Billman was suffering from acute embolus.³ Dr. Saylor recommended immediate surgery and, on that same date, Mr. Billman signed a consent form permitting Dr. Saylor to remove numerous blood clots from his left foot. Appellant was given morphine and Versed and, at approximately 8:00 p.m. on March 3, 1992, Mr. Billman was taken to the operating room, where he became agitated and uncooperative. Believing Mr. Billman had withdrawn his consent, Dr. Saylor cancelled the surgery. He did not contact Mrs. Billman or any other person in order to proceed with the surgery, and he did not administer any drugs which may have aided in dissolving the blood clots.

¶ 4 On March 4, 1992, Dr. Edith Behr examined Mr. Billman, and he consented again to surgery. On that same date, Mr. Billman was taken to the operating room so that the blood clots could be removed. Unfortunately, Dr. Behr determined that Mr. Billman's left leg needed to be amputated below the knee.

¶ 5 On October 6, 1993, the Billmans filed a complaint in medical malpractice against Dr. Saylor and Pottstown Medical Center alleging that Mr. Billman was rendered uncooperative on March 3, 1993 due to the medications prescribed to him and that Dr. Saylor should have proceeded with the surgery on that date.⁴ The Billmans further alleged that Dr. Saylor should have administered a blood-thinning drug once it was decided the surgery would not be proceeding and that his failure to do so increased the risk of amputation of Mr. Billman's left leg. In addition, the Billmans alleged that Pottstown Medical Center was negligent, inter alia, in failing to institute policies which would have required Dr. Saylor to call Mrs. Billman and mandate Dr. Saylor proceed with the operation.

¶ 6 Dr. Saylor and Pottstown Medical Center filed answers with new matter to the Billmans' complaint, and discovery commenced. On December 28, 1994, Dr. Saylor filed a motion to compel answers for interrogatories and the production of documents. On March 28, 1995, the Billmans filed a motion to compel Dr. Saylor's deposition, and, on June 1, 1995, the trial court entered an order directing Dr. Saylor to submit to a deposition within sixty days. Dr. Saylor was deposed on July 21, 1995, and May 15, 1996. On October 11, 1995, Pottstown Medical Center filed a motion to compel the Billmans to file an expert report, and, on June 7, 1996, the trial court filed an order directing the Billmans to file an expert report by July 1, 1996. On December 16, 1996, Dr. Saylor also filed a motion to compel the Billmans to submit an expert report in support of their claims. On Janaury 30, 1997, the trial court entered an order stating that the Billmans were required to provide an expert report supporting their claims of medical malpractice within thirty days or their expert testimony would be precluded.

¶ 7 On February 26, 1997, the Billmans filed the expert report of Dr. Andrews Roberts, and, on May 28, 1997, Dr. Saylor filed a motion for summary judgment against the Billmans alleging that Dr. Roberts' report did not state to a reasonable degree of medical certainty that Dr. Saylor was negligent, thereby resulting in the Billmans' failure to produce evidence of facts essential to their cause of action. See Pa.R.C.P. 1035.2(2) (summary judgment may be granted where there are insufficient facts to make out a prima facie cause of action). On May 28, 1997, Pottstown Medical Center joined Dr. Saylor's motion for summary judgment, and, thereafter, the Billmans filed a supplemental expert report from Dr. James Stinnett and responses to the motions for summary judgment. The trial court granted summary judgment in favor of Dr. Saylor and Pottstown Medical Center and dismissed the Billmans' complaint with prejudice. The Billmans filed a petition for reconsideration, which was denied, and this timely appeal followed.

¶ 8 The Billmans allege that the trial court erred as a matter of law in determining that Dr. Roberts' report was insufficient to submit the issue of malpractice to the jury. Specifically, the Billmans allege that the trial court overlooked the fact that Dr. Roberts indicated that Dr. Saylor should have...anticoagulated [Mr. Billman] with heparin,⁵ and that the failure to do so increased the likelihood of amputation.⁶ Under Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888 (1990), and its progeny, the Billmans argue that there was sufficient evidence of an increased risk of harm to establish that Dr. Saylor did not exercise reasonable care, that the failure increased the risk of harm to Mr. Billman, and that the harm did in fact occur. As such, the Billmans contend, the question of whether Dr. Saylor's failure to give heparin to Mr. Billman was a proximate cause of Mr. Billman's amputation should have been left to the jury. We agree.

To state a prima facie cause of action for malpractice, a plaintiff must establish 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.

Eaddy v. Hamaty, 694 A.2d 639, 642 (Pa.Super.1997) (citations omitted).

Our courts have held that because `the complexities of the human body place questions as to the cause of pain or injury beyond the knowledge of the average layperson,' a medical malpractice plaintiff generally must produce the opinion of a medical expert to demonstrate the elements of his cause of action.

Miller v. Sacred Heart Hospital, 753 A.2d 829, 833 (Pa.Super.2000) (citation and quotation omitted).⁷ Where the plaintiff fails to present such an expert witness, summary judgment may be properly granted. Miller, supra.

¶ 9 In Mitzelfelt, supra, the Pennsylvania Supreme Court explained that in some cases, the standard of proof regarding medical expert testimony is an impossible standard. These are the cases in which, irrespective of the quality of the medical treatment, a certain percentage of patients will suffer harm. Id. at 62, 584 A.2d at 892. In such cases, where the plaintiff is unable to show to a reasonable degree of medical certainty that the physician's actions/omissions caused the resulting harm, but is able to show to a reasonable degree of medical certainty that the physician's actions/omissions increased the risk of harm, the question of whether the conduct caused the ultimate injury should be submitted to the jury. See Montgomery v. South Philadelphia Medical Group, Inc., 441 Pa.Super. 146, 656 A.2d 1385 (1995)

.

An example of this type of case is a failure of a physician to [make a timely diagnosis]. Although timely detection of a [disease or medical condition] may well reduce the likelihood that a patient will have a terminal [or adverse] result, even with timely detection and optimal treatment, a certain percentage of patients unfortunately will succumb to the disease. This statistical factor, however, does not preclude a plaintiff from prevailing in a lawsuit. Rather, once there is testimony that there was a failure to detect the cancer in a timely fashion, and such failure increased the risk that the [plaintiff] would have either a shortened life expectancy or suffered harm, then it is a question for the jury whether they believe, by a preponderance of the evidence, that the acts or omissions of the physician were a substantial factor in bringing about the harm.

Mitzelfelt, 526 Pa. at 62-63, 584 A.2d at 892. See Wolloch v. Aiken, 756 A.2d 5 (Pa.Super.2000)

. Another example of this type of case includes cases where a patient's blood pressure was permitted to drop to a low level during surgery, Mitzelfelt, supra, and cases...