Brodowski v. Ryave, No. 2994 EDA 2002.

• Decision Date: 21 October 2005
• Docket Number: No. 2994 EDA 2002.
• Citation: 885 A.2d 1045,2005 PA Super 354
• Parties: TAMMY BRODOWSKI, Appellee v. STEVEN RYAVE, M.D., HAROLD BYRON, M.D., MARK GERNERD, M.D., STEVE A. VAGANOS, M.D., MONTGOMERY HOSPITAL, DAVID E. ALBRECHT, JR., M.D., PHILIP PEARLSTEIN, D.O., E.J. THOMAS, M.D., JEFFREY STRIAR, M.D., AND SUBURBAN GENERAL HOSPITAL, Appellants
• Court: Pennsylvania Superior Court

2005 PA Super 354

885 A.2d 1045

TAMMY BRODOWSKI, Appellee v. STEVEN RYAVE, M.D., HAROLD BYRON, M.D., MARK GERNERD, M.D., STEVE A. VAGANOS, M.D., MONTGOMERY HOSPITAL, DAVID E. ALBRECHT, JR., M.D., PHILIP PEARLSTEIN, D.O., E.J. THOMAS, M.D., JEFFREY STRIAR, M.D., AND SUBURBAN GENERAL HOSPITAL, Appellants

No. .

Superior Court of Pennsylvania.

Filed: October 21, 2005.

BEFORE: HUDOCK, ELLIOTT, JOYCE, MELVIN, KLEIN, BENDER, BOWES, GANTMAN AND PANELLA, JJ.

OPINION BY BENDER, J.:

¶ 1 Tammy Brodowski ("Plaintiff"), who initiated this medical malpractice case premised on the failure to timely diagnose and treat her evolving cerebrovascular accident ("CVA" or "stroke"), appeals from the October 25, 2002 order entering judgment on a jury verdict in favor of certain health care defendants. Plaintiff raises challenges to the: (1) pretrial dismissal of her corporate negligence claim against Montgomery Hospital ("Montgomery"), one of the two defendant-hospitals named in the suit; (2) dismissal by nonsuit, following the close of Plaintiff's case in chief, of two Montgomery defendant physicians, Steven Ryave, M.D. (an emergency room physician), and Steve A. Vaganos, M.D. (a cardiologist trained in internal medicine); (3) admission into evidence of release language from the form Plaintiff signed to discharge herself from Montgomery against medical advice ("AMA form"); (4) striking of two Plaintiff's experts' testimony against another Montgomery defendant-physician, psychiatrist Harold Byron, M.D.;¹ and (5) allegedly prejudicial remarks made by the trial court against Plaintiff and her counsel, which Plaintiff asserts resulted in an unfair trial. Plaintiff seeks a new trial. We conclude, initially, that the trial court erred by dismissing the corporate liability claim against Montgomery prior to trial (see issue (1)) and by dismissing Dr. Ryave by nonsuit following Plaintiff's case in chief (see issue (2)). Accordingly, we remand for a new trial on those grounds.

¶ 2 In May of 1996, Plaintiff filed a complaint against Montgomery and several of its physicians, i.e., Dr. Ryave, Dr. Vaganos, and Dr. Byron, and against Suburban General Hospital ("Suburban") and several of its physicians, i.e., David E. Albrecht, Jr., M.D., Philip Pearlstein, D.O., E.J. Thomas, M.D., and Jeffrey H. Striar, M.D. Essentially, Plaintiff claimed that the defendants delayed diagnosis and treatment of her evolving thrombotic stroke by failing to promptly get a neurology consult and by failing to promptly administer heparin, an anticoagulant that Plaintiff's experts generally agreed would have stopped the progression of this type of stroke. See, e.g., N.T. Trial, 2/20/01, at 144.

¶ 3 The factual chronology underlying Plaintiff's complaint began at 4:36 p.m. on June 18, 1995, when Plaintiff presented herself to Montgomery's emergency room complaining of numbness and partial paralysis on the right side of her body, and an inability to walk. See Complaint at ¶ 20; N.T. Trial, 2/16/01, at 46-47, 71; N.T. Trial, 3/1/01, at 13. At that time, Plaintiff was a 34-year old smoker who was three weeks postpartum — both risk factors for thrombotic stroke. Id. Dr. Ryave, an emergency room physician at Montgomery, was the first physician to examine Plaintiff. N.T. Trial, 3/1/01, at 13. Dr. Ryave confirmed her right sided weakness, and also reported that Plaintiff had a flat affect, that she did not seem very concerned about her deficits, and that she complained about not having much help with her newborn baby. Id. at 15-20. Dr. Ryave ordered a CAT scan of Plaintiff's head, certain laboratory tests, and an EKG. Id. at 25. These tests yielded normal results. N.T. Trial, 2/16/01, at 76; N.T. Trial, 3/1/01, at 21.

¶ 4 Based on his assessment, Dr. Ryave made a differential diagnosis² of CVA versus conversion reaction disorder, the latter of which is a psychiatric diagnosis. With regard to CVA, Plaintiff's Expert Chamovitz explained at trial that postpartum women "have a greater risk for clot formation" and, therefore, thrombotic stroke, because they are generally in a hypercoagulable state. N.T. Trial, 2/16/01, at 5, 47-48; N.T. Trial, 2/26/01, at 33. Additionally, smoking is a risk factor for stroke. N.T. Trial, 2/16/01, at 45. With regard to the alternate diagnosis of conversion reaction disorder, Plaintiff's psychiatric expert, Harry M. Doyle, M.D. ("Expert Doyle"), described it as a psychiatric diagnosis "where a person has a sudden onset of either a motor symptom, their arm doesn't move, or they're weak on one side or they're dizzy and they're uncoordinated or a sensory symptom, [sic] and they're usually either suddenly numb on one whole side of their body or numb from their foot up and their hand [sic]." N.T. Trial, 2/22/01, at 39-40. He further explained that the diagnosis of conversion reaction disorder requires an underlying psychological cause such as an event in the person's life that could relate to the onset of symptoms. Id. at 40. Finally, Expert Doyle emphasized that "the most important part [of the diagnosis of conversion reaction disorder] is that you have to rule out any possible medical cause that could cause similar symptoms" because conversion reaction disorder is "a rare condition." Id.

¶ 5 Dr. Ryave testified that, despite Plaintiff's initial normal test results, it was still possible that Plaintiff may have been having a stroke "but there were many other possibilities, and one of those possibilities being ... just a stress reaction to all the things that was [sic] going on in her life." N.T. Trial, 3/1/01, at 28-29. In any event, because Dr. Ryave did not know at that point "exactly what was going on" he determined, and it was his intention, that Plaintiff be admitted into a medical unit at Montgomery. Id. at 29, 35, 37. After determining that Plaintiff's family physician was Dr. Pearlstein, who did not have admitting privileges at Montgomery, Dr. Ryave, nearing the end of his shift, attempted to contact the on-call attending physician for inpatient admissions at Montgomery, whom he eventually determined was Dr. Mancini. Id. at 29-30.

¶ 6 Dr. Ryave asked the operator to have Dr. Mancini call him back. Id. Apparently, Dr. Ryave then finished his charting and was at the end of his shift. Id. He stated that he signed-out (i.e., reported) to the ER doctor who relieved him, whom he believed was Dr. DiLeonardo. Id. at 31. However, Plaintiff's position throughout this case has been that Dr. Ryave did not recall to whom he signed-out to at the end of his shift and that no evidence of a proper sign-out exists. See, e.g., N.T. Trial, 2/26/01, at 23 (deposition testimony of Dr. Ryave, read to the jury, wherein he stated that he did not recall the physician he signed-out to that evening).

¶ 7 In any event, by the end of his shift at 7:00 p.m., Dr. Ryave had not ruled out stroke and, indeed, stroke remained at the top of his differential diagnosis list, with conversion reaction disorder "lower down" on the differential diagnosis list, see N.T. Trial, 2/16/01, at 81, 91, and thus, as previously mentioned, Dr. Ryave's plan was to admit Plaintiff to a medical (rather than a psychiatric) unit. Id. at 81. Dr. Ryave conceded that he did not talk to Dr. Mancini or any other physician with regard to Plaintiff that evening except for the radiologist who told him Plaintiff's CAT scan was normal and, presumably, the ER doctor coming on the shift at 7:00 p.m. to whom Dr. Ryave signed-off. N.T. Trial, 2/26/01, at 23. Dr. Mancini had not called back by the time Dr. Ryave left his shift. Id.

¶ 8 During the time Plaintiff was present in Montgomery's ER, another ER physician, Dr. Gernerd, who was working the 11:00 a.m. to 11:00 p.m. shift that day in the ER, consulted cardiologist Dr. Vaganos, who was walking through the ER. Dr. Vaganos examined Plaintiff while she was still in the ER (he was at her bedside at 7:30 p.m., see N.T. Trial, 2/16/01, at 146), and Dr. Vaganos communicated to Dr. Gernerd his recommendation that Plaintiff have a neurology consult.

¶ 9 Inexplicably, while still in the ER, someone told Plaintiff that she was going to be admitted into the psychiatric unit at Montgomery; and although Plaintiff initially refused, she eventually agreed and signed a consent form for admission. Id. at 151-52. Plaintiff was admitted to psychiatrist Dr. Byron's service after someone from the ER called him and asked if he would accept her for admission. N.T. Trial, 3/1/01, at 149. One of the mysteries of this case is the unknown person, possibly a physician, who spoke to Dr. Byron in effectuating Plaintiff's admission to the psychiatric unit. This hole in the chronology of events at Montgomery is particularly bothersome given the fact that Dr. Byron testified in his deposition that he would have never approved admission to the psychiatric unit from the ER had he known that a potential medical diagnosis, in this case stroke, had not yet been ruled-out. The record does, however, indicate that Dr. Byron did not communicate with either Dr. Ryave, Dr. Gernerd, or Dr. Vaganos during the relevant time in this case. N.T. Trial, 2/16/01, at 175.

¶ 10 In any event, by 8:15 p.m., Linda Proud, R.N., was admitting Plaintiff into the psychiatric unit at Montgomery. Id. at 152-153. Plaintiff at first refused admission stating, "I'm not a nut case," but then she agreed to be admitted. Id. at 158. Nurse Proud documented Plaintiff's complaint of right sided numbness and weakness, and noted Plaintiff's complaint of being "overly stressed for last [sic] three weeks since birth of her son." Id.

¶ 11 At 10:15 p.m., Nurse Proud found Plaintiff attempting to get out of bed, refusing medications, and stating that that she wanted to leave the hospital. Id. at 163. A staff member tried to convince Plaintiff to stay. Id. Nurse Proud notified Dr. Byron, by phone, that Plaintiff wanted to leave. Id. Since Plaintiff was not incompetent or suicidal, she had the right to refuse treatment and leave. I...