Carrozza v. Greenbaum

• Decision Date: 08 December 2004
• Parties: Lynda CARROZZA, Appellee v. Roy GREENBAUM, M.D., Radiology Affiliates of Central New Jersey, P.A. St. Agnes Medical Center, Kathryn A. Evers and Hahnemann University Hospitals, East, Allegheny University of the Health Sciences d/b/a, Allegheny University Imaging Services, Hahnemann University Hospital, MIIX Insurance Company and Pennsylvania Property and Casualty Insurance Guaranty Association Appeal of: Allegheny University Hospitals East and Allegheny University of the Health Sciences d/b/a Allegheny University Imaging Services Lynda Carrozza, Appellee v. Roy Greenbaum, M.D., St. Agnes Medical Center, Kathryn A. Evers, M.D., Hahnemann University Imaging Services and Radiology Affiliates of Central New Jersey, P.A. and MIIX Insurance Company, and Pennsylvania Property and Casualty Insurance Guaranty Association Appeal of: MIIX Insurance Company Lynda Carrozza, Appellee v. Roy Greenbaum, M.D., Radiology Affiliates of Central New Jersey, P.A., St. Agnes Medical Center, Kathryn A. Evers M.D., Allegheny University Hospitals East, Allegheny University of the Health Sciences d/b/a Allegheny University Imaging Services and Hahnemann University Hospital, MIIX Insurance Company, Pennsylvania Property and Casualty Insurance Guaranty Association Appeal of: Kathryn A. Evers, M.D. & Hahnemann University Hospital Lynda Carrozza, Appellee v. Roy Greenbaum, M.D., Radiology Affiliates of Central New Jersey, P.A., St. Agnes Medical Center, Kathryn A. Evers M.D., Allegheny University of the Health Sciences d/b/a Allegheny University Imaging Services, Hahnemann University Hospital, MIIX Insurance Company and Pennsylvania Property and Casualty Insurance Guaranty Association Appeal of: Roy Greenbaum, M.D. and Radiology Affiliates of Central New Jersey, P.A.
• Court: Pennsylvania Superior Court

866 A.2d 369

Lynda CARROZZA, Appellee v. Roy GREENBAUM, M.D., Radiology Affiliates of Central New Jersey, P.A. St. Agnes Medical Center, Kathryn A. Evers and Hahnemann University Hospitals, East, Allegheny University of the Health Sciences d/b/a, Allegheny University Imaging Services, Hahnemann University Hospital, MIIX Insurance Company and Pennsylvania Property and Casualty Insurance Guaranty Association

Appeal of: Allegheny University Hospitals East and Allegheny University of the Health Sciences d/b/a Allegheny University Imaging Services

Lynda Carrozza, Appellee v. Roy Greenbaum, M.D., St. Agnes Medical Center, Kathryn A. Evers, M.D., Hahnemann University Imaging Services and Radiology Affiliates of Central New Jersey, P.A. and MIIX Insurance Company, and Pennsylvania Property and Casualty Insurance Guaranty Association

Appeal of: MIIX Insurance Company

Lynda Carrozza, Appellee v. Roy Greenbaum, M.D., Radiology Affiliates of Central New Jersey, P.A., St. Agnes Medical Center, Kathryn A. Evers M.D., Allegheny University Hospitals East, Allegheny University of the Health Sciences d/b/a Allegheny University Imaging Services and Hahnemann University Hospital, MIIX Insurance Company, Pennsylvania Property and Casualty Insurance Guaranty Association

Appeal of: Kathryn A. Evers, M.D. & Hahnemann University Hospital

Lynda Carrozza, Appellee v. Roy Greenbaum, M.D., Radiology Affiliates of Central New Jersey, P.A., St. Agnes Medical Center, Kathryn A. Evers M.D., Allegheny University of the Health Sciences d/b/a Allegheny University Imaging Services, Hahnemann University Hospital, MIIX Insurance Company and Pennsylvania Property and Casualty Insurance Guaranty Association

Appeal of: Roy Greenbaum, M.D. and Radiology Affiliates of Central New Jersey, P.A.

Superior Court of Pennsylvania.

Argued February 3, 2004.

Filed December 8, 2004.

Reargument Denied February 11, 2005.

Randy A. Mariano, Philadelphia, for Allegheny University Hospital.

Sara A. Frey, Philadelphia, for MIIX Insurance.

Paul E. Peel, Plymouth Meeting, for Evers and Hahnemann University Hospital.

James F. Gallo, Philadelphia, for Greenbaum and Radiology Affiliates.

Ronald L. Wolf, Phiadelphia, for Carrozza.

Lise Luborsky, Philadelphia, for Pennsylvania Property and Casualty.

Ann Cairns, Philadelphia, for St. Agnes Hospital.

Scott Kramer, Amicus Curaie, for Hospital Assoc. of Pa.

Before: KLEIN, McCAFFERY, and OLSZEWSKI, JJ.

OPINION BY McCAFFERY, J.:

¶ 1 In this consolidated appeal, we are asked to determine whether the trial court erred in denying motions for post-trial relief in the form of a judgment non obstante verdicto or, in the alternative, a new trial and remittitur. Specifically, we must decide whether Appellee, Lynda Carrozza, presented sufficient expert testimony to prove negligence and causation in a medical malpractice action. In addition, we are asked to consider whether the trial court properly resolved satisfaction of the ultimate judgment. Specifically, we must determine whether a finding of joint and several liability against all defendants obviates the obligation of the Pennsylvania Property and Casualty Insurance Guaranty Association ("PPCIGA") where one defendant has sufficient insurance coverage to pay the entire amount of the verdict. After very careful review, we hold that the experts' testimony was sufficiently definitive to meet Appellee's burden of proof as to both breach of the requisite standard of care and causation of harm. Furthermore, we hold that the non-duplication provision of 40 P.S. § 991.1817 is not applicable to the instant case. Accordingly, we affirm in part, reverse in part, and remand this matter for proceedings consistent with this opinion.

¶ 2 The salient facts and procedural history underlying this case are as follows.¹ In February 1996, at the age of 36, Lynda Carrozza underwent a baseline screening mammogram at St. Agnes Medical Center.² The resulting five (5) x-ray films were reviewed and interpreted by radiologist Roy Greenbaum, M.D. Dr. Greenbaum examined two (2) views of each breast plus one magnification view of an area of calcifications in the right breast. Although he observed and reported on the calcifications, Dr. Greenbaum concluded that the calcifications were probably benign and recommended that Carrozza return for a routine mammogram in two (2) years.³ ¶ 3 In May 1998, Carrozza underwent another screening mammogram, this time at Hahnemann University Hospital, which was then part of the Allegheny University health system. The resulting films were reviewed and interpreted by radiologist Kathryn Evers, M.D. Dr. Evers compared the 1998 set of films with those taken in 1996, noted no change in the calcifications which had been seen in Carrozza's right breast, and concluded that the calcifications were benign. Dr. Evers recommended that Carrozza return in one (1) year for a mammogram. In May 1999, a third radiologist⁴ reviewed a third series of films and concluded the calcifications in Carrozza's right breast were benign.

¶ 4 In August 1999, Carrozza noticed a lump in her right armpit. A few weeks later, she noticed a mass in her right breast. (Carrozza Trial Testimony ("T.T."), 1/15/03, at 336-337; R.R. at 387-388). On September 24, 1999, an oncologist examined Carrozza's right breast, noting a mass measuring 9x10 centimeters, a 4 centimeter lymph node, and bloody discharge from the nipple. (N.T. Deposition of Rene R. Rubin, M.D., 12/27/01, at 11; R.R. at 1029). A surgical oncologist subsequently performed needle biopsies in three (3) separate locations in Carrozza's right breast, and all three tested positive for carcinoma. (N.T. Deposition of Lori Jardines, M.D., 1/22/02, at 20-21; R.R. at 1000-01). Beginning in September 1999 and continuing through the spring of 2000, Carrozza underwent eight (8) cycles of aggressive chemotherapy in addition to a radical mastectomy,⁵ a series of reconstructive procedures, including reduction of her healthy breast, and radiation therapy, which resulted in radiation burns.

¶ 5 Carrozza filed a malpractice complaint alleging negligence on the part of doctors Greenbaum and Evers and their practices and associated hospitals in June 2000. In February 2002, PHICO Insurance, the company insuring Dr. Evers and her group, declared bankruptcy. Thereafter, PPCIGA⁶ assumed responsibility for the defense of Dr. Evers and her group.

¶ 6 The Honorable Joseph I. Papalini presided over the seven (7) day trial at which Carrozza offered the testimony of two experts in support of her malpractice claim — John G. Pearce, M.D.⁷ on the breach of the standard of care and Paul M. Goldfarb, M.D.⁸ on causation. Carrozza presented evidence to show that the misreading and misinterpretation of the mammograms she had undergone in 1996 and 1998 and the resulting failure to recommend biopsy⁹, led to the delay in diagnosis, which in turn necessitated more invasive surgery, a more aggressive course of treatment and a significantly reduced life expectancy.¹⁰ Following a day and a half of deliberations, on January 24, 2003, the jury returned a verdict in favor of Carrozza and against the defendant doctors in the amount of $4 million. The jury apportioned liability at fifty percent (50%) to Dr. Greenbaum and fifty percent (50%) to Dr. Evers. Judge Papalini molded the verdict to include the respective practice groups and corporate entities for these physicians on the basis of vicarious liability.¹¹ Judge Papalini entered the verdict as $2,000,000 against each of the two groups, jointly and severally within each group. The defendants filed post-trial motions seeking entry of judgment n.o.v. or a new trial, remittitur and allocation of responsibility between the entities involved for coverage: MIIX Insurance Company ("MIIX") for Greenbaum and PPCIGA for Evers. MIIX and PPCIGA filed Petitions to Intervene, which the trial court granted.

¶ 7 Following argument on the motions on May 28, 2003, Judge Papalini denied the defendants' request for judgment n.o.v. or a new trial and denied remittitur. In his order and opinion dated June 13, 2003, the judge granted Carrozza's motion for delay damages in the amount of $482,000, and again molded the verdict to find joint and several liability on behalf of all defendants together, rather than within the two separate groups. Judge Papalini also concluded that MIIX alone was responsible for the entire amount of the verdict, that MIIX's policy limits were sufficient to set off and obviate all obligations of PPCIGA, and that MIIX would also be required to recover any amount payable in contribution from the MCARE Fund.¹² These timely appeals followed.

¶ 8 At docket number 2665 EDA 2003, Dr. Greenbaum raises three issues for our review, which he frames as follows:

1. WHERE, IN A MEDICAL MALPRACTICE CASE, THE EVIDENCE IS THAT THREE PHYSICIANS (RADIOLOGISTS) REVIEWING THREE SEPARATE SERIAL MAMMOGRAMS OVER A THREE YEAR PERIOD INTERPRETED CALCIFICATIONS IN PLAINTIFF'S RIGHT BREAST AS BENIGN, IS A JURY FINDING OF NEGLIGENCE AGAINST THE WEIGHT OF THE EVIDENCE, WARRANTING THE ENTRY OF JNOV OR, AT THE LEAST, A NEW TRIAL, WHERE THE ONLY EVIDENCE AGAINST ONE OF THOSE PHYSICIANS IS THE OPINION TESTIMONY OF ONE EXPERT SIMPLY THAT HE DISAGREES WITH HIS DIAGNOSTIC INTERPRETATION?

2. IS THE EVIDENCE INSUFFICIENT AS A MATTER OF LAW TO SUPPORT A VERDICT OF MEDICAL NEGLIGENCE AGAINST A PHYSICIAN, WHERE THE ONLY CRITICISM IS PLAINTIFF'S EXPERT'S DIFFERENT OPINION ON THE DIAGNOSTIC SIGNIFICANCE OF MAMMOGRAM CALCIFICATIONS SEEN AND REPORTED ON BY BOTH THE DEFENDANT AND THE EXPERT, BUT WITH NO OTHER CLAIMED BREACH OF STANDARD OF CARE BY THE DEFENDANT PHYSICIAN, AS TO HIS TECHNICAL METHODOLOGY, CRITERIA FOR INTERPRETATION/DIAGNOSIS, SENSITIVITY LEVEL, I.E., THRESHOLD OF SUSPICION, OR ANYTHING ELSE AT ALL?

3. IS THE $4 MILLION VERDICT EXCESSIVE, REQUIRING REMITTITUR?

(Dr. Greenbaum's Brief at 4).

¶ 9 At docket number 2372 EDA 2003, Dr. Evers sets forth the following...