Checchio By and Through Checchio v. Frankford Hospital- Dale Div., HOSPITAL-TORRESDALE

• Decision Date: 22 September 1998
• Docket Number: HOSPITAL-TORRESDALE
• Citation: 717 A.2d 1058
• Parties: Daniel CHECCHIO, a Minor, By and Through His Parents and Natural Guardians, J. Michael and Patricia CHECCHIO, Appellant, v. FRANKFORDDIVISION, Edwin R. Concors, M.D. Michael Malen, M.D., Marvin Kalafer, M.D., Carl Kennedy, Jr., M.D. Children's Hospital, Appellees.
• Court: Pennsylvania Superior Court

Page 1058

717 A.2d 1058

Daniel CHECCHIO, a Minor, By and Through His Parents and Natural Guardians, J. Michael and Patricia CHECCHIO, Appellant, v. FRANKFORD HOSPITAL-TORRESDALE DIVISION, Edwin R. Concors M.D. Michael Malen, M.D., Marvin Kalafer, M.D Carl Kennedy, Jr., M.D. Children's Hospital, Appellees.

Superior Court of Pennsylvania.

Argued June 2, 1998.

Filed Sept. 22, 1998.

Glenn C. McCarthy, Philadelphia, for appellant.

Edward C. Mintzer, Jr., Philadelphia, for Frankford Hospital, etc., appellees.

Peter J. Hoffman, Philadelphia, for Edwin R. Concors, M.D., appellee.

Before KELLY, J., and CERCONE, President Judge Emeritus, and MONTEMURO ^*, J.

MONTEMURO, Judge:

This is an appeal from an order entering summary judgment in favor of the defendants in a medical malpractice action.

On February 17, 1984, minor Plaintiff/Appellant Daniel Checcio was born a month prematurely by Caesarian section at Appellee Frankford Hospital. Only minutes after birth the child began exhibiting signs of respiratory distress, later diagnosed as due to hyaline membrane disease. ¹ This condition required the administration of supplemental oxygen which was supplied in increasing amounts by oxygen hood. In the early hours of February 18, 1984, Daniel was intubated and transferred to Children's Hospital where he was placed on a ventilator. He was discharged from Children's on March 2, 1984 with a diagnosis of preemie grower status, respiratory distress syndrome.

Within two years, the child was diagnosed with pervasive developmental disorder, autism and severe mental retardation. Suit was instituted on the basis that Appellees' negligence in managing Daniel's respiratory distress syndrome led to neonatal hypoxia, oxygen deprivation to the tissues of the body, the proximate cause of his permanent neurological dysfunction.

The action was commenced by writ of summons on June 2, 1989, ² and the Complaint was lodged on October 12 of the same year. Appellants filed an amended complaint in response to Appellees' Preliminary Objections on December 8, 1989. After the completion of certain discovery proceedings not germane to this appeal, ³ Appellees filed a joint Motion in Limine in anticipation of trial to determine the admissibility of Appellants' scientific/medical evidence. An order was entered directing Appellees to depose Appellants' experts regarding the "substance and foundation" of their proposed testimony. (Order dated 1/18/95). On the basis of these depositions, Appellees filed a motion for summary judgment asserting that the evidence supporting Appellants' claims failed to meet the standards for such testimony enunciated in Frye v. U.S., 293 F. 1013 (D.C.1923), and adopted by the Supreme Court of Pennsylvania in Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977). After oral argument, the motion was granted, and this appeal followed.

On appeal, two issues are presented, the first a challenge to the conclusion that the Frye admissibility standard was not met, and the second an assertion that the trial court's decision reflected a ruling on the relative credibility of the parties' experts in violation of the doctrine set forth in Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932). We will address these seriatim.

The standard for determining whether summary judgment is properly entered is that, "a non-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Ertel v Patriot-News Co., 544 Pa. 93, 101-02, 674 A.2d 1038, 1042 (1996), cert. denied, --- U.S. ----, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996).

The proof required for a prima facie showing of negligence is that a duty was owed and breached, the breach was the cause of the injury, and damages resulted from the harm thus caused. Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 891 (1990). Where the alleged negligence is medical in nature, the plaintiff must present evidence from an expert "who will 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." Id. at 62, 584 A.2d at 892. For expert evidence to be admissible, it must meet the standard enunciated in Frye, and adopted by our Supreme Court in Topa, which is that "[a]dmissibility of the evidence depends upon the general acceptance of its validity by those scientists active in the field to which the evidence belongs." Topa, 471 Pa. at 231, 369 A.2d at 1281 (emphasis in original). In Blum v. Merrell Dow Pharmaceuticals, 705 A.2d 1314 (Pa.Super.1997), this Court, following Topa, ruled that the analysis to be applied in answering the question of whether the Frye/Topa admissibility criterion had been met was two pronged: acceptance in the scientific community of first the causal, and then the methodological relationship alleged. Id. at 1322.

The crux of Appellants' argument and the logical construct on which their case is grounded begins with the major premise that a lack of oxygen and blood flow to the brain can cause neurologic damage. Daniel suffers neurologic damage, the argument proceeds, therefore the damage must have been caused by oxygen deprivation. The corollary to this conclusion is that "the damage may manifest itself in the severe mental retardation, development delay and autistic like behavior exhibited by Daniel Checcio." (Appellants' Brief at 7). Thus, after the assertion of hypoxia as a causative agent of Daniel's mental retardation, there is further a strongly implied causative role for the retardation as a precondition, or rather explanation, for his autistic behavior. It should be also be noted that Appellants' Complaint at no point mentions either retardation or autism, merely "severe brain damage." (Complaint at 10).

The trial court found that Appellants' experts failed to demonstrate "any scientific basis, other than their own subjective beliefs, that autism and/or pervasive developmental disorders are caused by hypoxia in the context of respiratory distress or Respiratory Distress Syndrome." (Trial Court Opinion at 17). However, despite acknowledging the prevalence of the Frye test, the court applied the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), as less stringent. There the United Supreme Court abandoned the use of Frye in the federal system, positing instead Federal Rule of Evidence 702. ⁴ While such an analysis is incorrect under current Pennsylvania law, as the court points out a witness who fails to meet the requirements of Daubert necessarily fails to meet the more restrictive Frye standard as well. Therefore, while we find the trial court's reliance on Daubert to be in error, for the reasons that follow we find its substantive conclusions as to the admissibility of Appellants' expert testimony to be correct.

Of the experts relied on to establish their cause of action, Appellants refer to two as principal sources for the necessary quantum of causation evidence: Leon L. Charash, M.D., a pediatric neurologist, and Ralph J. Wynn, M.D., a neonatologist. Dr. Charash, who conducted a physical examination of Daniel, opined that some time during the 12 hours after birth, Daniel suffered oxygen deprivation, hypoxia, due to respiratory stress syndrome resulting in brain injury, specifically mental retardation with behavioral and communication problems. He testified that he would not use the word autism in connection with Daniel, and opined that a purely autistic child would not have had the problems at birth that Daniel experienced. Moreover, the doctor asserted that Daniel has "pervasive behavioral manifestations which are seen in mentally retarded people per se." (Deposition Testimony of Leon Charash at 94). Thus, the explanation advanced for Daniel's condition was that oxygen deprivation caused mental retardation which manifested itself in deficits of behavior and communication. Dr. Charash testified that these conclusions were based entirely on his own observations and experience in the field, without any reference to outside sources on which he might predicate his findings.

Dr. Wynn opined that Daniel, suffering from hyaline membrane disease, was marginally oxygenated resulting in hypoxia persisting for approximately 9 hours, that is, until the transport team from Children's Hospital performed the intubation. This prolonged period of oxygen debt with accumulating metabolic acidosis resulted in his neurological disability. Dr. Wynn also stated that this combination, the oxygen debt and the metabolic acidosis, which affects all tissues of the body, was the insult to Daniel's brain causing...