Hassel v. Franzi, 311 EDA 2018

• Decision Date: 08 April 2019
• Docket Number: No. 311 EDA 2018,311 EDA 2018
• Citation: 207 A.3d 939
• Parties: Robert HASSEL, both Individually and in His Capacity as Administrator of the Estate of Mary Hassel, Deceased, Appellant v. Joseph J. FRANZI, Md, PhD: Frankford Avenue Family Practice, P.C., d/b/a Frankford Avenue Family Practice William V. Arnold, Md, PhD Reconstructive Orthopaedic Associates, II, P.C. d/b/a/ the Rothman Institute
• Court: Pennsylvania Superior Court

207 A.3d 939

Robert HASSEL, both Individually and in His Capacity as Administrator of the Estate of Mary Hassel, Deceased, Appellant

v.Joseph J. FRANZI, Md, PhD: Frankford Avenue Family Practice, P.C., d/b/a Frankford Avenue Family Practice William V. Arnold, Md, PhD Reconstructive Orthopaedic Associates, II, P.C. d/b/a/ the Rothman Institute

No. 311 EDA 2018

Superior Court of Pennsylvania.

Argued March 13, 2019

Filed April 08, 2019

H. Leon Aussprung, III, Philadelphia, for appellant.

Kevin H. Wright, Lansdale, and Maureen M. McBride, West Chester, for Franzi, appellee.

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

BEFORE: OLSON, J., DUBOW, J., and STEVENS^* , P.J.E.

OPINION BY STEVENS, P.J.E.:

Appellant in this medical malpractice case Robert Hassel, both individually and in his capacity as administrator of the estate of Mary Hassel, deceased (hereinafter "Appellant") appeals from the judgment entered in the Court of Common Pleas of Philadelphia County on February 16, 2018, in favor of Appellees Joseph J. Franzi, M.D., Ph.D. and Frankford Avenue Family Practice, P.C., D/B/A/ Frankford Avenue Family Practice (hereinafter "Dr. Franzi") and William V. Arnold, M.D., Ph.D. and Reconstructive Orthopaedic Associates, II, P.C. D/B/A the Rothman Institute (hereinafter "Dr. Arnold") (hereinafter collectively "Appellees"). Following a careful review, we affirm.

The trial court set forth the relevant facts and procedural history herein as follows:

I. Procedural History

This appeal arises out of a medical malpractice jury trial, in which, at the conclusion of trial, the jury rendered a verdict in favor of [Appellees]. The jury found that Dr. Franzi was negligent, but that his negligence was not a factual cause of the harm visited upon the decedent Mary Hassel. The jury also found that Dr. Arnold was not negligent. [Appellant] now appeals the jury's verdict.

In this case, [Appellant's] negligence claim alleged that treatment rendered by Dr. Franzi, a family physician, and Dr. Arnold, an orthopedic surgeon, fell below the standard of care for the treatment and prevention of Deep Vein Thrombosis

("herein DVT") and Pulmonary Embolism. Specifically, [Appellant] alleged that Dr. Arnold failed to ensure that Mrs. Hassel was prescribed appropriate medication to prevent blot clots. Because of her risk factors for DVT, [Appellant] argued that Mrs. Hassel should have been prescribed an anticoagulant drug like coumadin, instead of aspirin, which is an antiplatelet drug. Dr. Franzi, her primary care physician, was accused of prescribing the wrong medication and failing to return voicemail messages from Mrs. Hassel's husband on the day she died, which [Appellant] alleged described symptoms of DVT that Dr. Franzi should have recognized. [Appellant] also contended that Mrs. Hassel's life could have been saved if Dr. Franzi would have returned her husband[']s phone calls on July 1, 2013.

On June 16, 2015, [Appellant] commenced this action by filing a Complaint against [Dr. Franzi] and [Dr. Arnold]. The Complaint brought professional negligence, wrongful death, survivor, loss of consortium, negligent infliction of emotional distress and vicarious liability claims against Dr. Franzi, Dr. Arnold and the other defendants. On June 26, 2015, [Appellant] filed certificates of merit in support of his claims. On December 1, 2017, an eight-day jury-trial commenced before the Honorable Kenneth J. Powell Jr. to determine the remaining negligence, wrongful death, survivor, and loss of consortium claims

against Dr. Arnold and Dr. Franzi. Ultimately, the jury found that Dr. Franzi's treatment fell below the applicable standard of care, but that his negligence was not a factual cause of any harm to Mary Hassel and awarded no damages. Additionally, the jury found that Dr. Arnold's treatment did not fall below the applicable standard of care and no damages were awarded. On December 19, 2017, [Appellant] filed a timely post-trial motion, which was denied by this [c]ourt on January 8, 2018.

[Appellant] filed a timely appeal to the Superior Court on January 8, 2018, and this [c]ourt filed an order pursuant to Pa. R.A.P. 1925(b) requesting from [Appellant] a timely statement of errors. [Appellant] filed a timely statement of errors pursuant to Pa. R.A.P. 1925(b) on February 5, 2018.

II. Facts

On June 12, 2013, Mary Hassel, a 65-year-old woman, presented to Dr. Arnold, an orthopedic surgeon, with complaints of worsening left knee pain. N.T. December 6, 2017, p.m., pp. 13-15. Mrs. Hassel expected to discuss the possibility of knee replacement surgery. N.T. December 8, 2017, p.m., pp. 109. During this time, her mobility was limited and she was wheelchair bound. N.T. December 6, 2017, p.m., pp. 13-15. Mrs. Hassel's medical history showed a history of hypertension

, osteoarthritis, thyroid disease, and a BMI of 41.6 at the time she sought treatment. N.T. December 8, 2017, p.m., pp. 78-80. Dr. Arnold ordered a STAT MRI and the results showed a fracture of Mrs. Hassel's femur. Id. at 95-97. He determined that surgery was not necessary and recommended immobilizing Mrs. Hassel's left leg to facilitate healing. Id. at 99. Dr. Arnold's plan was to replace her knee only after the femur healed. Id. at 109.

That same day, Dr. Arnold notified Mrs. Hassel of the MRI results by telephone and she opted to see Dr. Arnold again in 2 days as opposed to going immediately to the emergency room. Id. at 97-99. Blood clot prevention was discussed with Mrs. Hassel and coumadin was mentioned as an option. N.T. December 6, 2017, p.m., pp. 16. Mrs. Hassel was familiar with coumadin and understood that taking it requires additional diagnostic monitoring. Id. Dr. Arnold also told Mrs. Hassel that he would contact her primary care physician, Dr. Franzi, to discuss blood clot prevention treatment due to her being immobilized while the fracture heals. December 8, 2017, p.m., pp. 102. After speaking to Mrs. Hassel, Dr. Arnold contacted Dr. Franzi to discuss the findings of the MRI and her potential risk factors for blood clots. Id. at 103. The two physicians agreed that Dr. Franzi would select the course of treatment for Mrs. Hassel based on his existing relationship with her and extensive knowledge about her medical history. Id. at 106-07. Dr. Arnold's notes from his conversation with Dr. Franzi demonstrated an understanding between the two of them that Dr. Franzi would work on Mrs. Hassel's "anticoagulation." N.T. December 6, 2017, p.m., pp. 82. Dr. Franzi contacted Mrs. Hassel that same day and advised her to take 325 milligrams of aspirin twice per day to prevent blood clots. Dr. Franzi discussed coumadin and aspirin as options to prevent blood clots but did not discuss other drugs. Id. at 92.

On June 14, 2013, Mrs. Hassel saw Dr. Arnold once again and he gave her the option of a cast or a brace to immobilize her leg. Id. at 57. Mrs. Hassel chose the brace and she was given a walker. Id. Dr. Arnold also asked Mrs. Hassel to attend physical therapy sessions, which she attended, and told her

to follow up in two weeks. Id. Mrs. Hassel continued to work 40-42 hours a week, with help from Mr. Hassel, until July 1, 2013, the day before she died. Id. at 20. On the morning of July 1, 2013, Mr. Hassel picked her up from work after she completed a night shift. Id. at 23. Mrs. Hassel was not in any distress when she arrived home. Id. She napped for a few hours and was not feeling well when she woke up. Id. She was experiencing nausea, dry heaves, and diarrhea, Id. At 5:54 p.m. Mr. Hassel called Dr. Franzi's office to report her symptoms and left a message with a staff member. Id. at 26. He expected to be called back but wasn't. Id. Mrs. Hassel's symptoms persisted and worsened and Mr. Hassel placed another call to Dr. Franzi's office. Id. at 27. Once again, Mr. Hassel's call was not returned. Id. Hours later, Mrs. Hassel began to experience shortness of breath and Mr. Hassel placed a call to 911 at 1:42 a.m. Id. at 29. Paramedics arrived to transport Mrs. Hassel to the hospital and she died shortly thereafter. Id. at 33. Mrs. Hassel's cause of death was cardiac arrest

caused by the DVT in her left leg and subsequent pulmonary embolism that developed. N.T. December 5, 2017, p.m., pp. 62-63.

[Appellant] presented expert testimony from Dr. David Diuguid, a hematologist, to provide causation opinions and support the contention that, anticoagulant drugs and antiplatelet drugs work differently, and he explained how each category of drugs affect blood coagulation. N.T. December 4, 2017, p.m., pp. 2-7, 39, 41, 45-50.¹ Dr. Diuguid alleged that anticoagulant drugs, as opposed to antiplatelet drugs, were more appropriate for Mrs. Hassel due to her risk factors for DVT that Dr. Franzi and Dr. Arnold both knew about. Id. at 26, 59-62. He also testified that Mrs. Hassel likely would not have died, had she been placed on anticoagulant medication. Id. at 58. Dr. Diuguid also provided testimony to support Plaintiff's assertion that Mrs. Hassel's chances for survival would have improved if Dr. Franzi would have told her to go to the emergency room. Id. at 53-57,

[Appellant] also presented expert testimony from Dr. Paul Genecin, an expert in primary care medicine and family practice. N.T. December 5, 2017, a.m., pp. 10. Dr. Genecin testified that Dr. Franzi was aware of Mrs. Hassel's risk factors for DVTs as early as 2005 because her medical records show that he ordered multiple diagnostic tests to check for them. Id. at 21-27. He cites several instances where he felt that Dr. Franzi's treatment of Mrs. Hassel did not meet the standard of care, attacking his clinical record-keeping, choice of blood clot prevention medication, and the fact that Mr. Hassel's phone calls, describing her symptoms on the day she died, went unanswered. Id. at 30-31, 35-43, 45-52. Dr. Genecin concluded by stating that Mrs. Hassel could have been saved if Dr. Franzi would have returned Mr. Hassel's phone call and that his failure to do was a deviation...