Hutchinson v. Verstraeten

• Docket Number: 886 WDA 2022,J-A18034-23
• Decision Date: 08 November 2023
• Parties: BRENDA HUTCHINSON AND DOUGLAS HUTCHINSON Appellants v. THIERRY C. VERSTRAETEN, M.D.; E. RONALD SALVITTI, M.D., INC., INDIVIDUALLY, D/B/A SOUTHWESTERN PENNSYLVANIA EYE CENTER, A FICTITIOUS NAME, AND D/B/A SOUTHERN PENNSYLVANIA EYE SURGERY CENTER, A FICTITIOUS NAME; AND ALLEGHENY OPHTHALMIC & ORBITAL ASSOCIATES, P.C.
• Court: Pennsylvania Superior Court

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2023 PA Super 230

BRENDA HUTCHINSON AND DOUGLAS HUTCHINSON Appellants v. THIERRY C. VERSTRAETEN, M.D.; E. RONALD SALVITTI, M.D., INC., INDIVIDUALLY, D/B/A SOUTHWESTERN PENNSYLVANIA EYE CENTER, A FICTITIOUS NAME, AND D/B/A SOUTHERN PENNSYLVANIA EYE SURGERY CENTER, A FICTITIOUS NAME; AND ALLEGHENY OPHTHALMIC & ORBITAL ASSOCIATES, P.C.

No. 886 WDA 2022

No. J-A18034-23

Superior Court of Pennsylvania

November 8, 2023

Appeal from the Judgment Entered July 26, 2022 In the Court of Common Pleas of Washington County Civil Division at No(s) 2018-175

BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

OPINION

KUNSELMAN, J.

Brenda and Douglas Hutchinson appeal from the judgment entered on the jury's defense verdict in favor of Dr. Thierry C Verstraeten, M.D.; E. Ronald Salvitti, M.D., Inc.; and Allegheny Ophthalmic & Orbital Associates, P.C. ("the Eye Clinic"). The Hutchinsons challenge the trial court's ruling that barred one of their experts from testifying at the jury trial. Because the Hutchinsons' arguments do not establish an abuse of discretion, we affirm.

The Hutchinsons sued the Eye Clinic for medical malpractice, based on vicarious liability and corporate negligence. They alleged that Dr. Verstraeten blinded Ms. Hutchinson's right eye by improperly injecting fluid into it. The Hutchinsons claimed the Eye Clinic then altered Ms. Hutchinson's medical records to conceal Dr. Verstraeten's mistake. They rooted that claim in the testimony of Jessica Page, a self-described "expert in Health Information Technology (HIT) and Operations." Hutchinsons' Renewed Motion for Sanctions, Ex. 2 at 1.

According to the Hutchinsons, the parties vociferously disputed the accuracy of Ms. Hutchinson's medical records. The doctor and his scribe testified that the March 3, 2016 medical record documented an injection into Ms. Hutchinson's eyeball, rather than below it. The Eye Clinic's health insurance billing statement also confirmed billing and payment for an injection into Ms. Hutchinson's eyeball. Thus, it was the Hutchinsons' position that the injection had gone into Ms. Hutchinson's eyeball, which occluded her Central Retinal Artery and blinded the eye. Dr. Verstraeten maintained he did not inject the fluid directly into Ms. Hutchinson's eyeball.

The Hutchinsons claimed that someone had altered Ms. Hutchinson's March 3, 2016 medical record to add or modify documentation after the fact. This prompted the Hutchinsons to hire Ms. Page as their expert witness. As the Hutchinsons claim in their brief:

Ms. Page had years of experience managing ophthalmological practices. She also had significant experience and specialized training on the ophthalmological practice software used by [the Eye Clinic]-Medflow . . . Ms. Page authored three detailed reports about alterations to Mrs. Hutchinson's medical record.

Ms. Page's opinions and the ongoing contentious debates over this alteration issue were based primarily upon the completeness of [the Eye Clinic's] proffered electronic medical record audit trail (sometimes referred to generally as "the audit trail"). The audit trail is a representation of the electronic medical record. It should show, among other data points, who accessed the records, where and when the records were accessed, and whether changes were made to the records.

Hutchinsons' Brief at 10-11 (citation to the reproduced record and footnotes omitted).

The Hutchinsons believed the Eye Clinic had altered Ms. Hutchinson's medical records, after her eye injury. They filed a motion to compel the production of a complete and unredacted audit trail of the medical records, which the trial court granted. The Hutchinsons further claimed the Eye Clinic's first production of an audit trail was incomplete. After they moved for sanctions, the Eye Clinic produced two more audit trails, but, according to the Hutchinsons, those trails were also incomplete.

The Hutchinsons then claimed that there were other alterations to the medical record. One such alleged alteration was a handwritten alteration of an earlier injection into Ms. Hutchinson's eyeball changed to one under her eyeball by an office employee who had not participated in the care. The trial court eventually granted the Eye Clinic's motion in limine to exclude this evidence, because it ruled the evidence to be irrelevant.

Ultimately, Ms. Page provided a final report, wherein she outlined all the evidence of the Eye Clinic's opinions on the alleged alteration of the electronic and handwritten medical record. The Hutchisons summarized her opinions as follows:

- Missing Entries from the Standard Medflow Audit Trail

- Alterations in the Exported Medflow Audit Log

- Impossible Reporting Constraints for [the Eye Clinic's] Production of the 7/14/21 Audit Report

- Unexplained lengthy entries into Ms. Hutchinson's medical record by non-care providers of the Clinic

- Inappropriate corrections to and alterations of Ms. Hutchinson's paper records

- EMR Alterations of the March 3, 2016 office visit

- Invalid electronic signatures of the Doctor Hutchinsons' Brief at 15 (citation to the reproduced record and footnotes omitted).

A few days before trial, the Eye Clinic filed a motion in limine to preclude Ms. Page's testimony, which the trial court granted. Opining from the bench, the court said:

the issue of the complete audit trail and the issues related to discovery with the electronic record, in my mind, is a complete separate and distinct issue [from the poor record-keeping of the Eye Clinic]. When and who accessed the records and so on, at this stage, really, is irrelevant.

And no evidence exists that anyone altered the record that helped the [Eye Clinic] or to divert the [Hutchinsons'] attention to something that would damage the Plaintiff or to - yeah, to bolster the [Hutchinsons'] case or to hurt the [Eye Clinic]. This whole issue on the audit trail at this point I find is irrelevant and is only going to cause confusion to the jury.

Further, after reading Jessica Page's -- all three reports --but particularly the last one, she goes way beyond her expertise in handwriting and standard of care and what she does in her practice, which she is really not -- she is not qualified to do.

So, in light of everything, I am going to preclude the testimony of Jessica Page.

N.T., 8/12/21, at 161-62.

The matter proceeded to a jury trial, and the jurors ruled Dr. Verstraeten had acted within the standard of care. The jury also determined there was no corporate negligence by the Eye Clinic. The Hutchisons moved for post-trial relief, which the trial court denied. This timely appeal followed.

The Hutchisons raise three issues. They are:

1. Did the [trial] court err when it excluded the relevant testimony of [Ms. Page]?

2. Did the [trial] court err by precluding critical relevant evidence to establish grounds for an adverse inference related to the intentional alteration and/or destruction of the plaintiffs' medical record?

3. Did the [trial] court err by precluding critical relevant evidence to establish grounds for a spoliation and/or punitive damages jury charge?

Hutchinsons' Brief at 5.

As the Hutchinsons' framing of issues indicates, they misunderstand our deferential standard of review for an evidentiary ruling, such as the one they now challenge on appeal. The issue for an appellant, when challenging a trial court's evidentiary ruling, is not - as the Hutchinsons claim and argue in their brief - whether the trial court committed an "error." Instead, the proper framing of the appellate issue is whether the trial court committed an abuse of discretion. As we explain, the Hutchisons never make an abuse-of- discretion argument anywhere in their brief. Thus, we dispose of all their appellate issues simultaneously.

At the outset of their brief, the Hutchinsons correctly acknowledge that "Questions that involve the relevancy of evidence are within the sound discretion of the trial court." Id. at 3 (citing Cohen v. Albert Einstein Medical Center, 592 A.2d 720, 725 (Pa. Super. 1991)). They then state, "The unjustified exclusion of relevant evidence that is otherwise admissible, however, is an abuse of that discretion." Id. The Hutchinsons again cite Cohen for that proposition. See id. Without citing any authority, the Cohen panel did, in fact, say, "the unjustified exclusion of relevant evidence, otherwise admissible, is an abuse of discretion." Cohen at 725.

However, if that statement from Cohen were correct, this Court would review a trial court's relevancy determinations de novo. Under the Cohen standard of review, a mere difference of opinion between this Court and the trial court as to what constitutes relevant evidence would also constitute an abuse of discretion. Indeed, a close reading of Cohen reveals that the panel reviewed the case's evidence de novo and substituted its relevancy judgments of the evidence to reverse the trial court and award the hospital a new trial.

Cohen involved a hospitalized woman who supposedly suffered from Munchausen's Syndrome, the "repeated fabrication of illness, usually acute, dramatic and convincing." Id. at 724 (quoting Merck Manual, 15^th Ed., 1987) (some punctuation omitted). Ms. Cohen claimed that, on her second or third day in the hospital, an unknown nurse administered an injection into her arm to treat arthritis. She "felt a shock run down her arm and into her hand and fingers. Thereafter, her left hand dropped uselessly at the wrist." Id. at 722.

Despite this adverse result, Ms. Cohen "did not report to anyone the sudden pain and disability, and the hospital records [did] not contain any reference to the injection." Id. A week later, a doctor first noted "a left wrist drop of unknown etiology." Id. (quotation omitted). The condition...