Kersey v. Pisano
| Decision Date | 07 March 2023 |
| Docket Number | 798 EDA 2022,J-A24032-22 |
| Parties | PEARL KERSEY, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF LONNIE KERSEY, DECEASED v. MICHAEL J. PISANO, III, D.O., AND PASSYUNK MEDICAL ASSOCIATES, P.C. Appellants |
| Court | Pennsylvania Superior Court |
Michael J. Pisano, III, D.O. ("Dr. Pisano"), and Passyunk Medical Associates, P.C. (collectively "Appellants"), appeal from the entry of judgment in favor of Pearl Kersey, individually and as Administratrix of the Estate of Lonnie Kersey, deceased ("Appellee"). We vacate the order entering judgment, affirm in part and vacate in part the jury's verdict, and remand with instructions.
The relevant factual and procedural history is as follows. In 2010, Lonnie Kersey ("Decedent") sought medical care from Dr. Pisano, a board-certified specialist in internal medicine practicing as a primary care physician. At the inception of their patient-physician relationship Decedent informed Dr. Pisano that Decedent's father died from prostate cancer. Decedent also informed Dr. Pisano that Decedent suffered from benign prostate hyperplasia (enlarged prostate) which he treated with dutasteride, a medication that increases the risk of high-grade prostate cancer and artificially suppresses prostate specific antigen ("PSA") levels by fifty percent.[1] Decedent additionally informed Dr. Pisano that he was the victim of a gunshot wound prior to 1992 and, in connection therewith, underwent a blood transfusion.[2] Finally, Decedent informed Dr. Pisano that his lab tests showed elevated liver enzymes.
In 2012, Dr. Pisano ordered bloodwork for Decedent which revealed that his PSA level was 1.0 ng/ml. In March of 2014, Dr. Pisano ordered further testing which revealed that Decedent's PSA level was 1.2 ng/ml. In May 2014, while Decedent was receiving in-patient treatment at Thomas Jefferson University Hospital,[3] a blood test revealed that Decedent had hepatitis C. There is no evidence that Decedent informed Dr. Pisano of this diagnosis, nor any evidence that Dr. Pisano reviewed the hospital records.
Testing performed in September of 2015 revealed that Decedent's PSA level had increased to 3.0 ng/ml, which should have been regarded as in the abnormal range due to the fact that Decedent was taking dutasteride. There is no documentation that Dr. Pisano understood the clinical significance of the abnormal PSA test result or that he discussed it with Decedent. Over the course of the next two years, Dr. Pisano did not order any follow-up PSA testing for Decedent. On February 8, 2017, another blood test indicated that Decedent had hepatitis C. On September 6, 2017, testing revealed that Decedent's PSA level had increased to 203.3 ng/ml. Decedent's last appointment with Dr. Pisano was on September 11, 2017. At that appointment, Dr. Pisano referred Decedent to a specialist for treatment of suspected prostate cancer.[4] On September 27, 2017, Decedent was diagnosed with metastatic stage IV prostate cancer.
Decedent and Appellee commenced the instant litigation in April 2018 by filing a writ of summons. They filed a complaint on June 2018 asserting claims sounding in medical malpractice based on Appellants' care and treatment of Decedent between 2015 and 2017. On July 5, 2018, Decedent was diagnosed with liver cancer caused by chronic untreated hepatitis C and cirrhosis. Decedent died on July 31, 2018 due to liver failure.[5] His death certificate, which was issued one week later, listed liver cancer as the sole cause of death. See Certificate of Death, 8/6/18, at 1.
In August 2018, the trial court entered a case management order which established, inter alia, a deadline for expert reports on December 2, 2019. By stipulation, the parties extended the expert report deadline to January 16, 2020.
On January 28, 2019, Appellee filed a first amended complaint. Therein, Appellee averred that Dr. Pisano deviated from the accepted standard of care when he failed to refer Decedent to a urologist for assessment of possible prostate cancer following the abnormal September 2015 PSA test, and failed to order any further PSA testing between 2015 and 2017. See First Amended Complaint, 1/28/19, at ¶¶ 40-44. Appellee claimed that, as a result of Appellants' negligence, "[Decedent's] prostate cancer was allowed to progress, undiagnosed and untreated to advanced, metastatic [s]tage IV disease with a corresponding diminution of his life expectancy." Id. at ¶ 52. Further, the first amended complaint averred that "[t]he negligence of Defendants, by their acts and/or omissions resulted in an unreasonable delay in the diagnosis of [Decedent's] prostate cancer" and that he "passed away as a result of his advanced stage cancer." Id. at ¶¶ 53, 57. The first amended complaint asserted a wrongful death claim pursuant to 42 Pa.C.S.A. § 8301, and a survival act claim pursuant to 42 Pa.C.S.A. § 8301, and attached a copy of Decedent's death certificate. The first amended complaint made no mention of Decedent's liver cancer; nor did it contain any allegations of medical negligence specifically related to the care and treatment of Decedent's liver, the failure to test for hepatitis C, or the failure to refer Decedent to a hepatologist. The first amended complaint also did not contain any assertions of medical negligence by Dr. Pisano prior to 2015. Appellants did not file preliminary objections to the first amended complaint.
In August 2020, Appellee produced the expert reports of David L. Fried, M.D., and Guarionex Joel DeCastro, M.D. In his August 15, 2020 report, Dr. Fried, a board-certified specialist in internal medicine and adult primary care, opined that Dr. Pisano deviated from the standard of care for internists when he failed to recognize the clinical significance of Decedent's abnormal PSA level in September 2015 and refer him to a specialist for treatment at that time, and in the two years thereafter, resulting in the development of metastatic stage IV prostate cancer. See Fried Expert Report, 8/15/20, at 6.
In his August 27, 2020 report, Dr. DeCastro, a board-certified urologist with an area of focus in prostate cancer, opined that Dr. Pisano deviated from the applicable standard of care when he failed to recognize the clinical significance of Decedent's abnormal PSA level in September 2015 and refer him to a urologist for biopsy and treatment. See DeCastro Expert Report, 8/27/20, at 3. Dr. DeCastro further opined that, had Dr. Pisano referred Decedent to a specialist in September 2015 after the initial tripling of his PSA levels, his prostate cancer would not have spread beyond the prostate and he would have had a ninety percent chance of cure. Id.
On January 5, 2021, Appellee produced the supplemental expert report of Dr. DeCastro in which he opined that, although Decedent died of liver failure caused by liver cancer, "the underlying widespread metastatic prostate cancer was a substantial contributing factor to his death." DeCastro Expert Report, 1/5/21, at 1. In Dr. DeCastro's opinion, Dr. Pisano's failure to refer Decedent to a specialist in September 2015 resulted in the delay of the diagnosis and treatment of Decedent's prostate cancer, which meant that his hepatitis C could not be treated due to the need for systemic chemotherapy for the prostate cancer, thereby increasing the risk that he would develop liver cancer from hepatitis C. Id.
The case was originally scheduled to be ready for trial in May 2020. However, due to the Covid-19 pandemic and the resultant court closures, trials were suspended until March 4, 2021. As a result, the case was rescheduled for trial in October 2021.
On July 6, 2021, Appellee produced the expert report of George Y. Wu, M.D., a board-certified internist with specialties in gastroenterology and hepatology. In his July 6, 2021 report, Dr. Wu opined that Dr. Pisano was negligent in his care and treatment of Decedent's liver between 2010 and 2014. Specifically, Dr. Wu opined that Dr. Pisano deviated from the standard of care when he failed to order hepatitis C screenings for Decedent beginning in 2010, given Decedent's numerous risk factors (i.e., a blood transfusion prior to 1992, elevated liver enzymes, and advanced age). See Wu Expert Report, 7/6/21, at 2. Dr. Wu further opined that Dr. Pisano's delay until 2017 in referring Decedent to a specialist meant that treatment for Decedent's hepatitis C was delayed. Id. at 3. The parties scheduled Dr. Wu's trial deposition for September 15, 2021. The day before Dr. Wu's trial deposition, Appellee submitted two supplemental expert reports prepared by Dr. Wu. In one report, Dr. Wu clarified his opinion that Dr. Pisano was negligent in the care and treatment of Decedent's liver commencing in 2010 when he failed to regularly screen Decedent for hepatitis C. See Wu Expert Report, 9/14/21, at 1. In another report, Dr. Wu noted that, on May 15, 2014, Decedent was diagnosed with hepatitis C while hospitalized at Thomas Jefferson University Hospital. See Wu Expert Report, 9/14/21, at 1. Dr. Wu further concluded that, although there is no evidence that Decedent communicated to Dr. Pisano that he had been diagnosed with hepatitis C, Dr. Pisano deviated from the standard of care by failing to review the hospital records to learn of the hepatitis C diagnosis, inform Decedent of the significance of that diagnosis, and insist that Decedent see a hepatologist in 2014. Id. at 2.
Appellants filed motions in limine to preclude: (1) any cause of action for liability related to...
To continue reading
Request your trial