Klein v. Craig Aronchick, M.D. & Pa. Hosp. Gastro Assocs., Ltd.

• Decision Date: 18 March 2014
• Citation: 85 A.3d 487,2014 PA Super 3
• Court: Pennsylvania Superior Court
• Parties: Marsha and Kenneth KLEIN, Husband and Wife, Appellants v. Craig ARONCHICK, M.D. & PA. Hospital Gastro Associates, Ltd. PA Hospital of the University of PA.

85 A.3d 487

2014 PA Super 3

Marsha and Kenneth KLEIN, Husband and Wife, Appellants

v.Craig ARONCHICK, M.D. & PA. Hospital Gastro Associates, Ltd. PA Hospital of the University of PA.

Superior Court of Pennsylvania.

Argued Feb. 5, 2013.

Filed Jan. 7, 2014.

Reargument Denied March 18, 2014.

Barbara Axelrod, Philadelphia, for appellants.

Dorothy Duffy, Plymouth Meeting and Dan H.M. Tran, Philadelphia, for Aronchik & PA Hospital Gastro Assoc., appellees.

Teresa F. Sachs, Philadelphia, for PA Hospital of the University of PA., appellee.

BEFORE: FORD ELLIOTT, P.J.E., LAZARUS and FITZGERALD,^* JJ.

OPINION BY FORD ELLIOTT, P.J.E.:

Marsha and Kenneth Klein (collectively, “Klein” or “appellants”) appeal from the judgment entered February 23, 2012. After careful review, we reverse.

Marsha Klein suffered from chronic constipation for over 30 years. She consulted with Craig Aronchick, M.D., a gastroenterologist, who prescribed Visicol, a pill form of sodium phosphate.¹ Visicol was tested and approved as a preparation to cleanse the colon for a colonoscopy; Dr. Aronchick's prescription of Visicol for long-term treatment of chronic constipation was an off-label use.

Klein continued to take 9 grams of Visicol daily for approximately five years. Eventually, she began to experience symptoms including dizziness and fatigue. Increased creatinine levels indicated kidney disease, and she was referred to K. Adu Ntoso, M.D., a nephrologist (kidney specialist), who took her off Visicol. Klein's creatinine levels stabilized and her phosphate level dropped. According to Dr. Ntoso, Klein has only 19 percent kidney function versus 90 percent for a healthy 50–year–old woman. She suffers from permanent, progressive kidney disease.

At trial, Klein's expert, Bradley M. Denker, M.D., testified that her kidney failure was caused by long-term ingestion of Visicol as prescribed by Dr. Aronchick. Dr. Denker is a board-certified nephrologist and a professor at Harvard Medical School. Dr. Denker opined that it is clear from the medical literature that phosphate ingestion can cause kidney damage, and noted that Klein's elevated phosphate levels after being on Visicol for five years was consistent with phosphate ingestion and chronic phosphatenephropathy. Dr. Denker testified that Klein did not have kidney disease prior to taking Visicol and her phosphate levels stabilized after stopping Visicol.

Defendants' experts testified that there was nothing in the literature to support Klein's theory that long-term use of Visicol for chronic constipation can cause kidney disease. Defendants also referred to Klein's alleged history of bulimia, hypertension and NSAID use as alternative explanations for her kidney disease. Following trial, the jury found Dr. Aronchick negligent; however, they determined that his negligence was not the factual cause of Klein's injuries. Post-trial motions were denied, and this timely appeal followed.

Klein has raised the following issues for this court's review on appeal:

I. Did the trial court err in precluding the plaintiffs from eliciting any testimony that the defendant's negligence increased the risk of harm to Mrs. Klein, in the belief that a medical expert must specifically discuss “increased risk of harm” in his report, where (a) our courts have consistently held that a medical expert is not required to use “magic words” in his report, in order to testify on increased risk of harm; (b) Dr. Denker's report discussed the risks of over-ingestion of Visicol; and (c) the testimony of defendants' medical experts would not have changed if plaintiffs had elicited such testimony?

II. Was it reversible error to permit the defendants to introduce Mrs. Klein's alleged remote history of bulimia, over plaintiffs' strenuous objection, and repeatedly bring it up in a misleading attempt to persuade the jury that this was the cause of her kidney disease, where their own medical experts did not support this theory and the only one who discussed it in his report conceded that a causal connection could not be established?

III. Did the trial court err in allowing the defendants to present cumulative expert testimony from three medical experts, while preventing the plaintiffs from introducing any expert testimony that defendants' negligence increased the risk of harm to Mrs. Klein?

IV. Did the trial court err in allowing defendants to introduce the contents of hearsay medical literature as substantive evidence?

Klein's brief at 5.

In her first issue on appeal, Klein argues that the trial court erred in preventing Dr. Denker from testifying that Dr. Aronchick's negligent over-prescription of Visicol and failure to monitor her over a period of years increased the risk that Klein would suffer permanent kidney damage. According to Klein, she was entitled to argue that Dr. Aronchick's negligence either directly caused her kidney failure, or at least increased the risk of such harm occurring.² We agree.

“The admissibility of evidence is a matter addressed solely to the discretion of the trial court and may be reversed only upon a showing that the court abused its discretion.” Commonwealth v. Marshall, 743 A.2d 489, 492 (Pa.Super.1999), appeal denied,563 Pa. 613, 757 A.2d 930 (2000) (citation omitted). “Thus our standard of review is very narrow.... To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party.” McManamon v. Washko, 906 A.2d 1259, 1268–1269 (Pa.Super.2006), appeal denied,591 Pa. 736, 921 A.2d 497 (2007) (citations omitted).

In the seminal case on increased risk of harm, Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978), the decedent died of a heart attack. The plaintiff's medical expert, Dr. Cyril Wecht, testified that if the defendant had employed certain methods and treatment which he described, the decedent would have had a 75% chance of survival. Id. at 263, 392 A.2d at 1283. Dr. Wecht further testified that this substantial chance of recovery was terminated by the defendant's failure to provide prompt treatment. Id. The defendant's expert witness testified that death was imminent when the decedent arrived at the hospital and that he would have died regardless of any treatment the defendant might have provided. Id. Our supreme court held that Dr. Wecht's testimony was sufficient to create a prima facie case of causation.

When a defendant's negligent action or inaction has effectively terminated a person's chance of survival, it does not lie in the defendant's mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly.

Id. at 271–272, 392 A.2d at 1288, quoting Hicks v. United States, 368 F.2d 626, 632 (4th Cir.1966).

In Dr. Denker's report, he states to a reasonable degree of medical certainty that Dr. Aronchick's negligent over-prescription of Visicol for Klein's chronic constipation directly caused her kidney disease. For example, Dr. Denker states, “In my opinion, Ms. Klein's kidney disease is due to phosphatenephropathy from long term, unmonitored Visicol therapy for chronic constipation.” (Dr. Denker's report, 7/12/10 at 1; RR at 57a.) “In my opinion, within all reasonable medical certainty, Mrs. Klein suffered severe [ ] and irreversible chronic renal failure on the basis [of] phosphatenephropathy due to the Visicol treatment.” ( Id. at 2; RR at 58a.) “This medication was never intended for use in patients with chronic constipation and the failure to appropriately monitor and re-evaluate over a 5 year period led to the development of severe chronic renal failure in Mrs. Klein.” ( Id. at 3–4; RR at 59a–60a.) Appellees argue it is clear from a reading of Dr. Denker's overall report that he was making a direct connection between Dr. Aronchick's prescription of Visicol and Klein's chronic renal failure. Therefore, Klein's expert made the requisite link between Dr. Aronchick's negligence and the harm suffered.

Thus, appellees argue that where, as here, the plaintiff's expert issues a report opining that the defendants' negligence was the direct cause of the plaintiff's harm, the plaintiff is not entitled to an increased risk of harm instruction. Appellees contend that direct causation and increased risk are mutually exclusive theories of recovery and where the plaintiff's experts can testify to direct causation within a reasonable degree of medical certainty, increased risk is inapplicable. ( See appellees' brief at 22 (“under Pennsylvania law, a plaintiff cannot proceed under both causation theories; evidence of ‘direct’ causation precludes application of the ‘increased risk of harm’ causation standard”).) This argument appears to derive from language in Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888 (1990), to the effect that the “relaxed standard” of increased risk applies where it is “impossible” for an expert to state with a reasonable degree of medical certainty that the negligence actually caused the plaintiff's harm.

In Mitzelfelt, the plaintiff developed quadriparesis during a cervical laminectomy. Quadriparesis is a partial paralysis of all four extremities. Id. at 58, 584 A.2d at 890. There was some evidence that her blood pressure had dropped below 80 during surgery, compromising the blood supply to the cervical spinal cord. Dr. Henry Shenkin testified that the compromise in blood pressure was sufficient to cause paraparesis; however, he also testified that in 20% of cases, the patient will be weaker following surgery irrespective of...