Masgai v. Franklin

• Decision Date: 14 November 2001
• Citation: 787 A.2d 982
• Parties: Betty MASGAI, Individually, and as Executrix of the Estate of William Masgai, Deceased, Appellant v. Howard J. FRANKLIN, M.D., Robin Rosenberg, M.D., Surgical Services, Ltd., Frankford Hospital, Appellees.
• Court: Pennsylvania Superior Court

787 A.2d 982

Betty MASGAI, Individually, and as Executrix of the Estate of William Masgai, Deceased, Appellant v. Howard J. FRANKLIN, M.D., Robin Rosenberg, M.D., Surgical Services, Ltd., Frankford Hospital, Appellees.

Superior Court of Pennsylvania.

Argued September 25, 2001.

Filed November 14, 2001.

Barry W. Krengel, Philadelphia, for appellant.

Susan L. Fleming, Blue Bell, for appellee.

Before: HUDOCK, STEVENS, and OLSZEWSKI, JJ.

OLSZEWSKI, J.

¶ 1 Betty Masgai¹ appeals from the trial court's order granting summary judgment in favor of appellees and dismissing her suit with prejudice. We affirm in part, reverse in part, and remand for further proceedings.

[William Masgai ("Decedent")]² was 74 years old and had a pre-existing cirrhosis of the liver ailment when he was admitted to the emergency room of Frankford Hospital. Preceding admission to Frankford Hospital [Decedent] had a history of abdominal pain, back pain, and a fever. An abdominal CT scan was reported to show severe intra-abdominal disease, and based upon his complaints of pain and results of the scan, he underwent abdominal surgery. An exploratory laparotomy and cholecystectomy were performed by Dr. Franklin and Dr. Rosenberg utilizing a Hasson trocar. This procedure was described as putting the patient to sleep, and then making a small incision either above or below the belly button and using direct visualization to work directly in the abdominal cavity and under direct vision place a blunt trocar into the abdominal cavity. Upon insertion of the trocar, a hemoperitoneum was observed, with fresh blood and clots throughout the abdomen area. A large amount of blood was observed and most of the blood was thought to be coming from the liver. Blood was noted within the peritoneal cavity, and [Decedent] was found to have injury to the spleen and liver. The bleeding was controlled, and the gallbladder was removed. Post operative pathology studies confirmed a gangrenous cholecystitis of the gallbladder. Due to multiple complications [Decedent] was transferred to Hahnemann University Hospital on June 29, 1995, and remained there until August 21, 1995. During his admission at Hahnemann University Hospital, he had multiple medical problems. Following his release from Hahnemann University Hospital, [Decedent] was very limited in his activities until his death on July 14, 1998.

Trial Court Opinion, 1/3/01, at 2-3 (citations omitted).

On November 14, 1996, [appellant and Decedent] commenced a medical malpractice action by filing a complaint alleging that [appellees] failed to timely and approximately treat [Decedent's] laceration to his liver and spleen which [appellant] allege[d] was negligently caused by [appellees] during the insertion of a Hasson trocar for a laparoscopic cholecystectomy. In support of [their] claim, [appellant and Decedent] submitted the expert report of Dr. Parsi dated December 31, 1998. [Appellees] filed a Motion in Limine and sought a Frye Hearing to preclude [appellant's] expert report of Dr. Parsi. Th[e trial c]ourt granted the moving [appellees'] motion for a Frye Hearing on March 21, 2000 and [o]rdered that a hearing be held on April 19, 2000 to determine the scientific reliability of [appellant's] expert. The evidence submitted at the Frye Hearing included testimony of [appellees] and their experts. [Appellees] argued that it was impossible to have caused any injury to [Decedent] given the length of the "Ethicon Hasson canula or trocar" and the position of the port in relationship to the damage to the right lateral posterior area of the liver.

In response to [appellees'] argument, [appellant] contend[ed] that the lacerations to [Decedent's] liver and spleen were caused by insertion of the trocar. It [was] [appellant's] argument that 12 hours prior to the laparoscopic surgery, a CAT scan was performed which showed no evidence of bleeding or any signs of lacerations to [Decedent's] spleen and liver. However, after the insertion of the trocar device and during the procedure, it was shortly discovered thereafter that [Decedent's] liver and spleen were lacerated. Therefore, [appellant] conclude[d] that the aforementioned injuries had to be the result of the insertion of the trocar by [appellees]. Following oral arguments, th[e trial c]ourt ... ruled that [appellant's] expert report of Dr. Parsi was not admissible, his deposition was not admissible, and Dr. Parsi was precluded from testifying as an expert in th[e] case. Following th[e trial c]ourt's ruling excluding [appellant's] expert witness Dr. Parsi, [appellees] subsequently filed a Motion for Summary Judgment. The motion was granted on May 15, 2000 dismissing [appellant's] claim against all of the named [appellees]. [Appellant] filed a Notice of Appeal on June 13, 2000, appealing [the][o]rder granting [appellees'] Motion for Summary Judgment.

Id. at 1-2 (citations omitted). Appellant frames two issues for our review:

1. Did the trial court err in issuing an over-broad ruling precluding the admission of Dr. Parsi's Frye deposition in its entirety and the testimony of Dr. Parsi as an expert in the trial of this matter when neither [appellees'] Motion in Limine nor the oral argument raised any other issues with regard to the other four (4) enumerated pre and post surgical deviations from the standard of care?

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2. Did the trial court abuse its discretion in granting [appellees'] Motion for Summary Judgment, despite [appellant's] submission of the supplemental expert report of Dr. Leitman, pursuant to Pa.R.C.P. 1035.3(b), and [appellant's] establishment of a prima facie case of liability on the theory of res ipsa loquitur and four (4) pre and post surgical deviations in the standard of care?

Appellant's brief at 5.

¶ 2 In order to establish a prima facie cause of action for medical malpractice, a plaintiff must demonstrate that "(1) the physician owed a duty to the patient; (2) the physician breached that duty; (3) the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient, and (4) the damages suffered by the patient were the direct result of that harm." Billman v. Saylor, 761 A.2d 1208, 1211-12 (Pa.Super.2000) (quoting Eaddy v. Hamaty, 694 A.2d 639, 642 (Pa.Super.1997)).

[B]ecause "the complexities of the human body place questions as to the cause of pain or injury beyond the knowledge of the average layperson," a medical malpractice plaintiff generally must produce the opinion of a medical expert to demonstrate the elements of his cause of action.

Miller v. Sacred Heart Hosp., 753 A.2d 829, 833 (Pa.Super.2000) (quoting Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280, 1285 (1978)). Where a plaintiff fails to produce an expert in a situation requiring one, the court should grant a defendant's motion for summary judgment. Id. In this case, appellant attempted to present an expert, Dr. R.K. Parsi. After the trial judge determined that Dr. Parsi's testimony would not meet the standards in Frye, he granted appellees' motion for summary judgment despite appellant's attempt to introduce another expert's testimony. We must determine whether the court erred in precluding Dr. Parsi's testimony and, if so, determine whether summary judgment was proper given the introduction of a new expert witness.

¶ 3 Expert testimony will only be admissible when the scientific principle underlying the expert's opinion satisfies the test first set forth in Frye v. United States, 54 App.D.C. 46, 293 F. 1013, 1014 (1923).

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field to which it belongs.

Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395, 399 (1994). The Frye standard requires "general acceptance of reliability in the relevant scientific community." Id. at 400 n. 2.

¶ 4 This requirement guarantees that the most qualified individuals will essentially be the ones determining the "validity of a scientific method." Thomas v. West Bend Co., Inc., 760 A.2d 1174, 1178 (Pa.Super.2000) (citation omitted), appeal denied, 781 A.2d 147, 2001 WL 501438 (Pa. May 11, 2001). As this Court further noted, the Frye test "protects [both] prosecution and defense" by ensuring that there will be a group of sufficiently skilled experts to analyze the validity of a scientific principle or theory put forth in a given case. Id. (citation omitted). "Since scientific proof may in some instances assume a posture of mystic infallibility in the eyes of a jury of laymen, the ability to produce rebuttal experts, equally conversant with the mechanics and methods of a particular technique, may prove to be essential." Id. (quoting Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277, 1282 (1977)).

¶ 5 Dr. Parsi opined that Decedent's liver sustained an injury in surgery, but he could not determine the exact cause of the injury. See Dr. Parsi's Report at 8. Appellant argued that a device called a Hasson trocar must have caused the injury, because there is nothing else that could have. At the conclusion of the Frye hearing, the trial court noted,

[Appellant's] [e]xpert failed to offer any explanation, either scientific or unscientific, as to how this injury might have occurred, given the known undisputed facts. [Appellant's] response seems to attempt to shift the burden to [appellees] by replying with a quasi `res ipsa' theory by saying in effect, `We really don't know how the injury occurred but he was fine before the operation so something must have happened during the operation, just get us to a jury[.]'

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Specifically,

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