Poleri v. Salkind

• Decision Date: 08 November 1996
• Citation: 683 A.2d 649,453 Pa.Super. 159
• Parties: Barbara L. POLERI and John Poleri, Appellants, v. Gene SALKIND, M.D., Patrick M. Sewards, M.D., Raymond LaFontant, M.D., and Moss Rehabilitation Hospital, Appellees.
• Court: Pennsylvania Superior Court

Page 649

683 A.2d 649

453 Pa.Super. 159

Barbara L. POLERI and John Poleri, Appellants, v. Gene SALKIND, M.D., Patrick M. Sewards, M.D., Raymond LaFontant, M.D., and Moss Rehabilitation Hospital Appellees.

Superior Court of Pennsylvania.

Argued April 23, 1996.

Filed Aug. 27, 1996.

Reargument Denied Nov. 8, 1996.

Gregory F. Cirillo, Philadelphia, for appellants.

Francis J. McGovern, Blue Bell, for G. Salkind, M.D., appellee.

Barbara Magen, Philadelphia, for P. Sewards, M.D., appellee.

Joseph H. Foster, Philadelphia, for R. Lafontant, M.D., appellee.

Before McEWEN, P.J., and SAYLOR, and MONTEMURO ^*, JJ.

McEWEN, President Judge.

Appellants, Barbara L. Poleri and John Poleri, have taken this appeal from the order of May 23, 1995, which denied their motion for post-trial relief and affirmed the compulsory non-suit which had been entered in favor of appellees. We are constrained to vacate the order entering the compulsory non-suit and remand for a new trial.

The facts underlying the instant appeal have been aptly summarized in the opinion of the trial court:

In 1988, 59 year-old plaintiff, Barbara L. Poleri, consulted her family physician, Dr. Kagen, regarding her history of back pain which began when she was a child. She told Dr. Kagen that her back pain had become "unbearable" and interfered with her daily activities. As a result, Dr. Kagen referred plaintiff to a proctologist, sent her for a CAT scan and an MRI, referred her to a rheumatologist and then to neurosurgeon, defendant Gene Salkind, M.D. She also sought the second opinion of defendant, Patrick M. Sewards, M.D., an orthopedic surgeon and associate of Dr. Salkind. Mrs. Poleri was diagnosed as suffering with spinal stenosis, a compression of the nerves of the lower back.

As a result of Drs. Seward's and Salkind's recommendations that surgery was necessary to correct Mrs. Poleri's back problem, she was admitted to Germantown Hospital and Medical Center ("Germantown") on May 3, 1988; surgery was performed by Drs. Salkind and Sewards on May 4, 1988. Dr. Salkind performed a laminectomy, a decompression of the nerves. Dr. Sewards then performed a fusion of plaintiff's spine. The fusion involved harvesting bone from Mrs. Poleri's pelvis and grafting it to her spine.

Plaintiff woke up after the surgery the following morning in pain. She did not recall Drs. Salkind or Sewards specifically examining her back wound after the operation, although she did recall nurses checking the wound. Plaintiff recalled seeing Drs. Salkind or Sewards at most a total of six times while she was hospitalized.

On May 9, 1988, plaintiff's back wound began to drain fluid causing her bandages to be replaced several times per day. On that same day, a culture of her urine was taken and it was discovered that she had a urinary tract infection. As treatment, Mrs. Poleri was prescribed the antibiotic norfloxacin. By the following day, plaintiff had developed a palpable hematoma, a collection of blood, at the operative site. Between May 10 and May 15, 1988, plaintiff's wound was draining serosanguineous fluid. On May 15, 1988, the surgical staples were removed, the wound opened, and the hematoma drained.

Plaintiff was transferred to defendant Moss Rehabilitation Center ("Moss") on May 17, 1989, where she met defendant, Raymond LaFontant, M.D. Dr. LaFontant ordered a culture from plaintiff's surgical wound on that same day which evidenced the presence of the bacteria, pseudomonas aeruginosa. Dr. LaFontant continued plaintiff on norfloxacin. Also while at Moss, Mrs. Poleri underwent physical and occupational therapy. She continued to experience problems with her back wound; it continued to discharge fluid and Dr. LaFontant had to continually pack the wound with gauze.

After approximately two weeks at Moss, Dr. LaFontant contacted Dr. Salkind's office because of plaintiff's ongoing pain. Dr. Salkind was out of the state so his partner, Dr. Bruno, went to see plaintiff at Moss on May 27, 1988.2 He explained that Mrs. Poleri was to begin antibiotics (velosef) and that the gauze packing was to be removed from her back. Dr. Sewards examined plaintiff at Moss on June 8, 1988, at which time he recommended she be transferred back to a hospital.

On June 9, 1988, plaintiff was transferred to Abington Hospital at which time she underwent x-rays which revealed osteitis, inflammation of the pelvic bone. She also underwent a surgical procedure to flush the wound performed by Dr. Sewards. She underwent the same surgical procedure on June 11, 18, and 25, 1988.

By June 25, 1988, the infection had spread to Mrs. Poleri's pelvis where bone had been harvested. A culture revealed the presence of a methicillin resistant strain of staph aureus. On June 27, 1988, John J. Kelly, M.D., the Chairman of the Department of Medicine at Abington, took over plaintiff's care. Dr. Kelly began a program of the intravenous antibiotic vanomycin for the staph aureus and ceftazidime for the pseudomonas aeruginosa.

On July 21, 1988, Mrs. Poleri was transferred to Abington Rehabilitation Hospital ("Abington"), still under antibiotic treatment. She received physical and occupational therapy and underwent the care of the Chief of Plastic Surgery, Dr. Magdi Kodsi, who treated the infected wound by placing a gauze covered with acetic acid inside several times per day. Mrs. Poleri was discharged on August 10, 1988, and was to continue home care.

During the home care, plaintiff's wound dressings continued to be changed, as well as intravenous antibiotics. Thereafter, approximately six weeks after her discharge, plaintiff began to undergo physical therapy at Northwest Physical Therapy.

In January of 1989, Dr. Kodsi discovered a sinus tract within the healing tissue of Mrs. Poleri's back wound which required irrigation and surgery at Abington Hospital. Upon release plaintiff underwent seventeen days of home intravenous vancomycin treatment and was later given ciproflaxacin orally.

In May of 1990, Mrs. Poleri underwent plastic surgery to resurface the back wound. Finally, in 1991 and 1992, plaintiff's back had to be drained of pus because of recurring methicillin resistant staph aureus and again plaintiff was placed on intravenous antibiotics. Mrs. Poleri's osteomyelitis was in remission at the time of trial.

Plaintiffs filed suit on June 27, 1989, seeking recovery based on two theories of liability. First, that Drs. Salkind, Sewards, and LaFontant, all of whom were responsible for Mrs. Poleri's care, reacted slowly to the infectious process and the delay resulted in additional trauma and treatment for Mrs. Poleri. Second, that had Mrs. Poleri timely been given the proper antibiotic therapy for her pseudomonas aeruginosa infection by the same responsible doctors, she would not have required the same extent of treatment at Abington and would not have developed the staph aureus infection or the osteomyelitis.

Appellants essentially contend that the trial court erred when it granted the motions of appellees for compulsory non-suits and frame their arguments as follows:

1. The trial court's sudden, unanticipated departure from the courtroom during the presentation of plaintiffs' case and its subsequent granting of defendants' motions for compulsory non-suit was a denial of due process and fundamental fairness constituting reversible error;

2. Considering all the evidence in the light most favorable to the plaintiffs, the evidence presented at trial established a prima facie case for negligence by the defendants sufficient to withstand defendants' motions for compulsory non-suit;

3. Plaintiffs' experts, an orthopedic surgeon and an infectious disease expert, were qualified to testify on the standard of care of the defendant doctors where the expert witnesses testified about the overlap between their respective specialities; and

4. The testimony of the plaintiffs' expert witnesses on the issues of causation and the defendants' duty of care was within the "fair scope" of their expert reports under Pa.R.Civ.P. 4003.5(c) where the defendants knew the subject matter of the proposed expert testimony and offered expert testimony to rebut plaintiffs' experts.

We first address the claims of appellants which contend that the trial court incorrectly granted the motions for compulsory non-suit made by the appellees.

Our standard of review of an order granting a compulsory non-suit is well-settled:

A motion for compulsory non-suit allows a defendant to test the sufficiency of a plaintiffs' evidence and may be entered only in cases where it is clear that the plaintiff has not established a cause of action; in making this determination, the plaintiff must be given the benefit of all reasonable inferences arising from the evidence. Hatbob v. Brown, 394 Pa.Super. 234, 575 A.2d 607 (1990). When so viewed, a non-suit is properly entered if the plaintiff has not introduced sufficient evidence to establish the necessary elements to maintain a cause of action; it is the duty of the trial court to make this determination prior to the submission of the case to the jury. Id. When this Court reviews the grant of a non-suit, we must resolve all conflicts in the evidence in favor of the party against whom the non-suit was entered. Eisenhauer v. Clock Tower [Towers] Associates, 399 Pa.Super. 238, 582 A.2d 33 (1990).

Taliferro v. Johns-Manville Corp., 421 Pa.Super. 204, 208-09, 617 A.2d 796, 799 (1992). A compulsory non-suit is proper only where the facts and circumstances compel the conclusion that the defendants are not liable upon the cause of action pleaded by the plaintiff. United National Ins. Co. v. J.H. France Refractories Co., 417 Pa.Super. 614, 619-21, 612 A.2d 1371, 1374 (1992), rev'd. on other grounds, 542 Pa. 432, 668 A.2d 120 (1995) (reversing on statute of limitations issue).

A cause of action for medical malpractice requires proof of four elements, namely, (1) that the medical practitioner owed a duty to the patient, (2) that the...