Rolon v. Davies, No. 2046 MDA 2018

• Decision Date: 28 April 2020
• Docket Number: No. 2046 MDA 2018
• Citation: 232 A.3d 773
• Parties: Francisco ROLON, Administrator of the Estate of Maria Sanchez-Rodriguez, Appellant v. Trystan H. DAVIES, M.D., Lancaster Emergency Associates, Ltd., Matthew C. Wiggins, M.D., Lancaster Radiology Associates, Ltd., Joseph F. Voystock, M.D., Surgical Specialists of Lancaster, P.C. and Lancaster General Hospital, Appellees
• Court: Pennsylvania Superior Court

232 A.3d 773

Francisco ROLON, Administrator of the Estate of Maria Sanchez-Rodriguez, Appellant

v.Trystan H. DAVIES, M.D., Lancaster Emergency Associates, Ltd., Matthew C. Wiggins, M.D., Lancaster Radiology Associates, Ltd., Joseph F. Voystock, M.D., Surgical Specialists of Lancaster, P.C. and Lancaster General Hospital, Appellees

No. 2046 MDA 2018

Superior Court of Pennsylvania.

Argued October 22, 2019

Filed April 28, 2020

Mark Christian Atlee, Lancaster, for appellants.

Matthew Walker Rappleye, Lancaster, for appellees.

BEFORE: STABILE, McLAUGHLIN, and MUSMANNO, JJ.

OPINION BY STABILE, J.:

Appellant, Francisco Rolon, as administrator of the estate of Maria Sanchez-Rodriguez, appeals from the November 13, 2018 judgment entered in favor of Appellees, Trystan H. Davies, M.D., Lancaster Emergency Associates, Ltd., Matthew C. Wiggins, M.D., Lancaster Radiology Associates, Ltd., Joseph F. Voystock, M.D., Surgical Specialists of Lancaster, P.C. and Lancaster General Hospital. We affirm in part, vacate in part, and remand.

On April 30, 2010, Dr. Voystock, of Appellee Surgical Specialists of Lancaster, performed a hemicolectomy on Maria Sanchez-Rodriguez ("Decedent") at Appellee Lancaster General Hospital ("LGH"). The hemicolectomy was an emergency surgery to address a bowel perforation that occurred during a routine colonoscopy. On May 19, 2010, Decedent went to the LGH emergency room ("ER") complaining of pain in her right lower back, right hip, and right leg. The leg was swollen and blue. Appellee Trystan Davies, M.D., of Appellee Lancaster Emergency Associates, Ltd., examined Decedent in the ER. Dr. Davies noted that Decedent's right leg was colder and had a weaker pulse than the left. Dr. Davies ordered an ultrasound to check for a blood clot, i.e. deep vein thrombosis ("DVT"), in Decedent's lower leg. Appellee Matthew Wiggins, M.D., of Appellee Lancaster Radiology Associates, Ltd. interpreted the results of the ultrasound to reveal no DVT in the lower right leg, but slow blood flow in some of the veins. He recommended further testing.

Dr. Davies requested a consultation from Dr. Voystock to determine whether an arterial problem was causing Decedent's symptoms. Dr. Voystock ordered an arterial study, and it revealed no evidence of arterial blockage. The negative arterial study, combined with the improvement in Decedent's symptoms during the hours she spent in bed in the hospital, led to her discharge. Within one hour of discharge, Decedent collapsed in the elevator of her apartment building and was returned to the ER via ambulance. ER personnel were unable to revive her. An autopsy revealed Decedent, age 61, died from a pulmonary embolism.

Appellant filed this medical malpractice action on March 29, 2012, alleging that Appellees’ negligence led to the death of his wife, Maria Sanchez-Rodriguez. A jury trial commenced on October 15, 2018. Appellant presented David R. Campbell, M.D. as an expert witness on Dr. Voystock's alleged negligence. At the close of Appellant's case, Dr. Voystock and his practice, Surgical Specialists of Lancaster, P.C., moved for a nonsuit, claiming Campbell did not offer his opinion to a reasonable degree of medical certainty in accord with Pennsylvania law. The trial court granted Dr. Voystock's motion on October 19, 2018. On October 22, 2018, the jury returned defense verdicts in favor of the other Appellees. The trial court denied Appellant's timely post-trial motion to remove the nonsuit, and judgment was entered on November 13, 2018. This timely appeal followed. Appellant presents two questions:

1. Whether the trial court erred in granting nonsuit in favor of [Dr. Voystock] and denying [Appellant's] post-trial motion to remove nonsuit and for a new trial where [Appellant's] expert testimony was rendered to the requisite degree of medical certainty?

2. Whether the trial court erred in granting nonsuit in favor of [Dr. Voystock] and denying [Appellant's] post-trial motion to remove nonsuit and for a new trial where [Appellant] presented a prima facie case against [Dr. Voystock]?

Appellant's Brief at 5.¹

The applicable standard of review is as follows:

In reviewing the entry of a nonsuit, our standard of review is well-established: we reverse only if, after giving appellant the benefit of all reasonable inferences of fact, we find that the factfinder could not reasonably conclude that the essential elements of the cause of action were established. Indeed, [w]hen a nonsuit is entered, the lack of evidence to sustain the action must be so clear that it admits no room for fair and reasonable disagreement.... The fact-finder, however, cannot be permitted to reach a decision on the basis of speculation or conjecture.

Vicari v. Spiegel , 936 A.2d 503, 509 (Pa. Super. 2007) (internal citations and quotation marks omitted), affirmed , 605 Pa. 381, 989 A.2d 1277 (2010).²

Medical malpractice is a form of negligence. Griffin v. University of Pittsburgh Med. Ctr.-Braddock Hosp. , 950 A.2d 996, 999 (Pa. Super. 2008), appeal denied , 970 A.2d 431 (Pa. 2009). To make a prima facie case a plaintiff must establish that the physician owed the plaintiff a duty and breached it; that the breach was the proximate cause of the plaintiff's harm; and that the alleged damages were a direct result of the harm. Id. at 999-1000 (quoting Quinby v. Plumsteadville Fam. Practice, Inc. , 589 Pa. 183, 907 A.2d 1061, 1070-71 (2006) ). The plaintiff must present expert testimony "where the circumstances surrounding the malpractice claim are beyond the knowledge of the average layperson." Id. at 1000 (quoting Vogelsberger v. Magee-Womens Hosp. of UPMC Health Sys. , 903 A.2d 540, 563 n.11 (Pa. Super. 2006), appeal denied , 917 A.2d 315 (Pa. 2007) ).

An expert must testify, to a reasonable degree of medical certainty, that the defendant physician deviated from acceptable standards, and that the deviation was the proximate cause of the plaintiff's harm. Vicari , 936 A.2d at 510. Further, "a medical opinion need only demonstrate, with a reasonable degree of medical certainty, that a defendant's conduct increased the risk of the harm actually sustained, and the jury then must decide whether that conduct was a substantial factor in bringing about the harm." Id. (quoting Smith v. Grab , 705 A.2d 894, 899 (Pa. Super. 1997) ).

In determining whether the expert's opinion is rendered to the requisite degree of certainty, we examine the expert's testimony in its entirety. That an expert may have used less definite language does not render his entire opinion speculative if at some time during his testimony he expressed his opinion with reasonable certainty. Accordingly, an expert's opinion will not be deemed deficient merely because he or she failed to expressly use the specific words, ‘reasonable degree of medical certainty.’ See Commonwealth v. Spotz , [...] 756 A.2d 1139 (Pa. 2000) (indicating that ‘[i]n this jurisdiction, experts are not required to use ‘magic words’ but, rather, ‘this Court must look to the substance of [the expert's] testimony to determine whether his opinions were based on a reasonable degree of medical certainty rather than upon mere speculation’). Nevertheless, [a]n expert fails this standard of certainty if he testifies that the alleged cause ‘possibly’, or ‘could have’ led to the result, that it ‘could very properly account’ for the result, or even that it was ‘very highly probable’ that it caused the result.

Id. at 510-11 (some internal citations and quotation marks omitted).

In Vicari , the expert's opinion did not include the words "reasonable degree of medical certainty." Id. at 508. Notwithstanding that omission, this Court concluded that the expert's testimony, viewed in its entirety, met the requisite standard. Id. at 511. The expert "rendered an opinion that the risk of harm was increased by the defendant's failure to refer [the plaintiff] to a medical oncologist for chemotherapy following her surgery[.]" Id. The expert testified that there was " ‘very great’ potential for recurrence and metastasis [;]" that the plaintiff "absolutely" should have been referred to an oncologist; and that the plaintiff "was deprived of a significant opportunity for treatment which significantly increased the risk to her of local regional occurrence of metastasis [.]" Id. It was impossible to determine whether and to what extent chemotherapy would have prolonged the plaintiff's life, and in that context the expert used the word, "may." Id. at 512. Nonetheless, the testimony, considered in its entirety, was sufficient to permit the case to go to the jury. Id.

In Griffin , the plaintiff underwent bowel surgery and began to experience pain in her shoulder after the surgery. Griffin , 950 A.2d at 998. Her shoulder required several surgeries to repair a fracture and dislocation. Id. She filed a malpractice action alleging that the injury to her shoulder would not have occurred in the absence of negligence on the part of the hospital and its personnel. Id. The plaintiff's expert testified that her injury was either the result of forcible restraint because she became combative, or a grand mal seizure. Id. He assigned a 51% probability to the former and a 49% probability to the latter: "I think that from a reasonable degree of medical certainty, that is choosing one or the other, a fifty-one to forty-nine percent consideration, I think that the least implausible consideration would be [...] her shoulder was injured in attempts to be restrained because she was resisting that." Id. at 1002 (emphasis in original). The plaintiff had no recollection of the circumstances of her injury. Id. A jury awarded her more than $2 million and the defendant hospital appealed. Id. at 998. This Court concluded the expert's opinion was insufficient, despite his use of the words "reasonable degree of medical certainty." Id. at 1003-04. A 51% to 49% probability of forcible restraint as compared to a seizure did not "equate to an opinion stating to a...