Sensenich v. Morcos
| Decision Date | 27 February 2019 |
| Docket Number | No. 1679 WDA 2017,1679 WDA 2017 |
| Citation | 205 A.3d 375 |
| Parties | Stephen H. SENSENICH, and Debbie Sensenich, His Wife, Appellants v. Ehab F. MORCOS, M.D., Westmoreland County Cardiology, Inc., Westmoreland Regional Hospital, and Excela Health |
| Court | Pennsylvania Superior Court |
Vincent A. Coppola, Pittsburgh, for appellant.
Lynn E. Bell, Pittsburgh, for Westmoreland County Cardiology, appellee.
David R. Johnson, Pittsburgh, for Westmoreland Regional Hospital, appellee.
Stephen H. Sensenich and his wife, Debbie,1 appeal from the judgment entered in favor of Ehab F. Morcos, M.D., Westmoreland County Cardiology, Inc. ("WCC"), and Westmoreland Regional Hospital and Excela Health (collectively "Excela"2 ), on October 17, 2017. After thorough review, we affirm.
The instant case is one of more than one hundred cases comprising the IN RE: WESTMORELAND HOSPITAL CARDIAC STENT LITIGATION.3 The claims arise from allegedly unnecessary cardiac stenting procedures performed by Dr. Morcos and George BouSamra, M.D., during their affiliation with WCC. The cases were coordinated, but not consolidated, for discovery and pretrial proceedings.
The facts giving rise to Mr. Sensenich's claims are as follows. During the spring of 2008, Mr. Sensenich was experiencing shortness of breath and other symptoms associated with heart disease. He underwent a stress test in June 2008 at WCC. The test revealed that the inferior wall and the apex of his heart were not getting enough blood. Dr. Morcos, an interventional cardiologist with WCC, advised Mr. Sensenich at that time that two vessels needed to be stented.
A stent is a small mesh cylinder. Mr. Sensenich's expert, John Setaro, M.D., described the stenting procedure as follows. During a heart catheterization, a wire is passed through the vessel to create a track, much like a guidewire. A balloon on the end is inflated to push the plaque aside in the vessel. The balloon disappears and leaves the stent behind to keep the vessel open and allow red blood cells to pass through freely. Sometimes, instead of placing a single stent at the location of the lesion, multiple stents are deployed to cover the entire lesion and connect healthy tissue to healthy tissue.
The medical experts of both Mr. Sensenich and Dr. Morcos agreed that the standard of care was to stent any lesion or blockage of seventy percent or more as depicted on an angiogram. The dispute between the experts focused on the extent of the blockages in Mr. Sensenich's left anterior descending vessel ("LAD") and circumflex arteries and whether placement of a stent or stents in those vessels was medically indicated.
On October 6, 2008, Mr. Sensenich underwent the first of three cardiac catheterization procedures performed by Dr. Morcos. Dr. Morcos inserted two stents in a lesion located in the right coronary artery. It was undisputed that the October stenting procedure was medically necessary as Mr. Sensenich's right coronary artery was ninety percent blocked, blood flow was low, and Mr. Sensenich was experiencing symptoms consistent with occlusion. There was no criticism of Dr. Morcos's use of two stents to cover the entire lesion.
On November 10, 2008, Mr. Sensenich returned for a second catheterization to place a stent in his LAD. Since there was calcium build-up in the artery, Dr. Morcos performed a rotational atherectomy, a procedure involving the use of a small drill to break up the calcium deposits. During the drilling, the LAD was dissected, a known complication of such a procedure. Dr. Morcos deployed several stents to repair the vessel. Mr. Sensenich spent four days in the Intensive Care Unit following the procedure, but recovered.
In early December, Juan Chahin, M.D., of WCC performed an angiogram to check on the status of the stents placed during Mr. Sensenich's November procedure. He advised Mr. Sensenich that everything was good, but that he would require another procedure on a different vessel. On December 30, 2008, Dr. Morcos placed a stent in Mr. Sensenich's circumflex artery without complication.
The record reveals that in February 2008, physicians from Latrobe Cardiology Associates ("Latrobe"), a general cardiology group owned by Excela, began complaining of unnecessary and excessive stenting by WCC interventional cardiologists. Dr. Robert Staffen, Dr. Mark Milchak, and the other Latrobe cardiologists did not personally perform stenting procedures. Prior to their affiliation with Excela, they referred their patients to UPMC or Allegheny General Hospitals in Pittsburgh for stenting procedures. Post-merger, Excela directed them to refer their patients to WCC instead. Latrobe cardiologists complained to Excela that their referrals to WCC were not returning to Latrobe for continued treatment. They attributed this to unnecessary or excessive stents being placed by WCC physicians, with scrutiny focusing on Drs. Morcos and BouSamra. In October 2008, Dr. Staffen brought those concerns to a joint conference committee meeting at Excela.
Shortly thereafter, Excela's chief of cardiology resigned, and in January 2009, the joint conference committee hired Mahdi Al-Bassam, M.D., an independent interventional cardiologist, to perform a review of Excela's interventional cardiology program. From February through April 2009, Dr. Al-Bassam reviewed sixty-three cases of Drs. Morcos and BouSamra from the three-month period of December 2008 through February 2009, as well as any case presented for review by Latrobe. He issued a final report dated April 26, 2009, wherein he stated that he found no abuse based on his review.
Latrobe was not satisfied with Dr. Al-Bassam's review. They felt that he had looked primarily at cases with complications and failed to address their concern: that unnecessary stenting procedures, i.e. , procedures that were not medically indicated, were being performed by these physicians. In May 2010, the new Excela CEO, Robert Rogalski, M.D., recommended a second review focusing on the appropriateness of medical decisions regarding interventional cardiology procedures. Mercer Health & Benefits, LLC ("Mercer") was retained to perform the review, and issued its preliminary findings in September 2010. The results were held to be peer-review protected, and thus undisclosed at trial, although they were shared with Drs. Morcos and BouSamra.
On February 12, 2011, Drs. Morcos and BouSamra resigned from the medical staff of Excela. Dr. Rogalski testified at trial that it was his intent to suspend their privileges based upon Mercer's report. That same month, Excela arranged for another on-site review conducted by the American Medical Foundation for Peer Review and Education, Inc. ("AMF").
Again, the report was deemed to be privileged peer-review. However, evidence was introduced at trial that, following that review, repayments were made to Medicare.
On March 3, 2011, Excela sent letters to patients of Drs. Morcos and BouSamra who had received stents in 2009 and 2010, advising them that, after performance of quality reviews, Defendants Exhibit K, at 1. The correspondence clarified further that the review focused solely on the "medical necessity of the coronary stent procedure" and "did not uncover any concerns about the quality or safety of the coronary stent device itself." Id. A media advisory from Excela informed the public that stents may have been implanted at Westmoreland Regional Hospital's catheterization laboratory that were medically unnecessary. Additional letters were sent to other patients on June 20, 2011. See Plaintiff's Exhibit 80. Mr. Sensenich did not receive a letter, but he pled in his complaint and testified in his deposition that he learned of the unnecessary stenting practices from media coverage.
Mr. Sensenich commenced the instant lawsuit against Dr. Morcos, WCC, and Excela (collectively "Defendants") by filing an approved short form complaint on February 20, 2013. He alleged therein that his second and third stenting procedures, performed by Dr. Morcos in November and December 2008, were not medically necessary. Mr. Sensenich averred that the LAD and circumflex arteries were less than seventy percent occluded, and that intervention with a stent was unnecessary, negligent, and contrary to the standard of care. He also pled that the performance of the unnecessary procedures constituted the intentional tort of battery as Mr. Sensenich had not given valid informed consent for the procedures.
According to Mr. Sensenich, Excela either knew or should have known about the unnecessary stenting practices of Dr. Morcos and WCC in February 2008 when Latrobe cardiologists complained, and Excela was negligent in failing to oversee its physicians and develop policies and protocols regarding proper cardiac intervention. Alternatively, Mr. Sensenich alleged that Excela was complicit or conspired with WCC and its physicians in the performance of unnecessary stenting procedures. The Sensenich complaint incorporated the claims set forth in the master long form complaint sounding in battery, lack of informed consent, medical negligence, corporate negligence, fraud, civil conspiracy, violations of the Unfair Trade Practices and Consumer Protection Law, unjust enrichment, and loss of consortium.
After extensive discovery, Defendants moved for summary judgment based, inter alia , on the statute of limitations. The trial court denied summary judgment on that ground, stating that it "agrees with Plaintiffs' argument that the Discovery Rule tolls the statute of limitations in this matter, and that therefore Plaintiffs' Complaint was filed timely."4 Order, 7/14/15, at ¶ 3.
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