Strain v. Ferroni

• Decision Date: 07 June 1991
• Parties: Beverly STRAIN and Bernard Strain, Husband and Wife, Appellants, v. Joseph S. FERRONI, M.D., and Daniel C. Harrer, M.D., Appellees. (Two Cases)
• Court: Pennsylvania Superior Court

Page 698

592 A.2d 698

405 Pa.Super. 349

Beverly STRAIN and Bernard Strain, Husband and Wife, Appellants, v. Joseph S. FERRONI, M.D., and Daniel C. Harrer, M.D.,

Appellees. (Two Cases)

Superior Court of Pennsylvania.

Argued March 6, 1991.

Filed June 7, 1991.

Nancy H. Fullam, Philadelphia, for appellants.

Dorothy Duffy, Plymouth Meeting, for appellee Ferroni.

Joan S. Adams, Philadelphia, for appellee Harrer.

Before BECK, POPOVICH and HOFFMAN, JJ.

POPOVICH, Judge:

This is a consolidated appeal from two orders entered in the Court of Common Pleas of Philadelphia County granting summary judgment in favor of Daniel C. Harrer, M.D. and Joseph S. Ferroni, M.D. We affirm.

The instant appeal is a result of litigation instituted by the appellants Beverly and Bernard Strain against Dr. Harrer for negligence in failing to take actions to prevent Beverly Strain's miscarriage. See Appellants' Complaint. After discovery, Dr. Harrer moved for summary judgment arguing that there existed no genuine issues of material fact relative to the Strains' negligence claim. Additionally, Dr. Harrer contested the Strains' allegations that his conduct intentionally or negligently caused them emotional distress. The trial court found in favor of Dr. Harrer and entered summary judgment on June 25, 1990.

Similarly, the Strains filed a complaint against Dr. Ferroni, Beverly Strains' obstetrician-gynocologist, asserting that he was vicariously liable for the acts of his covering physician, Dr. Harrer. The Strains seek to hold Dr. Ferroni accountable for Dr. Harrer's actions based on the theory of agency. Dr. Ferroni filed a motion for summary judgment which was granted on August 17, 1990. The Strains' appeals from both orders of the trial court were consolidated and certified to this Court.

The record indicates that Beverly Strain, a patient of Dr. Ferroni, awoke with severe back pain and cramping on the morning of May 5, 1985. At the time, she was in her fourth month of pregnancy. Dr. Ferroni was not available that day, and Mrs. Strain's call was received by Dr. Harrer who was providing coverage for Dr. Ferroni. Dr. Harrer advised Mrs. Strain to maintain strict bed rest and to call him again if her symptoms changed. Mrs. Strain began to pass small blood clots. She called Dr. Harrer who returned her call within ten to twenty minutes. He again told her to maintain strict bed rest.

Mrs. Strain stated that over the course of the day, a series of phone calls ensued during which she attempted to arrange for the doctor to see her. She felt that he should have performed a physical examination and attempted to save the pregnancy.

Later that evening, the bleeding increased and Mrs. Strain experienced abdominal pain and cramps. Dr. Harrer told her that a miscarriage had begun. Mrs. Strain called an ambulance and went to Roxborough Memorial Hospital. Dr. Harrer called Mrs. Strain to check her status and was informed by Mr. Strain that they were on their way to the Roxborough hospital.

Mrs. Strain was diagnosed as having experienced post-spontaneous miscarriage. The treating physician performed a dilation and evacuation. Mrs. Strain was released the following day.

On appeal, the Strains contend that Dr. Harrer negligently failed to render the appropriate standard of medical care under the circumstances. They also allege intentional and negligent infliction of emotional distress. In particular, they assert that Dr. Harrer misdiagnosed her condition and refused to provide treatment. They allege that Mrs. Strain suffered damages in the form of "increased blood loss, passage of clots, loss of consciousness, physical collapse, emergency surgery, anemia and generalized lethargy." Appellants' brief, October 23, 1990, at 5. Regarding the issues of emotional distress, the Strains contend that the "callous indifference shown by Dr. Harrer in the face of the known risk of death from hemorrhage was in reckless [disregard] to the rights and safety" of Beverly Strain. Id. at 5-6.

The Strains also suggest that Dr. Harrer's alleged negligence should have been imputed to Dr. Ferroni because Dr. Harrer was an agent of Dr. Ferroni. They believe that the trial court erred in finding in favor of Dr. Ferroni, asserting that "[t]he basis for imposing liability upon Dr. Ferroni was his principal-agent relationship with Dr. Harrer whom he retained to provide coverage through his service in his absence." Appellants' brief, January 15, 1991, at 6.

While this Court is sympathetic to Mrs. Strain's situation, we cannot conclude that she has sustained her burden of proving a prima facie case for any of the causes of action set forth in her complaint. Our reasoning follows.

At the onset, we note our scope and standard of review in considering an appeal from the grant of a motion for summary judgment. In Vargo v. Hunt, 398 Pa.Super. 600, 581 A.2d 625 (1990), this Court stated:

A determination of whether the grant or denial of a motion for summary judgment is to be upheld requires an appellate court to decide whether the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Overly v. Kass, 382 Pa.Super. 108, 554 A.2d 970, 971 (1989); see also Chiricos v. Forest Lake Council Boy Scouts of America, 391 Pa.Super. 491, 571 A.2d 474, 475 (1990). In making such a finding, we must accept as true all properly pleaded facts, as well as all reasonable inferences which might be drawn therefrom. Furthermore, we shall not disturb the trial court's ruling unless there has been an error of law or a manifest abuse of discretion. Overly v. Kass, supra.

Id. at 601, 581 A.2d at 626. See also Lower Lake Dock Co. v. Messinger Bearing Corp., 395 Pa.Super. 456, 461, 577 A.2d 631, 634 (1990); Bobb v. Kraybill, 354 Pa.Super. 361, 364, 511 A.2d 1379, 1380 (1986). Any party may move for summary judgment after the pleadings are closed. Pa.R.Civ.P. 1035. We note, however, that although we must examine the record in the light most favorable to the non-moving party, "the non-moving party may not rest upon the mere allegations and denials of his pleadings. To avoid summary judgment, the non-moving party must set forth specific facts by way of affidavit, or as otherwise provided in [Pa.R.Civ.P.] 1035, demonstrating that a genuine factual issue exists." Curran v. Children's Service Center of Wyoming County, Inc., 396 Pa.Super. 29, 30, 578 A.2d 8, 9 (1990). See also Jackson v. Sun Oil Co. of Pennsylvania, 361 Pa.Super. 54, 521 A.2d 469 (1987). With these standards in mind, we will review the Strains' appellate issues.

The Strains contend that Dr. Harrer committed medical malpractice by misdiagnosing Mrs. Strain's condition and by improperly treating her. See Appellants' Complaint. To prove a prima facie case, it was incumbent upon the Strains to produce expert testimony to establish the recognized standard of medical care attributable to physicians under like circumstances. Tarter v. Linn, 396 Pa.Super. 155, 578 A.2d 453 (1990); Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 559 A.2d 550 (1989). In Chandler v. Cook, 438 Pa. 447, 451, 265 A.2d 794, 796 (1970), the Pennsylvania Supreme Court expressly held: "... in malpractice cases ... a jury will not be permitted to find negligence without expert testimony to establish variance from accepted medical practice." Thus, as well, it must be shown that the doctor whose conduct is being challenged departed from the requisite standard when s/he treated the patient. Tarter v. Linn, supra; Freed v. Priore, 247 Pa.Super. 418, 372 A.2d 895 (1977). See also Brophy v. Brizuela, 358 Pa.Super. 400, 517 A.2d 1293 (1986).

The Strains employed only one expert, Dr. Kenneth Kappy. In pertinent part, Dr. Kappy's report provides:

The patient's questions revolve around the management of the spontaneous miscarriage in 1985. I do not believe that the earlier admission of this patient would have markedly changed the medical outcome. However, a comment should be made regarding the statements that are made in the deposition of Ms. Strain. I specifically make reference to the events that she says occurred on the day of her admission. Apparently there were a number of phone calls placed back and forth between Dr. Harrer and the patient. She states that she had excessive bleeding with a passage of clots vaginally, along with increasing amounts of cramping. I believe that appropriate medical management would have suggested an examination of Ms. Strain during that time, since cramping and excessive bleeding would be signs of an impending miscarriage, which would require the removal of the products of conception to minimize the potential morbidity that is associated with miscarriage, namely excessive blood loss. This would not alter the final outcome of pregnancy, but it would have diminished the amount of anxiety experienced by Ms. Strain and would have allowed earlier recognition and treatment of her medical problem. Concerning the surgical findings at the repeat cesarean section in July of 1986, the operative report gives no evidence of abnormal findings. [....] The finding of a thin uterine segment after a cesarean section is not unusual despite the fact that it is not very common. I do not believe that it represents any indication of inappropriate medical management.

Expert report, May 12, 198[ ], at 1-2 (emphasis added). Dr. Kappy established that Mrs. Strain's miscarriage could not have been avoided. His expert report contains no opinion as to whether Dr. Harrer breached the requisite standard of medical care. ¹ At best, the report indicates that Dr. Harrer could have acted more promptly; however, there is no evidence that Dr. Harrer's conduct caused the termination of Mrs. Strain's pregnancy. See Hamil v. Bashline, 481 Pa. 256, 265, 392 A.2d 1280, 1284 (1978) ("[t]he defendant's negligent conduct may...