Tindall v. Friedman, No. 3390 EDA 2004.

• Decision Date: 24 March 2009
• Docket Number: No. 3391 EDA 2004.,No. 3433 EDA 2004.,No. 3494 EDA 2005.,No. 3390 EDA 2004.
• Parties: Jeffrey TINDALL and Silvia Tindall, Husband and Wife, v. Brad S. FRIEDMAN, D.O., and Mark Schweitzer, M.D. and Jefferson Imaging and Thomas Jefferson University Hospital and Jefferson Health System, Appeal of: Mark Schweitzer, M.D. Appellant. Jeffrey Tindall and Silvia Tindall, Husband and Wife, v. Brad S. Friedman, D.O., and Mark Schweitzer, M.D. and Jefferson Imaging and Thomas Jefferson University Hospital and Jefferson Health System, Appeal of: Brad S. Friedman, D.O. Appellant. Jeffrey Tindall and Silvia Tindall, v. Brad S. Friedman, D.O., and Mark Schweitzer, M.D. and Jefferson Imaging Appeal of: Jefferson Imaging, Appellant. Jeffrey Tindall and Silvia Tindall, v. Brad S. Friedman, D.O., and Mark Schweitzer, M.D., and Jefferson Imaging and Thomas Jefferson University Hospital and Jefferson Health System, Appellees.
• Court: Pennsylvania Superior Court

970 A.2d 1159

2009 PA Super 50

Jeffrey TINDALL and Silvia Tindall, Husband and Wife, v. Brad S. FRIEDMAN, D.O., and Mark Schweitzer, M.D. and Jefferson Imaging and Thomas Jefferson University Hospital and Jefferson Health System, Appeal of: Mark Schweitzer, M.D. Appellant.

Jeffrey Tindall and Silvia Tindall, Husband and Wife, v. Brad S. Friedman, D.O., and Mark Schweitzer, M.D. and Jefferson Imaging and Thomas Jefferson University Hospital and Jefferson Health System, Appeal of: Brad S. Friedman, D.O. Appellant.

Jeffrey Tindall and Silvia Tindall, v. Brad S. Friedman, D.O., and Mark Schweitzer, M.D. and Jefferson Imaging

Appeal of: Jefferson Imaging, Appellant.

Jeffrey Tindall and Silvia Tindall, v. Brad S. Friedman, D.O., and Mark Schweitzer, M.D., and Jefferson Imaging and Thomas Jefferson University Hospital and Jefferson Health System, Appellees.

No. 3390 EDA 2004.

No. 3391 EDA 2004.

No. 3433 EDA 2004.

No. 3494 EDA 2005.

Superior Court of Pennsylvania.

Argued February 5, 2008.

Filed March 24, 2009.

Reargument Denied June 1, 2009.

Paul E. Peel, Plymouth Meeting, for Schweitzer.

Edward M. Koch, Berwyn, for Jefferson.

James W. Gicking, Philadelphia, for Friedman.

David A. Yanoff, Philadelphia, for Tindall.

BEFORE: BOWES, SHOGAN and FITZGERALD^*, JJ.

OPINION BY BOWES, J.:

¶ 1 Dr. Brad S. Friedman, Dr. Mark Schweitzer, and Jefferson Imaging have filed separate appeals from the judgment entered on a jury award in favor of Jeffrey and Silvia Tindall, and the Tindalls have appealed the trial court's post-trial entry of judgment notwithstanding the verdict ("n.o.v.") in favor of Jefferson Imaging. We reverse the entry of judgment n.o.v. in favor of Jefferson Imaging and remand for reinstatement of the judgment against that company. We affirm the jury award in favor of the Tindalls, but remand for recalculation of delay damages imposed on that verdict.¹

¶ 2 The facts underlying the present cause of action, viewed in the light most favorable to the Tindalls as verdict winners, are as follows. In early 1997, when he was twenty-eight years old, Mr. Tindall occasionally began to experience problems with his left knee in that when he stood, the knee failed to bend easily, and when it did bend, it would apparently dislocate and then return to its natural position. On April 15, 1997, he was weeding his yard on a four-foot retaining wall and attempted to stand when his knee locked, and he fell from the wall onto grass. Mr. Tindall experienced pain in his knee and scheduled an appointment for the following day with his family doctor, Dr. Friedman.

¶ 3 Dr. Friedman diagnosed Mr. Tindall with a strain or sprain but sent him for an x-ray for confirmation. The radiologist who read the x-ray stated that the x-ray was consistent with a diagnosis of a strain or sprain resulting from the fall, but he also indicated that the x-ray revealed the existence of an abnormality on the outside of the left knee that was unrelated to the fall. The radiologist concluded that the abnormality could be classified as either a hematoma, which is a completely benign condition, or a neoplasm, which is an abnormal growth of cells. A neoplasm can consist of cancerous cells. In his written report, the radiologist recommended that Mr. Tindall undergo an MRI solely to eliminate the possibility that the abnormality was malignant, and he also telephoned Dr. Friedman's office to ensure that the MRI would be conducted due to the possibility that the abnormality was cancer.

¶ 4 Dr. Friedman ordered the recommended MRI from Jefferson Imaging. In written instructions regarding the purpose for the MRI, Dr. Friedman specifically noted that the MRI was to be conducted to determine whether the abnormality on Mr. Tindall's knee was a calcified hematoma or a neoplasm. The record establishes that to a physician, those instructions would be interpreted as a direction to perform the MRI to eliminate the possibility that the abnormality on Mr. Tindall's knee was a cancer. Mr. Tindall underwent his MRI at Jefferson Imaging on April 23, 1997, and Dr. Schweitzer interpreted it in a report issued on April 25, 1997.

¶ 5 Dr. Schweitzer stated at trial that he did not receive Dr. Friedman's written instructions regarding the reason the MRI had been requested and that he was under the impression that he was interpreting the MRI to determine the nature of a twisting injury that Mr. Tindall had sustained to the left knee. Thus, Dr. Schweitzer read the MRI in accordance with the protocol for determining the type of twisting injury the left knee had sustained. Dr Schweitzer also testified that if he had received Dr. Friedman's written instructions, he would have told Mr. Tindall to return to Jefferson Imaging for performance of a different set of MRI studies that were necessary for Dr. Schweitzer to properly diagnose the abnormality. Those studies would have been conducted and interpreted under the tumor protocol, which would apply for determining if the abnormality on the left knee was a cancerous growth. Dr. Schweitzer said that if the MRI had been performed and evaluated in accordance with the tumor protocol, the abnormality would have been diagnosed as malignant in April 1997. Since the incorrect protocol was utilized, Dr. Schweitzer did not determine if the abnormality on the left knee, which was unrelated to Mr. Tindall's April 15, 1997 fall, was malignant.

¶ 6 The April 25, 1997 report issued by Dr. Schweitzer and sent to Dr. Friedman provided as follows (emphasis added):

There is edema at the insertion site of the gastrocnemus muscle consistent with muscle injury. On the clinical data form, it is noted that the patient had an abnormal outside radiograph that apparently noted a calcific density along the lateral border of the distal femur. The edema at the insertion of the gastrocnemus may suggest the possibility of a cortical desmoid accounting for the radiographic abnormality. Follow up radiographs could be performed if clinically indicated to further characterize this finding.

¶ 7 Thus, the report noted that the edema suggested the possibility of a cortical desmoid, which would account for the abnormality. Cancer was not discussed in the report.

¶ 8 On March 16, 1998, Mr. Tindall, who never was informed about the abnormality on his knee or that it possibly was malignant, returned to Dr. Friedman complaining that his knee was still causing him problems. Mr. Tindall reported that the knee continued to lock and then momentarily dislocate and that it was also painful. On April 13, 1999, Mr. Tindall presented to Dr. Friedman with more frequent and severe pain in the knee as well as continued locking and swelling. He complained of imbalance and also displayed unexplained weight loss.

¶ 9 On June 2, 1999, Mr. Tindall, who continued to have his April 1999 symptoms, complained to Dr. Friedman of the additional symptom of energy loss. Later that month, Mr. Tindall asked for a referral, and Dr. Friedman sent him to an orthopedic specialist, Dr. George Stollsteimer. Dr. Stollsteimer saw Mr. Tindall in July 1999, and immediately ordered radiological studies. Following receipt of those studies, Dr. Stollsteimer promptly referred Mr. Tindall to an orthopedic oncologist, a doctor specializing in treatment of bone cancer. In August 1999, two and one-half years after the April 23, 1997 MRI, Mr. Tindall's bone cancer was diagnosed.

¶ 10 Due to the delay in diagnosis, Mr. Tindall's cancer increased in size and dedifferentiated from a low-grade cancer to a more aggressive, high-grade cancer. Expert testimony presented by the Tindalls indicated that the cancer had probably dedifferentiated in the year prior to its diagnosis. Since his cancer was high-grade rather than low-grade, Mr. Tindall's treatment, because it included chemotherapy, was significantly more debilitating. Although he is now cancer-free, he runs a significantly increased risk of reoccurrence, metastasis, and death than he would have had if the condition had been diagnosed in 1997. High-grade cancers have a ninety percent chance of recurrence within a twelve-year period and of causing death. Thus, Mr. Tindall must undergo cancer surveillance for the remainder of his life and cannot secure life insurance.

¶ 11 Mr. Tindall was rendered sterile due to the chemotherapy. He placed his sperm in a sperm bank, but in order to conceive, Mrs. Tindall, who was pregnant at trial, underwent in vitro fertilization, which is costly and medically burdensome. She will have to do so again in order to have another child. If Mr. Tindall had been diagnosed in April 1997, he would have been treated with surgery alone, had an excellent prognosis for a cure, and had an extremely low chance of recurrence or metastasis.

¶ 12 The Tindalls instituted this medical malpractice action against Dr. Friedman, Dr. Schweitzer, Jefferson Imaging, Jefferson University Hospital, and Jefferson Health System alleging that they were negligent for failing to promptly diagnose the cancerous tumor on Mr. Tindall's left knee. The trial court granted summary judgment to Jefferson University Hospital and Jefferson Health System. As to Jefferson Imaging, the Tindalls had pleaded a claim of corporate negligence and also averred that it was liable because Dr. Schweitzer was operating as its agent when he interpreted the MRI. Jefferson Imaging subsequently was granted summary judgment on the corporate negligence cause of action, and at trial, its liability was predicated solely on its status as principal to Dr. Schweitzer.

¶ 13 The case proceeded to a jury trial on April 26, 2004, and on May 5, 2004, the jury returned a verdict finding that Dr. Schweitzer and Dr. Friedman were equally liable for the Tindalls' injuries and that Dr. Schweitzer was Jefferson Imaging's agent when he read the April 23, 1997 MRI. It awarded Mr. Tindall $2,500,000 and Mrs. Tindall $1,000,000 in damages. The verdict was molded to reflect the imposition of delay damages, and on ...