Yacoub v. Lehigh Valley Medical

• Decision Date: 01 August 2002
• Citation: 805 A.2d 579
• Parties: Rima YACOUB, Administratrix of the Estate of Bashar Yacoub, Deceased, Appellant, v. LEHIGH VALLEY MEDICAL ASSOCIATES, P.C., Margaret S. Tretter, D.O., James T. McNelis, D.O., Allen Neurosurgical Association, Inc., Zev Elias, M.D., and Lehigh Valley Hospital, Appellees.
• Court: Pennsylvania Superior Court

805 A.2d 579

Rima YACOUB, Administratrix of the Estate of Bashar Yacoub, Deceased, Appellant, v. LEHIGH VALLEY MEDICAL ASSOCIATES, P.C., Margaret S. Tretter, D.O., James T. McNelis, D.O., Allen Neurosurgical Association, Inc., Zev Elias, M.D., and Lehigh Valley Hospital, Appellees.

Superior Court of Pennsylvania.

Argued November 20, 2001.

Filed August 1, 2002.

Edward F. Silva, Philadelphia, for appellant.

Frank G. Procyk, Allentown, for appellees.

Howard S. Stevens, Philadelphia, for appellees.

Abbie Newman, Philadelphia, for appellees.

Before DEL SOLE, P.J., CAVANAUGH, JOHNSON, HUDOCK, JOYCE, STEVENS, MUSMANNO, ORIE MELVIN and LALLY-GREEN, JJ.

ORIE MELVIN, J.

¶ 1 Appellant, Rima Yacoub, Administratrix of the estate of her husband, Bashar Yacoub, appeals from the July 19, 2000, judgment entered in favor of Appellees, Margaret S. Tretter, D.O., James T. McNelis, D.O., Lehigh Valley Medical Associates, P.C., Allen Neurosurgical Association, Inc., Zev Elias, M.D. and Lehigh Valley Hospital, in this medical malpractice action. For the following reasons we affirm.

¶ 2 The facts and procedural background of this matter may be summarized as follows. In October of 1994, Bashar Yacoub began experiencing terrible headaches and dizziness. After an initial evaluation at Cedar Crest Emergi-Center, he was referred to Allentown Osteopathic Hospital for a CT scan on October 26, 1994. Dr. Margaret Tretter, an internal medicine practitioner with Lehigh Valley Medical Associates, P.C. (LVMA), examined Mr. Yacoub at the hospital. Dr. Tretter's review of the CT scan revealed a large brain mass, which was thought to be a tumor. On the advice of Dr. Tretter, Mr. Yacoub was transferred to Lehigh Valley Hospital (LVH) for a MRI and a consultation with a neurologist.

¶ 3 Upon his admission to LVH, Dr. Mark Lester, a neurosurgeon with Allen Neurosurgical Association, Inc. (ANA), examined Mr. Yacoub. Dr. Lester noted that he was awake, alert and conversant. N.T. Trial Volume III, 3/3/00, at 204. At that time the CT scan performed at Allentown Osteopathic Hospital was reviewed, and it was believed that the brain mass was most likely a malignant glioma. Id. at 205-206, 226. Dr. Lester did not note the possibility of a brain abscess in his differential diagnosis. On October 27, 1994, a nurse transported Mr. Yacoub via a wheelchair for the MRI in another building on the hospital's campus connected by a causeway. The hospital contracted with Lehigh Magnetic Imaging Center (LMIC) for this service. Dr. Bradford Yeager, a radiologist for LMIC, interpreted the results. Dr. Yeager noted "[a]nalogous to the change as seen on CT," and reported a "lobulated ring enhancing mass in the left temporal lobe measuring approximately 2.7 by 3.7 centimeters in diameter." N.T. Trial Volume VII, 3/9/00, at 125. His impression was "[a] primary glial tumor is felt most likely. Cerebral abscess is possible, but considered less likely." Id. at 127.

¶ 4 On October 28, 1994, Dr. Zev Elias, another neurosurgeon with ANA, examined Mr. Yacoub and told him that either a craniotomy or a biopsy should be performed. However, Dr. Elias did not believe the procedure needed to be done on an emergency basis and therefore placed him on his elective surgery schedule for the following week. Further, because Mr. Yacoub wished to leave the hospital Dr. James McNelis, another internist practicing with Dr. Tretter, released him. Dr. McNelis instructed Mr. Yacoub's brother that he should bring him back to the hospital if his condition worsened. Prior to examining Mr. Yacoub, Dr. Elias asserted that he was informed verbally by Dr. Lester about the MRI finding of October 27, 1994. However, Dr. Lester testified that he did not see the MRI film or report until November 2, 1994.

¶ 5 Shortly after his release from the hospital Mr. Yacoub's condition continued to deteriorate. Approximately one hour after discharge, Mr. Yacoub's brother called the number written on the discharge form and asked to speak with Dr. McNelis or Dr. Elias. He was advised that someone would return his call; however, a return call was not forthcoming. He called again the following morning, and a physician still did not return his call. Finally, on October 30th Dr. McNelis called and informed him that there was nothing more that could be done and that he should just continued to give his brother extra pain medication.

¶ 6 In the early morning of November 1, 1994, Mr. Yacoub was taken back to the emergency room of LVH. Another CT scan was ordered. Dr. Mark Osborne, a radiologist, analyzed the CT scan and noted incorrectly that no recent films were available for comparison. Dr. Tretter examined Mr. Yacoub at 10:00 a.m. and indicated to Dr. Elias that she wanted to expedite the biopsy due to the increased headaches. At approximately 12:45 p.m. Dr. Elias reviewed the CT scan and asked for the prior films, but he was told that they were not available. After examining Mr. Yacoub, he noted that apart from worsened headaches, his condition had not changed. On the morning of November 2, 1994 Mr. Yacoub could not be awakened. Upon examination, Dr. Lester found him comatose and requiring emergency surgery. Following surgery it was determined that Mr. Yacoub had a brain abscess rather than a tumor and that the abscess had ruptured into the ventricle system. Mr. Yacoub died on November 18, 1994 having never regained consciousness.

¶ 7 Appellant subsequently commenced this medical malpractice action alleging that the Appellees were negligent in failing to diagnosis and promptly treat a brain abscess, thereby causing the Mr. Yacoub's death. The trial court precluded Appellant from presenting a claim of ostensible agency against LVH based upon the alleged negligence of two radiologists who interpreted Mr. Yacoub's MRI of October 27, 1994 and CT scan of November 1, 1994. The trial court also found that Appellant's expert, a neurosurgeon, was not qualified to render an opinion regarding the standard of care applicable to doctors of internal medicine or nurse employees of LVH. Absent this expert evidence Appellant could not establish the liability of Drs. Tretter and McNelis and LVMA. Thus, the trial court entered a directed verdict in their favor. Subsequently the jury found Drs. Elias and Lester and ANA, through its employees, negligent but did not find that their negligence was a substantial factor in causing the Mr. Yacoub's death. Since their negligence was not determined to be a substantial factor in Mr. Yacoub's death, the jury never decided the question of whether Drs. Elias and Lester were the ostensible agents of LVH. On March 22, 2000, Appellant filed a Motion for Post-Trial Relief, which was denied on June 28, 2000. Accordingly, the trial court entered judgment in favor of the Appellees on July 19, 2000. Thereafter, Appellant perfected her appeal to this Court. On May 14, 2001 a memorandum decision was filed affirming the judgment with one judge dissenting. Appellant's application for en banc review was granted on July 10, 2001.

¶ 8 On appeal Appellant presents the following questions for our review:

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN PRECLUDING THE APPELLANT FROM INTRODUCING EVIDENCE THAT THE RADIOLOGISTS, DR. BRUCE YEAGER AND DR. MARK OSBORNE, WERE OSTENSIBLE AGENTS OF APPELLEE LEHIGH VALLEY HOSPITAL AND WERE NEGLIGENT IN INTERPRETINGTHE STUDIES OF OCTOBER 27, 1994 AND NOVEMBER 1, 1994?

II. WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION IN FAILING TO FIND THE VERDICT OF THE JURY WAS AGAINST THE WEIGHT OF THE EVIDENCE WHEN THERE WAS AGREEMENT AMONG THE PARTIES THAT THE FAILURE TO TIMELY DETECT AND TREAT A BRAIN ABSCESS WOULD EFFECTIVELY TERMINATE A PATIENT'S CHANCES OF AVOIDING INJURY?

III. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN PRECLUDING DR. MAURCE [SIC] ROMY, A BOARD CERTIFIED NEUROSURGEON, FROM OPINING AS TO THE STANDARD OF CARE APPLICABLE TO DRS. TRETTER AND McNELIS, AND TO THE NURSE EMPLOYEES OF LEHIGH VALLEY HOSPITAL, ALL OF WHOM WERE PROVIDING HEALTHCARE TO A NEUROSURGICAL PATIENT?

IV. WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION IN RESTRICTING APPELLANT'S CROSS EXAMINATION OF APPELLEES' EXPERT, DR. JEWELL OSTERHOLM, WITH RESPECT TO THE FACT THAT APPELLEES' COUNSEL, POST & SCHELL, HAD PREVIOUSLY REPRESENTED

DR. OSTERHOLM IN MORE THAN FIFTY CASES, AND WITH RESPECT TO THE REPORT OF DR. MARK MISHKIN?

V. WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION IN RESTRICTING APPELLANT FROM QUESTIONING HER ACTUARIAL EXPERT, ROYAL BUNIN, ON REDIRECT EXAMINATION WITH RESPECT TO A REPORT OF TIMOTHY BROPHY THAT WAS BROUGHT UP IN CROSS EXAMINATION BY THE APPELLEES?

VI. WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION IN REFUSING APPELLANT'S REQUEST TO DISMISS THE ARRAY OF JURORS ON FEBRUARY 21, 2000, WHEN COUNSEL FOR APPELLEE LEHIGH VALLEY HOSPITAL INCORRECTLY INFORMED THE PANEL THAT THE HOSPITAL WAS A NONPROFIT CHARITABLE ORGANIZATION THAT DID NOT ISSUE BONDS?

Appellant's brief, at 4-5.

¶ 9 Preliminarily, we note our standard of review concerning a trial court's ruling on a motion for new trial is as follows. This Court will not reverse a trial court's decision regarding the grant or refusal of a new trial absent an abuse of discretion or an error of law. Gunn v. Grossman, 748 A.2d 1235, 1239 (Pa.Super.2000). The decision to grant a new trial based on a challenge to the weight of the evidence is within the sound discretion of the trial court. Vattimo v. Eaborn Truck Service, Inc., 777 A.2d 1163 (Pa.Super.2001). It is well established that where a jury's verdict is so contrary to the evidence as to shock one's sense of justice the award of a new trial is imperative, so that right may be given another opportunity to prevail. Id. However, "[i]t is not the role of an appellate court to pass on the credibility of witnesses or to act as the trier of fact, and an appellate court will not substitute its judgement for that of the fact-finder."...