J-A12044-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BEVERLY DELEON, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ELIZABETH N. WISE, D.O., AND LAKE
ERIE OBSTETRICS & GYNECOLOGY ALSO
KNOWN AS LAKE ERIE OB/GYN,
Appellee No. 1764 WDA 2016
Appeal from the Judgment Entered November 14, 2016
In the Court of Common Pleas of Erie County
Civil Division at No(s): 11650-2013
BEFORE: OLSON, SOLANO and RANSOM, JJ.
MEMORANDUM BY OLSON, J.: FILED JULY 14, 2017
Appellant, Beverly DeLeon, appeals from the November 14, 2016,
judgment entered in favor of Dr. Elizabeth N. Wise and Lake Erie Obstetrics
& Gynecology also known as Lake Erie OB/GYN (collectively “Defendants”).
We affirm.
The factual background and procedural history of this case are as
follows. On June 22, 2011, Appellant received prenatal care from Dr. Wise,
a board certified obstetrician and gynecologist (“OB/GYN”). Appellant’s
Second Amended Complaint, 12/5/13, at 2. At that time, Appellant was 14
weeks pregnant. Id. During the appointment, Dr. Wise prescribed
Appellant the antibiotic Flagyl to treat an ongoing vaginal infection. Id. The
next day, Appellant took one 500 milligram dose of Flagyl. Id. Roughly
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eight hours later, Appellant began to experience severe abdominal and lower
back pain. Id. She spoke with Dr. Wise via telephone, who instructed her
to discontinue the Flagyl. Id. at 3. Appellant’s discomfort continued
through the next few days, and on June 27, 2011, she suffered a
spontaneous miscarriage. Id.
On August 14, 2013, Appellant filed a complaint alleging medical
malpractice against Defendants. Trial was scheduled to commence
November 14, 2016. On May 12, 2015, Appellant filed a pre-trial statement
identifying her expert witness as Evan Legenzoff, Pharm.D.1
Defendants filed a motion in limine seeking to preclude Dr. Legenzoff’s
testimony. On November 14, 2016, after hearing argument, the trial court
granted the motion. Immediately thereafter, Defendants moved for
summary judgment. Appellant did not object to the timing of the motion
and the trial court granted it. This timely appeal followed.2
Appellant presents one issue for our review:
____________________________________________
1
Pharm.D. is a doctor of pharmacology.
2
On November 21, 2016, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
(“concise statement”). On December 12, 2016, Appellant filed her concise
statement. On December 13, 2016, the trial court filed a brief 1925(a)
opinion in support of the order granting Defendants’ motion in limine and
motion for summary judgment. The opinion stated that the trial court set
forth its reasoning on the record during the pretrial hearing in which it
granted the motions. Appellant’s lone appellate issue was included in her
concise statement.
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Whether the [trial c]ourt erred in granting [Defendants’ m]otion
in [l]imine thereby disallowing Appellant’s expert, a [d]octor of
[p]harmacology, to opine on the issues of standard of
care/breach of the standard of care and/or factual cause. . .[?]
Appellant’s Brief at 2 (emphasis removed).
“Generally, a trial court’s decision to grant or deny a motion in limine
is subject to an evidentiary abuse of discretion standard of review.” Caitlin
v. Hamburg, 56 A.3d 914, 922 (Pa. Super. 2012) (citation omitted). The
motion at issue precluded Appellant’s expert from testifying in her medical
malpractice suit. This Court previously stated:
Because medical malpractice is a form of negligence, to state a
prima facie cause of action, a plaintiff must demonstrate the
elements of negligence: a duty owed by the physician to the
patient, a breach of that duty by the physician, that the breach
was the proximate cause of the harm suffered, and the damages
suffered were a direct result of harm. With all but the most self-
evident medical malpractice actions there is also the added
requirement that the plaintiff must provide a medical expert who
will testify as to the elements of duty, breach, and causation.
Further, [a]n expert witness proffered by a plaintiff in a medical
malpractice action is required to testify to a reasonable degree of
medical certainty, that the acts of the physician deviated from
good and acceptable medical standards, and that such deviation
was the proximate cause of the harm suffered.
Tillery v. Children's Hospital of Phila., 156 A.3d 1233, 1240 (Pa. Super.
2017) (citations and original brackets omitted).
In granting the motion in limine, the trial court reasoned that
Appellant’s expert was not qualified to render an opinion on the standard of
care (or breach of the standard of care) for an OB/GYN, as he is a
pharmacist. N.T., 11/14/16, at 3. Moreover, the trial court held that Dr.
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Legenzoff was not capable of giving a medical opinion on the issue of
causation. Id. at 4. Appellant argues that this was an error because “a
specific finding by the trial court that a medical expert is competent on the
basis of education or training or experience relieves the proponent of the
additional general requirements that an expert possess an unrestricted
physician’s license.” Appellant’s Brief at 4. This argument is without merit.
Pennsylvania’s Medical Care Availability and Reduction of Error Act
(“MCARE”) states that “[n]o person shall be competent to offer an expert
medical opinion in a medical professional liability action against a physician
unless that person possesses sufficient education, training, knowledge and
experience to provide credible, competent testimony and fulfills the
additional qualifications set forth in this section as applicable.” 40 P.S.
§ 1303.512(a). In order to testify to standard of care and causation, section
1303.512(b)(1) requires an expert to possess an unrestricted physician’s
license.
Dr. Legenzoff is not a licensed physician and does not practice
medicine in the field of obstetrics and gynecology. In Wexler v. Hecht, 928
A.2d 973 (Pa. 2007), our Supreme Court held that MCARE “unambiguously
denotes a medical doctor or osteopath licensed by a state board appropriate
to such practices,” and that “there is no provision for waiver” of the
licensed physician requirement regarding standard of care testimony. Id. at
132 (emphasis added). Thus, Appellant’s argument that Dr. Legenzoff’s
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training and experience permitted the trial court to waive the licensed
physician requirement with respect to standard of care is without merit.
Appellant cites Kuisis v. Baldwin-Lima-Hamilton Corp., 319 A.2d
914 (Pa. 1974), Dambacher v. Mallis, 485 A.2d 408 (Pa. Super. 1984),
and Pratt v. Stein, 444 A.2d 674 (Pa. Super. 1982), in support of her
argument that Dr. Legenzoff was qualified to testify as an expert witness in
this case. All of these cases, however, were decided prior to the enactment
of MCARE. MCARE drastically altered the required qualifications for experts
in medical malpractice cases. Dr. Legenzoff does not possess those
qualifications.
Appellant argues that any physician she would call as a witness would
be rendering an opinion, “predicated on the pharmacological industry and
profession as her primary source.” Appellant’s Brief at 6. Regardless of
whether a pharmacological expert is more apt to discuss the risks of a drug
to a certain class of patients, MCARE makes clear that such an expert is not
qualified to establish the appropriate standard of care for use by an OB/GYN
in treating a specific infection. Nor is such an expert qualified to establish a
breach of the proper standard of care. Accordingly, we conclude that the
trial court did not abuse its discretion in granting Defendants’ motion in
limine.
Finally, to the extent that Appellant argues that the trial court erred in
granting Defendants’ summary judgment motion because Dr. Wise’s
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deposition testimony negated the need for Dr. Legenzoff to testify as to the
standard of care, that argument is waived. Appellant first introduced the
transcript of Dr. Wise’s deposition testimony with her concise statement.
“An issue raised for the first time in a concise statement is waived.”
Beemac Trucking, LLC v. CNG Concepts, LLC, 134 A.3d 1055, 1058 (Pa.
Super. 2016) (citation omitted). Appellant failed to make this argument to
the trial court in opposition to Defendants’ summary judgment motion. As
such, the argument is waived. See Pa.R.A.P. 302; Pa.R.C.P. 1035.3.
Therefore, the trial court correctly granted Defendants’ summary judgment
motion.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2017
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DeLeon, B. v. Wise, E.
Combined Opinion