J-A01033-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARC J. SONNENFELD & JEFFREY : IN THE SUPERIOR COURT OF
SONNENFELD, AS CO-EXECUTORS : PENNSYLVANIA
OF THE ESTATE OF ROCHELLE G. :
SONNENFELD, DECEASED, AND :
MARC J. SONNENFELD AND JEFFREY :
SONNENFELD, IN THEIR OWN RIGHT :
:
Appellants :
: No. 1988 EDA 2019
:
v. :
:
:
THE MEADOWS AT SHANNONDELL :
RAFFI G. MEGARIAN, M.D. & DAVID :
GALINSKY, M.D. & PAOLI HOSPITAL :
Appeal from the Judgment Entered August 12, 2019
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2014-23030
BEFORE: NICHOLS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED MARCH 27, 2020
Appellants, Marc J. Sonnenfeld and Jeffrey Sonnenfeld (Plaintiffs),
appeal from the judgment entered following the denial of their Post-Trial
Motion to remove the nonsuit the trial court granted at trial in favor of the
Defendants Raffi G. Megarian, M.D., David Galinsky, M.D., and Paoli Hospital
(collectively Defendants).1 We reverse and remand for a new trial with regard
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* Retired Senior Judge assigned to the Superior Court.
1The fourth Defendant, The Meadows at Shannondell (The Meadows) settled
before trial, and no claims against it are involved in this appeal.
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to Dr. Galinsky. We affirm the judgment in favor of Dr. Megarian and Paoli
Hospital.
The evidence presented at trial, viewed in favor of the Plaintiffs
established the following. Mrs. Rochelle Sonnenfeld (Decedent) lived in
assisted living from 2008 until approximately 2012. On June 11, 2012,
Decedent moved into The Meadows, a combined skilled nursing facility and
rehabilitation center, in order to prepare for a total right knee replacement
scheduled for August 2012. Decedent was 94 years old and weighed
approximately 90 pounds. N.T., 3/26/19 (9:20 a.m.), at 45. Dr. David
Galinksy was Decedent’s primary care doctor and had been since
approximately June of 2007. Id. at 23. On June 13, 2012, Dr. Galinsky
approved a prescription of 0.5 mg of Ativan every 8 hours PRN2 for Decedent.
Id. at 36. Ativan is a benzodiazepine, commonly known as a tranquilizer. Id.
Dr. Galinsky approved a second prescription of 25 milligrams of Seroquel, to
be administered at nighttime, to Decedent on August 1, 2012. Id. at 40; N.T.,
3/26/19 (p.m.), at 98. Seroquel was administered to Decedent on August 1,
2012 at 9:00 p.m. N.T., 3/26/19 (9:20 a.m.), at 40. A prescription for 0.25
mg of Xanax, twice daily, was added by Dr. Galinsky and administered on
August 2, 2012 at 5:00 p.m. Id. at 41. Xanax is also a benzodiazepine. N.T.,
3/26/19 (p.m.), at 23. Xanax, Seroquel and Ativan are psychoactive or
psychotropic medications. N.T., 3/26/19 (9:20 a.m.), at 49. Decedent was
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2 To be administered at the discretion of the registered nurse.
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administered Seroquel on August 2, 2012 at 9:00 p.m. Id. at 41. Around
midnight, Decedent was found on the floor next to her bed, having fallen. Id.
at 42. The next morning, on August 3, 2012, Decedent was administered a
dose of Xanax at approximately 9:00 a.m. Id. at 41. That same morning Dr.
Megarian, an associate of Dr. Galinsky, met with Decedent at The Meadows.
Id. at 42-44. Dr. Megarian sent Decedent to Paoli Hospital to be evaluated
because of her fall. Id. Decedent was discharged from Paoli Hospital and
returned back to The Meadows at approximately 5:00 p.m. that same day.
Id. at 45. Decedent was given a dose of Xanax at 5:00 p.m. Id. Later that
night, at 1:24 a.m., she was given a dose of Ativan. Id. On August 4, 2012
at 9:00 a.m. Decedent was again given Xanax. Id. On August 4, 2012, Paoli
Hospital provided information to The Meadows that Decedent had critical
levels of sodium deficiency, a condition called hyponatremia. Id. at 51. Upon
receiving the information, on August 4, 2012, Dr. Megarian immediately sent
Decedent back to Paoli Hospital. Id. at 51-52. Decedent died at Paoli Hospital
on August 12, 2012. N.T., 3/25/19, at 21.
On December 8, 2014, Plaintiffs filed a complaint against Defendants
alleging that the negligent prescription of Xanax, Ativan and Seroquel, and
negligence in treating Decedent at Paoli Hospital caused Decedent’s death
from pulmonary edema and congestive heart failure. Plaintiffs alleged survival
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claims3 on Decedent’s behalf as co-executors of the estate of Decedent, as
well as wrongful death claims in their own right.4
A jury trial began March 25, 2019. At trial, Plaintiffs presented one
expert witness, Dr. Fullerton. At the conclusion of voir dire, the trial court
found Dr. Fullerton qualified as an expert in geriatrics, internal medicine, and
administrative oversight of a medical facility. N.T., 3/26/19 (11:23 a.m.), at
35-36. The trial court precluded Dr. Fullerton from testifying as to areas of
“cardiology, pulmonology, nephrology, ICU [Intensive Care Unit], cause of
death and/or the propriety of treatment at Paoli [Hospital].” Id. at 33. The
trial court based its preclusion on the Medical Care Availability and Reduction
of Error Act (MCARE Act).5 After Plaintiffs’ expert witness testified and shortly
before Plaintiffs closed their case on liability, Defendants moved for nonsuit
and the trial court granted nonsuit in favor of each of the Defendants.
Plaintiffs filed a timely post-trial motion to remove the nonsuit on April 5,
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3 See 42 Pa.C.S. § 8302 (Survival Act provides “[a]ll causes of action or
proceedings, real or personal, shall survive the death of the plaintiff or of the
defendant.”).
4See 42 Pa.C.S.A. § 8301(a), (b) (providing that spouse, children, or parents
of decedent can bring action “to recover damages for the death of an individual
caused by the wrongful act or neglect or unlawful violence or negligence of
another”).
5 40 P.S. § 1303.512.
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2019. The trial court denied the motion on June 18, 2019. Plaintiffs filed this
timely notice of appeal.6
Plaintiffs raise the following issues on appeal:
Did the Court err and abuse its discretion by precluding Plaintiffs’
expert, John H. Fullerton, M.D. from testifying, during the course
of trial, about cardiology, pulmonary medicine, nephrology, ICU,
cause of death, and propriety of treatment at Paoli Hospital,
because those fields of medicine are encompassed within his
admitted areas of expertise of internal medicine, geriatrics, and
administrative oversight, as applicable to this case, and thus
within 40 P.S. Section 1303.512?
Did the Court err by granting the oral motion of counsel for
defendants, Paoli Hospital, Dr. Megarian and Dr. Galinsky for non-
suit before Plaintiffs had closed their case, where Plaintiffs’ expert
witness, in the totality of the circumstances, within a reasonable
degree of medical certainty, unequivocally stated that there was
a breach of duty via deviation(s) from the accepted standard(s)
of care, which caused harm to Plaintiffs’ decedent?
Plaintiffs’ Brief at 4. We will address the second issue first.
Our standard of review for a nonsuit is as follows:
Pennsylvania Rule of Civil Procedure 230.1 provides that on oral
motion of the defendant, the court may enter a nonsuit on any
and all causes of action if, at the close of the plaintiff's case on
liability, the plaintiff has failed to establish a right to relief. On
appeal, entry of a compulsory nonsuit is affirmed only if no liability
exists based on the relevant facts and circumstances, with the
appellant receiving the benefit of every reasonable inference and
resolving all evidentiary conflicts in the appellant's favor.
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6 This Court issued a rule to show cause on August 7, 2019, as judgment had
not been entered in this case. On August 12, 2019, the trial court entered
judgment in favor of Defendants. Therefore, we will treat the notice of appeal
previously filed on July 2, 2019, as filed after entry of judgment. See
Pa.R.A.P. 905(a)(5).
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Kiely on Behalf of Feinstein v. Philadelphia Contributionship Ins. Co.,
206 A.3d 1140, 1145 (Pa. Super. 2019) (internal brackets, quotation marks
and citations omitted); Pa.R.C.P. 230.1(a)(1). “[T]he lack of evidence to
sustain an action must be so clear that it admits no room for fair and
reasonable disagreement.” McClain ex rel. Thomas v. Welker, 761 A.2d
155, 158 (Pa. Super. 2000) (internal citation omitted).
The essential elements of a negligence claim that the Plaintiff must
prove are: the defendant owed him or her a duty, the defendant breached the
duty, the plaintiff suffered actual harm, and a causal relationship existed
between the breach of duty and the harm. Grossman v. Barke, 868 A.2d
561, 566 (Pa. Super. 2005). When alleging medical malpractice, determining
whether there was a breach of duty requires a determination of the relevant
standard of care and whether the defendant’s conduct met that standard.
Caitlin v. Hamburg, 56 A.3d 914, 920 (Pa. Super. 2012). In order to show
causation in a medical malpractice action, “the plaintiff must show that the
defendant's failure to exercise the proper standard of care caused the
plaintiff's injury.” Freed v. Geisinger Medical Center, 910 A.2d 68, 72 (Pa.
Super. 2006) (internal citation omitted). In a medical malpractice claim, these
elements must be proved by competent expert testimony. Mitchell v.
Shikora, 209 A.3d 307, 315 (Pa. 2019). “A plaintiff in a medical negligence
matter is required to present an expert witness who will testify, to a
reasonable degree of medical certainty, regarding the standard of care (duty);
that the acts of the physician deviated from the standard or care (breach);
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and that such deviation was the proximate cause of the harm suffered.” Id.
(citation omitted).
The trial court granted Defendant’s motion for nonsuit as to Dr. Galinsky
based on the fact that Dr. Fullerton did not use the key language that Dr.
Galinsky breached the standard of care “within a reasonable degree of medical
certainty.” Trial Court Opinion (TCO) at 10. Plaintiffs argue this was error as
Dr. Fullerton, in totality, unequivocally expressed his opinion to a reasonable
degree of medical certainty that Dr. Galinsky breached the standard of care.
“In determining whether the expert’s opinion is rendered to the requisite
degree of certainty, we examine the expert’s testimony in its entirety.” Vicari
v. Spiegel, 936 A.2d 503, 510 (Pa. Super. 2007) (citation omitted). “That
an expert may have used less definite language does not render their entire
opinion speculative if at some time during his testimony he expressed his
opinion with reasonable certainty.” Carrozza v. Greenbaum, 866 A.2d 369,
379 (Pa. Super. 2004), aff'd on other grounds, 916 A.2d 553 (Pa. 2007)
(citation omitted). Moreover, an expert’s opinion is not deficient purely
because he or she failed to use the specific words, “reasonable degree of
medical certainty.” Vicari, 936 A.2d at 510.
“An expert fails this standard of certainty if he testifies ‘that the alleged
cause ‘possibly’, or ‘could have’ led to the result, that it ‘could very properly
account’ for the result, or even that it was ‘very highly probable’ that it caused
the result.’” Vicari, 936 A.2d at 510-11 (quoting Eaddy v. Hamaty, 694
A.2d 639, 642 (Pa. Super. 1997)). An expert also fails to satisfy the requisite
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standard of certainty where that expert's testimony is framed in terms of
“more likely than not.” Corrado v. Thomas Jefferson Univ. Hosp., 790
A.2d 1022, 1031 (Pa. Super. 2001) (upon reviewing expert’s testimony in its
entirety, concluding that medical expert did not express the requisite degree
of medical certainty where he testified that “more likely than not in my opinion
[defendant] deviated from the standard of care”)). However, in Carrozza,
supra, where plaintiff sued radiologist for failing to diagnose a tumor, this
Court looked to the testimony in its entirety and found the following expert
testimony to be sufficiently definitive: defendant doctor deviated from the
standard of care, opinion of what recommendations should have been given
by defendant doctor, more likely than not if a biopsy was done earlier cancer
would have been found, to a reasonable degree of probability there was cancer
in patient’s breast at time defendant doctor examined x-ray, within reasonable
degree of medical certainty opinion that lesions would have been found if they
looked for them earlier. Carrozza, 866 A.2d at 381. In Vicari, supra, this
Court found plaintiff’s expert testimony, viewed in its entirety, established his
opinion to a reasonable degree of medical certainty, even though he did not
use the words “reasonable degree of medical certainty,” where he testified to
his opinion that plaintiff “absolutely” should have been referred for
chemotherapy and explained why, based on the pathology report of plaintiff,
that plaintiff was deprived of the opportunity for treatment which increased
the risk the cancer would spread, and that there was a deviation from the
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standard of care for not referring her for chemotherapy. Vicari, 936 A.2d at
511.
On direct examination, Dr. Fullerton testified as follows, relating to Dr.
Galinsky:
Q: Do you have an opinion as to whether or not Dr. Galinsky,
[Decedent’s] primary care provider, who was her treating
physician primarily at The Meadows, did or did not engage in a
deviation from the accepted standard of care of medicine at the
time that he treated her at The Meadows between August 1 and
August 4?
A: Yeah, I mean, I believe that Dr. Galinsky did deviate from
the standard of care in his treatment of Decedent.
N.T., 3/26/19 (p.m.), at 43 (emphasis added). Dr. Fullerton did testify that
Dr. Galinsky “more likely than not” or “possibly” deviated from the standard
of care; he affirmatively stated his opinion that Dr. Galinsky did. Dr. Fullerton
provided the following additional testimony,
Q: In what respect, if any, is that your belief, why?
A: I believe that Dr. Galinsky, he initiated therapy with the Xanax
without really good what we call medical indication or medical
necessity for it. And, number two, he prescribed the Xanax
without a real good risk/benefit kind of approach to it. . . . I think
the other breach is to add the other benzodiazepine to the Xanax.
No matter what the rationale stated, there is just no good reason
to have the two of them on board, to have two benzodiazepines.
I mean, I think one is not even indicated here . . . the last breach
would be the three of them together with no one clear indication
for any one of them over this period of time.
Id. at 43-44. On cross examination, Dr. Fullerton reiterated his opinion that,
“I still disagree with [prescribing] the Seroquel” in addition to the prescription
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for Ativan. Id. at 89. He unequivocally stated that he disagreed with
prescribing the Seroquel and the Ativan. Id. at 73, 92. Lastly, he stated “I
just don’t agree with the whole setup” of Dr. Galinsky prescribing Decedent
Ativan, Seroquel and Xanax. Id. at 94. Dr. Fullerton’s statements that Dr.
Galinsky did not have a “really good” medical necessity for prescribing Xanax
to Decedent, and did not perform a “real good” risk/benefit approach to
prescribing the medication does not detract from the certainty of his opinion
that Dr. Galinsky breached the standard of care. “It is for the jury to
determine the weight to be given to expert testimony in light of the
qualifications shown by the expert witness.” Corrado, 790 A.2d at 1027
(citation omitted). Dr. Fullerton’s opinion that Dr. Galinsky breached the
standard of care for a geriatric doctor met the requirement that he give his
opinion to a reasonable degree of medical certainty; therefore, grant of
nonsuit on this ground was error.7
The trial court granted nonsuit in favor of Dr. Megarian on the ground
that “[t]here was almost no expert testimony that [Dr. Megarian] committed
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7 Plaintiffs also present an argument that nonsuit was improper because it
occurred before Plaintiffs closed their case. While nonsuit was granted in favor
of Defendants before the close of Plaintiffs’ case, the record is clear that the
only possible remaining Plaintiffs’ witness was a fact witness. N.T., 3/26/19
(9:20 a.m.), at 4-5. Plaintiffs proffered that Ms. Susan Elliott, a
caregiver/companion to Decedent, would testify only as to her observations
of Decedent at The Meadows. Id. The fact that the nonsuit was ruled on
before Plaintiffs closed their case was, therefore, not error. Liles v. Balmer,
653 A.2d 1237, 1243 (Pa. Super. 1994) (nonsuit was proper, although it
occurred before the close of appellants case and before all her evidence was
admitted, where appellant had no remaining competent and relevant evidence
to present on the issues of negligence and causation).
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any violations of the standard of care.” TCO at 9-10. As to whether Dr.
Megarian breached the standard of care for a geriatric doctor concerning the
prescription and administration of Xanax, Ativan, and Seroquel medications to
Decedent between August 1, 2012 and August 4, 2012, Dr. Fullerton testified:
Q: The same question about Dr. Megarian, whether or not you
have an opinion whether or not there is any deviation on his part
during that period between 8/1 and 8/4, and if so, what is it?
A: Yes, it would be same deviations. Because he was involved in
the care and he was close to the timing or the proximity of the
transfer to the acute hospital, and presumably working with Dr.
Galinsky, so it would be a similar analysis and similar opinion.
N.T., 3/26/19 (p.m.), at 44-45. Plaintiffs provided evidence that Dr. Megarian
was Dr. Galinsky’s “associate” at The Meadows. N.T., 3/26/19 (9:20 a.m.),
at 42. There was testimony that after discussion with Dr. Megarian on August
3, 2012, Decedent agreed to go to Paoli Hospital to be evaluated after falling
earlier that morning. Id. at 42-44. Lastly, Plaintiffs established that as soon
as Dr. Megarian became aware that Decedent had critical levels of sodium
deficiency, hyponatremia, he sent her back to Paoli Hospital. Id. at 51-52.
Although Dr. Fullerton gave a conclusory opinion that Dr. Megarian breached
the standard of care, there was no evidence that Dr. Megarian did or failed to
do anything contrary to the standard of care to which Dr. Fullerton testified.
The actions established by the testimony above clearly do not establish a
breach of the standard of care to which Dr. Fullerton testified. Plaintiffs did
not provide testimony of any other actions taken by Dr. Megarian in
connection to Decedent that could establish a breach of the standard of care.
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A conclusory statement of breach does not suffice. Accordingly, the nonsuit
in regard to Dr. Megarian was properly granted.
Plaintiffs argue that the trial court erred in granting nonsuit in favor of
Paoli Hospital because Dr. Fullerton testified to a reasonable degree of medical
certainty that Paoli Hospital deviated from the standard of care. “Pennsylvania
recognizes the doctrine of corporate negligence as a basis for hospital liability
separate from the liability of the practitioners who actually have rendered
medical care to a patient.” Rauch v. Mike-Mayer, 783 A.2d 815, 826–27
(Pa. Super. 2001) (citation omitted). Our law will impose liability if the
hospital fails to ensure a patient's safety and well being at the hospital. Id.
A hospital is directly liable under the doctrine of corporate negligence if it fails
to uphold any one of the following four duties:
1. a duty to use reasonable care in the maintenance of safe and
adequate facilities and equipment;
2. a duty to select and retain only competent physicians;
3. a duty to oversee all persons who practice medicine within its
walls as to patient care; and
4. a duty to formulate, adopt and enforce adequate rules and
policies to ensure quality care for the patients.
Scampone v. Highland Park Care Center, LLC, 57 A.3d 582, 601 (Pa.
2012) (citation omitted). Plaintiffs alleged Paoli Hospital was directly liable
for the harm to Decedent for failure to uphold its duty to oversee all persons
who practice medicine within its walls as to patient care. To present a prima
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facie case of corporate negligence, a plaintiff must demonstrate all of the
following elements:
1. [the hospital] acted in deviation from the standard of
care;
2. [the hospital] had actual or constructive notice of the
defects or procedures which created the harm; and
3. the conduct was a substantial factor in bringing about the
harm.
Seels v. Tenet Health System Hahnemann, LLC, 167 A.3d 190, 205 (Pa.
Super. 2017) (citation omitted). “Unless a hospital's negligence is obvious,
an expert witness is required to establish two of these three elements: that
the hospital deviated from the standard of care and that the deviation was a
substantial factor in bringing about the harm.” Id. Constructive notice can
be shown when a hospital should have known of the patient’s condition. Krapf
v. St. Luke’s Hospital, 4 A.3d 642, 653 (Pa. Super. 2010). “Constructive
notice must be imposed when the failure to receive actual notice is caused by
the absence of supervision.” Id. (citation omitted).
The trial court granted nonsuit in favor of Paoli Hospital on the grounds
that Plaintiffs failed to establish how Paoli Hospital deviated from the standard
of care and also failed to establish that Paoli Hospital knew or should have
known of the alleged breaches. TCO at 3-4. The trial court found significant
that Dr. Fullerton never reviewed any policies or procedures from Paoli
Hospital. Id. at 3-4.
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As to the corporate negligence claim against Paoli Hospital, Dr. Fullerton
testified as follows:
Q: Now, I am going to change gears and ask you questions about
Paoli Hospital and whether or not you have an opinion as to
whether the hospital met its duty to oversee all persons who
practiced medicine within its walls as to patient care?
...
A: So, yes, in terms of, again this area where I am not talking
about policies and procedures per se, okay, because I don’t know
what they are, but I am talking about when Decedent arrives at
Paoli and there is a differential diagnosis within the differential of
pneumonia, CHF, congestive heart failure, and that basket of
possibilities is just there and never approached as a basket of
possibilities, especially the possibilities connected to known
accepted side effects of the psychoactive medications that were
prescribed that originated, you know, at The Meadows between
the first and fourth of August and were continued it looks like, I
mean it is for sure, at Paoli.
Q: Did Paoli uphold its standard of care owed to the patient to
ensure patient safety and well-being at that facility?
...
A: Based on my review it is my medical expert opinion based on
a reasonable degree of medical certainty that there were
violations of standard of care involving the institutions, the
nursing home and the hospital.
N.T., 3/26/19 (p.m.), at 45-48.
While Dr. Fullerton expressed a conclusory opinion that Paoli Hospital
breached the standard of care, he did not explain the standard of care for Paoli
Hospital nor what the hospital did or did not do that would support his opinion
that it breached its duty of care. Plaintiffs did not establish the necessary
notice element of corporate negligence, that Paoli Hospital had actual or
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constructive notice of any defects or procedures which created harm to
Decedent. See Edwards v. Brandywine Hospital, 652 A.2d 1382, 1387
(Pa. Super. 1995) (hospital could not be charged with constructive notice of
an error where appellant did not introduce any evidence that the hospital as
an entity knew or should have known about a mistake made by the Emergency
Room doctor). In fact, Dr. Fullerton admitted he did not know the policies and
procedures at Paoli Hospital. N.T., 3/26/19 (p.m.), at 45-46. As Plaintiffs
were unable to present the necessary elements of the corporate negligence
claim, nonsuit was properly granted in favor of Paoli Hospital.
As noted above, the trial court erred in holding that the expert testimony
that Dr. Galinsky breached the standard of care was insufficient. The trial
court also concluded in its opinion that nonsuit was properly granted in favor
of Defendants because Plaintiffs did not introduce expert testimony as to
causation. Plaintiffs argue the absence of causation evidence was caused by
the trial court’s precluding Dr. Fullerton from testifying as to cause of death
and that this evidentiary ruling was error. Plaintiffs argue that Dr. Fullerton
was precluded from testifying as to areas that were included within the
expertise of persons certified in internal medicine and geriatric medicine, in
which Dr. Fullerton was admittedly qualified.
We may reverse the trial court’s decision regarding admission of
expert testimony only if we find an abuse of discretion or error of
law. . . . [B]ecause the issue regarding an expert’s qualifications
under the MCARE Act involves statutory interpretation, our review
is plenary.
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Frey v. Potorski, 145 A.3d 1171, 1176 (Pa. Super. 2016) (citation omitted).
We conclude that the trial court committed an error of law in ruling that Dr.
Fullerton was precluded from testifying to Decedent’s cause of death and as
to the areas of cardiology, pulmonology, and nephrology as they relate to
causation. As noted above, the trial court based its limitation of Dr. Fullerton’s
testimony on the MCARE Act. By passing the MCARE Act, the General
Assembly established a “more stringent standard for admissibility of medical
expert testimony in a medical malpractice action.” Frey, 145 A.3d at 1177.
The MCARE Act states:
(a) General rule.--No 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.
(b) Medical testimony.--An expert testifying on a medical
matter, including the standard of care, risks and alternatives,
causation and the nature and extent of the injury, must meet the
following qualifications:
(1) Possess an unrestricted physician's license to practice
medicine in any state or the District of Columbia.
(2) Be engaged in or retired within the previous five years from
active clinical practice or teaching.
40 P.S. § 1303.512(a)-(b). The MCARE Act has additional requirements for a
doctor testifying against another doctor in a medical malpractice case when
describing the appropriate standard of care,
(c) Standard of care.--In addition to the requirements set forth
in subsections (a) and (b), an expert testifying as to a physician's
standard of care also must meet the following qualifications:
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(1) Be substantially familiar with the applicable standard of care
for the specific care at issue as of the time of the alleged breach
of the standard of care.
(2) Practice in the same subspecialty as the defendant physician
or in a subspecialty which has a substantially similar standard of
care for the specific care at issue, except as provided in subsection
(d) or (e).
(3) In the event the defendant physician is certified by an
approved board, be board certified by the same or a similar
approved board, except as provided in subsection (e).
…
(e) Otherwise adequate training, experience and
knowledge.--A court may waive the same specialty and board
certification requirements for an expert testifying as to a standard
of care if the court determines that the expert possesses sufficient
training, experience and knowledge to provide the testimony as a
result of active involvement in or full-time teaching of medicine in
the applicable subspecialty or a related field of medicine within the
previous five-year time period.
40 P.S. § 1303.512(c), (e).
The trial court’s evidentiary ruling was erroneous. The precluded
testimony with respect to Dr. Galinsky related to causation, not standard of
care. Dr. Fullerton was only required to meet the qualifications set forth in §
1303.512(a) & (b) and he did so. During voir dire, Dr. Fullerton testified to
the following. He has an active license to practice medicine in California and
Florida. N.T., 3/26/19 (11:23 a.m.), at 5. Over the period of time the incident
occurred, he was board certified in internal medicine and geriatrics, hospice
and palliative medicine and addiction medicine. Id. at 6-7. Over the last 25
years, he has been a medical director at skilled nursing facilities, long-term
care facilities, assisted-living facilities, and dementia units. Id. at 7. In 2012,
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he was working as a medical director of six facilities. Id. Dr. Fullerton testified
that over the past 25 years he has taught physicians assistant students, nurse
practitioner students and medical students. Id. at 8-9. He was also director
of a training program in geriatrics, medical faculty, internal medicine, and
palliative medicine. Id. at 9. Dr. Fullerton testified that being the director of
training programs in the area of geriatrics requires “a lot of rounding with the
medical residents and medical students that are in the hospital in going
through the different units and being involved with interfacing with pulmonary,
cardiology, GI, hematology . . as specialists.” Id. He was at the time of trial
a director at St. Mary’s hospital in San Francisco in geriatrics, palliative
medicine and addiction. Id. at 9-10. He maintained several active offices for
the practice of medicine, including one within an assisted-living facility. Id.
at 12. He has testified as an expert witness in medical matters over 150 times
in the past 20 years of his practice. Id. at 13. He has previously testified
about the entire body of the geriatric patient and the systems of that body.
Id. at 14. Dr. Fullerton testified on cross-examination that “as a geriatric
specialist, I work in the cardiology area of geriatrics, the pulmonary area of
geriatrics, the nephrology area of geriatrics, and I’ve testified in those areas.”
Id. at 28.
Dr. Fullerton’s vior dire testimony demonstrated that he possessed
sufficient education, training, knowledge and experience to provide credible,
competent testimony, that he held an unrestricted physician’s license to
practice medicine in California and Florida, and that he was actively engaged
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in clinical practice, thus satisfying the MCARE Act in regard to his testifying
“on a medical matter . . . including risks and alternatives, causation and the
nature and extent of the injury” to Decedent. 40 P.S. § 1303.512(a)-(b). As
an expert in internal and geriatric medicine, Dr. Fullerton was qualified to
testify as to matters of the body that were contained within internal and
geriatric medicine.
In the area of medicine, specialties sometimes overlap and a
practitioner may be knowledgeable in more than one field. While
different doctors will have different qualifications and some
doctors are more qualified than others to testify about certain
medical practices, it is for the jury to determine the weight to be
given to expert testimony in light of the qualifications shown by
the expert witness.
Corrado, 790 A.2d at 1027 (citations omitted).
The trial court’s ruling prevented Plaintiffs from presenting evidence of
causation and the nature and extent of the injury to Decedent, including the
cause of her death, the manner of her death and even the very fact that she
died. Because the Plaintiffs’ absence of evidence on causation and the nature
and extent of the injuries to Decedent, including the manner and fact of her
death, was caused by the trial court’s erroneous evidentiary ruling, nonsuit
cannot be sustained on the ground that Plaintiffs failed to prove causation.8
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8 We note that a review of the trial transcripts reveal that the trial court did
not preclude Plaintiffs from presenting testimony as to the propriety of
treatment at Paoli Hospital. See N.T., 3/26/19 (p.m.), at 4-6 (the trial court
ruled Plaintiffs “can go into the propriety of the treatment at Paoli, but the
other areas you should stay away from.”) Although it appears Plaintiffs were
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Because Plaintiffs introduced sufficient competent expert testimony that
Dr. Galinsky breached the standard of care and Plaintiffs’ failure to prove
causation was caused by the trial court’s erroneous evidentiary ruling, the
nonsuit in favor of Dr. Galinsky must be reversed. Because Plaintiffs failed to
introduce competent expert evidence that Dr. Megarian and Paoli Hospital
breached the standard of care, we affirm nonsuit as to these two defendants.
Reversed and remanded for a new trial with regard to Dr. Galinsky.
Order affirmed with regard to Paoli Hospital and Dr. Megarian. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2020
____________________________________________
erroneously precluded from presenting testimony of causation as to Paoli
Hospital, N.T., 3/26/19 (p.m.), at 46-48, this does not affect our decision that
nonsuit was proper as to Paoli Hospital as discussed above. The trial court’s
erroneous evidentiary ruling did not affect the Plaintiffs’ ability to present
evidence of Paoli Hospital’s breach of its duty and any notice it had of defects.
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