Opinion
J-A08017-18 No. 2384 EDA 2016
09-25-2018
ANNABELLE GLASGOW v. IAN DUCAN, M.D., SCOTT E. BARBASH, M.D., EASWARAN BALASUBRAMANIAN, M.D., FREDERICK P. NISSLEY, D.O., ANJULI DESAI, M.D., MICHAEL BAUMHOLTZ, M.D., TEMPLE UNIVERSITY HOSPITAL, TEMPLE UNIVERSITY PHYSICIANS, MARY M. POMIDOR, M.D., NAZARETH HOSPITAL AND MERCY HEALTH SYSTEM OF SOUTHEASTERN PA APPEAL OF: EASWARAN BALASUBRAMANIAN, M.D., FREDERICK P. NISSLEY, D.O., TEMPLE UNIVERSITY HOSPITAL
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment entered on July 21, 2016
In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 1343 BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J. MEMORANDUM BY LAZARUS, J.:
Retired Senior Judge assigned to the Superior Court.
Easwaran Balasubramanian, M.D. ("Dr. Bala"), Frederick P. Nissley, D.O. ("Dr. Nissley"), and Temple University Hospital ("Hospital"), (collectively, "Defendants"), appeal from the judgment entered on the jury's verdict in favor of Annabelle Glasgow ("Plaintiff") in the amount of $4,573,945.00, as molded to include delay damages. After our review, we affirm. We rely, in part, on the comprehensive opinion authored by the Honorable Rosalyn K. Robinson.
This abbreviated name was Dr. Balasubramanian's preference, and it is consistent with the notes of testimony and court filings. See N.T. Trial, 11/30/15, at 28. See also Trial Court Opinion, 6/29/17, at 1 n.1.
The jury's verdict of $4,268,758.00 included damages for past and future pain and suffering, past lost wages, past care costs, and future care costs for ten years.
Doctor Bala, Plaintiff's orthopedic surgeon, was found 40% liable. Doctor Nissley, who directed Plaintiff's inpatient post-operative care, and Temple University Hospital were each found 30% liable.
In 2009, Plaintiff, was treating with Hospital's orthopedic surgeon, Dr. Bruce Vanette. Doctor Vanette's notes indicated Plaintiff had a history of congestive heart failure, stroke, hypertension, diabetes and decreased pedal pulse in one foot, potentially a sign of circulation issues. N.T. Trial, 12/1/15, at 55-56, 67-68; N.T. Trial 12/3/15, at 92. When Dr. Vanette left the orthopedic practice, he referred Plaintiff to Dr. Bala. Doctor Bala, an orthopedic surgeon with a subspecialty in total joint replacement, diagnosed Plaintiff with degenerative arthritis in both knees; he treated Plaintiff with pain medication and injections, but ultimately those treatments became ineffective. In late 2011, Dr. Bala recommended Plaintiff undergo bilateral knee replacement surgery. Dr. Bala testified that he always checked his patients' circulation prior to surgery, but he admitted that Plaintiff's appointment notes do not indicate that he ever evaluated her with respect to circulation. N.T. Trial, 1/4/15, at 66.
We note that the cover page for the 12/1/15 trial transcript is mistakenly labeled "Tuesday, December 1, 2005."
Doctor Bala performed Plaintiff's bilateral knee replacement surgery on December 1, 2010. Plaintiff was 72 years of age at the time of surgery. Thereafter, Plaintiff was admitted to Hospital's acute rehabilitation unit; Plaintiff's post-operative care in the rehabilitation unit was supervised by Dr. Nissley, although Dr. Bala remained significantly involved in Plaintiff's post-operative care as well. N.T. Trial, 12/3/15, at 99-100, 124.
For the next two years, Plaintiff suffered ongoing infections in her surgical incisions and pressure wounds. Six weeks after her surgery, Plaintiff's surgical incisions on her right knee opened, showing infection. N.T. Trial, 12/1/15, at 25-26. In the year following surgery, Dr. Bala performed five additional operations to revise the implantation and combat infection, in the hope of salvaging Plaintiff's knee prosthetics. Doctor Bala did not perform wound cultures or synovial fluid biopsies during these operations, which, as testified by Plaintiff's expert, Dr. Lawrence Shall, could have been easily performed and would have determined whether the infections had become so embedded that the implants were no longer viable. Id. at 73-76. On January 7, 2011, Plaintiff underwent irrigation and debridement of the right knee; intraoperative cultures grew positive for enterococcus cloacae, a bacterial infection. Doctor Bala could not recall if he ordered an infectious disease consultation at that time. N.T. Trial, 12/4/15, at 79-80.
On May 31, 2011, approximately six months after the initial surgery, Dr. Michael Baumholtz, a physician in Hospital's rehabilitation unit, notified Dr. Bala that he had drained "copious amount of pus" from Plaintiff's left knee. N.T. Trial, 12/4/15, at 79. Two months later, Dr. Baumholtz transferred Plaintiff out of the rehabilitation center to Hospital inpatient care because she had a strong odor coming from her leg wound, indicating a bacterial infection. N.T. Trial, 12/1/15, at 14-15. When the cast was opened, doctors found that the infected wound tissues had again reopened and separated, leaving the knee prosthesis visible. Id. at 14-16. At that point, Dr. Bala informed Plaintiff that her treatment options were either a knee fusion, which would render the joint permanently unable to bend, or an above-the-knee leg amputation. N.T. Trial, 12/4/15, at 60.
Plaintiff sought a second opinion from Dr. Scott Levin at Penn Presbyterian Hospital. Doctor Levin performed several tests, which revealed considerably more obstruction of her leg circulation than Dr. Bala or the rehabilitation unit doctors had thought. N.T. Trial, 12/1/15, at 23. Doctor Levin opined that fusion was not an option and Plaintiff's only option was amputation of her left leg. Id.
Plaintiff underwent an above-the-knee left leg amputation at Penn Presbyterian Hospital in 2012. She underwent additional procedures the following year to re-implant the right knee prosthesis.
On February 7, 2013, Plaintiff filed her complaint alleging medical negligence and corporate negligence against Defendants. Plaintiff alleged Defendants were negligent in: failing to properly assess her risks in light of her medical history; failing to warn her of the post-operative risks in light of her history, in particular the risk of poor wound healing/infection in light of her history of diabetes and compromised blood flow in her left lower extremities; failing to inform her that in light of her medical history bilateral knee replacement was contraindicated; and failing to timely and properly treat her post-operative infections. Plaintiff alleged that as a direct result of Defendants' negligence, she suffered injury, including above-the-knee amputation of her left leg, numerous infections, surgeries, treatments and therapies. See Complaint, 2/7/13, at ¶¶ 22-70.
Following a one-week trial, the jury rendered a verdict in favor of Plaintiff. Defendants filed post-trial motions, seeking judgment n.o.v. (JNOV), a new trial or remittitur. The court denied Defendants' post-trial motions. Plaintiff filed a motion for delay damages, which was granted and, thereafter, on July 20, 2016, the court entered judgment on the verdict. Defendants filed a timely notice of appeal, and the trial court ordered Defendants to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Defendants complied with the court's order and the trial court filed a Rule 1925(a) opinion. Defendants raise the following issues on appeal:
1. Are Defendants entitled to [JNOV] since the trial court erred and abused its discretion in admitting the standard of care and causation testimony of Dr. [Lawrence] Shall in violation of 40 P.S. § 1303.512(a), (c) and (e)?
2. Are Defendants entitled to [JNOV] as to Plaintiff's claim for future care costs, since Plaintiff failed to establish the
reasonableness and medical necessity of these expenses and the trial court therefore erred and abused its discretion in submitting this claim to the jury or, in the alternative, are Defendants entitled to a reduction of the award to present value?Appellants' Brief, at 4.
3. Is [Hospital] entitled to [JNOV] since there was no expert testimony establishing that the conduct of the nurses breached the standard of care or caused, or increased the risk of, harm to Plaintiff?
4. Did the trial court err and abuse its discretion in refusing to grant a complete new trial, since the jury's verdict is based on sympathy and prejudice and is contrary to the overwhelming weight of the evidence?
5. Did the trial court err and abused its discretion in refusing to mold the jury's award of past care costs, in the amount of $81,895.00, to $62,227.21, to conform to the stipulated amount of past care costs?
6. Did the trial court err in awarding Pa.R.C.P. 238 delay damages on Plaintiff's award for future care costs under 40 P.S. § 1303.509?
Defendants first claim that the trial court erred in admitting the testimony of Plaintiff's expert, Dr. Lawrence Shall. Defendants argue the court's admission of Dr. Shall's testimony violated sections 512(a), (c) and (e) of the Medical Care Availability and Reduction of Error Act ("MCARE"), 40 P.S. §§ 1303.101-1303.910, as well as Pennsylvania law governing admission of expert testimony. Specifically, Defendants contend Plaintiff failed to meet her burden of establishing that Dr. Shall was qualified to render opinions on standard of care and causation with respect to: 1) Dr. Bala's failure to remove the right knee prosthesis in February 2011 and delay in explanting the left knee prosthesis until July 2011, and (2) Dr. Bala's failure to insert a cement spacer with antibiotics when the left knee prosthesis was removed. Defendants argue that although Dr. Shall and Dr. Bala have the same specialty, orthopedic surgery, Dr. Shall's subspecialty is sports medicine, while Dr. Bala's subspecialty is joint replacement, and, therefore, Dr. Shall does not meet the "same subspecialty" requirement of the MCARE Act. 40 P.S. §1303.512(c). See Anderson v. McAfoos , 57 A.3d 1141 (Pa. 2012) (all three subsection (c) requirements -- familiarity with standard of care, same subspecialty, and same board certification -- are mandatory). Defendants argue, therefore, that since there was no other expert testimony, Dr. Bala is entitled to JNOV and the Hospital and Dr. Nissley are entitled to a new trial due to prejudice from Dr. Shall's testimony.
We note that Defendants objected to Dr. Shall's qualification as an expert at trial. See N.T. Trial, 12/1/15, at 43. Defendants also raised this claim in their post-trial motions and in their Rule 1925(b) concise statement of errors complained of on appeal.
A motion for JNOV challenges the sufficiency of the evidence presented at trial. Koller Concrete , Inc. v. Tube City IMS , LLC , 115 A.3d 312, 321 (Pa. Super. 2015). When examining the lower court's refusal to grant JNOV, we review the record to determine whether, viewing the evidence in the light most favorable to the verdict winner and granting that party all favorable inferences therefrom, there was sufficient competent evidence to support the verdict. Id. "[W]here the jury has been presented with clear and convincing evidence, a motion for JNOV should be denied." Id.
The entry of judgment notwithstanding a jury verdict is a drastic remedy. A court cannot lightly ignore the findings of a duly selected jury. There are two bases upon which a court may enter a [JNOV]: (1) the movant is entitled to judgment as a matter of law, or (2) the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first, a court reviews the record and concludes that even with all factual inferences decided adversely to the movant, the law nonetheless requires a verdict in his favor; whereas with the second, the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.Bugosh v. Allen Refractories Co., 932 A.2d 901, 907-908 (Pa. Super. 2007).
With respect to the court's denial of a new trial, we note:
Consideration of all new trial claims is grounded firmly in the harmless error doctrine which underlies every decision to grant or deny a new trial. A new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would have ruled differently; the moving party must demonstrate to the trial court that he or she has suffered prejudice from the mistake. Once the trial court passes on the moving party's claim, the scope and standard of appellate review coalesce in relation to the reasons the trial court stated for the action it took. Where the court is presented with a finite set of reasons supporting or opposing its disposition and the court limits its ruling by reference to those same reasons, our scope of review is similarly limited. Thus, where the trial court articulates a single mistake (or a finite set of mistakes), the appellate court's review is limited in scope to the stated reason, and the appellate court must review that reason under the appropriate standard.Rettger v. UPMC Shadyside , 991 A.2d 915, 923-24 (Pa. Super. 2010) (internal citations and quotation marks omitted).
The MCARE Act provides, in relevant part:
The parties do not dispute that the MCARE Act is applicable here.
(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.
Provided, however, the court may waive the requirements of this subsection for an expert on a matter other than the standard of care if the court determines that the expert is otherwise competent to testify about medical or scientific issues by virtue of education, training or experience.
(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:
(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).
* * *
40 P.S. § 1303.512(a)-(e) (emphasis added).
(d) 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.
(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.
The burden to establish an expert's qualifications under the MCARE Act lies with the proponent of the expert testimony. Weiner v. Fisher , 871 A.2d 1283, 1290 (Pa. Super. 2005). Here, the court found Plaintiff met her burden of establishing that Dr. Shall met the waiver requirement for the "same subspecialty" provision. See 40 P.S. § 1303.512(e). The court reasoned that Dr. Shall's "thirty years of education, experience, and teaching, and his familiarity with the standard of care to be exercised in prevention and treatment of post-operative infection" showed that he had "sufficient training, experience and knowledge to provide the testimony as a result of active involvement in or full-time teaching of medicine in . . . a related field of medicine within the previous five-year time period." 40 P.S. § 1303.512(e). Trial Court Opinion, 6/29/17, at 14-15. We agree.
It was established at trial that Dr. Shall graduated from the Medical College of Ohio and Toledo in 1980, and he completed a one-year internship and four-year residency at Mount Sinai Medical Center of Cleveland in orthopedic surgery, as well as a fellowship in sports medicine at Wellington Sports Medicine Center at Christ Hospital in Cincinnati, Ohio. See N.T. Jury Trial, 12/1/15, at 9-11; see also Curriculum Vitae, Lawrence M. Shall, M.D., Plaintiff's Exhibit 58. Doctor Shall explained that sports medicine is the treatment of diseases of the knee and shoulder and involves "surgery mostly of the knee and shoulder." N.T. Trial, 12/1/15, at 11-12. He also testified that he had practiced for thirty years and had treated high-risk patients with conditions such as hypertension or diabetes. Id. at 9. Doctor Shall testified that he has performed both implantation and explantation procedures. Id. at 35. In addition to the American Medical Association, Dr. Shall testified that he is a member of the Virginia Orthopedics Society, the American Academy of Orthopedic Surgeons, the Arthroscopy Association of North America, and the American Orthopedic Society for Sports Medicine. Id. at 14-16. He also testified that he is on the clinical faculty of Eastern Virginia Graduate School of Medicine, id. at 13, serves on the staff of several local hospitals, including Chesapeake General Hospital and Sentara Combined Medical Center, id. at 18-21, and is published in various professional journals, including the American Journal of Knee Surgery, Contemporary Orthopedics, and the Journal of Arthroscopy. Id.; Curriculum Vitae, supra.
The trial court accepted Dr. Shall's testimony that he was familiar with the standard of care as an orthopedic surgeon in preventing post-operative complications. This determination is supported by the record.
We also point out that Defendants' focus on the subspecialty language of the MCARE Act overlooks the fact that this case is about the standard of care in pre- and post-operative surgical care, not the actual knee replacement surgery. As Dr. Shall testified:
A: Specifically speaking, it doesn't really matter whether you're explanting or whether you're dealing with an infected hip, whether dealing with an infected plate, whether dealing with an infected ligament, the principles of treating postoperative infection in the face of implantation of foreign material is the same. It doesn't matter whether [it] is total knee, whether it's a hip hemiarthroplasty, half of a hip joint, whether it's a total hip, whether it's a total shoulder, whether it's an anterior cruciate ligament, the principles of dealing with infection with implanted material is the same no matter what the implant is.
Q: And as it was pointed out before, you can do orthopedic replacement surgeries and you have done them, you just choose not to do it because you're doing sports medicine, right?
A: That's correct.
Q: In fact, any orthopedic surgeon who has done a four-year residency can do that, they don't have to specialize in another specialty or fellowship and do sports medicine or something else, correct?
A: No, they don't. And I still do implantation of hip devices for fracture, even as most recently as last week. So, no, I still implant devices. Just not total knees.
Q: And the same principles for what we're dealing with here for this jury is the same; is that correct?N.T. Trial, 12/1/15, at 40 (emphasis added). The parties acknowledged that this case was about the infections and complications that arose after Plaintiff's surgery and how her pre-operative care may have impacted those complications. Essentially, the principles are universal. Although Dr. Shall did not practice in the same subspecialty, his education, experience, and teaching, as well as his familiarity with the standard of care to be exercised in prevention and treatment of post-operative infection, established that he possessed "sufficient training, experience and knowledge" regarding the medical procedure at issue, to testify as an expert herein. Trial Court Opinion, supra at 14-15, quoting 40 P.S. § 1303.512(e).
A: Absolutely the same no matter what the implant is.
Moreover, as the trial court pointed out, this Court has held that the testifying expert need not even practice in the same name specialty as the defendant doctor. See Hyrcza v. West Penn Allegheny Health System , 978 A.2d 961 (Pa. Super. 2009) (psychiatrist and neurologist competent to testify to standard of care for prescribing post-operative medication to multiple sclerosis patient); Smith v. Paoli Memorial Hospital , 885 A.2d 1012 (Pa. Super. 2005) (general surgeon, oncologist and internist competent to testify about gastrointestinal bleeding and cancer based on their respective gastrointestinal experience in residencies, post-doctoral trainings and professional publications). See also Vicari v. Spiegel , 989 A.2d 1277 (Pa. 2010) (plaintiff's expert oncologist competent to testify against defendant otolaryngologist who surgically removed decedent's tongue tumor, and radiation oncologist co-defendant even though not certified in same field, where oncology was related field to otolaryngology and radiation oncology for purposes of subsection 512(e) and internist/oncologist had requisite training, experience and knowledge to testify as to specific standard of care at issue); Frey v. Potorski , 145 A.3d 1171 (Pa. Super. 2016) (hematologist qualified to testify as to interventional cardiologist's standard of care in administering anticoagulation drug prior to start of Percutaneous Coronary Intervention (PCI) procedure); Renna v. Schadt , 64 A.3d 658 (Pa. Super. 2013) (permitting board-certified pathologist and oncologist to testify in case against surgeon regarding standard of care for performance of fine needle aspiration in lieu of other available biopsy methods). Cf. Wexler v. Hecht , 928 A.2d 973, 981-982 (Pa. 2007) (plaintiff's expert, a podiatrist, was not licensed as physician to practice medicine by State Board of Medicine and was, therefore, unqualified under MCARE Act to provide opinion testimony concerning applicable standard of care of physician-defendant). We agree with the trial court that Plaintiff met her burden of establishing that Dr. Shall was qualified to render an opinion as to Defendants' alleged breach of the standard of care and causation in this case pursuant to 40 P.S. § 1303.512(a), (c) and (e). The trial court, therefore, properly denied Defendants relief. See Rettger , supra ; Bugosh , supra ; see also Brandon v. Peoples Natural Gas Co., 207 A.2d 843 (Pa. 1965) (reversing trial court's grant of JNOV where trial court determined evidence had been erroneously admitted; relief was new trial, not JNOV, because court cannot enter judgment on diminished record).
The court below correctly rejected Defendants' motion for JNOV. On the trial record, the issue was one for the jury to resolve. Had Dr. Shall's testimony been improperly admitted, the remedy would have been a new trial as JNOV cannot be entered on a diminished record. See Brandon , supra. See also Kotlikoff v. Master , 27 A.2d 35 (Pa. 1942).
Defendants next argue they are entitled to JNOV on Plaintiff's claim for future care costs, claiming Plaintiff "failed to establish the reasonableness and medical necessity of these expenses" and thus the court erred and abused its discretion in submitting this claim to the jury. In particular, Defendants argue Plaintiff's expert, Valerie Parisi, R.N. (Nurse Parisi), was not qualified, under either MCARE or common law, to testify as to the medical necessity of Plaintiff's future care needs. In the alternative, Defendants seek reduction of the award to present value. See Appellants' Brief, at 4.
When seeking future medical expenses, a plaintiff must establish, through expert testimony, that future medical expenses will be incurred and the reasonable estimated cost of such services. Mendralla v. Weaver Corp., 704 A.2d 480, 485 (Pa. Super. 1997). Nurse Parisi is a registered nurse, a case manager and a life care planner. She graduated from Thomas Jefferson University School of Nursing in Philadelphia in 1980, and is certified in both life care planning and elder care management. N.T. Trial, 12/3/15, at 8-9. She is also certified in rehabilitative nursing, since 1998, and is a member of the Association of Rehabilitation Nurses, the American Association of Nurse Life Care Planners, the International Association of Rehabilitation Professionals, and the American Associating of Legal Nurse Consultants. Id. at 10-11. Nurse Parisi served as a mentor and instructor at both Widener University and the University of Delaware for legal nursing consulting students. Id. at 12-13.
Nurse Parisi explained that life care planning is the "projection of future care needs for somebody with a catastrophic injury or illness across life expectancy and what that care will cost into the future." Id. Additionally, she stated that elder care management is the
coordination of care for an elderly individual[, who] might need placement, say, in assisted living or a nursing home or they might need help at home, home care. They might need referrals to various physicians or various therapists. They might need their house modified so they can age in place in the home that they're in. So an elder care manager talks with the family and the patient and comes up with a plan in terms of putting those resources together.Id. at 9. Over Defendants' objection, the court accepted Nurse Parisi as an expert in the area of rehabilitation and life care planning, and ruled that she was qualified to testify as an expert as to the reasonableness and medical necessity of Plaintiff's future care costs. Id. at 30.
Defendants argue that future care costs required the expert testimony of a physician, or that Nurse Parisi's life care plan, dated June 12, 2015, required approval by a physician. With respect to Nurse Parisi's qualification as an expert, the trial court has provided a comprehensive discussion and disposition of this issue in its opinion, and we rely on it to dispose of this issue. See Trial Court Opinion, 6/29/17, at 19-25 (finding: Nurse Parisi's testimony was not "medical opinion" under MCARE and therefore her testimony was not bound by Act's expert qualification requirements, and Nurse Parisi "clearly possessed reasonable pretension to specialized knowledge on the subject" and therefore was qualified under common law to testify as expert on Plaintiff's future care costs).
We add that Defendants' reliance in their appellate brief on Vicari , supra , and Weiner v. Fisher , 871 A.2d 1283, 1290 (Pa. Super. 2005), is misplaced. Neither of case concerns expert testimony on the issue of future care costs, rather, both Vicari and Weiner address the qualification of a physician to testify as to the standard of care. In Vicari , our Supreme Court held that, under subsection 512(e) of MCARE, plaintiff's expert, a medical oncologist "had sufficient training, experience, and knowledge to testify as to standard of care for the narrow, specific issue of care presented, due to his active involvement in a field of medicine related to that of the defendant physicians[,] an otolaryngologist and a radiation specialist." Vicari , 989 A.2d at 1285. In Weiner , we vacated the trial court's order granting defendant-doctor's non-suit. There, the trial court refused to qualify plaintiff-appellant's expert witness, Dr. William Bisordi, who was to testify as to the relevant standard of care and defendant-doctor's alleged breach. The court held that Dr. Bisordi was not qualified to testify, as he was not currently engaged in active clinical practice or teaching in the relevant area and he had retired from these activities over five years before trial. We addressed the interpretation of sections 512(b) and 512(c) of MCARE, which establishes criteria for the qualification of an expert witness in a medical professional liability action against a physician. Weiner , 871 A.2d at 1286. Dr. Bisordi's testimony "was to address the standard of care that would have applied when a gastroenterologist was presented with a patient . . . who exhibited certain symptoms and had a family history of gastrointestinal cancer." Id. at 1289.
Defendants' alternative argument, that the court's award of future care costs should have been reduced to present value, is also meritless. Prior to the enactment of the MCARE Act, the law reflected a long-settled policy to this effect. In Yost v. West Penn Railways Co., 9 A.2d 368 (Pa. 1939), the Pennsylvania Supreme Court unambiguously stated that,
Present worth does not apply to damages awarded for future pain, suffering and inconvenience. Nor does it apply to future medical attention. Future medical attention presupposes an out-of-pocket expenditure by the plaintiff. [The plaintiff] was entitled to have defendant presently place in her hands the money necessary to meet her future medical expenses, as estimated by the jury based upon the testimony heard, so that she will have it ready to lay out when the service is rendered. Damages for expected medical expenses and for future pain and suffering are entirely different from damages for loss of future earnings, which, of course, must be reduced to present worth.Id. at 369-70 (citation omitted); see also Renner v. Sentle , 30 A.2d 220 (Pa. Super. 1943) (same). Defendants argue, however, that the trial court ignored the plain language of section 509(b) and, instead, relied on case law decided prior to the enactment of the MCARE Act.
Section 509(b)(1) of the MCARE Act provides:
Except as set forth in paragraph (8), future damages for medical and other related expenses shall be paid as periodic payments after payment of the proportionate share of counsel fees and costs based upon the present value of the future damages awarded pursuant to this subsection[.]40 P.S. § 1303.509(b)(1)(emphasis added). Recently, in Tillery v. Children's Hospital of Philadelphia , 156 A.3d 1233 (Pa. Super. 2017), this Court affirmed the trial court's interpretation of section 509 of the MCARE Act "to require that future medical expenses are only to be reduced to present value for the purpose of calculating attorney fees and costs." Id. at 1249, citing Bulebosh v. Flannery , 91 A.3d 1241, 1243 (Pa. Super. 2014) (emphasis added). Defendants contend, however, that Tillery ignored the plain language of section 509(b)(1), as it "relied on non-MCARE cases decided between 1939 and 1943." Appellants' Brief, at 46 n.22 (citing Yost , supra , and Renner , supra ). Defendants noted that a petition for allowance of appeal in that case is "currently pending before the Supreme Court[.]" Appellants' Brief, at 46, n. 22. We point out, however, that on October 10, 2017, several weeks after Defendants filed their brief, the Pennsylvania Supreme Court denied allowance of appeal in Tillery. See Tillery v. Children's Hospital of Philadelphia , 172 A.3d 592 (Pa. 2017). Thus, Tillery remains the law. We conclude, therefore, that section 509 of the MCARE Act requires that future medical expenses be reduced to present value only for purposes of calculating attorney fees and costs. See 40 P.S. § 509(b)(1); see also Sayler v. Skutches , 40 A.3d 135, 140 (Pa. Super. 2012) (concluding that pursuant to plain language of section 509(b)(1), future medical damages award that had accrued at time of decedent's death should be reduced to present value only to determine amount of attorney's fees).
Next, Defendants argue that Hospital is entitled to JNOV because Plaintiff failed to present expert testimony establishing that the conduct of the nurses breached the standard of care or caused or increased the risk of harm to Plaintiff. At trial, Plaintiff presented the expert testimony of Richard Bonfiglio, M.D., a Pennsylvania-licensed physician with board certification in Physical Medicine and Rehabilitation, the discipline overseen by Dr. Nissley, who was the "captain" of the team of employees that included nurses, therapists, social workers and resident physicians. See N.T. Trial, 12/2/15, at 60-134. Doctor Bonfiglio was accepted as an expert in the area of physical medicine and rehabilitation. Id. at 81. As the trial court points out, Defendants did not object to Dr. Bonfiglio's qualifications or to the foundation or factual basis of his testimony. See Trial Court Opinion, supra at 18. This finding is supported in the record. In any event, Dr. Bonfiglio was clearly qualified to testify as to the standard of care and the deviation from that standard, including with respect to nursing functions, while Plaintiff was in the rehabilitation unit from December 4, 2010 until December 22, 2010. See N.T. Trial, 12/2/15, at 60-81. To the extent Defendants' argument refers to the sufficiency of that evidence, we agree with the trial court that JNOV was not warranted.
Doctor Bonfiglio reviewed Plaintiff's medical records, as well as various depositions, and he testified in particular with respect to the Stage II open skin sores on her heels, sacrum and right knee:
A: [Plaintiff] developed a number of wounds while she was on the rehabilitation unit between [] December 4th and December 22nd, including over the sacrum, over the left buttocks, over both of her heels. And she had a blister near her right knee wound. She had a number of different areas of skin breakdown that occurred while she was on the rehabilitation unit. . . . So as I mentioned earlier it is a team effort in providing care for these individuals. But the rehab physician [Dr. Nissley] is the captain of the team basically or the coach so is ultimately responsible for the care given. It's the nurses that provide the day-to-day care, the hands-on care throughout the 24 hour cycle. So they're certainly important to his process. But the attending physician is also important to the process for directing the appropriate care for individuals like [Plaintiff] who had undergone major surgery an
needed medical management, number one, to prevent the pressure ulcers from occurring, an number two, dealing with them aggressively so that they heal as quickly as possible without spreading infection. And that they be dealt with during the time on the rehabilitation unit as well as after discharge.N.T. Trial, 12/2/15, at 91-93. Doctor Bonfiglio explained that Stage II means that "there's actually an open area, that the skin has been damaged, that there is a pressure sore there." Id. at 89. He also testified that the notes indicated her left heel had "black necrotic skin." Id. at 93. Essentially, the tissue was dead, and "dead tissue by its nature is infected." Id. Doctor Bonfiglio continued:
A: It is my opinion that the sores that she developed while she was on the rehabilitation unit were directly a contributing factor to her ongoing decline in health. And her having ongoing problems with infection leafing to her eventual amputation of her left lower limb.
Q: Doctor, the opinions that you offer, are they offered to a reasonable degree of medical certainty?
A: Yes, ma'am.
Q: With regard to the deviations from the standard of care like you mentioned with a team, Dr. Nissley is in charge of a team, who is it that you felt deviated from the standard of care in this situation?
A: Well, as the captain of the team Dr. Nissley deviated from the standard of care, as did all the nurses that were providing care as well to the patient. But, again, I hold the attending physician to be particularly responsible. Certainly there were resident physicians, there were other doctors, the orthopedic surgeons were still following her. But the primary responsibility he had [ ] because she was on the rehab service. And that particularly goes to Dr. Nissley. But certainly the nurses also are responsible. . . . So they should certainly have been aware that she had potential for bad things happening. She had a history of diabetes, she had a history of high blood pressure, she had a history of congestive
heart failure. While she was on the rehab unit, because she was confused, they got a CT scan of her brain and it showed that she had a stroke in the past. Her EKG had shown she had a heart attack in the past. So heart attacks happen when the blood flow to the heart is not adequate. Strokes happen when the blood flow to the brain is not adequate because there's a problem with the arteries. Should have been easier to understand that there might have been a problem with blood flow to her legs.Id. at 99-100. Doctor Bonfiglio pointed out that "virtually everybody admitted to [the] rehabilitation unit is at risk for development of pressure ulcers, so nursing staff and physicians on rehabilitation units should certainly be aware that any of the patients they admit, for the most part, are at risk for pressure ulcers." Id. at 115.
Viewing the evidence in the light most favorable to the verdict winner and granting that party all favorable inferences therefrom, we agree with the trial court's determination that there was sufficient evidence presented at trial that the nursing care involved in Plaintiff's care in the acute rehabilitation unit fell below the standard of care or caused or increased the risk of harm to Plaintiff. See N.T. Trial, 12/2/15, at 97-115. See also Koller , 115 A.3d at 321.
With respect to Defendants' final three claims, that the jury's verdict is contrary to the overwhelming weight of the evidence, that the court abused its discretion in refusing to mold the verdict with respect to past care costs and erred in awarding delay damages on the award for future care costs, we conclude that the trial court opinion comprehensively discusses and properly resolves these issues. We, therefore, adopt the trial court's reasoning and dispose of those claims accordingly. See Trial Court Opinion, supra at 29-36.
We affirm the judgment entered on July 20, 2016 based, in part, on Judge Robinson's opinion filed June 29, 2017. We direct the parties to attach a copy of the opinion in the event of further proceedings.
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/25/18
Image materials not available for display.