Fischer, K. v. UPMC Northwest (memorandum)

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J-A12016-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 KAREN FISCHER AND JONATHAN FISCHER, HER HUSBAND IN THE SUPERIOR COURT OF PENNSYLVANIA Appellants v. UPMC NORTHWEST, NORTHWEST EMERGENCY PHYSICIANS, LLP, AMANDA S. HARTWELL, D.O., UPMC COMMUNITY MEDICINE, INC. AND ALFONSE A. EMMOLO, M.D. Appellees No. 522 WDA 2012 Appeal from the Judgment Entered February 3, 2010 In the Court of Common Pleas of Venango County Civil Division at No(s): 124-2007 BEFORE: BENDER, J., GANTMAN, J., and OLSON, J. MEMORANDUM BY GANTMAN, J.: FILED: September 12, 2013 Appellants, Karen Fischer and Jonathan Fischer, her husband ( the Fischers ), appeal nunc pro tunc from the judgment entered in the Venango County Court of Common Pleas in favor of Appellees, Amanda S. Hartwell, D.O. ( Dr. Hartwell ), Northwest Emergency Physicians, LLP and UPMC Northwest, following a jury trial; and the court s entry of non-suit in favor of Appellees Alfonse A. Emmolo, M.D. ( Dr. Emmolo ) and UPMC Community Medicine, Inc. in this medical malpractice action. We affirm. The relevant facts and procedural history of this case are as follows. On June 30, 2005, Mrs. Fischer suffered an intense headache while playing a J-A12016-13 game of cards with her husband and others. Mrs. Fischer declined her husband s offer to call 911 and continued playing cards. The next day, July 1, 2005, Mrs. Fischer s symptoms did not subside, so she sought treatment at the UPMC Northwest Emergency Room. While there, Mrs. Fischer described her symptoms to the emergency room nurses as left-sided neck pain and a headache with pressure. The nurses set up Mrs. Fischer for an evaluation of the neck pain. Dr. Hartwell examined Mrs. Fischer and, based on Mrs. Fischer s chief complaint of left-sided neck pain, treated the matter as a cervical strain or spasm. Dr. Hartwell advised Mrs. Fischer to follow up with her primary care physician in two days. Due to the July 4th holiday weekend, Mrs. Fischer did not see Dr. Emmolo, her primary care physician, until Wednesday, July 6, 2005. At that time, Mrs. Fischer described her symptoms and pain to Dr. Emmolo, who found Mrs. Fischer to be neurologically intact but still recommended and ordered a CT scan of Mrs. Fischer s head. order the CT scan stat. Dr. Emmolo did not, however, Dr. Emmolo asked Mrs. Fischer to return to his office the next day to have her blood pressure checked because it was elevated during the visit. Mrs. Fischer returned to Dr. Emmolo s office on July 7, 2005 to have her blood pressure checked again. On July 8, 2005, Mrs. Fischer returned to UPMC Northwest for her CT scan, which revealed a subarachnoid bleed showing early signs of a stroke. The hospital immediately transferred Mrs. Fischer to the emergency -2- J-A12016-13 department and then airlifted her to UPMC Presbyterian in Pittsburgh where Mrs. Fischer came under the care of neurosurgeon Daniel A. Wecht, M.D. ( Dr. Wecht ). Dr. Wecht ordered an angiogram for Mrs. Fischer, the results of which showed three aneurysms. Dr. Wecht also noted the presence of vasospasms (when blood vessels in the brain constrict due to suffering an irritation and/or injury as the result of a subarachnoid hemorrhage or ruptured aneurysm), which would make treatment of Mrs. Fischer s aneurysms riskier. On July 9, 2005, Dr. Wecht operated on two of the aneurysms.1 A post-operative CT scan showed that Mrs. Fischer suffered a stroke on the right side of her brain, necessitating a second surgery by Dr. Wecht to remove dead tissue and reduce brain pressure. Mrs. Fischer sustained profound weakness on the left side of her body as a result of the stroke. On July 27, 2005, Mrs. Fischer began treatment at a rehabilitation facility for further care. On January 29, 2007, the Fischers filed a complaint bringing negligence claims against Dr. Hartwell and Dr. Emmolo, and vicarious liability claims against UPMC Northwest2 for the conduct of Dr. Hartwell, and UPMC Community Medicine, Inc. for the conduct of Dr. Emmolo. On October ____________________________________________ 1 Dr. Wecht did not believe treatment of the third aneurysm was an urgent concern. 2 The Fischers added Northwest Emergency Physicians, LLP as a party later in the litigation, based solely on vicarious liability due to Dr. Hartwell s treatment of Mrs. Fischer. -3- J-A12016-13 19, 2009, the parties proceeded to a jury trial. At trial, the Fischers presented the following expert witnesses: Dr. Henry Woo, a neurosurgeon, to offer causation testimony; Dr. Mark Shoag, an internist, to offer standard of care testimony with respect to Dr. Emmolo; and Dr. John Tafuri, an emergency physician, to offer standard of care testimony with respect to Dr. Hartwell. At the close of the Fischers case-in-chief, the court granted the compulsory nonsuit in favor of Dr. Emmolo and his practice, UPMC Community Medicine, Inc., based on the Fischers lack of causation testimony provided by their experts. The court denied the non-suit for the remaining Appellees. On October 28, 2009, the jury reached a verdict in favor of the remaining Appellees, Dr. Hartwell, Northwest Emergency Physicians, LLP and UPMC Northwest. The Fischers timely filed a motion for post-trial relief on Monday, November 9, 2009. On February 3, 2010, the court denied the Fischers motion and entered judgment in favor of Appellees. The Fischers filed a notice of appeal on March 15, 2010, which this Court quashed as untimely on April 12, 2010. On April 27, 2010, the Fischers sought leave to appeal nunc pro tunc. Following a hearing, the trial court denied relief. On appeal, however, this Court reversed and, by judgment dated November 18, 2011, granted the Fischers leave to appeal nunc pro tunc. Appellees subsequently filed an application for reargument of this Court s November 18th order. On January 30, 2012, this Court denied Appellees application. -4- J-A12016-13 On March 13, 2012, this Court issued a certificate of remittal/remand of the record to the trial court. The next day, the trial court entered this Court s judgment allowing the Fischers to appeal nunc pro tunc. On March 27, 2012, the Fischers filed their notice of appeal nunc pro tunc. On April 2, 2012, the court ordered the Fischers to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The Fischers timely filed their Rule 1925(b) statement on April 17, 2012. Appellees filed an application to quash the Fischers appeal as untimely, which this Court denied on May 15, 2012, without prejudice to Appellees right to renew it in briefing the appeal. The Fischers raise the following issues for our review: DID THE TRIAL COURT ERRONEOUSLY GRANT A NONSUIT IN FAVOR OF [MRS. FISCHER S] FAMILY PHYSICIAN, WHOSE FAILURE TO ORDER AN IMMEDIATE CT SCAN DELAYED THE DIAGNOSIS OF A CEREBRAL HEMORRHAGE AND THUS DEPRIVED [MRS. FISCHER] OF THE OPPORTUNITY TO UNDERGO EARLIER SURGERY AND AVOID THE STROKE THAT HAS RENDERED HER INCAPACITATED? DID THE TRIAL COURT ERR WHEN IT HELD THAT A BOARD-CERTIFIED INTERNIST WAS NOT QUALIFIED TO TESTIFY THAT THE FAILURE OF [MRS. FISCHER S] FAMILY PHYSICIAN TO ORDER AN IMMEDIATE CT SCAN DENIED [MRS. FISCHER] THE OPPORTUNITY OF AN EARLIER SURGERY AND, THEREBY, INCREASED HER RISK OF HARM? DID THE TRIAL COURT ERR WHEN IT PRECLUDED [THE FISCHERS ] EXPERT FROM TESTIFYING THAT THE EMERGENCY DEPARTMENT STAFF NEGLIGENTLY SELECTED AN INAPPROPRIATE QUALCHART®, THUS LEADING TO A MISDIAGNOSIS? -5- J-A12016-13 (The Fischers Brief at 4). Preliminarily, we address Appellees application to quash the Fischers appeal. Appellees argue the Fischers appeal is untimely because (1) the Fischers failed to file a notice of appeal within thirty (30) days of this Court s November 18, 2011 order granting the Fischers nunc pro tunc relief; and (2) even assuming that Appellees application for reargument of this Court s November 18th order tolled the time to file the appeal, the Fischers nevertheless failed to file their appeal within thirty (30) days of this Court s January 30, 2012 order denying Appellees application for reargument. We disagree. Pennsylvania Rule of Appellate Procedure 2591 provides: On remand of the record the court or other government unit below shall proceed in accordance with the judgment or other order of the appellate court and, except as otherwise provided in such order, Rule 1701(a) (effect of appeals generally) shall no longer be applicable to the matter. Pa.R.A.P. 2591(a) (emphasis added). Thus, the trial court lacks jurisdiction to act on a matter before the appellate court returns the record to the trial court. See Stanton v. Lackawanna Energy, Ltd., 915 A.2d 668 (Pa.Super. 2007) (stating that generally trial court lacks jurisdiction to take further action in case until appellate court remands record to trial court); Bell v. Kater, 839 A.2d 356 (Pa.Super. 2003), appeal denied, 579 Pa. 709, 858 A.2d 108 (2004) (explaining trial court s order granting leave to appeal nunc pro tunc was -6- J-A12016-13 legal nullity where court lacked jurisdiction to enter order because Superior Court had yet to remand record to trial court). Instantly, this Court granted the Fischers leave to appeal nunc pro tunc on November 18, 2011. Thereafter, Appellees filed an application for reargument, which this Court denied on January 30, 2012. Jurisdiction remained with this Court. Not until March 13, 2012, did this Court issue a certificate of remittal/remand of the record to the trial court. Upon remittal of the record in accordance with Rule 2591, the trial court entered this Court s judgment on March 14, 2012, allowing the Fischers to appeal nunc pro tunc. The Fischers filed the instant appeal on March 27, 2012, within thirty (30) days of the trial court s entry of the judgment allowing them to appeal nunc pro tunc. Significantly, until this Court remanded the record, the trial court lacked jurisdiction to enter the judgment permitting their nunc pro tunc appeal and any related orders (i.e., an order to file a Rule 1925(b) concise statement of errors). See Pa.R.A.P. 2591; Stanton, supra; Bell, supra. Accordingly, the Fischers appeal is timely and properly before us for review. Thus, we deny Appellees application to quash. With respect to the Fischers claims on appeal, we initially address their second issue. The Fischers argue that their expert, Dr. Mark Shoag, a board-certified internist, was qualified to give causation testimony under the Medical Care Availability and Reduction of Error ( MCARE ) Act at 40 P.S. § 1303.512. The Fischers contend a physician need only possess an -7- J-A12016-13 unrestricted license and be engaged in medical practice to offer causation testimony under the MCARE Act. The Fischers recognize the MCARE Act imposes limitations for standard-of-care testimony, but they assert the Act does not similarly limit causation testimony. The Fischers maintain a boardcertified internist can give an opinion about the causes of a stroke and how the delay in diagnosis exposed Mrs. Fischer to an increased risk of harm. The Fischers complain the trial court failed to appreciate Dr. Shoag s knowledge concerning the diagnosis and symptoms of a stroke. The Fischers conclude the court misconstrued the MCARE Act and erred by precluding Dr. Shoag from offering causation testimony. The record belies this claim. Instantly, at trial, all Appellees moved for a compulsory non-suit. (See N.T. Trial, 10/21/09, at 404; R.R. at 542a). During Appellees oral motion, counsel for Dr. Emmolo, UPMC Community Medicine, Inc., and UPMC Northwest also asked the court to preclude the Fischers expert, Dr. Shoag, from testifying because he did not have the training, knowledge, or experience necessary under the MCARE Act to proffer opinions as to appropriate treatment of subarachnoid hemorrhages. (See id. at 409; R.R. at 547a). On that basis, counsel contended Dr. Shoag was not qualified to offer causation testimony. (Id.). Following counsel s argument and the presentation of some additional testimony, the court decided to defer ruling on the motion for nonsuit until the close of the Fischers case-in-chief. (See -8- J-A12016-13 id. at 526-27; R.R. at 664a-665a.) Initially, the court denied Appellees motion to preclude Dr. Shoag from testifying. The court stated: THE COURT: All right. Dr. Shoag. And the issue as to Dr. Shoag s testifying [depends] on the ruling on the nonsuit. The rules, actually, on a nonsuit during trial contemplate I cannot grant it until the conclusion of [the Fischers ] case. So, therefore, I would have to allow the expert to testify. They have to present all their evidence. ¦ (Id.) Thereafter, the Fischers continued with their case and, two days later, they offered Dr. Shoag as an expert in internal medicine without objection from Appellees. (See N.T. Trial, 10/23/09, at 770; R.R. at 908a). During Dr. Shoag s direct examination, counsel elicited testimony from Dr. Shoag regarding only whether Dr. Emmolo s conduct fell below the standard of care. (See id. at 770-778; R.R. at 908a-916a). Significantly, however, counsel did not attempt to elicit, and Dr. Shoag did not offer, causation testimony on whether Dr. Emmolo s failure to order the CT scan stat increased Mrs. Fischer s risk of harm. (Id.) Therefore, the record belies the Fischers contention that the court precluded Dr. Shoag from offering causation testimony. Rather, the Fischers counsel simply did not ask their expert the appropriate causation-related questions. Therefore, the Fischers second issue merits no relief. In their first issue, the Fischers argue Dr. Emmolo should have directed Mrs. Fischer to undergo a CT scan on July 6, 2005, the first day -9- J-A12016-13 Mrs. Fischer visited Dr. Emmolo with her symptoms. The Fischers contend Dr. Emmolo s failure to order the CT scan as stat caused Mrs. Fischer to wait until July 8, 2005 to undergo the CT scan, resulting in a two-day delay in the diagnosis of Mrs. Fischer s condition. The Fischers aver this delay deprived Mrs. Fischer the opportunity to undergo surgery before she suffered a stroke. The Fischers assert they pursued a loss of chance negligence theory against Dr. Emmolo, which occurs when a physician s negligence diminishes the patient s opportunity to achieve a better result. The Fischers maintain their expert Dr. Henry Woo, a neurosurgeon, established that the delay in Mrs. Fischer s CT scan caused her to lose the opportunity to undergo surgery before she suffered a stroke, and diminished her chance of achieving a better surgical result. The Fischers insist Dr. Woo testified that the vasospasms did not increase Mrs. Fischer s risk of stroke, but instead increased only the risks of surgery, and Dr. Emmolo s failure to order a CT scan stat was what increased Mrs. Fischer s risk of harm, not the vasospasms. The Fischers conclude Dr. Woo s causation testimony was sufficient to raise a jury question as to Dr. Emmolo s negligence, and the court improperly granted the compulsory nonsuit in favor of Dr. Emmolo and his practice, UPMC Community Medicine, Inc. In their third issue, the Fischers argue their allegations at trial of direct negligence against the UPMC Northwest hospital staff stem from the same chain of causal events alleged in the original complaint against UPMC - 10 - J-A12016-13 Northwest under a vicarious liability theory. The Fischers maintain the UPMC Northwest nurses incorrectly selected the neck pain QualChart®3 instead of the headache QualChart®, which contributed to the lack of proper diagnosis and/or treatment of Mrs. Fischer s symptoms. The Fischers aver their allegations of direct negligence at trial against UPMC Northwest merely amplified the vicarious liability allegations made in the complaint. The Fischers assert the court improperly precluded their expert Dr. John Tafuri, an emergency room physician, from testifying as to the direct negligence of the UPMC Northwest emergency room nursing staff, based solely on the Fischers failure to allege direct negligence against the hospital in their complaint. The Fischers contend the court should have allowed them to amend the complaint to conform to the proffered testimony. The Fischers recognize that at the time of trial, the statute of limitations precluded them from amending their complaint to add a negligence claim against the hospital. They nevertheless argue that an amendment would not prejudice UPMC Northwest because they supplied an expert report by Dr. Tafuri describing the hospital s negligence within two years of learning about the hospital s use of the wrong QualChart®. The Fischers conclude the trial ____________________________________________ 3 A QualChart® is a computer software program many hospitals use in charting emergency medical information such as a patient s history, tests, treatment, physical examination, evaluation or diagnosis. - 11 - J-A12016-13 court improperly limited Dr. Tafuri s testimony and this Court should grant them a new trial on that ground. We disagree. After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Robert L. Boyer, we conclude the Fischers first and third issues merit no relief. The trial court opinion discusses and properly disposes of those claims. (See Trial Court Opinion, filed July 17, 2012, at 3-7; 11-13) (finding: (1) the Fischers own expert, Dr. Woo, testified that existence of vasospasms increased Mrs. Fischer s risk of harm; Dr. Woo testified that vasospasms typically form between Day 0 to Day 3, and peek around Day 7 to Day 9; according to Dr. Woo, optimal window of time for surgery was Day 0 to Day 3, before existence of vasospasms; the Fischers presented no testimony to establish that Dr. Emmolo s order of CT scan on July 6, 2005 (Day 6) increased Mrs. Fischer s risk of harm; rather, existence of vasospasms, which formed prior to Mrs. Fischer s initial visit with Dr. Emmolo on July 6, 2005, increased Mrs. Fischer s risk of harm; Dr. Woo s testimony failed to establish cause of action against Dr. Emmolo or his practice, UPMC Community Medicine, Inc.; therefore, court properly granted compulsory nonsuit in favor of Dr. Emmolo and his practice; (3) the Fischers theory of liability against UPMC Northwest since beginning of suit was vicarious liability; they stated numerous times during trial that they were not asserting direct negligence claim against UPMC Northwest; despite such - 12 - J-A12016-13 assertions, the Fischers sought to introduce testimony from their expert Dr. Tafuri regarding his report that nursing staff at UPMC Northwest incorrectly used wrong QualChart®; court properly precluded Dr. Tafuri from offering that testimony because it would have worked to amend complaint to add claim of direct negligence against UPMC Northwest staff, which would disregard statute of limitations bar; moreover, the Fischers knew as early as August 2007 that separate QualChart® existed for headaches, but they did not attempt to amend complaint until after trial started in October 2009; therefore, court properly precluded Dr. Tafuri from offering testimony regarding direct negligence of UPMC Northwest staff). Accordingly, we affirm on the basis of the trial court s opinion as to the Fischers first and third issues. Judgment affirmed. Judgment Entered Deputy Prothonotary Date: 9/12/2013 - 13 -

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