Fanuiel, J. v. Roxborough Memorial Hosp., et al. (memorandum)

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J-A15036-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 JACQUE FANUIEL IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. ROXBOROUGH MEMORIAL HOSPITAL, ET AL Appellee No. 2643 EDA 2013 Appeal from the Order Entered August 5, 2013 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 110802022 BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J. MEMORANDUM BY JENKINS, J.: FILED JULY 09, 2014 Appellant Jacque Fanuiel appeals from the order of the Philadelphia Court of Common Pleas granting Appellees R. Jerry Salomone, M.D., and Roxborough Emergency Physician Associates LLC's motion for summary judgment and Appellees Roxborough Memorial Hospital and Solis Healthcare, L.P.'s motion for summary judgment. We affirm. On August 13, 2009, Fanuiel injured his knee and went to Roxborough Memorial Hospital. Transcript of Deposition of Jacque Fanuiel, at 94 [ diagnosed Fanuiel with a fracture and provided Fanuiel with a knee brace and a business card for an orthopedist, Dr. Paul Horenstein. See Complaint, at Exh. B.; Transcript of Deposition of R. Jerry Salomone, at 22 [hereinafter J-A15036-14 See Salomone Dep., at 16. Fanuiel did not visit Dr. Horenstein. Fanuiel Dep., at 108-13. Later that afternoon, Fanuiel went to Jefferson Hospital, where he was diagnosed with compartment syndrome.1 Complaint, at Ex. C. Fanuiel claims he did not visit Dr. Horenstein because the doctor did not take uninsured patients and required an up-front cash payment, which Fanuiel could not afford. Fanuiel Dep., at 108-09, 113. Fanuiel provided no expert report addressing the standard of care applicable to referral and discharge procedures. See Summary Judgment Motion at ΒΆΒΆ 23-24. He provided one expert report the report of Bruce Grossinger, D.O. as to causation. Id. Appellees filed motions for summary judgment arguing Fanuiel failed to establish a prima facie medical malpractice case because he lacked expert testimony. The trial court granted the motions. The trial court found Fanuiel would be unable to establish his case because he lacked expert testimony on the 10/29/2013, at 5. standard of care. Trial Court 1925(a) Opinion, The trial court noted Fanuiel not only challenged the referral, but also challenged the assessment, diagnosis, and treatment plan. ____________________________________________ 1 available at http://www.nlm.nih.gov/medlineplus/ency/article/001224.htm, last visited June 5, 2014. -2- J-A15036-14 Id. Further, the court found Fanuiel's causation expert unqualified. Id., at 5-7. Fanuiel filed a motion for reconsideration, which the trial court denied. Fanuiel raises the following issue on appeal: Is a medical expert required to establish a prima facie case of medical negligence when the standard of care is not at issue and when the alleged breach of one prong of the standard of care is a matter of common knowledge within the province of any layman? Fanuiel claims the trial court erred because expert testimony as to the breach of the standard of care is not required in this case. Although his complaint alleged numerous breaches, Fanuiel claims his sole allegation of a breach of the standard of care is Dr. Salomone's referral to an orthopedist that he knew or should have known did not accept uninsured patients, which is within the realm of knowledge of the common layperson.2 Fanuiel maintains he can call the defendant, Dr. Salomone, to establish the appropriate standard of care, and the jury could answer the question of whether it was a breach of that standard of care to provide the patient a ____________________________________________ 2 D.O., an appropriate licensed professional, supplied a written statement that there was a basis to conclude the care, skill, or knowledge exercised or exhibited by these defendants in the treatment, practice, or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm. Certificate of Merit 10/19/2011. -3- J-A15036-14 business card of an orthopedist whom the defendant knew or should have known did not accept uninsured patients. Appellant Brief at 11. Vazquez v. CHS Professional Practice, P.C., 39 A.3d 395, 397 (Pa.Super.2012) (quoting Krapf v. St. Luke's Hospital, may not disturb the order of the trial court unless it is established that the court committed an error of law or Id. (quoting Coleman v. Wyeth Pharmaceuticals, Inc., 6 A.3d 502 (Pa.Super.2010)). a duty owed by the physician to the patient, a breach of that duty by the physician, that the breach was the proximate cause of the harm suffered, Ditch v. Waynesboro Hosp., 917 A.2d 317, 322 (Pa.Super.2007) (quoting Toogood v. Owen J. Rogal, DDS, P.C., 824 A.2d 1140, 1145 (Pa.2003) matters not within the ordinary knowledge and experience of laypersons[,] a medical malpractice plaintiff must present expert testimony to establish the applicable standard of care, the deviation from that standard, causation and Grossman v. Barke, 868 A.2d 561, 566 (Pa.Super.2005) (quoting Toogood, 824 A.2d at 1145). Expert testimony is required because a jury usually lacks the knowledge required to determine factual issues of medical causation, the degree of skill, knowledge and -4- J-A15036-14 experience required of a physician, and a breach of a standard of care. Id. at 566-67. he alleged negligence is obvious or within the realm of a layperson's Grossman, 868 A.2d at 567; see also Cangemi v. Cone, 774 A.2d 1262, 1266-67 (Pa.Super.2001) (expert testimony not required to establish the plaintiff's corporate negligence claim where the issue was has a report that suggest[ed] [the plaintiff] [had] an abdominal aneurysm and the attending physician does not get the report, it is either because of Brannan v. Lankenau Hosp., 417 A.2d 196, 201 (Pa.1980) (no expert testimony required where staff failed to notify the attending physician of the deteriorating condition of one of his patients even though the doctor gave are not within the common knowledge of a layperson. Moreover, any assessment of his referral would require a determination of the assessment, expert testimony regarding the alleged the standard of care and deviation of such standard. Because Fanuiel lacked expert testimony, the trial court properly granted the motions for summary judgment. Order affirmed. -5- J-A15036-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/9/2014 -6-

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