J-A34010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARILYN E. TAYLOR AND GREGORY L.               IN THE SUPERIOR COURT OF
TAYLOR, HUSBAND AND WIFE                             PENNSYLVANIA

                        Appellants

                   v.

JOANNA M. DELEO, D.O.

                        Appellee                     No. 721 MDA 2015


               Appeal from the Judgment Entered April 6, 2015
              In the Court of Common Pleas of Dauphin County
                 Civil Division at No(s): 2009-CV-05258-MM


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                          FILED MARCH 07, 2016

      Appellants, Marilyn E. Taylor and Gregory L. Taylor, Husband and Wife,

appeal from the judgment entered after a second jury found against the

Taylors in their medical malpractice claim against Appellee, JoAnna M.

DeLeo, D.O. The Taylors challenge the trial court’s denials of motions in

limine that they had filed prior to the second trial. After careful review, we

conclude that none of the Taylors’ issues require the grant of a third trial,

and therefore affirm.

      We have previously summarized the factual background of this case as

follows.

      The events that led to this medical malpractice suit unfolded
      over the course of many years and involved a series of
      laparoscopic procedures conducted on Mrs. Taylor that were
      intended to address chronic abdominal pain and severe acid
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     reflux. Laparoscopic surgery, unlike more traditional “open”
     surgery, relies on making small incisions in the abdomen, which
     allow the insertion of surgical tools and of a fiber optic camera
     by which the surgeon can see what she is doing. By not
     requiring large incisions, such surgery is less invasive and
     generally leads to faster recovery time. One known complication
     from a laparoscopic procedure is an abdominal adhesion,
     whereby scar tissue forms between internal organs and the wall
     of the abdominal cavity, which can cause pain and complications
     with digestion.     Mrs. Taylor underwent three laparoscopic
     procedures in the early 1990s, before she was Dr. DeLeo’s
     patient, which resulted in extensive adhesions.

     Mrs. Taylor became Dr. Deleo’s patient in 1996, when Dr. DeLeo
     performed the first of what would be many surgical procedures.
     Doctor DeLeo performed a laparoscopic lysis (or cutting) of
     adhesions, removing the adhesions caused by her previous
     procedures, in an attempt to relieve Mrs. Taylor’s chronic pain.
     Between March 15, 1999 and May 22, 2008, Dr. DeLeo
     performed a total of thirteen laparoscopic surgeries, although
     Mrs. Taylor claims she only received short-term relief from each
     procedure. On several occasions, Dr. DeLeo had to convert the
     laparoscopic procedure into a more traditional “open” surgery, or
     abandon the procedure all together, due to complications. On
     three occasions, Dr. DeLeo caused small tears, or enterotomies,
     in Mrs. Taylor’s bowels, which she then repaired.

     Four days after Dr. DeLeo performed her final surgery on Mrs.
     Taylor, Mrs. Taylor was admitted to the emergency room. She
     was suffering from tears in her colon, which allowed the contents
     of her bowels to leak into her abdominal cavity. This had led to
     peritonitis and sepsis, potentially life-threatening conditions, that
     required multiple follow-up surgeries and, the Taylors claim,
     caused continuing debilitating effects.

Taylor v. DeLeo, No. 188 MDA 2012, at 1-3 (Pa. Super., filed 1/25/13)

(unpublished memorandum).

     The Taylors subsequently filed a complaint in medical malpractice

against Dr. DeLeo, asserting that during a twelve year period, she had

performed the surgeries negligently and in some cases, unnecessarily. The

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case was tried before a jury in September 2011, resulting in a defense

verdict. The Taylors appealed, arguing in relevant part that the trial court

had erred in instructing the jury on the “two schools of thought” doctrine

regarding the lysis of adhesions more than three times.

       The “two schools of thought” doctrine in medical malpractice cases

provides an absolute defense when the defendant chose among two

commonly accepted treatment options. See Jones v. Chidester, 610 A.2d

964, 969 (Pa. 1992). After reviewing the record, this Court concluded that

there was no evidence that lysing adhesions thirteen times, as Dr. DeLeo did

in this matter, as opposed to up to three times, to relieve pain was

commonly accepted in the medical community.        Thus, this Court reversed

the judgment and remanded for a new trial.

       After remand, the Taylors filed a substantial number of motions in

limine, including a motion seeking permission to present evidence of Dr.

DeLeo’s loss of operating privileges at several hospitals during the relevant

time period, a motion seeking to preclude the testimony of Dr. DeLeo’s

expert, Mark Pello, M.D., F.A.C.S., and a motion to permit cross-examination

of Dr. DeLeo with treatises that Dr. Pello, but not Dr. DeLeo, conceded were

authoritative.   The trial court denied all of the Taylors’ motions in limine,

and granted Dr. DeLeo’s motion to preclude cross-examination based upon

the content of certain published articles. The case proceeded to a second

jury trial.


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       The second jury also returned a defense verdict, and the Taylors filed

post-trial motions. Those motions were heard by a three-judge panel of the

trial court. After argument and briefs, the panel denied the Taylors’ post-trial

motions, and this timely appeal followed.

       On appeal, the Taylors raise challenges to the trial court’s pre-trial

rulings on three issues. First, that the trial court precluded the Taylors from

presenting evidence about Dr. DeLeo’s loss of operating privileges at several

hospitals during the relevant time period. Second, that Dr. Pello’s testimony

was admitted in violation of the Frye test.1 Finally, that the Taylors were

prohibited from questioning Dr. DeLeo about medical treatises that her own

expert witness, Dr. Pello, conceded were authoritative. We will address these

issues in sequence.

       The Taylors first argue that the trial court erred in ruling that evidence

of Dr. DeLeo’s loss of operating privileges at several hospitals during the

relevant time period was precluded pursuant to the Peer Review Protection

Act (“PRPA”), 63 P.S. §§ 425.1 – 425.4. As this issue raises an issue of the

interpretation and application of the PRPA, a statute, we are guided by the

following standard.


____________________________________________


1
  Frye v. United States, 293 F. 1013 (D.C. Cir.1923). Under Frye, novel
scientific evidence must be generally accepted in the relevant scientific
community before it will be admitted. Pennsylvania Courts utilize the Frye
test. See Betz v. Pneumo Abex, LLC, 44 A.3d 27, 30 (Pa. 2012).



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    [W]e must determine whether the trial court committed an error
    of law. Our standard of review is de novo. When interpreting
    statutes, our goal is to effectuate the intention of the legislature.
    We do so primarily by looking to the plain language of the statute.
    If the language of the statute is clear and unambiguous, we will
    not disregard it under the pretext of pursuing its spirit.

Dodson v. DeLeo, 872 A.2d 1237, 1241 (Pa. Super. 2005) (citations

omitted).

      The PRPA was enacted to encourage the use of peer review in health

care facilities in an effort to ensure high professional standards in the

provision of medical care. See Piroli v. Lodico, 909 A.2d 846, 850 (Pa.

Super. 2006). Thus, the PRPA seeks to encourage the health care industry to

police itself. See Dodson, at 1242. It accomplishes this goal by providing

confidentiality provisions for “comprehensive, honest, and potentially critical

evaluations of medical professionals by their peers in the profession.”

Young v. The Western Pennsylvania Hospital, 722 A.2d 153, 156 (Pa.

Super. 1998) (citation omitted).

      In relevant part, the PRPA provides that

      [t]he proceedings and records of a review committee shall be
      held in confidence and shall not be subject to discovery or
      introduction into evidence in any civil action against a
      professional health care provider arising out of the matters which
      are the subject of evaluation and review by such committee and
      no person who was in attendance at a meeting of such
      committee shall be permitted or required to testify in any such
      civil action as to any evidence or other matters produced or
      presented during the proceedings of such committee or as to any
      findings, recommendations, evaluations, opinions or other
      actions of such committee or any members thereof: Provided,
      however, That information, documents or records otherwise
      available from original sources are not to be construed as

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       immune from discovery or use in any such civil action merely
       because they were presented during proceedings of such
       committee, nor should any person who testifies before such
       committee or who is a member of such committee be prevented
       from testifying as to matters within his knowledge, but the said
       witness cannot be asked about his testimony before such a
       committee or opinions formed by him as a result of said
       committee hearings.

63 P.S. § 425.4. It is well established that under this provision,

       [d]ocuments used in the determination of staff privileges are
       exactly the type of documents the legislature contemplated
       when drafting the Peer Review Protection Act. Granting, limiting,
       or revoking staff privileges is one of the strongest tools the
       medical profession uses to police itself.

Young, 722 A.2d at 156 (citation omitted).

       On appeal, the Taylors implicitly concede that the evidence at issue is

normally protected by the PRPA. They argue, however, that Dr. DeLeo has

waived this protection by publishing the evidence through the filing of a

complaint against the involved hospitals for defamation. The trial court found

it “absurd” that a physician could be found to waive the peer review privilege

by asserting, in a publicly filed document, that the confidential information

had been improperly divulged to third parties.2 Furthermore, the trial court

concluded that it was the hospital’s answer to Dr. DeLeo’s defamation

complaint that published the confidential information sought to be used by


____________________________________________


2
  Appellee argues that the peer-review privilege is unwaivable. We cannot
agree. A civil litigant may waive every right or privilege held by that litigant,
so long as the waiver is knowing and voluntary.



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the Taylors. The trial court’s reasoning mischaracterizes the record in both

respects.

      In her complaint against the hospital, Dr. DeLeo claimed that the

hospital and its agents had defamed her. Her complaint makes a passing

reference to the PRPA in paragraph 20, but does not detail in any manner

how the hospital violated the PRPA. In contrast, Dr. DeLeo’s complaint does

detail seven of the nine facts that the Taylors requested to introduce in their

pre-trial motion:   (1)   that Dr. DeLeo applied for reappointment to the

medical staff on December 8, 2006; (2) that the hospital’s peer review

committee voted not to recommend approval of Dr. DeLeo’s application; (3)

that another hospital committee voted not to extend laparoscopic surgical

privileges to Dr. DeLeo; (4) that Dr. DeLeo’s membership on the medical

staff of the hospital expired on April 3, 2007; (5) that Dr. DeLeo’s surgical

privileges at the hospital expired on April 3, 2007; (6) that another hospital

subsequently denied Dr. DeLeo’s application for appointment and surgical

privileges; and (7) that Dr. DeLeo did not have a medical staff appointment

at any hospital from April 3, 2007 until January 2008.

      We therefore cannot agree with the trial court that Dr. DeLeo was

attempting to vindicate her rights under the PRPA in filing her defamation

suit against the hospital. Nor can we conclude that even a substantial

number of the Taylors’ requests were only available from the hospital’s




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answer and new matter. Rather, all but two of the requests concern

information revealed in Dr. DeLeo’s complaint.

      However, we conclude that the trial court did not abuse its discretion

in concluding that this evidence was inadmissible pursuant to Pennsylvania

Rule of Evidence 403. Under Rule 403, “relevant evidence may be excluded

if its probative value is substantially outweighed by the danger of unfair

prejudice.” Pa.R.E. 403. “‘Unfair prejudice’ supporting exclusion of relevant

evidence means a tendency to suggest decision on an improper basis or

divert the jury’s attention away from its duty of weighing the evidence

impartially.” Commonwealth v. Wright, 961 A.2d 119, 151 (Pa. 2008)

(citation omitted).

      Our standard of review for evidentiary rulings is a narrow one:

      When we review a trial court’s ruling on admission of evidence,
      we must acknowledge that decisions on admissibility are within
      the sound discretion of the trial court and will not be overturned
      absent an abuse of discretion or misapplication of law. In
      addition, for a ruling on evidence to constitute reversible error, it
      must have been harmful or prejudicial to the complaining party.

Reott v. Asia Trend, Inc., 7 A.3d 830, 839 (Pa. Super. 2010) (citation

omitted).

      The Taylors correctly argue that the requested information has

probative value, especially in cross-examination of Dr. DeLeo as a witness.

Had she testified as an expert, her lack of staff privileges would have been

relevant to her qualifications for expressing any relevant opinion. It is

important, however, to note that Dr. DeLeo was not presented as an expert

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witness and did not opine on the standard of care at issue. She therefore

testified solely as a fact witness, not as an expert. See Lykes v. Yates, 77

A.3d 27, 32 (Pa. Super. 2013).

      Dr. DeLeo’s lack of staff privileges at the time she performed the

surgery at issue in this litigation is not relevant to whether she met the

standard of care in performing the surgery. See id. Therefore, admission of

the requested evidence on cross-examination would have posed a grave

danger of encouraging the jury to decide on an improper basis. In other

words, there was a substantial likelihood of the jury deciding that Dr. DeLeo

was a bad surgeon and therefore had committed malpractice in this case,

rather than focusing on what Dr. DeLeo had actually done in treating Mrs.

Taylor. Thus, it was not an abuse of discretion for the trial court to conclude

that unfair prejudice of this evidence substantially outweighed its probative

value.

      In their second issue on appeal, the Taylors argue that Dr. Pello’s

testimony violated the Frye rule. The Taylors’ argument is closely related to

the argument that led a prior panel of this Court to reverse and remand. In

reversing the first verdict, this Court noted that Dr. Pello testified that “he

knew of no cases where a doctor had performed the procedure more than

three times, nor of any learned treatise that advocated such an approach.”

Taylor v. DeLeo, No. 188 MDA 2012, at 8 (Pa. Super., filed 1/25/13)

(unpublished memorandum) (citation omitted). “Thus, if the Taylors only


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presented the ‘repeated use’ theory, the ‘two schools of thought’ instruction

was inappropriate, for as Judge Turgeon and the Taylors agree, it should not

apply to multiple uses of the procedure.” Id., at 11.

      Upon remand, the Taylors sought to preclude Dr. Pello from opining

that the repeated use of the lysis procedure more than three times was

within the accepted standard of care. In particular, the Taylors argued that

Dr. Pello’s opinion in this regard did not satisfy the Frye test as it did not

have general acceptance within the relevant medical community. The trial

court denied the Taylors’ motion, and Dr. Pello was permitted to testify that

in his opinion, performing the procedure 13 times on Mrs. Taylor was within

the accepted standard of care.

      On appeal, the Taylors renew their argument that Dr. Pello’s standard

of care testimony failed the Frye test. The trial court did not explicitly

address this issue in its opinion, noting simply that the issue went to

credibility and not admissibility. See Trial Court Opinion, 3/25/15, at 19.

      “[T]he admission of expert scientific testimony is an evidentiary matter

for the trial court’s discretion and should not be disturbed on appeal unless

the trial court abuses its discretion.” Commonwealth v. Harrell, 65 A.3d

420, 430 (Pa. Super. 2013) (citation omitted). The Frye test consists of a

two-step process, which is as follows.

      First, the party opposing the evidence must show that the
      scientific evidence is “novel” by demonstrating that there is a
      legitimate dispute regarding the reliability of the expert’s
      conclusions. If the moving party has identified novel scientific

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      evidence, then the proponent of the scientific evidence must
      show that the expert’s methodology has general acceptance in
      the relevant scientific community despite the legitimate dispute.

Commonwealth v. Foley, 38 A.3d 882, 888 (Pa. Super. 2012) (citation

and internal quotation marks omitted). See also Pa.R.E. 702. “However, the

conclusions reached by the expert witness from generally accepted principles

and methodologies need not also be generally accepted.” Tucker v.

Community Medical Center, 833 A.2d 217, 224 (Pa. Super. 2003)

(emphasis in original) (citation omitted). In the medical field, reliance upon

medical records and personal expertise in diagnosing and treating a patient

is a generally accepted methodology. See Cummins v. Rosa, 846 A.2d

148, 151 (Pa. Super. 2004).

      Here, the Taylors are challenging whether Dr. Pello’s conclusion, that

performing the procedure 13 times on Mrs. Taylor was within the standard of

care, was generally accepted within the medical community. They are

correct in noting that the record does not support a finding that this

conclusion is generally accepted in the medical community. However, Dr.

DeLeo was not required to establish this in order to present Dr. Pello’s

expert testimony. Furthermore, there is no basis upon which to conclude

that reviewing the medical records and relying upon his own personal

expertise to reach this conclusion was a methodology not generally accepted

in the medical community. Thus, given our prior recognition of this

methodology in Cummins, we cannot conclude that the trial court abused


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its discretion in permitting Dr. Pella to testify as to his opinion that Dr.

DeLeo’s actions met the standard of care.

      In their final argument, the Taylors argue that the trial court erred in

precluding them from cross-examining Dr. DeLeo with learned treatises that

Dr. Pello conceded were authoritative. The Taylors concede that generally

speaking, learned treatises are hearsay and thus are inadmissible as

substantive evidence. See Appellants’ Brief, at 19. However, they argue that

learned treatises are admissible to cross-examine a witness, citing Aldridge

v. Edmunds, 750 A.2d 292 (Pa. 2000). In contrast, Dr. DeLeo argued, and

the trial court ruled, that while learned treatises may be appropriate in

cross-examining an expert witness, they may not be used to cross-examine

a non-expert party defendant pursuant to Burton-Lister v. Siegel, Sivitz

and Lebed Associates, 798 A.2d 231 (Pa. Super. 2002).

      “It is well-settled that the scope of cross examination is a matter

within the trial court's discretion and will not be disturbed by this Court

absent an abuse of that discretion.” Commonwealth v. Kouma, 53 A.3d

760, 768-769 (Pa. Super. 2012) (citation and quotation marks omitted). In

Burton-Lister, this Court highlighted the danger inherent in the “polite

fiction” that the use of learned treatises during questioning could be limited

to the issue of the credibility of the expert witness. See Burton-Lister, at

239. The Burton-Lister court noted that the reason that such treatises

were admissible at all, their authoritativeness, would tend to influence a jury


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to decide that the treatises were proof of the matter asserted therein. See

id.

      In the present case, the trial court found that Dr. DeLeo had not been

qualified as an expert witness, and therefore pursuant to Burton-Lister the

danger of permitting the use of the learned treatises in cross-examining Dr.

DeLeo outweighed the limited probative value they might have in assessing

her credibility. We cannot conclude that this decision was an abuse of

discretion, and therefore conclude that the Taylors’ final issue on appeal

merits no relief.

      Judgment affirmed. Jurisdiction relinquished.

      Judge Jenkins joins the memorandum.

      Judge Ott concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/7/2016




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