J-A26020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN MATUSEK, SR., SPOUSE AND                  IN THE SUPERIOR COURT OF
EXECUTOR OF THE ESTATE ANGELINE P.                   PENNSYLVANIA
MATUSEK

                        Appellant

                   v.

JAMES R. BRUNO, M.D., THOMAS J.
CASTELLANO, M.D., JOHN ROTHSCHILD,
M.D., GARY DECKER, M.D., MARK
BERNARDI, D.O., GEISINGER WYOMING
VALLEY MEDICAL CENTER, GEISINGER
HEALTH SYSTEM FOUNDATION

                        Appellees                   No. 279 MDA 2014


              Appeal from the Order Entered December 9, 2013
              In the Court of Common Pleas of Luzerne County
                    Civil Division at No(s): 4735 of 2006


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

DISSENTING MEMORANDUM BY MUNDY, J.:            FILED FEBRUARY 05, 2015

     I respectfully dissent from the conclusion reached by both the trial

court and the Majority that Executor did not carry his burden of establishing

the minimum necessary to survive a nonsuit in this case.         Trial Court

Opinion, 3/18/14, at 25; Majority Memorandum at 16.        After a thorough

review of the certified record, the parties’ briefs, and the relevant law, I

disagree that the judgment of compulsory nonsuit in favor of Drs. Decker

and Castellano was proper.
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      The Majority has correctly detailed the appropriate scope and standard

of review employed in examining a judgment of compulsory nonsuit.

Specifically, nonsuit is only proper when it is clear that a plaintiff has not

established a right to relief or cause of action. Majority Memorandum at 6,

citing Staiger v. Holohan, 100 A.3d 622, 624 (Pa. Super. 2014) (internal

citations omitted); see also Pa.R.C.P. 230.1.        In assessing whether a

plaintiff has established a right to relief, the plaintiff must be given the

benefit of all favorable evidence and all reasonable inferences derived

therefrom. Majority Memorandum at 6, citing Staiger, supra. Further, any

conflicts in the evidence must be resolved in the plaintiff’s favor.       Id.

However, as the following discussion illustrates, despite observing the

appropriate standard, the trial court and the Majority fail to afford Executor,

plaintiff below, the benefit of all reasonable inferences derived from the

favorable evidence adduced at trial or to resolve conflicts in evidence in

Executor’s favor.

      The Majority notes that the trial court’s analysis was based, in large

part, on Mudano v. Phila. Rapid Transit Co., 137 A. 104 (Pa. 1927) and

Brodowski v. Ryave, 885 A.2d 1045 (Pa. Super. 2005) (en banc)

(plurality), appeal denied, 897 A.2d 449 (Pa. 2006). Majority Memorandum

at 5. Indeed, the trial court recognized Executor “relies significantly” on our

Supreme Court’s decision in Brannan v. Lankenau Hosp., 417 A.2d 196

(Pa. 1980) but finds that “such reliance is misplaced.” Trial Court Opinion,


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3/18/14, at 8. This finding is erroneous.1 Similarly, while the Majority fairly

recounts the salient principles elucidated by our Supreme Court’s decision in

Brannan, it curiously fails to apply these binding principles of law to the

case herein. See Majority Memorandum at 8-9.

       As noted in the Majority Memorandum, Brannan involved a single

expert witness who gave inconsistent testimony on behalf of the plaintiff in

that case.    Majority Memorandum at 8.           The Majority recognizes that our

Supreme Court reiterated, in Brannan, that for a plaintiff’s case to fail

based on contradictory expert testimony, the “experts must so vitally

disagree on essential points as to neutralize each other’s opinion evidence.”

Id., citing Brannan, supra at 200.             Indeed, the Majority notes that the

Supreme Court, in holding the compulsory nonsuit was improperly granted,

again acknowledged that conflicts in expert testimony are fatal to a plaintiff’s

case only if they are absolute.                Id. at 9 (emphasis added), citing

Brannan, supra. Thus, the “relatively minor divergence in only a part of

____________________________________________


1
   Not only is this finding erroneous, the trial court also plainly
mischaracterizes Mudano. See Trial Court Opinion, 3/18/14, at 5. The trial
court posits that Mudano established, “expert testimony from plaintiff’s
experts in a medical negligence action must remain reasonably consistent in
order to survive a Motion for Compulsory Non-Suit … .” Id. Mudano did
not involve a medical malpractice action. Rather, the plaintiff in Mudano
sought to recover damages arising from an injury to his foot, suffered while
working on a public highway. Mudano, supra at 53-54. The issue of the
defendant’s and plaintiff’s respective negligence in causing the injury were
not under review. Id. at 54. The appeal involved the legal sufficiency of the
expert testimony to sustain the award of damages. Id.



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[plaintiff]’s expert testimony, when viewed against the testimony as a

whole, [did not] sufficiently compromise the witness’ testimony on direct to

justify removal of th[e] issue from jury consideration.” Brannan, supra. It

bears emphasis that in Brannan, the Court recognized that after the

decision in Mudano, “this Court has allowed juries to consider and resolve

conflicts among expert witnesses.” Id. (citation omitted).

       The Majority observes this Court found the application of the Mudano

rule in Brodowski was appropriate where experts proffered testimony in

irreconcilable conflict on the standard of care as to one defendant physician,

Dr. Vaganos.2       Majority Memorandum at 9-10.          However, the analysis

provided by the Majority is silent regarding the other defendant physician in

that case, Dr. Ryave. See id.         Though we affirmed the grant of compulsory

nonsuit in favor of the physician the Majority discusses, we reversed the

grant of compulsory nonsuit as to the other defendant physician, Dr. Ryave.
____________________________________________


2
   I note the Brodowski opinion was extremely fractured regarding the five
issues the appellant raised, with only three judges joining the opinion in full.
In separate writings, a majority of the Court agreed with the opinion as to
both the reasoning and result of the disposition on the issue of nonsuit as to
the two defendant doctors.        Id. at 1066 (Joyce, J., concurring and
dissenting), 1067 (Bowes, J., concurring and dissenting); see also, e.g.,
Commonwealth v. Brown, 23 A.3d 544, 555 (Pa. Super. 2011)
(observing, “[i]n cases where a concurring opinion enumerates the portions
of the plurality’s opinion in which the author joins or disagrees, those
portions gain precedential value.”) (citation omitted). Nevertheless, this
Court’s decision is controlled by Brannan. See Bell v. Willis, 80 A.3d 476,
479 (Pa. Super. 2013) (stating, “[a]s an intermediate appellate court, this
Court is obligated to follow the precedent set down by our Supreme Court.”)
(citation omitted), appeal denied, 89 A.3d 1282 (Pa. 2014).



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We concluded the experts’ testimony did not irreconcilably conflict on the

issue of Dr. Ryave’s duty and breach. Brodowski, supra at 1061. The first

expert opined that Dr. Ryave breached the standard of care by “failing to

admit [the] [p]laintiff to a proper place prior to his departure even though

he had more than two hours to do so.” Id. (citation and internal quotation

marks omitted).     This expert criticized Dr. Ryave’s failure to arrange a

consultation with a neurologist and for not signing out the patient

appropriately to the oncoming emergency room physician.          Id.   (citation

omitted). The second expert opined that Dr. Ryave “did a good job in his

evaluation, but something fell apart after he left. He was meant to properly

convey to the ER doctor … that this patient needed to be admitted to the

hospital for evaluation of stroke, but something went awry at that point.”

Id.   (citation and internal quotation marks omitted). In declining to find an

irreconcilable conflict between the two expert opinions, the Court noted the

second expert opined that Dr. Ryave’s “evaluation, assessment, and

differential diagnosis were proper,” while the first expert opined on issues of

treatment implementation and did not address, specifically, evaluation,

assessment, and diagnosis. Id. Therefore, the testimony of the two experts

did not neutralize each other’s opinions as to Dr. Ryave’s care, and nonsuit

was improper. Id.

      Contrary to the trial court’s and Majority’s conclusion, the instant case

does not present a situation where two inconsistent inferences are possible


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of adoption from the testimony of Drs. Lipsky and Weissman. The experts

testified there were deviations from the standard of care, and those

deviations caused harm to Decedent.        In order to demonstrate that the

experts’ opinions did not irreconcilably conflict, a more in depth reproduction

of the testimony is warranted. Dr. Lipsky testified, to a reasonable degree of

medical certainty, as follows.

            The deviations, most importantly, were not
            recognizing the signs of acute abdomen in this
            patient who had severe pseudomembranous C. Diff
            colitis, who rapidly deteriorated on the 28th, and who
            would have had a better chance of survival had this
            been addressed over a day before it was actually
            addressed.

N.T., 9/9/13, at 55. Regarding the administration of antibiotics to Decedent,

Dr. Lipsky testified Vancomycin was “more effective for a more severe case

of colitis,” and it should have been administered earlier to Decedent. Id. at

57. His explanation for this opinion follows.

            …    So, on April 26th, [2004], the patient -- on
            admission, the patient was started on Flagyl, which I
            think was a reasonable choice of an initial antibiotic.

                   However, I think that the antibiotic – there was
            concern in this patient who was changed to NPO, no
            food,    that   whatever      medicine     was    being
            administered orally was not reaching the appropriate
            location in the colon. I would have had a much
            earlier threshold to start the patient on intravenous
            antibiotic; Flagyl, being the only one approved for
            this.

                 What I would like to do, even as of 2004, is
            changing the patient to oral Vancomycin at the time


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            I did IV Flagyl [April 27, 2004] to just to try to see if
            we could get an oral medication into the patient.

                   … [A]ll of us who were in gastroenterology at
            the time had anecdotal experience of Vancomycin
            being more effective for a more severe case of
            colitis.

Id. at 56-57.      Following that testimony, Dr. Lipsky opined that the

deviations identified were ultimately involved in causing Decedent’s death

and that the deviations increased the risk of harm to Decedent. Id. at 57-

58.

      On direct examination, Dr. Weissman testified as follows relevant to

the issue of antibiotic treatment.

            [Counsel for Executor:]

            Q. All right. Doctor, in terms of the medicines
            available to treat, there was testimony yesterday
            that [Decedent] came in with an oral medication for
            Flagyl and then on the 27th was changed to I.V.
            introduction of Flagyl. Can you comment on that
            change?

            [Dr. Weissman:]

            A. The reason – that – there was nothing wrong
            with that.     I mean, that’s sometimes done in
            situations where you are concerned that the
            medication orally isn’t being delivered where you
            want it to be delivered.

            Q. All right. Let’s talk about the introduction of
            Vancomycin that occurred, I believe, on the 28th.
            Could you discuss the issues relating to that?

            A. Yes. Again, I – that was perfectly reasonable to
            do that. You know, the problem that I mentioned
            about wondering whether it was going to get where

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            you needed it to go – but at that point, where clearly
            [Decedent] was getting sicker, … that was an
            appropriate addition to try -- the thing about
            Vancomycin orally is it’s not absorbed, and it just
            basically, as it makes its way down, it – you know, --
            there’s a high concentration of the drug in the
            intestinal -- in the inside of the intestine, which is
            where you want it to be. So at this point … that was
            an appropriate addition.

N.T., 9/12/13, at 273-274.       On cross-examination, Dr. Weissman again

opined the intravenous antibiotic treatment on April 27, 2004 was a

reasonable initial course of treatment.      See id. at 310.    Counsel for Dr.

Decker then inquired as to the addition of Vancomycin on April 28, 2004.

            [Counsel for Dr. Decker:]

            Q. … [A]s soon as Dr. Decker saw the increased
            white blood count from 6:00 that morning – because
            he was in, he said somewhere between ten and
            noon, so he saw that laboratory data -- he
            immediately added Vancomycin by mouth. Did you
            see that?

            [Dr. Weissman:]

            A. As I stated earlier, he did that, and I thought that
            was appropriate.

Id. at 310-311.    The Majority concludes that these two opinions “were so

directly in conflict as to the standard of care as to effectively neutralize each

other.”   Majority Memorandum at 11.        I cannot agree.   There is no doubt

that both experts testified that the intravenous administration of Flagyl was

an appropriate course of treatment for Decedent on April 27, 2004.          See

N.T., 9/9/13, at 57; N.T., 9/12/13, at 273-274, 310-311. Dr. Lipsky opined


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that at that time, Vancomycin should also have been introduced as an oral

medication.     There was no absolute contradiction of that opinion by Dr.

Weissman opining that the addition of Vancomycin upon Dr. Decker’s

assessment of her condition on April 28, 2004 was fitting.            Dr. Weissman

was asked if the introduction of Vancomycin was appropriate based on

Decedent’s condition on April 28, 2004.           His opinion did not render Dr.

Lipsky’s opinion neutralized because he did not testify regarding whether the

Vancomycin should have been introduced earlier or opine that Vancomycin

was not a required or appropriate addition to Decedent’s medication regime

thus creating an absolute conflict as between the two expert opinions. He

merely opined that its introduction, based on her condition April 28, 2004,

was appropriate.      The instant issue is more akin to the expert opinions

rendered in Brodowski as discussed supra. Herein, the experts were not in

direct conflict because the testimony given by Dr. Weissman did not

contradict    Dr.   Lipsky’s   opinion   that   the   standard   of   care   required

introduction of oral Vancomycin at the same time as the introduction of

intravenous Flagyl. See Brodowski, supra.

      Accordingly, I cannot conclude there was an absolute contradiction of

the experts’ opinions on the administration of antibiotics or that the experts

so vitally disagreed on essential points as to neutralize each other’s opinion

evidence. See Brannan, supra. Therefore, I conclude the trial court erred

in granting nonsuit on this basis.


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      Next, the   Majority concludes Executor     failed to   establish   Drs.

Castellano and Decker breached the standard of care by not calling to check

on Decedent and ordering a surgical consult. Majority Memorandum at 12-

15.

      Dr. Lipsky testified that after the surgical consult performed at 8:30

a.m. on April 28, 2004, there should have been another consult.

           [Counsel for Executor:]

           Q.     [] Doctor, given the information provided
           regarding [Decedent]’s condition in terms of April
           28th of 2004, after the surgical consult was done in
           the early morning, and I believe it was 8:30 in the
           morning on the 28th, was there a period of time
           where any of the physicians, treating physicians,
           should have been brought back for a consult for
           surgery to evaluate [Decedent] after the 8:30 a.m.,
           April 28th time period?

           [Dr. Lipsky:]

           A. Yes. Clearly on the 28th, things had changed
           from the 27th, including as we mentioned before, the
           acidosis, which was now documented, and the
           marked elevation of the white blood cells, which was
           very disturbing.

                The clinical exam remained – remained fairly
           severe    with   diffused   abdominal   tenderness,
           abdominal distention. This already had persisted,
           probably for over 48 hours and not improved.

                 As I mentioned, the decrease in the quantity of
           the bowel movements would not have been
           reassuring to me. It might have [] disturbed me
           that something else might have been brewing that
           was more of an emergency.

                  The answer is yes.

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N.T., 9/9/13, at 52-53.    Dr. Lipsky did not render an opinion regarding

whether the standard of care required Drs. Castellano and Decker to check

on the status of Decedent after their respective assessments of her.

     Dr. Weissman also testified that a surgical consult should have been

conducted on Decedent.

           [Counsel for Executor:]

           Q. … Doctor, do you have an opinion within a
           reasonable degree of medical certainty if there were
           any deviations of the standard of care by Dr. Decker
           on April 28th, … ?

                                       …

           [Dr. Weissman:]

           A. My opinion is that on the -- [Decedent]’s clinical
           condition worsened on the 28th and – clinically and
           also on the basis of the laboratory data from that
           day.

           Q. Do you have an opinion within a reasonable
           amount of medical certainty if a surgical consult
           should have been done after 8:30 a.m. on April 28th?

           A. Based on the clinical and laboratory information,
           I think it would have been appropriate for the
           surgeon to be called back to reassess [Decedent].

N.T., 9/12/13, at 290-291. Dr. Weissman testified further that the deviation

from the standard of care caused harm or resulted in Decedent’s death and

also increased the risk of harm to Decedent. Id. at 291. He later testified

as to the obligation Drs. Castellano and Decker had to Decedent.

           [Counsel for Executor:]

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            Q. Doctor, … on [April] 28th, given [Decedent]’s
            condition, did [Drs. Decker and Castellano] in this
            case, should they have called back to check on her
            condition later in the day on the 28th?

            [Dr. Weissman:]

            A. In my opinion?

            Q. Yes.

            A. Yes.

N.T., 9/12/13, at 351. After this testimony, counsel for Dr. Castellano cross-

examined Dr. Weissman.     Dr. Weissman agreed nurses are the “eyes and

ears” of physicians, and “one type of standard of care” is for a nurse to

contact a physician regarding a patient who is experiencing a problem or a

change in condition.   Id. at 353.   Immediately thereafter, counsel for Dr.

Decker addressed the issue of calling back.

            [Counsel for Dr. Decker:]

            Q. Dr. Decker had no tests outstanding that he was
            going to call back to say, how did that test turn out
            that I ordered, did he?

            [Dr. Weissman:]

            A. There were no tests outstanding, but there was
            a patient outstanding.

Id. at 354-355 (emphasis added).

      Again, there is no doubt that both experts proffered opinions that the

standard of care was breached when a surgical consult was not conducted

following the initial consult at 8:30 a.m. on April 28, 2004.    Because Dr.


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Lipsky offered no testimony on this issue, the instant matter bears more

resemblance to the testimony of the single expert witness in Brannan.

Though on cross-examination, Dr. Weissman conceded doctors rely on other

hospital staff to alert them to a patient’s condition, his testimony, in its

entirety, was not, as the trial court found and the Majority concludes,

wholly inconsistent with his earlier testimony that the standard of care

required physicians to call the hospital nor was it “tantamount to no

standard of care testimony at all.”     Majority Memorandum at 16.       Dr.

Weissman testified Drs. Decker and Castellano should have called back to

check on Decedent.    The concession that “one type of standard of care”

permitted physicians to wait to be contacted by nursing staff before checking

on a patient was a minor divergence from the conclusion that the defendant

physicians in the instant case should have called back.       Moreover, Dr.

Weissman’s later testimony in response to counsel for Dr. Decker noting Dr.

Decker had no outstanding tests on Decedent, reaffirmed Dr. Weissman’s

earlier opinion that Decedent and her care were still outstanding, and the

defendant physicians should have called to check on her status. See N.T.,

9/12/13, at 355. Therefore, I conclude the minor divergence in the part of

Dr. Weissman’s testimony regarding the nursing staff notifying physicians,

when viewed against his testimony, as a whole, did not sufficiently

compromise his testimony on direct to justify the removal of the issue from

the jury’s consideration. See Brannan, supra.


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      Accordingly, based on the foregoing discussion, it is my view that the

two expert witnesses’ testimony did not present an absolute contradiction

nor did the experts so vitally disagree on essential points as to effectively

neutralize the other’s opinion.   See id; Brodowski, supra.       Because I

conclude the conflicts in the testimony of Drs. Lipsky and Weissman were

not absolute, I believe any minor conflicts in their testimony should have

been considered and resolved by the jury. See Brannan, supra. Likewise,

giving Executor the benefit of all the favorable evidence and reasonable

inferences derived therefrom, I conclude Executor has established a right to

relief rendering the grant of compulsory nonsuit an error of law.        See

Staiger, supra. Consequently, I would reverse the order of the trial court

and remand for a new trial. I respectfully dissent.




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