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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 OF                            PENNSYLVANIA
ANGELINE P. 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 Judgment Entered March 18, 2014
                In the Court of Common Pleas of Luzerne County
                      Civil Division at No(s): 4735 OF 2006


BEFORE: BOWES, MUNDY, and JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                       FILED FEBRUARY 05, 2015

       This is an appeal from the March 18, 2014 judgment entered in favor

of Thomas J. Castellano, M.D. and Gary Decker, M.D., in a wrongful death

and survival action commenced by John Matusek, Sr. (“Executor”), in his

capacity as the Executor of the Estate of Angeline P. Matusek (“Decedent”),

his late wife.1     Executor alleged that the negligence of various medical

____________________________________________


1
   Executor purported to appeal from the denial of the motion to remove
the nonsuit, which is an interlocutory order and generally not appealable.
The appeal properly lies from the final judgment. Executor timely complied
(Footnote Continued Next Page)
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professionals in their treatment of Decedent resulted in her death. 2 At the

conclusion of Executor’s case, the trial court entered a nonsuit, and declined

to remove it by order dated December 9, 2013.              After thorough review,

we affirm.

      On April 13, 2004, Decedent underwent total left knee replacement

surgery. As is standard prior to surgery, she was placed on the antibiotic

Clindamycin to prevent infection. After surgery, she participated in physical

therapy and was discharged on April 22, 2004. Three days later, she was

taken by ambulance to Berwick Hospital with complaints of severe diarrhea,

vomiting, chest discomfort, and dehydration.            Doctors there tentatively

diagnosed Clostridium Difficile, commonly known as C. Diff., and treated her

with Flagyl administered orally.          Thereafter, Decedent was transferred to

Geisinger Wyoming Valley Medical Center (“Geisinger” or “hospital”) for

treatment of both the C. Diff and chest discomfort, and she was placed

under the care of Dr. Bernardi, a cardiologist.           When the cardiologists

determined that her problems were not heart-related, and her condition

                       _______________________
(Footnote Continued)

with this Court’s order directing him to enter final judgment, and thus, we
have jurisdiction to entertain this appeal. See Staiger v. Holohan, 2014
PA Super 200 (Pa.Super. 2014).
2
     Mark Bernardi, D.O., Decedent’s admitting cardiologist, was excused
following the filing of an affidavit of non-involvement. James R. Bruno, M.D.
and John Rothschild, M.D., reached settlements with Executor prior to trial,
and Geisinger Wyoming Medical Center and Foundation were dismissed by
stipulation.



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continued to deteriorate, they brought in other consultants to address the C.

Diff.   Dr. Decker, a specialist in infectious disease and Dr. Malhotra, a

surgeon, were consulted.     Dr. James R. Bruno and his practice assumed

responsibility for Decedent’s medical management, and he requested a

gastroenterology consult from Dr. Castellano and a renal consult from

Dr. John Rothschild.

        Dr. Decker first examined Decedent on April 27, 2004. He continued

the Flagyl, but doubled the dosage and changed the order to IV

administration of the drug.     Nonetheless, blood test results on April 28

revealed that Decedent’s white blood cell count had risen substantially.

Decedent complained of abdominal pain and there were signs of acidosis and

systemic failure. Dr. Malhotra, the surgeon who saw her on the morning of

April 28th noted that she was stable at the moment, but asked to be re-

consulted if the patient deteriorated clinically.    Dr. Decker saw Decedent

within several hours of the surgeon and did not change her treatment.

Drs. Rothschild and Bruno changed her IV fluids and Dr. Rothschild noted

renal failure that could require dialysis. During the afternoon of April 28, the

Decedent’s condition deteriorated and she was transferred to the ICU.

        On the afternoon of April 29, the intensivist in the ICU sought a

surgical consult.   At that point, Decedent’s condition had worsened.       Her

abdomen was septic, her colon infarcted.            An emergency exploratory

laparotomy performed at 4:00 p.m. revealed peritonitis, toxic mega colon


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and overall scatted infarctions.         The surgeon removed the colon but she

continued to deteriorate. Ms. Matusek died at 10:56 p.m.

       At trial, Executor and the couple’s daughter testified. He also offered

via videotaped deposition the expert testimony of Dr. Harold Lipsky, a

physician    who    was    double     board-certified   in   internal   medicine   and

gastroenterology.       Dr. Lipsky opined that the failure of the defendant

physicians to recognize and address the signs of an acute abdomen in light

of Decedent’s severe C. Diff. and rapid deterioration on April 28 was a

deviation from the standard of care.             Deposition, Harold Lipsky, M.D.,

9/9/13, at 55. He testified that there was a window in the afternoon and

evening of April 28 when, had Decedent undergone surgery, she would have

had a chance to survive.          He criticized the defendants’ failure to obtain

another surgical consult during that window. He also opined that Decedent

should have been started earlier on oral Vancomycin, and that the failure to

do so increased the risk of harm and death.

       Dr. Edward Weissman,3 board-certified in internal medicine, testified

contrary to Dr. Lipsky that it was not a violation of the standard of care to

wait until April 28 to start Vancomycin and that the medication regimen was

appropriate.     He also noted that Decedent was stable at 10:00 a.m. that

morning when she was examined by Dr. Decker. Dr. Castellano’s partner,
____________________________________________


3
  Dr. Weissman’s name is spelled both Weismann and Weissman throughout
the record.



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Dr. Fried, also saw Decedent that morning, and the expert opined that these

physicians acted within the standard of care at that time. The expert added,

“Things changed later in the day.”     N.T. Trial, 9/10-13/13, at 333.           He

agreed with Dr. Lipsky that a surgical reassessment should have been

ordered during the afternoon of April 28, and that this deviation from the

standard of care increased the risk of harm.

      The   defendant   physicians   were   called   to   testify   as   on   cross-

examination.      Dr. Castellano confirmed that his partner, Dr. Fried,

supervised the Decedent’s care on April 28, 2004. Dr. Decker testified that

he did not see Decedent later on April 28, and that nurses did not notify him

of her decline.

      At the close of Plaintiff’s case, the defense moved for a nonsuit, which

the trial court granted.   The court relied in large part upon Mudano v.

Philadelphia Rapid Transit Co., 137 A. 104 (Pa. 1927) and Brodowski v.

Ryave, 885 A.2d 1045 (Pa.Super. 2005), in holding that the absolute

conflict between the testimony of Plaintiff’s two experts warranted a nonsuit.

The court also found that Executor had failed to prove that the standard of

care required defendant physicians to call the hospital to ascertain

Decedent’s declining condition and order the surgical consult.

      On September 20, 2013, Executor filed a motion to remove the

nonsuit and, in the alternative, a motion for new trial.      The motions were




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denied on December 9, 2013, and Executor timely appealed. He raises one

issue for our review:

      I.    Did the court abuse its discretion by relying on the holding
            in Mudano (Mudano v. Philadelphia Rapid Transit Co.,
            289 Pa. 51, 137 A. 104 (1927)) as the sole basis for
            entering a compulsory non-suit where there [sic] Plaintiff
            has presented two experts that have testified to
            Defendants’ breach of the standard of care?

Appellant’s brief at 4.

      In reviewing the denial of a motion to remove a nonsuit,

            Our standard of review . . . is well-established.
            Nonsuit is properly entered where it is clear that the
            plaintiff has not established a cause of action or right
            to relief. Pa.R.C.P. 230.1. In determining whether
            the plaintiff has established a right to relief, [t]he
            plaintiff must be allowed the benefit of all favorable
            evidence      and    reasonable    inferences    arising
            therefrom, and any conflicts in the evidence must be
            resolved in favor of the plaintiff. Further, [i]t has
            been long settled that a compulsory nonsuit can only
            be granted in cases where it is clear that a cause of
            action has not been established. However[,] where
            it is clear a cause of action has not been established,
            a compulsory nonsuit is proper. We must, therefore,
            review the evidence to determine whether the order
            entering judgment of compulsory nonsuit was
            proper.

      Braun v. Target Corp., 2009 PA Super 206, 983 A.2d 752, 764
      (Pa. Super. 2009). "This Court will reverse an order denying a
      motion to remove a nonsuit only if the court abused its
      discretion or made an error of law." Brinich v. Jencka, 2000
      PA Super 209, 757 A.2d 388, 402 (Pa. Super. 2000).

Staiger v. Holohan, 2014 PA Super 200.

      Executor contends that the trial court erred in relying upon Mudano

and Brodowski as the basis for granting the nonsuit.          He disputes that

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there was a direct irreconcilable conflict between the testimony of his

experts Dr. Lipsky and Dr. Weissman and characterizes any inconsistencies

in their standard of care testimony as “minor.” Appellant’s brief at 21. In

finding the expert testimony to be in direct conflict, Executor alleges that the

trial court failed to view the evidence in the light most favorable to Executor.

Moreover, he maintains that the Mudano rule was modified in Brannan v.

Lankenau Hospital, 417 A.2d 196 (Pa. 1980), to allow juries to resolve

conflicts in expert testimony. See Gorfti v. Montgomery, 558 A.2d 109,

111 (Pa.Super. 1989) (recognizing modification of Mudano in Brannan, and

characterizing the expert testimony in the latter as “suffer[ing] from minor

internal inconsistencies rather than absolute divergences as to liability”).

      Defendant physicians counter that the testimony of the two experts

was irreconcilable regarding the timing of the administration of oral

Vancomycin.    Dr. Lipsky’s only criticism of the drug regimen was that he

would have started Decedent on oral Vancomycin at the same time as he

switched the patient to IV Flagyl, i.e., on April 27.    Dr. Weissman opined

that it was appropriate to add oral Vancomycin on April 28 and that both

changes were “reasonable” and “within the standard of care.”         N.T. Trial,

9/10-13/13, at 309-10. Defendant physicians maintain that the trial court

was correct in applying Mudano and entering a compulsory nonsuit on the

Vancomycin issue.




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     In Mudano, supra, our Supreme Court addressed the situation where

a party’s experts present testimony that is in direct conflict regarding a

fundamental issue such as breach of the standard of care or causation. The

Court reasoned that

     If plaintiff calls more than one expert, there must be no absolute
     contradiction in their essential conclusions; for, since he,
     carrying the burden of proof, is asking that a certain definite
     scientific inference shall be drawn from given facts, and is
     producing witnesses, accredited by him as specially qualified to
     draw deductions from such facts, to inform the jury, on his
     behalf, as to what that inference should be, it is his duty to
     furnish consistent, and not inconsistent, advice, -- otherwise the
     jury would be confused rather than instructed. Lacking scientific
     knowledge themselves, the members of the jury, in a case like
     the present, when called upon to determine whether a particular
     physical condition is the result of the accident (or of another
     cause, unrelated thereto), are not obliged to choose between
     contradictory advice tendered by plaintiff's medical experts; the
     law imposes no such duty on jurors, -- though it does at times
     require them to determine whether to accept the advice of
     experts on one side or the other of a case.

Mudano, supra at 107.

     In Brannan, supra, the trial court refused to strike a nonsuit that it

granted in favor of two physicians based upon the rule in Mudano. Plaintiff

had four distinct theories of negligence against Dr. Rex, one of which

included failing to timely diagnose and treat the plaintiff’s punctured

esophagus. As to Dr. West, plaintiff alleged that he was negligent in failing

to administer antibiotics earlier. The plaintiff offered the testimony of one

expert witness.   The trial court, citing Mudano, entered a nonsuit at the

close of the plaintiff’s case regarding the negligent administration of


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antibiotics based on its determination that the expert “gave contradictory

statements with regard to” the defendant physicians’ negligence.                  In

addition, the court found that the expert’s testimony made it clear that the

defendants “acted consistently with a respected body of medical thought.”

Id. at 199.

      This Court affirmed, and the Supreme Court reversed. The High Court

found that the expert offered competent testimony establishing that the

physicians did not administer antibiotics at the earliest opportunity.           The

expert   testified   that   the   recognized   standard   of   care   required   the

administration of antibiotics immediately upon suspicion of a perforated

esophagus and that both defendants were negligent in failing to administer

drugs when perforation was first suspected.        The Supreme Court rejected

this Court’s view that the expert had equivocated so much on cross-

examination as to render his opinion conjecture, and concluded that the

expert’s “relatively minor divergence” had not “sufficiently compromised” the

expert’s direct testimony “to justify removal of this issue from jury

consideration.” Id. at 200. In so holding, the Court limited application of

Mudano to the situation where the plaintiff's experts “so vitally disagree on

essential points as to neutralize each other's opinion evidence.” Id.

      We found such a situation in Brodowski v. Ryave, 885 A.2d 1045,

1060 (Pa.Super. 2005). Recognizing that a plaintiff in a medical malpractice

case must present expert testimony to establish the applicable standard of


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care, its deviation, causation, and the extent of the injury, we found that the

experts were “in irreconcilable conflict” regarding the standard of care

applicable to one of the defendant physicians, Dr. Varganos. See Toogood

v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140, 1145 (Pa. 2003).

Dr. Varganos was a cardiologist who consulted in the emergency room, who

identified a life–threatening illness, and who had privileges to admit patients.

Plaintiff’s first expert opined that Dr. Varganos should have admitted the

plaintiff on his own service with a neurology consult and initiated heparin

therapy or consulted neurology from the emergency room. According to the

first expert, it was not enough to merely recommend to the treating

physician that a neurologist be consulted. Plaintiff’s second expert felt it was

appropriate for the plaintiff to have been seen by a neurologist, but

maintained that it was the admitting physician’s duty to obtain that

consultation.   We found these opinions regarding whose duty it was to

obtain the neurology consultation to be in absolute conflict regarding the

essential issue of the standard of care applicable to Dr. Varganos. Since the

conflicting opinions would lead to jury speculation, the very ill the Mudano

rule was designed to prevent, we found that the trial court correctly

removed this issue from the jury consideration.

      We find no abuse of discretion in the application of Mudano on the

issue of the timing of the administration of Vancomycin. Dr. Lipsky testified

on direct examination that the standard of care required that the drug be


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initiated on April 27; Dr. Weissman opined that its administration on April 28

was appropriate. Thus, according to one of plaintiff’s experts, the defendant

physicians deviated from the standard of care; according to the other, they

met the standard of care. We agree with the trial court that these experts

were so directly in conflict as to the standard of care as to effectively

neutralize each other. Nonsuit on this theory was appropriate.

      Executor’s second theory of liability was that the defendant physicians

were negligent in failing to obtain another surgery consult during the

afternoon or evening of April 28. Both Dr. Lipsky and Dr. Weissman agreed

that a surgical consult was indicated at that time, and thus, the experts’

testimony does not present the type of direct conflict contemplated by

Mudano.    Dr. Castellano argues, however, that since he did not treat the

Decedent on April 28, 2004, and the Executor’s experts did not establish

that the standard of care required him to call and check on Decedent that

day, the facts and evidence adduced do not support a finding that he

breached the standard of care. Dr. Decker advances a similar argument. He

acknowledges that Dr. Weissman initially testified that his failure to call the

hospital and check on Decedent was a breach of the standard of care.

However, he points to Dr. Weissman’s subsequent testimony that, by relying

upon nurses to notify him if the patient declined, Dr. Decker was acting

within the standard of care.       He posits that Mudano precludes the




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submission of this contradictory standard of care testimony to the jury. For

the following reasons, we agree.

      Assuming that the Decedent’s condition deteriorated during the

afternoon and evening of April 28, and that another surgical consult was

indicated during that timeframe, Executor does not establish a breach of the

standard of care on the part of these two specific doctors. Dr. Decker saw

Decedent in the morning of April 28, shortly after the second surgery

consultation. Executor’s experts agreed that the Decedent was stable that

morning, and that it was not a deviation from the standard of care not to

perform surgery at that time despite the fact that her white blood count had

risen substantially.   It was undisputed that Decedent’s condition had not

deteriorated between the surgical consult and Dr. Decker’s visit shortly

thereafter. Both experts agreed that Dr. Decker did not breach the standard

of care when he did not order another surgical consult at that time.

Dr. Decker did not see Decedent during the remainder of that day. He did

not call the hospital, as no test results were outstanding, and there was no

note in the chart reflecting that the nursing staff contacted him regarding

Decedent.

      Dr. Castellano testified that the initial consult came to his practice

group. Since he was the physician assigned to Geisinger on April 27, 2004,

the Decedent was his patient the first day. He and his partner, Dr. Fried,

would alternate days at Geisinger.     Dr. Castellano treated Decedent on


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April 27 and 29, 2004; Dr. Fried saw Decedent on the morning of April 28,

2004. It was undisputed that Dr. Castellano did not see the patient during

the pertinent window of time. Furthermore, the records do not reflect that

the nursing staff contacted either Dr. Castellano or Dr. Fried during the

afternoon or evening of April 28.4

       Dr. Lipsky did not offer any basis for holding these two physicians

responsible, neither of whom saw the patient during the relevant time, for

failing to recognize and address the signs of an acute abdomen and rapid

deterioration. Dr. Lipsky offered no opinion suggesting that it was a breach

of the standard of care for Defendant physicians not to contact the hospital

regarding Decedent.        Thus, there was no testimony from Dr. Lipsky that

Drs. Decker or Castellano knew or should have known of the Decedent’s

deteriorating condition. See, e.g., Whittington v. Episcopal Hosp., 768

A.2d 1144, 1154 (Pa.Super. 2001) (finding hospital had constructive notice

of patient’s adverse condition when its nurses should have known but failed

to act).

       Dr. Weissman conceded that there was nothing in the chart indicating

that the hospital called Dr. Decker after he saw Decedent that morning with

any additional information on her condition. N.T. Trial, 9/10-13/13, at 331-

____________________________________________


4
   Evidence was adduced that Decedent’s daughter called the practice that
day and that Dr. Fried was informed that she called. Neither Dr. Fried nor
the medical practice were defendants in the lawsuit.



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32.   The expert acknowledged that Dr. Rothschild was actively ordering

blood cultures and gases, basic metabolic profile, and bicarbonate and

managing Decedent’s renal function during that time.      He agreed that the

records reflected that a physician from the cardiology service was involved in

Decedent’s care and ordered her to be transferred to the ICU that afternoon.

Yet, Dr. Weissman opined that Drs. Decker and Castellano should have

called the hospital to check on Decedent’s condition, and that failure to do so

constituted a deviation from the standard of care. Id. at 351.

      Had Dr. Weissman steadfastly maintained this position, nonsuit on the

issue of failure to obtain a surgical consult would not have been proper.

However, on cross-examination, Dr. Weissman conceded that the standard

of care did not require a doctor to be at the hospital twenty-four hours per

day, seven days per week. Id. at 352. More importantly, he agreed that

doctors with a patient in the hospital had a right to rely upon nurses to

monitor a patient’s condition and notify the physician if there was a change.

Id. at 353. In fact, Dr. Weissman agreed that it was the standard of care

for nurses to act as the eyes and ears of the physician round the clock, and

pick up the telephone and notify the physician of any significant change in

the patient’s condition. Id. The trial court viewed such testimony as wholly

inconsistent with his earlier testimony that the standard of care required the

physicians to call the hospital.




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       The problem with Executor’s proof was that the expert testimony,

together with the other evidence of record, viewed in the light most

favorable to Executor, failed to make out a prima facie case of negligence

against these two physicians.           It was undisputed that they did not see

Decedent during the relevant time. There was no evidence that they knew

or were apprised of Decedent’s decline. Any assertion of negligence hinged

on evidence that they should have known and responded accordingly.5

Dr. Lipsky did not address this issue. Dr. Weissman attempted to cure this

deficiency when he opined that Drs. Decker and Castellano should have

called into the hospital to check on Decedent during the afternoon of

April 28.   However, he retreated from that position on cross-examination,

and agreed that the standard of care was for nurses to notify doctors if the

patient’s condition deteriorated. Since neither physician was contacted, the

court found that Dr. Weissman’s inconsistent testimony left the jury with

“nothing but conjecture to guide them as to whether or not these particular




____________________________________________


5
   In addition to Dr. Weissman’s conflicting testimony regarding a duty to
contact the hospital, there was testimony from Dr. Lipsky that as a
consultant, he would generally go through the medical management if he felt
a patient needed a surgical consult. The record reveals that it was the
house intensivist in the ICU who ultimately consulted surgery on the
morning of April 29, 2004.




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Defendants6 violated the standard of care when they did not re-consult

surgery on April 28.” Trial Court Opinion, 3/18/14, at 16.

       We agree with the trial court that plaintiff did not introduce sufficient

evidence to establish the necessary elements to maintain this cause of

action for negligence. In a malpractice action, a plaintiff must demonstrate

that the defendant’s act or omission was an “unwarranted departure from

generally accepted standards of medical practice resulting in injury to a

patient[.]”     Toogood, supra at 1145.            Dr. Weissman’s contradictory

testimony regarding whether the onus was on the physician to call in, or on

the hospital to notify the physician, was woefully inadequate in defining the

generally accepted practice.         It was tantamount to no standard of care

testimony at all. Thus, Executor did not carry its burden of establishing the

minimum necessary to survive a nonsuit. Brodowski, supra.

       Judgment affirmed.

       Judge Jenkins Joins the Memorandum.

       Judge Mundy files a Dissenting Memorandum.
____________________________________________


6
   The trial court noted that the expert reports spoke in terms of multiple
departures from the standard of care by several medical consultants and
attending physicians, and were not tailored to the conduct of Drs. Castellano
and Decker specifically.      The trial court attributed “the confused and
conflicting testimony offered at trial” by Dr. Weissman to that lack of
specificity. Trial Court Opinion, 3/18/14, at 17 n.5. Dr. Lipsky’s videotaped
deposition was taken for use at trial while other physicians remained as
defendants in the case. The timing explains why many of his opinions were
expressed in terms of deviations by physicians generally, not Drs. Castellano
and Decker specifically.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/2015




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