J-A25012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

R. BRIAN SHOBER, INDIVIDUALLY AND                 IN THE SUPERIOR COURT
AS EXECUTOR OF THE ESTATE OF                         OF PENNSYLVANIA
ROSALEE MARIE SHOBER, DECEASED

                         Appellant

                    v.

ST. JOSEPH MEDICAL CENTER; ST.
JOSEPH REGIONAL HEALTH NETWORK;
CAROL A. GREENBERG, EXECUTRIX OF
THE ESTATE OF ROBERT GREENBERG,
M.D.; MOHAMED F. SOUMAKIEH, M.D.;
BORNEMANN HEALTH CORPORATION
A/K/A BORNEMANN SURGERY
ASSOCIATES, A/K/A BORNEMANN
ANESTHESIA

                         Appellees                   No. 1887 MDA 2018


           Appeal from the Judgments Entered October 26, 2018
              In the Court of Common Pleas of Berks County
                      Civil Division at No: 10-11010


BEFORE: STABILE, McLAUGHLIN, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                  FILED: APRIL 27, 2020

      Appellant, R. Brian Shober, individually and as executor of the estate of

Rosalee Marie Shober (Decedent), appeals from the judgments entered on

October 26, 2018 in the Court of Common Pleas of Berks County following a

jury verdict in favor of Appellee, Robert N. Greenberg, M.D. (Dr. Greenberg),

and directed verdicts entered in favor of Appellees, St. Joseph Medical Center

(the Hospital), St. Joseph Regional Health Network, Mohamed F. Soumakieh,

M.D. (Dr. Soumakieh), and Bornemann Health Corporation a/k/a Bornemann
J-A25012-19


Anesthesia (Bornemann). Appellant asserts trial court error for precluding a

general surgeon from offering expert testimony against Dr. Soumakieh, an

anesthesiologist; for refusing to deliver a “captain of the ship” jury instruction;

and for precluding an anesthesia expert from testimony regarding the

negligence of a “code team.” Following review, we affirm in part, reverse in

part, and remand.

      The trial court summarized the underlying facts as follows:

      On June 28, 2008, [Decedent] presented at the emergency room
      of [the Hospital], complaining of increasing abdominal pain over a
      period of several weeks. A CT of her abdomen revealed an intra-
      abdominal mass with retroperitoneal lymph nodes. Decedent was
      subsequently diagnosed with non-Hodgkin’s lymphoma.           Her
      oncologist recommended that Decedent begin chemotherapy the
      following week. [Dr. Greenberg, a general surgeon,] was to
      implant an intravenous catheter under Decedent’s skin into a
      central vein in the chest for the delivery of chemotherapy. Dr.
      Greenberg explained the potential risks and complications of the
      procedure, including pneumothorax, laceration of the vessel, and
      cardiac tamponade to Decedent.

      Dr. Greenberg performed the medical procedure on July 3, 2008.
      In his first approach, Dr. Greenberg encountered difficulty
      advancing the guidewire in the right subclavian vein, and
      Decedent experienced an episode of ventricular ectopy. Dr.
      Greenberg withdrew the wire. After the problem resolved, Dr.
      Greenberg resumed the operation and placed the wire without
      further problems via the right jugular vein. He finished the
      operation and left the operating room.

      While removing the surgical drapes, a nurse noticed that
      Decedent’s eyes were not dilating properly. She called [Dr.
      Soumakieh], the anesthesiologist, who returned to the operating
      room. Dr. Soumakieh evaluated Decedent. Dr. Greenberg was
      called back to the operating room. A cardiothoracic surgeon
      performed a transesophageal echocardiogram and identified a
      pericardial tamponade, a compression of the heart caused by fluid
      collecting in the surrounding sac. The surgeon performed a

                                       -2-
J-A25012-19


       pericardial window, draining fluid around the heart. Decedent was
       transferred to the intensive care unit. Decedent never regained
       consciousness and died on July 9, 2008. The final cause of death
       was certified as respiratory failure due to anoxic brain injury.

       [Appellant] filed medical malpractice claims naming [the]
       Hospital, Dr. Greenberg, Dr. Soumakieh, and Bornemann Health
       Corporation as defendants.      [Appellant] contended that Dr.
       Greenberg pierced Decedent’s heart with the wire used to place a
       central venous catheter, causing a cardiac tamponade and
       eventually causing cardiac arrest. After [] Dr. Greenberg’s death,
       his wife, Carol A. Greenberg, as the Executrix of his estate, was
       substituted as defendant. [Appellant] alleged that Dr. Soumakieh,
       the anesthesiologist, failed to timely diagnose the cardiac
       tamponade.

       This case proceeded to a jury trial on June 11, 2018. After
       [Appellant] rested, all [Appellees] requested directed verdicts.
       [The] court granted the corporate [Appellees’] motions for
       directed verdicts on the agency claims and the direct negligence
       claims and Dr. Soumakieh’s motion for a directed verdict. [The]
       court denied [] Dr. Greenberg’s motion for a directed verdict. On
       June 15, 2018, the jury found that Dr. Greenberg was not
       negligent.

Trial Court Opinion, 2/4/19, at 2-3.

       Appellant filed post-trial motions seeking a new trial. Following entry of

judgments in favor of Appellees, Appellant filed this timely appeal.        Both

Appellant and the trial court complied with Pa.R.A.P. 1925.1

       Appellant presents six issues for our consideration.2



____________________________________________


1 We remind Appellant’s counsel that a copy of the Rule 1925(b) statement is
to be appended to an appellant’s brief. Pa.R.A.P. 2111(a)(11) and (d).

2 As phrased in his brief, each issue is preceded by a statement offering
context to the question presented. We include only the question in our
recitation of the issues.

                                           -3-
J-A25012-19


      1. [D]id the trial judge abuse its discretion in precluding Dr.
         Hornyak from offering expert testimony against [Dr.
         Soumakieh] for his separate and independent negligence in
         failing to timely diagnose and treat [Decedent’s] intra-
         operative cardiac tamponade?

      2. [D]id the trial judge abuse its discretion when disallowing
         [Appellant’s] surgery expert from testifying to [Dr.
         Soumakieh’s] intra-operative failures to timely diagnose and
         treat [Decedent’s] cardiac tamponade by claiming that it would
         be duplicative, cumulative, repetitive testimony to that of
         [Appellant’s] anesthesiologist expert, Dr. Weingarten, who did
         not opine on any intra-operative failures of either [Dr.
         Greenberg] or [Dr. Soumakieh]?

      3. [D]id the trial judge commit reversible error in not giving
         [Appellant’s] requested PaSSJI #1460 “Captain of the Ship”
         charge?

      4. [D]id the trial judge abuse his discretion and/or commit error
         law in charging the jury with PaSSJI #1460 “Captain of the
         Ship” charge in response to the jury’s questions [whether Dr.
         Greenberg was personally responsible “for negligence of his
         team members”]?

      5. [D]id the trial court commit reversible error or otherwise abuse
         its discretion in disallowing Dr. Weingarten’s testimony as to [a
         15-minute delay in initiating “basic life support” or failure to
         have a “code cart” readily available in or near the operating
         room]?

      6. [D]id the trial court commit reversible error in disallowing Dr.
         Weingarten’s proposed testimony as to negligence and
         causation as addressed in his pre-trial expert reports?

Appellant’s Brief at 6-9 (emphasis in original; footnote and some capitalization

omitted).

      In his first two issues, Appellant asserts that the trial court erred by

refusing to allow Dr. Hornyak, a board-certified general surgeon, to testify

regarding the standard of care of Dr. Soumakieh, a board-certified

                                     -4-
J-A25012-19


anesthesiologist.      Dr. Hornyak was subjected to voir dire regarding his

qualifications as a surgeon and offered testimony critical of Dr. Greenberg,

also a board-certified general surgeon.          However, he was prevented from

offering testimony against Dr. Soumakieh by virtue of a pre-trial order

granting Dr. Soumakieh’s motion in limine to preclude that testimony.

        “The law is well settled that decisions regarding admission of expert

testimony, like other evidentiary decisions, are within the sound discretion of

the trial court. We may reverse only if we find an abuse of discretion.” Renna

v. Schadt, 64 A.3d 658, 664 (Pa. Super. 2013) (citations omitted).

        Appellant contends that Dr. Hornyak was qualified to offer expert

medical testimony against Dr. Soumakieh under the MCARE Act.3 Subsection

512 of the MCARE Act provides:

        (a) GENERAL RULE.—No person shall be competent to offer an
        expert medical opinion in a medical professional liability action
        against a physician unless that person possesses sufficient
        education, training, knowledge and experience to provide
        credible, competent testimony and fulfills the additional
        qualifications set forth in this section as applicable.

        (b) MEDICAL TESTIMONY.—An expert testifying on a medical
        matter, including the standard of care, risks and alternatives,
        causation and the nature and extent of the injury, must meet the
        following qualifications:

           (1) Possess an unrestricted physician’s license to practice
           medicine in any state or the District of Columbia.

           (2) Be engaged in or retired within the previous five years
           from active clinical practice or teaching.
____________________________________________


3   Medical Care Availability and Reduction of Error Act, 40 P.S. § 1303.

                                           -5-
J-A25012-19



     Provided, however, the court may waive the requirements of this
     subsection for an expert on a matter other than the standard of
     care if the court determines that the expert is otherwise
     competent to testify about medical or scientific issues by virtue of
     education, training or experience.

     (c) STANDARD OF CARE.—In addition to the requirements set
     forth in subsections (a) and (b), an expert testifying as to a
     physician's standard of care also must meet the following
     qualifications:

        (1) Be substantially familiar with the applicable standard of
        care for the specific care at issue as of the time of the
        alleged breach of the standard of care.

        (2) Practice in the same subspecialty as the defendant
        physician or in a subspecialty which has a substantially
        similar standard of care for the specific care at issue, except
        as provided in subsection (d) or (e).

        (3) In the event the defendant physician is certified by an
        approved board, be board certified by the same or a similar
        approved board, except as provided in subsection (e).

     (d) CARE OUTSIDE SPECIALTY.—A court may waive the same
     subspecialty requirement for an expert testifying on the standard
     of care for the diagnosis or treatment of a condition if the court
     determines that:

        (1) the expert is trained in the diagnosis or treatment of the
        condition, as applicable; and

        (2) the defendant physician provided care for that condition
        and such care was not within the physician’s specialty or
        competence.

     (e) OTHERWISE ADEQUATE TRAINING, EXPERIENCE AND
     KNOWLEDGE.—A court may waive the same specialty and
     board certification requirements for an expert testifying as
     to a standard of care if the court determines that the expert
     possesses sufficient training, experience and knowledge to
     provide the testimony as a result of active involvement in
     or full-time teaching of medicine in the applicable

                                     -6-
J-A25012-19


      subspecialty or a related field of medicine within the
      previous five-year time period.

40 P.S. § 1301.512 (emphasis added).

      At trial, Appellant’s counsel conducted voir dire of Dr. Hornyak, and Dr.

Greenberg’s   counsel   conducted    cross-examination    on   Dr.   Hornyak’s

qualifications. The trial court accepted Dr. Hornyak as an expert qualified to

testify as to the standard of care owed to Decedent by her surgeon, Dr.

Greenberg. However, as noted above, Appellant’s counsel was precluded from

conducting voir dire of Dr. Hornyak to ascertain whether Dr. Hornyak

possessed adequate training, experience, or knowledge to provide expert

testimony regarding the standard of care owed by an anesthesiologist under

Subsection 512(e). Again, Subsection 512(e) permits a trial court to waive

the same specialty and board certification requirements for a standard of care

expert “if the court determines that the expert possesses sufficient training,

experience and knowledge to provide the testimony as a result of his full-time

involvement in a related field of medicine.”        Renna, 64 A.3d at 666

(emphasis supplied). As this Court noted in Renna, the trial court properly

concluded the proffered experts were qualified to testify based on the

statutory language as well as our Supreme Court’s decision in Vicari v.

Spiegel, 989 A.2d 1277 (Pa. 2010), which interpreted that statutory

language.

      As the Renna Court explained:




                                     -7-
J-A25012-19


     In Vicari, the Court construed the subsection 512(e) exception as
     a waiver of the same board and same specialty requirements
     where the physician had sufficient training, experience, and
     knowledge in a related field of medicine. Expressly adopting
     Justice Saylor’s Opinion Announcing the Judgment of the Court in
     [Gbur v. Golio, 963 A.2d 443 (Pa. 2009)], the Vicari Court held
     that

        it “must mean more than fields of medicine which are
        ‘related’ in the most generic sense of the word, since Section
        512(e) serves as a component of reform legislation designed
        to meaningfully enhance the standards governing the
        admissibility of expert testimony in medical professional
        liability cases.” Gbur, supra at 459 (Opinion Announcing
        the Judgment of the Court). Justice Saylor continued his
        interpretation as follows: “[T]he statute should be read to
        require a close enough relation between the overall training,
        experience, and practices of the expert and that of the
        defendant-physician to assure the witness’s expertise would
        necessarily extend to standards of care pertaining in the
        defendant-physician’s field.” Id.

     Id. at 1283–84. The Court went on to

        further explicitly hold that the “relatedness” of one field of
        medicine to another for purposes of subsection 512(e)
        cannot be established in a broad and general sense that will
        henceforth be applicable to all situations and all claims.
        Rather, the “relatedness” of one field of medicine to
        another, under subsection 512(e), can only be
        assessed with regard to the specific care at issue.

     Id. at 1284 (emphasis supplied).

Renna, 64 A.3d at 666. The Court explained:

     Recognizing that fields of medicine may be related with respect to
     specific issues of care, and wholly unrelated with respect to
     others, the Court acknowledged that a relatedness
     determination would likely require “a supporting
     evidentiary record and questioning of the proffered expert
     during voir dire.” Id.




                                    -8-
J-A25012-19


Id. (quoting Vicari, 989 A.2d at 1284) (emphasis added).4

       At argument on Dr. Soumakieh’s motion in limine, Appellant’s counsel

explained:

       Dr. Hornyak is a surgeon. He performed in the operating room all
       the time, too, and as [Dr.] Soumakieh pointed out, when you’re
       in the operating setting, you work as a team. . . . [Dr. Hornyak]
       knows what the standard of care of the anesthesiologist is because
       they share the same standard of care when it comes to managing
       complications that occur during that operation.

       For the record, I would like to present my request, I would phrase
       as this, [Appellant has] provided the record of expert Stephen
       Hornyak, M.D., his surgical specialty shares a substantially similar
       standard of care with anesthetists in the co[-]treatment of surgical
       patients suffering complications in surgery which require the co[-
       ]treatment of the surgeon and the anesthesiologist working in
       tandem to successfully address the surgical complications. He
       possesses sufficient training and experience and knowledge in
       anesthesiology with regard to inter role operation, how to address
       it on that specific standard of care.

Notes of Testimony, Hearing, Dr. Soumakieh’s Motion in Limine, 5/24/18, at

3-4.

       Appellant’s     counsel      explained    that   his    designated   expert

anesthesiologist, Dr. Weingarten, would not be                providing duplicative

testimony regarding intra-operative events.             Rather, Dr. Weingarten’s


____________________________________________


4 Appellant cites a number of cases in which this Court has permitted an expert
board certified in one specialty to testify against a defendant who is board
certified in a different specialty or subspecialty. Appellant’s Brief at 29-32. In
Vicari, the Supreme Court noted that this Court “has addressed the
qualifications required of a medical expert to testify as to standard of care,
pursuant on Section 512, on several occasions.” Vicari, 989 A.2d at 1282 n.
8. We observe that Appellant’s case summaries are essentially lifted verbatim
from that footnote.

                                           -9-
J-A25012-19


testimony would be limited to issues regarding documentation errors and the

availability of a code cart in the operating room once the code was called. Id.

at 5-7.   Nevertheless, the trial granted the motion in limine, thereby

“precluding [the] unqualified opinions of Dr. Hornyak.      Dr. Hornyak is a

general surgeon, not a board certified anesthesiologist, so he’s not qualified

is the argument. [Appellant] has their own expert, Dr. Weingarten.” Id. at

10.

      In its Rule 1925(a) opinion, the court explained that “the only

relationship between the [specialties of anesthesiologist and surgery] was that

an anesthesiologist is needed for a surgeon to operate.” Trial Court Opinion,

2/4/19, at 11.    However, the court reached that conclusion without (1)

assessing how anesthesiology and surgery might be related in terms of the

specific issues of care encountered in addressing the complications that arose

during and after Decedent’s surgery, or (2) a supporting record established

through questioning of Dr. Hornyak during voir dire, in accordance with the

above-quoted excerpt from Vicari, 989 A.2d at 1284, and endorsed by this

Court in Renna, 64 A3d at 666.        Without the opportunity to qualify Dr.

Hornyak and, as a consequence, without the ability to present any expert

testimony against Dr. Soumakieh with regard to events occurring before

recognizing that Decedent had coded, Appellant was prejudiced in the

presentation of his case, as evidenced by the fact the trial court granted Dr.

Soumakieh’s motion for a directed verdict. Therefore, we conclude that the


                                    - 10 -
J-A25012-19


trial court abused its discretion by granting the motion in limine and the

directed verdict in favor of Dr. Soumakieh must be reversed. See Fethorolf

v. Torosian, 759 A.2d 391, 393 (Pa. Super. 2000) (we may reverse grant of

a directed verdict if the trial court abused its discretion or committed error of

law controlling the outcome of the case). Further, in light of the admitted

existence of an employer/employee relationship between Bornemann and Dr.

Soumakieh,5 the directed verdict against Bornemann on agency claims must

also be reversed.

       A new trial is required on Appellant’s claims against Dr. Soumakieh at

which time Appellant will be afforded the opportunity to conduct voir dire, with

cross-examination as appropriate, at the conclusion of which the trial court

shall determine whether Dr. Hornyak is qualified to offer expert testimony

against Dr. Soumakieh under Subsection 512(e) of the MCARE Act.

       Appellant’s third and fourth issues challenge the trial court’s refusal to

deliver a “captain of the ship” jury instruction with regard to Dr. Greenberg.

“Our standard of review regarding jury instructions is limited to determining

whether the trial court committed a clear abuse of discretion or error of law

which controlled the outcome of the case.”           James v. Albert Einstein

Medical Center, 170 A.3d 1156, 1163 (Pa. Super. 2017). “In reviewing a

challenge to the trial court’s refusal to give a specific jury instruction, it is the


____________________________________________


5See Soumakieh Answer to Amended Complaint at ¶¶ 12 and 58; Bornemann
Answer to Amended Complaint at ¶ 12

                                          - 11 -
J-A25012-19


function of this Court to determine whether the record supports the trial

court’s decision.”     Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa.

Super. 2006) (citation and alterations omitted). “The trial court is not required

to give every charge that is requested by the parties and its refusal to give a

requested charge does not require reversal unless the appellant was

prejudiced by that refusal.” Id. (citation omitted).

       Again, Appellant complains the trial court erred in refusing to deliver a

requested “captain of the ship” charge. As our Supreme Court explained in

Thomas v. Hutchinson, 275 A.2d 23 (Pa. 1971):

       Briefly summarized, the “captain of the ship” doctrine imposes
       liability on the surgeon in charge of an operation for the
       negligence of his assistants during the period when these
       assistants are under the surgeon’s control, even though the
       assistants are also employees of the hospital. Stated differently,
       the “captain of the ship” concept is but the adaptation of the
       familiar “borrowed servant” principle in the law of agency to the
       operating room of a hospital.

Id. at 27.6 For purposes of our review, it is necessary to ascertain whether

Appellant alleged negligence on the part of any “assistants” who were under

the surgeon’s control.

____________________________________________


6 In Thomas, our Supreme Court tracked the history of the “captain of the
ship” doctrine, noting:

       [T]his doctrine was announced before the decision of this Court in
       Flagiello v. Pennsylvania Hosp., 417 Pa. 486, 208 A. 2d 193
       (1965), discarding the immunity from liability in tort previously
       enjoyed by public hospitals. In enunciating the "captain of the
       ship" theory in McConnell [v. Williams, 65 A.2d 243 (Pa. 1949)],



                                          - 12 -
J-A25012-19


       In his Amended Complaint, Appellant asserted a professional liability

claim against Dr. Greenberg. Amended Complaint at ¶ 4. He alleged that

“[a]t all times material hereto, [Dr. Greenberg] was the agent (actual,

express, implied, apparent, ostensible, or otherwise), servant, and/or

employee of, among others, [the Hospital] defendants and the Bornemann

defendants. Id. at ¶ 11.

       In Count II, Appellant claimed negligence against Dr. Greenberg and the

Bornemann defendants. He again asserted that Dr. Greenberg was “the agent

(actual, express, implied, apparent, ostensible, or otherwise), servant, and/or

employee of, among others” the Bornemann defendants and the Hospital. Id.

at ¶ 53.     He contended the injuries to Decedent were the result of the

negligence of Dr. Greenberg and the Bornemann defendants “acting

individually or through their respective agents, ostensible agents, servants

____________________________________________


       it was no coincidence that this Court noted, “if operating surgeons
       were not to held liable for the negligent performance of the duties
       of those then working under them, the law would fail in large
       measure to afford a means of redress for preventable injuries
       sustained during the course of such operations.” [Id.] at 247.
       Thus, any willingness to characterize a head surgeon as the
       “captain of the ship” in order to financially restore the patient
       should be clearly negated in light of the Flagiello opinions. If, in
       fact, the residents were negligent, either the hospital or the head
       surgeon could be vicariously liable, depending, of course, on
       whether the residents were “borrowed.”

Id., 275 A.2d at 27.




                                          - 13 -
J-A25012-19


and/or employees,” in various respects. Id. at ¶ 54. He claimed that, “[b]y

reason of the wrongful conduct of [Dr.] Greenberg, among others,” Decedent

sustained injuries leading to her death. Id. at ¶ 55.7

       A reading of Paragraph 11 of the Amended Complaint in conjunction

with the allegations of Count II indicates that Appellant alleged Dr. Greenberg

was an agent of the Hospital and the Bornemann defendants, and that the

Bornemann defendants were negligent based on the actions of their agents,

which allegedly included Dr. Greenberg. No allegations of negligence were

asserted against any agent of Dr. Greenberg.

       Since January 2003, Pa.R.C.P. 1042.3(a) has required a certificate of

merit in support of actions claiming a professional deviated from an acceptable

professional standard. Rule 1042.3(a)(1) requires a certificate for instances

of direct claims of care falling outside acceptable professional standards, while

Rule 1042.3(a)(2) requires a certificate “as to the other licensed professionals

for whom th[e] defendant is responsible.” The purpose of Rule 1042.3(a)(2)



____________________________________________


7 In Court III, Appellant asserted similar negligence against Dr. Soumakieh
and the Bornemann defendants. Id. at 58. He alleged that Dr. Soumakieh
was “the agent (actual, express, implied, apparent, ostensible, or otherwise),
servant, and/or employee of, among others” the Bornemann defendants and
the Hospital. Id. at ¶ 58. He contended the injuries to Decedent were the
result of the negligence of Dr. Soumakieh and the Bornemann defendants
“acting individually or through their respective agents, ostensible agents,
servants and/or employees,” in various respects. Id. at ¶ 59. He claimed
that, “[b]y reason of the wrongful conduct of [Dr.] Soumakieh, among others,”
Decedent sustained injuries leading to her death. Id. at ¶ 55.


                                          - 14 -
J-A25012-19


“is to ensure that a claim of vicarious liability made against a defendant is

supported by a certificate of merit. Pa.R.C.P. 1042.3(a)(2), Note.

      Appellant filed a certificate of merit with respect to Dr. Greenberg under

Rule 1042.3(a)(1) only. Certificate of Merit as to Dr. Greenberg, 6/17/10,

at 1. There is no certificate of merit relating as to Dr. Greenberg asserting

that anyone involved in Decedent’s care was an agent of Dr. Greenberg. In

other words, there is no Rule 1042.3(a)(2) certificate of merit basing claims

of negligence on vicarious liability for the actions of anyone who was the agent

or assistant of Dr. Greenberg.

      The certificate of merit with respect to the Hospital includes the same

Rule 1042.3(a)(1) assertion relating to actions on the part of the Hospital that

fell outside acceptable professional standards. Certificate of Merit as to the

Hospital, 6/17/10, at 1.        However, the certificate also reflects a Rule

1042.3(a)(2) claim that the Hospital deviated from an acceptable professional

standard “based solely on allegations from other licensed professionals for

whom    [the   Hospital]   is   responsible    (including   [Dr.   Greenberg,   Dr.

Soumakieh,] and all other licensed professionals at [the Hospital] who

participated” in Decedent’s care. Id. at 1-2.

      Nowhere in the Amended Complaint does Appellant identify any agent

or assert any negligence on the part of any agent of Dr. Greenberg. Nor is

there any allegation concerning any agency relationship between Dr.

Greenberg and any person or entity, other than the allegation that Dr.


                                      - 15 -
J-A25012-19


Greenberg was the agent of the Hospital or the Bornemann defendants.

Amended Complaint at ¶¶ 11 and 53-55.

      As this Court reiterated in Rachlin v. Edmison, 813 A.2d 862 (Pa.

Super. 2002), “while it is unnecessary to plead all the various details of an

alleged agency relationship, a complainant must allege, as a minimum, facts

which: (1) identify the agent by name or appropriate description; and (2) set

forth the agent’s authority, and how the tortious acts of the agent either fall

within the scope of that authority, or if unauthorized, were ratified by the

principal.” Id. at 870 (quoting Alumni Association v. Sullivan, 535 A.2d

1095, 1100 n. 2 (Pa. Super. 1987).

      As the Hospital and Bornemann observe:

      [T]he text of [Appellant’s] Amended Complaint did not assert a
      vicarious liability claim against Dr. Greenberg. [Appellant] did not
      allege Dr. Greenberg was any agent’s principal or that anyone
      other than Dr. Greenberg or Dr. Soumakieh was negligent. To the
      extent [Appellant] now argues a vicarious liability claim against
      Dr. Greenberg for the conduct of Nurse Anesthetist Hoffman
      should have been submitted to the jury, he never alleged Nurse
      Anesthetist Hoffman was negligent. To the contrary, Nurse
      Anesthetist Hoffman is neither referenced nor described in the
      Amended Complaint. At trial, [Appellant] could not base a
      vicarious liability claim on an individual who was not alleged to be
      either an agent of Dr. Greenberg or negligent. See [Reynolds v.
      Thomas Jefferson Univ. Hosp., 676 A.2d 1205, 1211 (Pa.
      Super. 1996)].

Brief of the Hospital, Dr. Greenberg, and Bornemann at 48-49.           “It was

abundantly clear from both the text and form of the Complaint, Amended

Complaint, and the Certificate of Merit that the sole claim asserted against Dr.

Greenberg was for his personal conduct.” Id. at 49 (emphasis in original).

                                     - 16 -
J-A25012-19


We agree. Under the circumstances, there was no basis for the trial court to

give a “captain of the ship” instruction. Appellant’s third and fourth claims

fail. Therefore, we affirm the trial court’s judgment with respect to all claims

involving Dr. Greenberg.

      In his final two issues, Appellant argues the trial court erred in

disallowing testimony from his anesthesiology expert, Dr. Weingarten, relating

to documentation errors, the negligence of “the code team” for not having a

code cart available in or near the operating room, and the failure to initiate

life support soon after the code was called. Again, “[t]he law is well settled

that decisions regarding admission of expert testimony, like other evidentiary

decisions, are within the sound discretion of the trial court. We may reverse

only if we find an abuse of discretion.”      Renna, 64 A.3d at 664 (citations

omitted).

      As the trial court explained, the Hospital filed a motion in limine to

exclude Dr. Weingarten from testifying as to a deviation in the standard of

care based on the failure of the nurse anesthetist and Dr. Soumakieh to

maintain “an accurate anesthesia record reflecting the events, which occurred

beginning with the code.” See Trial Court Opinion, 2/4/19, at 15. As the trial

court correctly recognized, there is no cause of action in Pennsylvania for

negligent documentation. Id.

      Appellant contends that the testimony regarding records was not to be

offered in support of a separate negligence claim but rather was to be offered


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as evidence of the failure of Appellees to respond in a timely fashion when

Decedent coded. However, expert testimony was not necessary to reflect that

the code was recorded at 12:55 p.m. and the arrival of a code cart was

documented at 1:10 p.m. As the trial court remarked, Appellant was “not

precluded from raising documentation errors throughout the trial.        In fact,

they did so.” Id.

      With respect to the code cart, the records show that a code cart was

brought into the operating room at 1:10 p.m. However, as Dr. Soumakieh

explained,

      Well, normally in a normal code they have the code cart. So, they
      have to bring that whenever a code happens. In my case, all that
      I need is – actually, it exists in the room all the time. It’s in my
      anesthesia cart. So, I don’t know if they brought a cart or not – I
      mean, the specific code cart or not, but whatever I needed, all
      these medications, I – we already have it in the room all the time
      in every case.

Deposition of Dr. Soumakieh, 7/15/11, at 187-88. Under the circumstances,

it was irrelevant whether the code cart was brought immediately when the

code was called or fifteen minutes later. Further, as the trial court recognized,

Dr. Weingarten never offered an opinion with respect to lack of a code cart

and Appellant did not make an offer of proof that he would testify about the

lack of a cart at trial. Rather, Dr. Weingarten simply expressed his opinion

that the medical personnel “failed to initiate basic life support soon after the

code was called at 12:55 p.m.” Weingarten Expert Report, 11/13/12, at 4.




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      Finally, Appellant complains that the trial court disallowed Dr.

Weingarten’s testimony relative to negligence and causation, as outlined in

his expert report and supplemental report.      The trial court dismissed the

assertion as “disingenuous.” Trial Court Opinion, 2/4/19, at 16. As the trial

court noted, the order with regard to Dr. Weingarten “did not preclude Dr.

Weingarten from offering causation opinions.        It simply prohibited Dr.

Weingarten from offering opinions in the form of legal conclusions by saying

the phrase ‘proximate cause,’ the ultimate issue in the case.”     Id. As the

Hospital and Bornemann recognize, the “ruling was appropriate because legal

conclusions are within the purview of the trial court, not witnesses.     See

Houdeshell v. Rice, 939 A.2d 981, 985 (Pa. Super. 2007).” Brief of the

Hospital, Dr. Greenberg, and Bornemann at 39-40. The trial court did not

abuse its discretion with respect to any ruling regarding the expert testimony

of Dr. Weingarten.

      To summarize, we agree with Appellant that the trial court abused its

discretion in disallowing Dr. Hornyak to offer testimony regarding the standard

of care of anesthesiologist Dr. Soumakieh without developing a record through

void dire. Therefore, we remand to the trial court for a new trial limited to

claims against Dr. Soumakieh and his employer, Bornemann. On remand, the

trial court shall conduct voir dire of Dr. Hornyak to determine whether he

qualifies as an expert under Subsection 512(e) of the MCARE Act. In the event

the court determines he does not qualify, Appellant shall be entitled to appeal


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that determination to this Court. In the event he does qualify, the trial court

shall conduct a new trial as to Dr. Soumakieh and his employer, Bornemann.

In the event of such a retrial, our disposition of Appellant’s issues regarding

the testimony of Dr. Weingarten shall guide the conduct of the trial.

      Judgments in favor of Dr. Greeneberg and the Hospital affirmed.

Judgments in favor of Dr. Soumekieh and Bornemann reversed.               Case

remanded for proceedings in accordance with this Memorandum. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/2020




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