J-S08035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LESLIE A. HICKMAN                                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellant

                    v.

DR. ROBYN M. SHOR-CONROY
AND CONROY & ASSOCIATES

                         Appellee                     No. 2336 EDA 2014


                 Appeal from the Order Entered July 15, 2014
              In the Court of Common Pleas of Delaware County
                     Civil Division at No(s): 2013-000787


BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                         FILED JANUARY 23, 2015

      Leslie Hickman appeals from an order granting summary judgment to

Dr. Robyn Shor-Conroy and Conroy & Associates (collectively “Appellees”) in

this medical malpractice action.      For the reasons articulated below, we

affirm.

      The record reflects that in April 2009, Hickman began treating with her

primary care physician, Dr. Robyn Shor-Conroy, at Conroy & Associates.

During regular wellness visits, Hickman disclosed her medical and surgical

history, which included gastric bypass surgery (also known as bariatric

surgery) in December 2009. Amended Complaint, ¶¶ 8-10.

      On January 25, 2011, Hickman complained of left elbow pain, and Dr.

Shor-Conroy    prescribed   Medrol,   an   adrenocortical   steroid,   to   relieve

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inflammation and pain.    Hickman obtained Medrol and took all tablets as

prescribed. Amended Complaint, ¶¶ 8-12.

     At 2:00 a.m. on February 6, 2011, while in New Jersey, Hickman got

out of bed to use the restroom. She began to vomit blood and fainted. She

was transported to Shore Memorial Hospital, where emergency room

physicians diagnosed her with an upper gastrointestinal bleed. She refused

gastrointestinal evaluation and an endoscopy, so the hospital physicians

were only able to speculate as to the cause of her condition.      Hickman’s

Response To Motion For Summary Judgment, exhibit “A”.

     On February 7, 2011, Hickman was discharged from the hospital in

stable condition. Her discharge summary did not pinpoint the cause of her

condition. It provided the following diagnosis: “Syncope, possible associated

gastrointestinal bleed. The patient refuses gastrointestinal evaluation and

endoscopy at this time … syncope of uncertain etiology. The possibility of

steroid-induced gastrointestinal bleed is entertained along with a syncopal

episode or syncope based on hypotension.” Appellees’ Motion For Summary

Judgment, exhibit “A”.

     On March 8, 2011, Hickman had an office visit with Dr. Shor-Conroy.

Hickman’s records from that visit stated that she should not receive steroids.

Dr. Shor-Conroy referred Hickman to a hematologist, Dr. Peter Ennis, for

further treatment.   On March 9, 2011, Dr. Ennis wrote in his records that

Hickman “had normal MCV anemia from a steroid-induced upper GI bleed


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requiring result transfusion [on] 2/6/11,” but he added: “Less likely, but in

the differential diagnosis are hypersplenism, hairy cell leukemia, PNH,

myeloma and rare inherited syndromes.” Hickman’s Response To Motion For

Summary Judgment, exhibit “B”.

      On January 25, 2013, Hickman commenced a civil action against

Appellees. She alleged that Dr. Shor-Conroy was negligent for prescribing

steroids because this medication was improper for patients with a history of

bariatric surgery.   Appellees subpoenaed Hickman’s medical records and

took Hickman’s deposition, but Hickman did not depose Dr. Shor-Conroy or

any other individual involved in her care.     Nor did Hickman produce an

expert report critical of the care provided by Appellees. Instead, Hickman

contended that her medical records from February 7, 2011 and March 8-9,

2011 were “expert reports”.

      Appellees filed a motion for summary judgment arguing that Hickman

could not establish a prima facie case of medical malpractice due to her

failure to produce an expert report in support of her theories of causation

and breach of the standard of care. Alternatively, Hickman argued that no

expert report was necessary because this matter involved res ipsa loquitur

(also known as “res ipsa”).

      On July 16, 2014, the trial court granted summary judgment to

Appellees. Hickman filed a timely notice of appeal, and the trial court filed a

Pa.R.A.P. 1925(a) opinion without ordering Hickman to file a statement of


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matters complained of on appeal. The trial court agreed with Appellees that

the progress notes from Hickman’s treating physicians were not critical of

Appellees and thus failed to establish a prima facie case of medical

malpractice. The court rejected Hickman’s res ipsa claim on the ground that

the issues were beyond the ken of jurors who lacked medical experience or

training,   and   therefore   Hickman’s   case   ran   aground   without   expert

testimony.

      Hickman’s appellate brief lists three issues in the Statement Of

Questions Involved:

             1. Did the trial court err in finding that Hickman
             failed in a timely manner to provide expert reports
             which showed that Dr. Shor-Conroy’s prescription of
             oral steroids [] caused Hickman’s injuries?

             2. Did the trial court err in finding that there is no
             genuine issue of material fact for a jury to consider
             when it failed to recognize the application of the
             doctrine of res ipsa [] to establish the necessary
             causation element of negligence?

             3. Did the trial court err in failing to recognize that
             the treating physicians were proper experts who
             stated in their medical records that the cause of
             Hickman’s gastric bleed was due to the improper
             prescription of oral steroids by Dr. Shor-Conroy?

Brief for Appellant, p. 5.

      Hickman, however, only raises two arguments in the argument section

of her brief. These issues, which we re-order for the sake of convenience,

are as follows: (1) the records of her hospitalization and post-hospitalization

treatments constitute “expert reports” that preclude summary judgment;

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and (2) summary judgment was improper under the res ipsa doctrine. We

will limit our review to these two issues.   Harris v. Toys “R” Us-Penn,

Inc., 880 A.2d 1270, 1279 (Pa.Super.2005) (failure to develop argument

with citation to and analysis of relevant authority waives that issue on

review).

      At the outset, we note that our scope of review of an order granting

summary judgment is plenary. Fessenden v. Robert Packer Hospital, 97

A.3d 1225, 1229 (Pa.Super.2014). Our standard of review is well-settled:

we will reverse the trial court’s order only when the trial court committed an

error of law or clearly abused its discretion.   Id.    In evaluating the trial

court’s decision, we focus on Pa.R.Civ.P. 1035.2, which states that the court

may enter summary judgment where there is no genuine issue of material

fact and the moving party is entitled to relief as a matter of law. Id. We

view the record in the light most favorable to the non-moving party and

resolve all doubts as to the existence of a genuine issue of material fact

against the moving party.     Id.   Where the non-moving party bears the

burden of proof on an issue, he may not merely rely on his pleadings or

answers in order to survive summary judgment.          Id.   “Failure of a non-

moving party to adduce sufficient evidence on an issue essential to his case

and on which it bears the burden of proof ... establishes the entitlement of

the moving party to judgment as a matter of law.” Id.




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      The following standard applies to Hickman’s medical malpractice

action:

              Medical malpractice consists of a negligent or
              unskillful performance by a physician of the duties
              which are devolved and incumbent upon him on
              account of his relations with his patients, or of a
              want of proper care and skill in the performance of a
              professional act. Because medical malpractice is a
              form of negligence, to state a prima facie cause of
              action, a plaintiff must demonstrate the elements of
              negligence: a duty owed by the physician to the
              patient, a breach of that duty by the physician, that
              the breach was the proximate cause of the harm
              suffered, and the damages suffered were a direct
              result of harm. With all but the most self-evident
              medical malpractice actions there is also the added
              requirement that the plaintiff must provide a medical
              expert who will testify as to the elements of duty,
              breach, and causation.

Quinby v. Plumsteadville Family Practice Inc., 907 A.2d 1061, 1070–71

(Pa.2006) (citations omitted) (emphasis added).          Although the expert

medical witness need not use special language or “magic words”, he must

state an opinion within a reasonable degree of medical certainty. Gartland

v. Rosenthal, 850 A.2d 671, 677 (Pa.Super.2004). An expert’s failure to

express an opinion with the requisite certainty makes summary judgment

proper. Id.

      Guided by these standards, we address Hickman’s first argument that

the trial court erred by concluding that she failed to provide an expert

opinion that appellees breached the standard of care or that this breach

caused her injuries. She insists that the medical records from February 7,


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2011 and March 8-9, 2011 constitute expert reports which preclude

summary judgment.        We disagree.     Assuming arguendo that the records

constitute expert reports, none of the records state, within a reasonable

degree of medical certainty, that Hickman’s injuries are the result of a

steroid-induced gastrointestinal bleed. The discharge summary from Shore

Memorial    Hospital    states   that    “the    possibility   of   steroid-induced

gastrointestinal bleed is entertained along with a syncopal episode or

syncope based on hypotension.” Appellees’ Motion For Summary Judgment,

exhibit “A” (emphasis added). Dr. Ennis first identifies Hickman’s condition

as “normal MCV anemia from a steroid-induced upper GI bleed” but then

states: “Less likely, but in the differential diagnosis are hypersplenism, hairy

cell leukemia, PNH, myeloma and rare inherited syndromes.”               Hickman’s

Response To Motion For Summary Judgment, exhibit “B”.                These remarks

are simply too equivocal to constitute an opinion within a reasonable degree

of medical certainty that Hickman’s illness is the result of Dr. Shor-Conroy’s

steroid prescription.    Cf. Griffin v. University of Pittsburgh Medical

Center–Braddock         Hosp.,   950    A.2d    996,   1002-03      (Pa.Super.2008)

(medical expert’s opinion that patient’s shoulder injury was caused either by

grand mal seizure or from medical personnel negligently restraining her,

that, of two possibilities, it was “most likely” restraint attempt, that he gave

51 to 49% consideration in favor of restraint, and that restraint was “least

implausible” consideration, was not opinion that injury was caused by


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restraint to reasonable degree of medical certainty, as required for patient to

sustain claim of medical malpractice against hospital);          Hoffman v.

Brandywine Hosp., 661 A.2d 397, 402 (Pa.Super.1995) (expert did not

testify to requisite degree of medical certainty by rendering opinion that

defendant’s negligent treatment of HIV-positive patient “in all likelihood

delayed the administration of anti-viral medication which may have hastened

the onset of opportunistic disease in [the plaintiff] and caused her illness to

progress sooner than it might have”) (emphasis in original).

      Second, we reject Hickman’s argument that res ipsa precludes

summary judgment. Res ipsa “is merely a shorthand expression for a rule of

evidence that allows a jury to infer negligence and causation where the

injury at issue is one that does not ordinarily occur in the absence of

negligence.”   Bearfield v. Hauch, 595 A.2d 1320, 1322 (Pa.Super.1991).

Section 328D of the Restatement (Second) of Torts defines res ipsa as

follows:

            Res Ipsa []

            (1) It may be inferred that harm suffered by the
            plaintiff is caused by negligence of the defendant
            when

                  (a) the event is of a kind which ordinarily does
                  not occur in the absence of negligence;

                  (b) other responsible causes, including the
                  conduct of the plaintiff and third persons, are
                  sufficiently eliminated by the evidence; and



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                 (c) the indicated negligence is within the scope
                 of the defendant’s duty to the plaintiff.

           (2) It is the function of the court to determine
           whether the inference may reasonably be drawn by
           the jury, or whether it must necessarily be drawn.

           (3) It is the function of the jury to determine
           whether the inference is to be drawn in any case
           where different conclusions may reasonably be
           reached.

MacNutt v. Temple Univ. Hosp., Inc., 932 A.2d 980, 983 (Pa.Super.2007)

(citing Restatement (Second) of Torts § 328D).

     Res ipsa “is not often applied in medical malpractice actions; except in

the most clear-cut cases, res ipsa [] may not be used in a medical

malpractice action to … shortcut the requirement that causation be

established within a reasonable degree of medical certainty.” Grandelli v.

Methodist Hosp., 777 A.2d 1138, 1147 (Pa.Super.2001).           In cases of

obvious medical negligence, i.e., circumstances in which the medical and

factual issues presented are such that a lay juror could recognize negligence

just as well as any expert, res ipsa applies, and no expert medical testimony

is necessary. Fessenden, 97 A.3d at 1230 (patient who underwent surgery

to remove surgical sponge from inside his abdomen and to repair adjacent

abdominal abscess was entitled to res ipsa inference; patient established

that sponges were not usually left inside of a patient’s abdomen following

surgery absent negligence, and there was no explanation for sponge’s

presence inside his abdomen other than negligence by medical defendants,


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and patient’s claims were well within the intended scope of res ipsa

doctrine).

      On the other hand, “if there is any other cause to which with equal

fairness the injury may be attributed (and a jury will not be permitted to

guess which condition caused the injury), an inference of negligence will not

be permitted to be drawn against defendant.”     MacNutt, 932 A.2d at 987

(res ipsa not applicable in malpractice action brought by patient who

allegedly suffered chemical burn to his shoulder during surgery to correct

thoracic outlet syndrome, since parties’ experts intensely disputed exact

nature of patient’s injury; patient’s expert opined that patient sustained

chemical burn resulting from lying in pool of certain solution for extended

period of time, whereas surgeon’s expert opined that patient suffered

outbreak of herpes zoster or shingles, and because nature of injury was

itself in dispute, injury could have occurred without negligence); see also

Griffin, 950 A.2d at 1005 (res ipsa not applicable in medical malpractice

action; patient’s shoulder injury could have occurred in absence of any

negligence by medical personnel, since patient’s medical expert testified that

shoulder injury could have been caused by patient suffering violent grand

mal seizure).

      In this case, Hickman’s medical records do not give rise to a res ipsa

inference against Appellees. Instead of definitively ruling out other causes

of her gastrointestinal bleed, the records state that there are other possible


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causes of her injury, including a syncopal episode and “hypersplenism, hairy

cell leukemia, PNH, myeloma and rare inherited syndromes.”         Because

Hickman’s injuries could have resulted from causes other than Appellees’

negligence, a res ipsa inference is not permissible.     MacNutt, Griffin,

supra.

     For these reasons, we affirm the trial court’s order granting summary

judgment to Appellees.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2015




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