J-A28033-19

                                   2020 PA Super 3



    LOUIS MCFEELEY, INDIVIDUALLY               :   IN THE SUPERIOR COURT OF
    AND AS ADMINISTRATOR OF THE                :        PENNSYLVANIA
    ESTATE OF KATHLEEN MCFEELEY,               :
    DEC.                                       :
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :   No. 3255 EDA 2017
                                               :
                                               :
    SUSHRUT SHAH, M.D., MPH,                   :
    DIAGNOSTIC IMAGING, INC.                   :

             Appeal from the Judgment Entered September 21, 2017
      In the Court of Common Pleas of Philadelphia County Civil Division at
                    No(s): October Term, 2014, No. 000331


BEFORE:      PANELLA, P.J., STABILE, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                           FILED JANUARY 08, 2020

        Appellant Louis McFeeley, individually and as administrator of the estate

of his wife, Kathleen McFeeley (“the Decedent”), appeals from the entry of

judgment in favor of Appellees Sushrut Shah, M.D., MPH (“Dr. Shah”) and

Diagnostic Imaging, Inc. (“Diagnostic Imaging”).1 After a careful review, we

affirm.
      The relevant facts and procedural history are as follows: On October 7,

2014, Appellant filed a civil complaint against Appellees averring that, on April

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 Appellant named additional parties as defendants in the underlying civil
complaint; however, the additional defendants were dismissed by leave of
court on April 18, 2017.
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26, 2012, the Decedent presented to her primary care physician with

complaints of pain in her stomach/abdomen. The primary care physician

referred the Decedent to a colorectal surgeon, Robin Rosenberg, M.D., who

ordered various tests, including an abdominal/pelvic computed tomography

scan (“CT scan”). On May 3, 2012, the Decedent underwent the CT scan at

the Aria Health outpatient clinic in Philadelphia; Dr. Shah, who was employed

by Diagnostic Imaging, reviewed the CT scan.

      Appellant alleged the CT scan revealed multiple mass lesions along the

Decedent’s left anterior lower abdomen and upper pelvis. Appellant further

averred the lesions were “indicative of metastatic disease until proven

otherwise.” Appellant’s Complaint, filed 10/7/14, at 6. However, Appellant

contended Dr. Shah’s CT scan report failed to mention the presence of the

multiple lesions, and, consequently, Dr. Shah “failed to detect or appreciate

the presence of these abnormalities in his review and interpretation of the CT

scan images.” Id.

      Appellant alleged the Decedent’s abdominal pain continued, and on

December 10, 2012, she was examined again by Dr. Rosenberg, who ordered

a series of X-rays, which revealed “slight abnormalities in the right lung[.]”

Id. at 7.   The Decedent began to experience shortness of breath, and on

December 12, 2012, she went to Aria Health-Torresdale Hospital’s emergency

room. An initial CT scan revealed “abnormal nodules along the diaphragm,

[which is a concern] for malignancy, and abdominal ascites in the upper


                                    -2-
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abdomen, [which is a concern] for peritoneal carcinomatosis.” Id. It was

recommended that the Decedent follow-up with abdominal/pelvic CT scans.

       Appellant averred that, on December 14, 2012, the Decedent underwent

an abdominal/pelvic CT scan at Aria Health-Torresdale Hospital. This CT scan

revealed “abdominal and pelvic ascites, ill-defined nodular soft tissue densities

along anterior aspects of the left hemi-abdomen, suggesting peritoneal and/or

omental tumors.” Id. On December 19, 2012, the Decedent followed-up with

Enrique Hernandez, M.D., a gynecologist oncologist at the Temple University

Hospital, who found the Decedent had a “15-18 cm mass in the left lower

quadrant of the abdomen[.]” Id. He diagnosed the Decedent as suffering

from Stage IV ovarian cancer, and he recommended a full hysterectomy.

       On December 26, 2012, the Decedent underwent the planned surgery;

however, because of extensive tumors, Dr. Hernandez was unable to perform

the hysterectomy, but he performed “suboptimal debulking of the tumor.” 2

Id. at 8. Appellant contended the Decedent was discharged from the Temple

University Hospital on January 1, 2013, with plans to undergo chemotherapy;

however, after developing various symptoms, she returned to the Temple

University Hospital on January 5, 2013, with a confirmed small bowel

obstruction.




____________________________________________


2 In a “debulking surgery,” the surgeon attempts to reduce the amount of the
tumor. N.T., 4/24/17, at 101.

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     Despite surgery to repair the bowel obstruction, the Decedent developed

peritonitis and septicemia, and on January 14, 2013, she died while in the

Temple University Hospital. Appellant averred the “cause of death was

cardiopulmonary arrest from sepsis caused by the bowel perforation, related

to Stage IV ovarian cancer.” Id. at 9.

     Appellant alleged the success of chemotherapy with ovarian cancer is

dependent on the successful debulking of the tumor, and if the tumor can be

only suboptimally debulked the likelihood of successful cancer treatment is

decreased. Id. Accordingly, Appellant contended that a correct interpretation

of the CT scan on May 3, 2012, by Dr. Shah would have resulted in a prompt

referral to a gynecologist oncologist, as well as an optimal debulking of the

tumor such that chemotherapy could be administered with “a significant

chance for long-term survival.” Id.   Appellant asserted the delay resulted in

enlarged and extensive tumors.

     Further, Appellant alleged “[t]he delay in diagnosis and treatment of the

carcinoma from May 2012 until early January 2013 increased the likelihood of

a complication such as bowel perforation and sepsis.” Id. at 10. Accordingly,

“the delay in diagnosis and treatment from May 2012 to late December

2012/early January 2013, increased the risk of harm to [the Decedent].” Id.




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As such, Appellant presented survival claims on the Decedent’s behalf3 and

wrongful death claims on his and his son’s behalf4 alleging professional

medical negligence against Appellees.5

       On November 18, 2014, Appellees filed an answer with new matter to

Appellant’s complaint, and on November 24, 2014, Appellant filed a reply to

the new matter. Moreover, Appellant filed various motions in limine, including

a motion to preclude certain causation testimony from defense expert Seth

Glick, M.D. By order entered on April 24, 2017, the trial court denied

Appellant’s motion in limine as to Dr. Glick; however, the trial court noted Dr.

Glick’s testimony would be limited to the four corners of his expert report.

       At the ensuing jury trial, Appellant presented the testimony of various

witnesses. Specifically, Dr. Rosenberg relevantly testified that he ordered the

Decedent to undergo a CT scan, which was performed on May 3, 2012, and

he received a report from Dr. Shah. N.T., 4/24/17, at 88. He indicated the

CT scan was reported by Dr. Shah as “completely negative” and “all visualized


____________________________________________


3 See 42 Pa.C.S.A. § 8302 (Survival Act provides “[a]ll causes of action or
proceedings, real or personal, shall survive the death of the plaintiff or of the
defendant....”).

4 See 42 Pa.C.S.A. § 8301(a), (b) (Wrongful Death Act provides spouse,
children, or parents of decedent can bring action “to recover damages for the
death of an individual caused by the wrongful act or neglect or unlawful
violence or negligence of another”).

5 In Pennsylvania, wrongful death claims are separate and distinct from
survival claims, although both involve allegations of negligence against the
defendant. See Dubose v. Quinlan, 643 Pa. 244, 173 A.3d 634 (2017).

                                           -5-
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pelvic structures [were] unremarkable.” Id. He noted that “[w]e now know

in retrospect that all the pelvic structures actually weren’t seen, but that

wasn’t detailed in the report.” Id.

       Dr. Rosenberg testified that, at this point, he had no reason to believe

the Decedent was suffering from ovarian cancer. Id. at 93. Dr. Rosenberg

testified that in December of 2012, with her condition worsening, the

Decedent went to the Temple University Hospital where she underwent

surgery for ovarian cancer, and she sustained a perforated colon. Id. at 98-

99.

       Daniel Aaron Cousin, M.D., a diagnostic radiologist offered as an expert

by Appellant, testified he reviewed the May 3, 2012, CT scan and “there were

some findings which were not described in [Dr. Shah’s] report.” Id. at 160.

Specifically, Dr. Cousin noted the CT scan revealed the Decedent had “omental

lesions,”6 which are indicative of cancer, but such findings were not

documented on Dr. Shah’s report.               Id. at 161.   He noted the reasonable

standard of care for a radiologist is to describe such findings on the report.

Id. at 163.     He specifically opined that Dr. Shah breached the reasonable

standard of care by failing to report such findings with regard to the May 3,

2012, CT scan. Id. at 188.




____________________________________________


6 Dr. Cousin explained the omentum drapes over the front of a person’s
stomach. Id. at 160-62.

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      Moreover, Dr. Cousin testified that a comparison of the CT scans from

May 3, 2012, and December 14, 2012, revealed “significant worsening of the

disease.” Id. at 164, 194. He indicated “her disease [had] spread” with new

and/or larger lesions appearing in the December 14, 2012, CT scan. Id. at

176. Dr. Cousin admitted, however, that as of May 3, 2012, there was

evidence that the Decedent’s cancer had already metastasized. Id. at 204.

      Dr. Shah was called by Appellant as on cross-examination. Dr. Shah

admitted he reviewed the Decedent’s May 3, 2012, CT scan, and it was his

duty to report anything “suspicious and abnormal” appearing on the scan.

N.T., 4/25/17, at 19. He also admitted it is his duty to report lesions appearing

on the omentum. Id. at 28-29.

      Dr. Shah confirmed he did not report seeing any omental lesions on the

Decedent’s May 3, 2012, CT scan; however, he testified he was unable to

remember whether he actually saw or did not see the omental lesions when

he reviewed the Decedent’s May 3, 2012, CT scan. Id. at 30. Upon reviewing

the CT scan in court, Dr. Shah admitted there were at least two areas on the

CT scan which could be omental lesions. Id. at 41-42.

      Michael Hopkins, M.D., a gynecologist oncologist offered as an expert

by Appellant, explained that a staging system is used with regard to cancer in

order to give a prognosis as to a patient’s chances of surviving the cancer.

Id. at 70. He explained that Stage III-A is when there is no disease visible to

the eye; Stage III-B is when the cancer is less than 2 centimeters; and Stage


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III-C is beyond 2 centimeters.     Id.      He opined that, based on the lesions

appearing on the Decedent’s May 3, 2012, CT scan, she was in Stage III-C of

ovarian cancer at this time. Id.

      Dr. Hopkins testified that with a Stage III-C cancer the treatment is to

attempt to remove as much of the visible cancerous tissue as possible through

surgery   and   then   chemotherapy         is   used.   Id.   Dr.   Hopkins   opined

chemotherapy is more effective if less disease is left behind after surgery. Id.

In this respect, he testified as follows:

      Q. With respect to Stage III-C treatment, tell us what is the
      likelihood of success of getting debulking considering that stage
      in the surgery.
      A. If we are able to what we call optimally debulk or get it down
      to less than a centimeter to no visible disease, the chances of
      living five years falls in the range of 40 to 50 percent. If we leave
      quite a bit of disease behind, then they fall to 20 percent.
      Q. Doctor, do you have an opinion to a reasonable degree of
      medical certainty whether if this cancer was diagnosed in May of
      2012, what type of—whether the success rate or the likelihood
      that the Decedent could have received an optimal debulking
      surgery?
      A. I think she probably would have, given the CT findings.
      Q. Tell us why you say that?
      A. That was the only thing they saw. Oftentimes we see, when we
      can’t get it all out, we see many more findings on CT scan[s]. We
      see the fluid build-up, many other nodules and bits of tumor in
      the abdomen. So that CT scanning would have been pretty
      favorable to go in expecting to get an optimal resection on that.
      Q. So if [the Decedent] was your patient and she came to you,
      you would have felt pretty confident that you could have gotten a
      success of removing the cancer?
      A. I would have expected to.
                                    ***


                                       -8-
J-A28033-19


     Q. Doctor, let’s talk about [the Decedent] developing a perforation
     after the surgery in December of 2012. Now, do you have an
     opinion to a reasonable degree of medical certainty whether if the
     cancer was diagnosed in May of 2012, whether a complication
     such as a perforation would have been decreased or less?
     A. Yes, it would have been a far easier surgery.
                                  ***
     Q. And, Doctor, you talked about [a patient’s] chance of living at
     a Stage III-C level. Talk to the Jury about [a patient’s] chance of
     living after an optimal debulking and the chemotherapy?
     A. We usually quote the patient somewhere in the 40 to 50
     percent chance they’ll be alive in five years with no cancer.
     Q. And that doesn't mean--does that mean that they could live
     longer than five years, too?
     A. Correct.
     Q. You have patients with III-C who have gone through that
     surgery and the chemo that live longer?
     A. I still see some in the office 25, 30 years later, so yes.
     Q. Now, fast forward to me or let’s move forward seven months
     later to December of 2012. At that point in time, what was the
     stage of [the Decedent’s] cancer?
     A. At that time she was Stage IV.
     Q. Doctor explain to the Jury the difference between Stage III-C
     and Stage IV cancer.
     A. Again, we use it as a predictor. Stage IV is when we have liver
     metastases or what’s called a pleural effusion where the fluid is
     up around the lung and it’s above the diaphragm. When we find
     that, then the chances of living drop down in the five to 10 percent
     range.
     Q. At III-C, they're 40 to 50 percent. At IV, they’re five to 10
     percent?
     A. Yes.

Id. at 71-76.

     Dr. Hopkins testified that Dr. Hernandez perforated the Decedent’s

bowel during surgery; however, he opined this did not constitute negligence

                                     -9-
J-A28033-19


as such a complication is an acceptable risk of the procedure. Id. at 83. Dr.

Hopkins opined the surgery performed in December by Dr. Hernandez was

more difficult than the surgery would have been if it were performed in May.

Id. In this regard, he indicated that the fact the Decedent’s cancer progressed

from Stage III-C to Stage IV from May to December resulted in an

“exceedingly more difficult [surgery] leading to…the ultimate perforation and

then her death.” Id. at 89.

      On cross-examination, Dr. Hopkins admitted that, as of May 3, 2012,

the Decedent’s cancer was already metastatic, and the American Cancer

Society’s published survival rates for cancer at Stage III-C is 39 percent. Id.

at 95-96. He acknowledged the American Cancer Society’s published survival

rates for cancer at Stage IV, which is the stage of the Decedent’s cancer in

December of 2012, was 17 percent. Id. at 97.

      He also admitted that all surgeries have risks and, even if the Decedent

underwent the debulking surgery in May, as opposed to December, the

surgery could have been “quite difficult.” Id. at 99. He acknowledged that

Dr. Hernandez indicated in his report that the area where the Decedent’s

bowel perforation occurred was not in the area where he performed the

surgery. Id. at 109.

      In opposition to Appellant’s claim, Appellees offered the testimony of

numerous witnesses. Specifically, Dr. Shah admitted the May 3, 2012, CT

scan was not a “normal” CT scan; however, he indicated that he noted on the


                                    - 10 -
J-A28033-19


report the thickening of the Decedent’s colon, which he viewed on the CT

scan.7    N.T., 4/26/17, at 49.         Dr. Shah testified he did not report the

Decedent’s omental lesions because “they’re not uncommon and we basically

don’t report them unless there’s some secondary information such as fluid in

the belly [or a known patient or family history of some disease].” Id. at 51-

52. Dr. Shah indicated he typically reports only the “highlights” of the CT scan

as a doctor does not want to receive a twenty page report. Id. at 52. Dr.

Shah testified that based on the information provided to him he “rendered an

accurate report” of the Decedent’s May 3, 2012, CT scan. Id. at 53.

       On cross-examination, Dr. Shah testified he cannot specifically recall

whether at the time he reviewed and reported the Decedent’s May 3, 2012,

CT scan he noticed the omental lesions. Id. at 54. In any event, Dr. Shah

testified that even if he had noticed the omental lesions he “wouldn’t

necessarily [have] report[ed] them because they are not uncommon

findings[.]” Id. at 55. However, upon further questioning, he admitted that

if he noticed an omental lesion, which could potentially be cancer, it was his

“job to report it[.]” Id. at 61.




____________________________________________


7 The parties stipulated that Dr. Shah was acting in the course and scope of
his employment with Diagnostic Imaging when he reviewed and reported the
Decedent’s May 3, 2012, CT scan. Id. at 73.



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       Seth Glick, M.D., a diagnostic radiologist offered as an expert by

Appellees,8 opined to a reasonable degree of medical certainty that Dr. Shah

used the same care as other radiologists in his interpretation of the May 3,

2012, CT scan. Id. at 88. He noted Dr. Shah properly reported thickening of

the Decedent’s colon.       Id. at 89.     Dr. Glick specifically disagreed with Dr.

Cousin’s opinion that Dr. Shah should have reported the omental lesions. Id.

at 89-90. In this regard, he noted there were “some vague densities in the

omentum, which we see commonly in many CT scans. Those are not changes

that we report because if we report in so many people, you’d be sending

everybody for more tests.” Id. at 90.

       Dr. Glick disagreed with Dr. Cousin’s opinion that the “subtle patchy

densities in the omentum” would have offered a reasonable explanation for

the Decedent’s reported pain.          Id. at 91.   Dr. Glick concluded there was

nothing visible in the May 3, 2012, CT scan which should have been reported

as “abnormal” as it related to the Decedent’s omentum. Id. at 92.

       With regard to the bowel perforation sustained by the Decedent, Dr.

Glick opined the perforation resulted from “the disease of the sigmoid colon

which was most likely diverticulitis.” Id. at 94. That is, he disagreed with

Appellant’s experts that the bowel perforation, which led to sepsis and the


____________________________________________


8 The trial court accepted Dr. Glick as an expert in the field of diagnostic
radiology, and more specifically, as an expert in gastrointestinal radiology.
Id. at 86.


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J-A28033-19


Decedent’s ultimate death, resulted from the December 26, 2012, surgery

related to the Decedent’s cancer. In this regard, he relevantly testified as

follows:

      Q. Based on your review of all [the] imaging, did you come to an
      opinion as to what caused [the] perforation?
      A. I did.
      Q. First of all, was there a perforation?
      A. Yes, the perforation could be seen on the January 5th study
      from 2013. There was a perforation there.
      Q. Please explain to the Members of the jury what your opinion is
      from a radiological perspective as to what may have caused that
      perforation.
      A. The perforation that I saw on that January study was coming
      from the posterior wall of the sigmoid colon, that was the same
      area that was thickened on the May, 2012 study, which was the
      area of the perforation. It was not near the tumor or anywhere
      near [the] tumor that I could see in the belly at that particular
      point in time or on the December study. My opinion was the
      perforation occurred from the disease of the sigmoid colon which
      was most likely diverticulitis.
      Q. In coming to your opinion, did you review the statement under
      oath, the deposition that the plaintiff’s attorney took of the
      surgeon, Dr. Hernandez?
      A. I did.
      Q. Do you recall what Dr. Hernandez said about the location of
      the perforation when it was discovered?
      A. Yes, he said that the perforation was not in the area where he
      was operating.
      Q. Did Dr. Hernandez have any explanation in his deposition as to
      what caused the perforation?
      A. He did not.
                                   ***
      Q. Doctor, we were discussing the cause of the perforation that
      was caused or was discovered in January, 2013?
      A. Yes.

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      Q. In coming to your conclusion as to the cause of the perforation,
      did you undertake a review of earlier studies to assist you in
      coming to that opinion, like the barium enema or the earlier CT
      scans?
                                   ***
      A. Indirectly, yes. [The] [b]arium enema showed a kinking of the
      sigmoid colon and thickening of the wall and showed diverticulosis
      or little sacculations or outpouchings of the colon. So we knew
      the patient had diverticular disease and had kinking, which is
      usually due to adhesions. On the [CT] scan from May of 2012 I
      could see very subtle linear lines coming from the sigmoid colon
      and going down into the fat around it, which means there’s been
      a prior episode of inflammation in that area. So I knew the patient
      had a prior bout of diverticulitis. So what we call this is chronic
      diverticular disease or chronic diverticulitis. It may not be acutely
      symptomatic, but we know the patient has had prior inflammation
      of these diverticuli. So the thickening and the diverticuli and
      adhesions and the kinking told me there was an underlying
      process there. When I saw the perforation in the January 5th
      study, I could actually see the point where it was coming from the
      bowel, and it was actually coming from that same segment. So it
      could only be one conclusion that that sigmoid colon was the cause
      of the perforation.

Id. at 93-96.

      On cross-examination, Dr. Glick admitted that when he reviewed the

May 3, 2012, CT scan for the purposes of trial he “saw something in the

omentum” and, in retrospect, there were metastatic lesions in the Decedent’s

omentum. Id. at 97. He admitted the lesions enlarged from May 3, 2012, to

December 14, 2012, when another CT scan was done. Id. at 98-99. However,

he testified that it does not fall below the standard of care to not report the

lesions because they are “common” and it is a “rare event” that the lesions

are cancer. Id. at 99.



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      Moreover, on cross-examination, Dr. Glick reiterated that, in his opinion,

the Decedent’s bowel perforation was not caused by a surgery. Id. at 110.

Specifically, he testified as follows:

      Q. And, you basically believe that she had this major surgery on
      the 26th of December, and within a little bit more than a week
      afterwards, ten days she’s being operated on and [the perforation]
      has nothing to do with the surgery?
      A. That is my opinion.
      Q. And it was at that time that this diverticulitis that you claim
      was present back in May suddenly ruptured and started, right?
      A. Yes.
      Q. You would agree with me that you’re the only one that says
      any test back in May show diverticulitis, right?
      A. Yes.
      Q. Like we know Dr. Glick, in his [CT] scan, he said he didn’t see
      diverticulitis, right-I mean, Dr. Shah. We can just put it up right
      here. There is no colonic diverticulosis with no definitive evidence
      of diverticulitis. Dr. Glick, you would agree with me that Dr. Shah
      did not find diverticulitis in May of 2012, right?
      A. He did not report diverticulitis. He reported thickening of the
      colon and diverticulosis. In my opinion at that time there was not
      acute diverticulitis, but chronic diverticular disease in which
      there’s low grade inflammation, which may or may not cause
      symptoms, but he did not report diverticulitis, but the changes
      were present consistent with that.
      Q. Then we have a barium enema performed in the end of May
      after the [CT] scan that also said no evidence of diverticulitis,
      right?
      A. Right.
      Q. Then we have from May, seven months, until December of
      2012 with no doctor appointments, visits, no diagnosis of
      diverticulitis, right?
      A. Correct.
      Q. Then she [goes] into the hospital in December with cancer,
      right?
      A. Yes.

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     Q. And they do a [CT] scan in December, right?
     A. Yes.
     Q. And in that [CT] scan in December, less than a month before
     her death, they also note no diverticulitis, right?
     A. Right. Now on that [CT] scan you could not see the sigmoid
     colon that well because of other things taking place.
     Q. But you would agree with me that if we got a [CT] scan now in
     December, less than a month before she passes [and] it says no
     evidence of diverticulitis, right?
     A. Yes, and I would also offer that with my experience in
     gastrointestinal radiology that I was able to detect subtle changes
     of chronic diverticulitis which may have not been appreciated at
     that time. It doesn’t mean it causes symptoms or anybody would
     complain, but the pathological changes are there. I could see
     them.
     Q. So the radiologist in December who is reading that [CT] scan,
     he missed that. He missed the diverticulitis, right?
     A. He didn’t miss it. As I said, you couldn’t really see it in
     December. Like I said, it’s not acute diverticulitis, it’s chronic
     diverticular disease, which is low-grade inflammation in the wall
     causing thickening, and that’s what was present.
     Q. You would agree with me that neither Dr. Hernandez nor Dr.
     Farris in their operative reports noted any diverticulitis or
     inflammation of the colon, did they?
     A. Well, they didn’t resect the sigmoid colon. They couldn’t tell
     unless you do a pathologic examination. There’s a distinction
     between acute and chronic diverticulitis, and I’m saying this is
     chronic diverticulitis.
     Q. Just so I’m clear, you testified that the location of the
     perforation was the sigmoid colon, right?
     A. Correct.
     Q. Dr. Farris, not Dr. Hernandez, performed that [surgery to
     repair the] perforation, right?
     A. Right.
     Q. So Dr. Hernandez, he wasn’t even there when the perforation
     was actually visually seen and the surgery was performed [to
     repair it], right?
     A. Right.

                                   - 16 -
J-A28033-19



Id. at 111-14.

      On redirect-examination, Dr. Glick reiterated his opinion that Dr. Shah

complied with the standard of care with respect to the Decedent’s May 3,

2012, CT scan. Id. at 117.

      David Warshal, M.D., a gynecologist oncologist called as an expert by

Appellees, testified he disagreed with Dr. Hopkins’ testimony that there would

have been less chances of major complications if the Decedent would have

underwent the debulking surgery in May of 2012 as opposed to December of

2012. Id. at 129. He opined that “even as of May there was probably a

significant amount of disease down…in the base of the pelvis.” Id. at 131.

He indicated the risk of complications from surgery would have been “the

same” whether the surgery occurred in May or December. Id. at 131-32. He

noted:

      [I]t was very unlikely even in a surgery like Dr. Hernandez
      performed [in December] for there to be a bowel perforation. And
      very unlikely that it would end up, unfortunately, in death. If the
      surgery had been done in May,…the likelihood is they would have
      needed to do a fairly radical procedure that likely would have
      required some bowel resection, and especially that increases the
      patient’s risk for having significant complications, and even death.
      So I would put the risk for the two surgeries at about the same.

Id. at 132.

      Dr. Warshal opined that the Decedent did not die from cancer. Id. at

136. Rather, her cause of death was sepsis secondary to the bowel




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perforation. Id. He testified that sepsis is treatable, but it is a very serious

problem. Id.

        On cross-examination, Dr. Warshal admitted that, from May of 2012 to

December of 2012, the Decedent’s cancer progressed from Stage III-C to

Stage IV, and the survival rate between Stage III and Stage IV is “cut in half.”

Id. at 139. He opined it was likely the bowel perforation resulted from the

primary surgery, which was performed by Dr. Hernandez on December 26,

2012. Id. at 143. He also opined it was less likely the Decedent would have

sustained a perforation had she underwent surgery in May.           Id. at 144.

However, Dr. Warshal opined that the Decedent would have been at greater

risk for other types of surgical complications if she had the surgery in May as

opposed to December. Id.

        At the conclusion of trial, the jury found Appellees were negligent;

however, the jury determined the negligence was not the factual cause of

harm to the Decedent. Appellant filed a timely post-trial motion, which the

trial court denied on August 28, 2017. On September 21, 2017, judgment

was entered in favor of Appellees, and Appellant filed a timely notice of appeal.

The trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement,

Appellant timely complied,9 and the trial court filed a responsive Pa.R.A.P.

1925(a) opinion.

____________________________________________


9   In his Rule 1925(b) statement, Appellant alleged the following (verbatim):



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       On appeal, Appellant presents the following issues in his “Statement of

the Questions Involved” (verbatim):

       A. Whether the trial court erred in ruling that the jury verdict on
          the issue of factual cause of harm to Decedent was not against
          the weight of the evidence, where plaintiff and defense expert
          witnesses at trial were in agreement as to the cause of the
          sepsis which resulted in Decedent’s death, and were in
          agreement that the delay in diagnosis and treatment of
          Decedent’s cancer resulted in increased risk of colon
          perforation and decrease in 5 year survival prognosis.
       B. Whether the trial court erred in permitting a defense radiology
          expert to offer opinions at trial on medical matters outside the
          expert’s knowledge, education, training and experience,
          specifically the cause of Decedent’s colon perforation.

Appellant’s Brief at 5 (suggested answers omitted).

       In his first issue, Appellant contends the trial court improperly denied

his post-trial motion seeking a new trial based on the weight of the evidence.10


____________________________________________


      A. The trial court erred in ruling that the jury verdict on the issue
         of factual cause of harm to Decedent was not against the
         weight of the evidence, where plaintiff and defense expert
         witnesses at trial were in agreement as to the cause of the
         sepsis which resulted in Decedent’s death, and were in
         agreement that the delay in diagnosis and treatment of
         Decedent’s cancer resulted in increased risk of colon
         perforation and decrease in 5-year survival prognosis.
      B. The trial court erred in permitting a defense radiology expert
         to offer opinions at trial on medical matters outside the expert’s
         knowledge, education, training and experience, specifically the
         cause of Decedent’s colon perforation.
Appellant’s Rule 1925(b) Statement, filed 12/8/17, at 1-2.

10To the extent Appellant also presents on appeal a sufficiency of the evidence
challenge, we note the issue is waived. Appellant did not present any claim
related to the sufficiency of the evidence in his court-ordered Rule 1925(b)
statement. See Pa.R.A.P. 1925(b)(4)(vii).

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Specifically, he contends the jury’s verdict concluding that Dr. Shah’s

negligence was not the factual cause of the Decedent’s injury (and ultimate

death) is against the weight of the evidence. In this regard, Appellant asserts

experts for both Appellant and Appellees agreed that the debulking surgery

performed on December 26, 2012, caused a perforation to the Decedent’s

bowel, which led to sepsis and the Decedent’s ultimate death.

      Moreover, he contends these same experts agreed the Decedent’s

cancer worsened from May to December, and, thus, there was a significant

reduction in her five year survival expectation, as well as an increase in the

risk of a colon perforation during surgery. Accordingly, Appellant argues it is

uncontroverted that the risk of harm to the Decedent was increased due to

the delay in diagnosis and treatment resulting from Dr. Shah’s negligence in

reviewing and reporting on the May 3, 2012, CT scan, and therefore, the jury’s

verdict as to causation is against the weight of the evidence.

      Initially, we note the following relevant legal precepts:

            Appellate review of a weight claim is a review of the
            [trial court’s] exercise of discretion, not of the
            underlying question of whether the verdict is against
            the weight of the evidence. Because the trial judge
            has had the opportunity to hear and see the evidence
            presented, an appellate court will give the gravest
            consideration to the findings and reasons advanced by
            the trial judge when reviewing a trial court’s
            determination that the verdict is against the weight of
            the evidence. One of the least assailable reasons for
            granting or denying a new trial is the lower court’s
            conviction that the verdict was or was not against the
            weight of the evidence and that a new trial should be
            granted in the interest of justice.

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J-A28033-19


     In re Estate of Smaling, 80 A.3d 485, 490 (Pa.Super. 2013)
     [(en banc)]. The factfinder is free to believe all, part, or none of
     the evidence and to determine the credibility of the witnesses.
     The trial court may award a judgment notwithstanding the verdict
     or a new trial only when the jury’s verdict is so contrary to the
     evidence as to shock one’s sense of justice. In determining
     whether this standard has been met, appellate review is limited to
     whether the trial judge’s discretion was properly exercised, and
     relief will only be granted where the facts and inferences of record
     disclose a palpable abuse of discretion. When a fact finder’s
     verdict is so opposed to the demonstrative facts that looking at
     the verdict, the mind stands baffled, the intellect searches in vain
     for cause and effect, and reason rebels against the bizarre and
     erratic conclusion, it can be said that the verdict is shocking.

Haan v. Wells, 103 A.3d 60, 70 (Pa.Super. 2014) (citations, quotations, and

quotation marks omitted). However, “[i]f there is any support in the record

for the trial court’s decision to deny the appellant’s motion for a new trial

based on weight of the evidence, then we must affirm. An appellant is not

entitled to a new trial where the evidence presented was conflicting and the

fact-finder could have decided in favor of either party.” Corvin v. Tihansky,

184 A.3d 986, 992-93 (Pa.Super. 2018) (quotation and quotation marks

omitted).

           To prevail in any negligence action, the plaintiff must
     establish the following elements: the defendant owed him or her
     a duty, the defendant breached the duty, the plaintiff suffered
     actual harm, and a causal relationship existed between the breach
     of duty and the harm….[T]o establish the causation element in a
     professional malpractice action, the plaintiff must show that the
     defendant’s failure to exercise the proper standard of care caused
     the plaintiff’s injury.

Freed v. Geisinger Medical Center, 910 A.2d 68, 72-73 (Pa.Super. 2006)

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


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J-A28033-19


(holding that in negligence action the plaintiff must demonstrate the

defendant was the factual cause of injury to the plaintiff).

      In the case sub judice, Appellant’s weight of the evidence claim is

focused on the causation element; to wit, Appellant contends the jury’s verdict

that Dr. Shah’s negligence was not a factual cause of the Decedent’s injuries

(and ultimate death) is against the weight of the evidence. In rejecting this

claim, the trial court relevantly indicated the following:

             During trial, [Appellant] presented expert medical testimony
      that the 7-month delay in surgical treatment of the cancer
      significantly increased the risk of surgical complications, such as
      a colon perforation, and that [the Decedent] did, in fact, sustain
      a perforated colon as a result of a December 26, 2012, surgery
      performed by Dr. Enrique Hernandez resulting in sepsis which led
      to [the Decedent’s] death.
             [Appellant] suggests that the testimony presented by [his]
      expert, Michael Hopkins, M.D., and defense expert, David
      Warshall, M.D., was in agreement that the risk of harm to the
      patient was increased such that the weight of the evidence
      regarding the causation issue warranted a finding in [Appellant’s]
      favor. Despite [Appellant’s] contention, the testimony taken as a
      whole from Dr. Hopkins and Dr. Warshal, as well as from other
      witnesses, was not in complete agreement, or as [Appellant]
      suggests, uncontroverted. Rather, there was ample evidence at
      trial contradicting and rebutting Dr. Hopkins’ opinions on the
      cause of the perforation; the differences in the various risks
      associated with the debulking surgeries in May 2012 versus
      December 2012; and the meaning and weight to be attributed to
      the survival rates discussed by the experts at trial. In fact, the
      record reflects that [Appellees’ expert,] Dr. Warshal[,] began his
      testimony by expressly stating that he disagreed with Dr. Hopkins
      and he explained in detail the nature and extent of his
      disagreement. Further, despite [Appellant’s] contention that the
      colon perforation was the result of Dr. Hernandez’ surgery,
      defense expert witness Dr. Glick testified in the alternative that
      diverticulitis…[was] the cause [of the bowel perforation]. This was
      a fact for the jury to determine.


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J-A28033-19


                                     ***
            Despite [Appellant’s] contention, although the experts may
      have been in agreement on some aspects of [the Decedent’s]
      care, their opinions and conclusion[s] were clearly diverse to one
      another. As to which opinion carried more weight and credibility
      was clearly within the purview of the jury as the finder of fact.

Trial Court Opinion, filed 5/6/19, at 3, 5 (citations to record omitted).

      The trial court found nothing about the verdict shocked its sense of

justice or required a new trial. Mindful of our limited scope of review of a

weight of the evidence claim, our obligation is to respect the fact finder’s

credibility   determinations   and   the   weight   it   accords   the   evidence;

consequently, we find no basis to challenge the trial court’s denial of a new

trial. See Corvin, supra.

      In his second issue, Appellant contends the trial court erred in denying

his motion in limine to exclude Dr. Glick, a radiologist, from providing expert

testimony on the issue of causation of the Decedent’s bowel perforation.

Specifically, Appellant contends Dr. Glick’s testimony on causation (i.e., that

the cause of the Decedent’s bowel perforation was diverticulitis) violated

Pennsylvania’s common law governing the admission of expert testimony, as

well as the Medical Care Availability and Reduction of Error Act (“MCARE Act”),

40 P.S. § 1303.512.

      First, Appellant contends the trial court erred in concluding Dr. Glick

qualified as an expert for purposes of causation pursuant to the common law

standard. Specifically, Appellant argues Dr. Glick is a board-certified



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J-A28033-19


radiologist who does not diagnose or treat disease, has no direct patient

contact, and does not perform surgery such that he was not qualified to opine

as to the cause of the Decedent’s bowel perforation. See Appellant’s Brief at

30.

      Initially, we note the following:

      When we review a ruling on the admission or exclusion of
      evidence, including the testimony of an expert witness, our
      standard is well-established and very narrow. These matters are
      within the sound discretion of the trial court, and we may reverse
      only upon a showing of abuse of discretion or error of law. An
      abuse of discretion may not be found merely because an appellate
      court might have reached a different conclusion, but requires a
      result of manifest unreasonableness, or partiality, prejudice, bias,
      or ill-will, or such lack of support so as to be clearly erroneous. In
      addition, [t]o constitute reversible error, an evidentiary ruling
      must not only be erroneous, but also harmful or prejudicial to the
      complaining party.

Freed, 910 A.2d at 72 (quotations and quotation marks omitted).

             In general, to qualify as an expert witness, one must only
      “possess more expertise than is within the ordinary range of
      training, knowledge, intelligence, or experience.” Thus, in
      determining whether to admit expert testimony, the usual test to
      be applied is “whether the witness has a reasonable pretension to
      specialized knowledge on the subject matter in question.”
            Applying this broad standard for expert testimony to an
      issue of medical causation, this Court [has held]…that “an
      otherwise qualified non-medical expert [may] give a medical
      opinion so long as the expert witness has sufficient specialized
      knowledge to aid the jury in its factual quest.”

Freed, 910 A.2d at 73 (footnote, citations, and quotations omitted). “If a

witness possesses neither experience nor education in a subject matter under

investigation, the witness should be found not to qualify as an expert.”



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J-A28033-19


Yacoub v. Lehigh Valley Med. Assocs., P.C., 805 A.2d 579, 591 (Pa.Super.

2002) (en banc).

     Here, the trial court held the following:

            Seth Glick, M.D., a defense expert witness, was presented
     for direct examination and cross-examination on voir dire. As
     explained to the jury, he had been a radiologist for over 35 years.
     He is fellowship-trained in abdominal CT scanning and
     gastrointestinal radiology.       He explained that his sub-
     specialization in the field of gastrointestinal radiology involves
     imaging of the upper gastrointestinal tract and the lower
     gastrointestinal tract in the small bowel. He also testified that he
     has a full knowledge of the diseases of the gastrointestinal tract
     and symptoms and findings that are associated with them. [The
     trial] court determined that Dr. Glick was more than a [sic]
     qualified to testify to the opinions he gave in this case including
     the cause of the perforation. He was rebutting plaintiff’s expert’s
     [opinions]. The jury was free to evaluate and accept his testimony
     which was subject to cross-examination.
           Dr. Glick gave clear concise medical evidence based
     testimony with supporting factors for his rationale underlying the
     opinions he gave at trial. He explained the basis for his opinions
     from a radiologic perspective given his medical education, training
     and expertise, and based his opinions on the evidence of
     record….As the gatekeeper, [the trial] court determined that Dr.
     Glick was not giving an opinion beyond the scope of his expertise,
     but simply was offering an opinion from a different standpoint in
     order to provide an alternative explanation as to the cause of [the
     Decedent’s] bowel perforation.
           At trial, Dr. Glick opined from a radiologic perspective what
     may have caused [the] perforation. He explained that the
     perforation that he saw in the January study was in the posterior
     wall of the sigmoid colon, which was the same area of the
     [thickening of the colon wall identified in Dr. Shah’s May 3, 2012,
     CT scan report]. This perforation was not near the subject tumor
     at that particular point in time or on the December study. His
     opinion was that the perforation occurred from the disease of the
     sigmoid colon which was most likely diverticulitis.
                                  ***



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J-A28033-19


            Dr. Glick [explained] that the barium enema study of the
      [Decedent’s] sigmoid colon showed thickening of the wall and
      diverticulosis of the colon.    He knew that the patient had
      diverticular disease and had kinking, which is usually due to
      adhesions.
            On the CT scan from May 2012, Dr. Glick stated he could
      see very subtle linear lines coming from the sigmoid colon and
      going down to the fat around it, which meant to him that there
      had been a prior episode of inflammation. Based on this, he knew
      that the patient had a prior bout of diverticulitis. He referred to
      this as chronic diverticular disease and stated that thickening in
      the [colon] and the adhesions and the kinking told him that there
      is an underlying [problem] there.

Trial Court Opinion, filed 5/6/19, at 5-6.

      We agree with the trial court’s sound reasoning. Dr. Glick, a board-

certified gastrointestinal radiologist, offered an opinion as to causation based

on his review of CT scans, as well as a barium enema. Dr. Glick testified he

has specialty training in abdominal CT scanning and gastrointestinal radiology,

and he testified he has performed “thousands” of barium enemas.             N.T.,

4/26/17, at 76. Moreover, Dr. Glick was a clinical professor of radiology at

the Hahnemann University from 1991 to 2001, as well as at the University of

Pennsylvania from 2001 to the time of trial in 2017. Id. at 77. Additionally,

he has published on the issue of gastrointestinal radiology. Id. at 80.

Accordingly, the trial court did not abuse its discretion in concluding Dr. Glick

demonstrated that he has a “reasonable pretension to specialized knowledge

on the subject matter in question.” Freed, 910 A.2d at 73 (quotation and

quotation marks omitted).




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     Next, Appellant argues the trial court erred in concluding that Dr. Glick

qualified as an expert for causation purposes under the MCARE Act standard.

Specifically, he contends Dr. Glick does not meet the requirements of

Subsections 1303.512 (a) and (b). We note this issue involves the

interpretation of the MCARE Act and presents a question of law. See Renna,

supra. Accordingly, our standard of review is de novo and our scope of review

is plenary. Id.

     The MCARE Act relevantly 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.
     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.

40 P.S. § 1303.512(a), (b) (bold in original). The burden to establish an

expert’s qualifications under the MCARE Act lies with the proponent of the

expert testimony. Weiner v. Fisher, 871 A.2d 1283, 1290 (Pa.Super. 2005).


                                    - 27 -
J-A28033-19


      In the case sub judice, with respect to Subsection (a), as discussed fully

supra, the trial court concluded Dr. Glick possesses “sufficient education,

training,   knowledge   and   experience     to    provide   credible,   competent

testimony.”    See 40 P.S. § 1303.512(a).         More specifically, the trial court

properly held Dr. Glick possessed the necessary qualifications to interpret

radiology reports related to the gastrointestinal tract so as to provide

competent testimony related to causation.          See Trial Court Opinion, filed

5/6/19, at 5-6.

      Moreover, with respect to Subsection (b), there is no dispute that Dr.

Glick possesses the necessary physician’s license to practice medicine in

Pennsylvania, as well as in New Jersey, and he has been engaged in active

clinical teaching of radiology since 1991. N.T., 4/26/17, at 77-78. Thus, we

find the trial court properly permitted Dr. Glick to offer expert testimony on

causation under the MCARE Act.

      For all of the foregoing reasons, we affirm.

      Affirmed.

       Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/8/20



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