J-A12044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BEVERLY DELEON,                                IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellant

                     v.

ELIZABETH N. WISE, D.O., AND LAKE
ERIE OBSTETRICS & GYNECOLOGY ALSO
KNOWN AS LAKE ERIE OB/GYN,

                          Appellee                  No. 1764 WDA 2016


             Appeal from the Judgment Entered November 14, 2016
                 In the Court of Common Pleas of Erie County
                       Civil Division at No(s): 11650-2013


BEFORE: OLSON, SOLANO and RANSOM, JJ.

MEMORANDUM BY OLSON, J.:                              FILED JULY 14, 2017

     Appellant, Beverly DeLeon, appeals from the November 14, 2016,

judgment entered in favor of Dr. Elizabeth N. Wise and Lake Erie Obstetrics

& Gynecology also known as Lake Erie OB/GYN (collectively “Defendants”).

We affirm.

     The factual background and procedural history of this case are as

follows. On June 22, 2011, Appellant received prenatal care from Dr. Wise,

a board certified obstetrician and gynecologist (“OB/GYN”).        Appellant’s

Second Amended Complaint, 12/5/13, at 2. At that time, Appellant was 14

weeks pregnant.       Id.    During the appointment, Dr. Wise prescribed

Appellant the antibiotic Flagyl to treat an ongoing vaginal infection. Id. The

next day, Appellant took one 500 milligram dose of Flagyl.      Id.   Roughly
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eight hours later, Appellant began to experience severe abdominal and lower

back pain. Id. She spoke with Dr. Wise via telephone, who instructed her

to discontinue the Flagyl.          Id. at 3.      Appellant’s discomfort continued

through the next few days, and on June 27, 2011, she suffered a

spontaneous miscarriage. Id.

        On August 14, 2013, Appellant filed a complaint alleging medical

malpractice against Defendants.                Trial was scheduled   to commence

November 14, 2016. On May 12, 2015, Appellant filed a pre-trial statement

identifying her expert witness as Evan Legenzoff, Pharm.D.1

        Defendants filed a motion in limine seeking to preclude Dr. Legenzoff’s

testimony. On November 14, 2016, after hearing argument, the trial court

granted the motion.           Immediately thereafter, Defendants moved for

summary judgment.          Appellant did not object to the timing of the motion

and the trial court granted it. This timely appeal followed.2

        Appellant presents one issue for our review:

____________________________________________


1
    Pharm.D. is a doctor of pharmacology.
2
  On November 21, 2016, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
(“concise statement”). On December 12, 2016, Appellant filed her concise
statement. On December 13, 2016, the trial court filed a brief 1925(a)
opinion in support of the order granting Defendants’ motion in limine and
motion for summary judgment. The opinion stated that the trial court set
forth its reasoning on the record during the pretrial hearing in which it
granted the motions. Appellant’s lone appellate issue was included in her
concise statement.



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      Whether the [trial c]ourt erred in granting [Defendants’ m]otion
      in [l]imine thereby disallowing Appellant’s expert, a [d]octor of
      [p]harmacology, to opine on the issues of standard of
      care/breach of the standard of care and/or factual cause. . .[?]

Appellant’s Brief at 2 (emphasis removed).

      “Generally, a trial court’s decision to grant or deny a motion in limine

is subject to an evidentiary abuse of discretion standard of review.” Caitlin

v. Hamburg, 56 A.3d 914, 922 (Pa. Super. 2012) (citation omitted). The

motion at issue precluded Appellant’s expert from testifying in her medical

malpractice suit. This Court previously stated:

      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.

      Further, [a]n expert witness proffered by a plaintiff in a medical
      malpractice action is required to testify to a reasonable degree of
      medical certainty, that the acts of the physician deviated from
      good and acceptable medical standards, and that such deviation
      was the proximate cause of the harm suffered.

Tillery v. Children's Hospital of Phila., 156 A.3d 1233, 1240 (Pa. Super.

2017) (citations and original brackets omitted).

      In granting the motion in limine, the trial court reasoned that

Appellant’s expert was not qualified to render an opinion on the standard of

care (or breach of the standard of care) for an OB/GYN, as he is a

pharmacist.   N.T., 11/14/16, at 3.   Moreover, the trial court held that Dr.

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Legenzoff was not capable of giving a medical opinion on the issue of

causation.   Id. at 4.   Appellant argues that this was an error because “a

specific finding by the trial court that a medical expert is competent on the

basis of education or training or experience relieves the proponent of the

additional general requirements that an expert possess an unrestricted

physician’s license.” Appellant’s Brief at 4. This argument is without merit.

      Pennsylvania’s Medical Care Availability and Reduction of Error Act

(“MCARE”) states that “[n]o 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.”   40 P.S.

§ 1303.512(a). In order to testify to standard of care and causation, section

1303.512(b)(1) requires an expert to possess an unrestricted physician’s

license.

      Dr. Legenzoff is not a licensed physician and does not practice

medicine in the field of obstetrics and gynecology. In Wexler v. Hecht, 928

A.2d 973 (Pa. 2007), our Supreme Court held that MCARE “unambiguously

denotes a medical doctor or osteopath licensed by a state board appropriate

to such practices,” and that “there is no provision for waiver” of the

licensed physician requirement regarding standard of care testimony. Id. at

132 (emphasis added).      Thus, Appellant’s argument that Dr. Legenzoff’s


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J-A12044-17


training and experience permitted the trial court to waive the licensed

physician requirement with respect to standard of care is without merit.

      Appellant cites Kuisis v. Baldwin-Lima-Hamilton Corp., 319 A.2d

914 (Pa. 1974), Dambacher v. Mallis, 485 A.2d 408 (Pa. Super. 1984),

and Pratt v. Stein, 444 A.2d 674 (Pa. Super. 1982), in support of her

argument that Dr. Legenzoff was qualified to testify as an expert witness in

this case. All of these cases, however, were decided prior to the enactment

of MCARE. MCARE drastically altered the required qualifications for experts

in medical malpractice cases.       Dr. Legenzoff does not possess those

qualifications.

      Appellant argues that any physician she would call as a witness would

be rendering an opinion, “predicated on the pharmacological industry and

profession as her primary source.”     Appellant’s Brief at 6.   Regardless of

whether a pharmacological expert is more apt to discuss the risks of a drug

to a certain class of patients, MCARE makes clear that such an expert is not

qualified to establish the appropriate standard of care for use by an OB/GYN

in treating a specific infection. Nor is such an expert qualified to establish a

breach of the proper standard of care.     Accordingly, we conclude that the

trial court did not abuse its discretion in granting Defendants’ motion in

limine.

      Finally, to the extent that Appellant argues that the trial court erred in

granting Defendants’ summary        judgment motion because Dr. Wise’s


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J-A12044-17


deposition testimony negated the need for Dr. Legenzoff to testify as to the

standard of care, that argument is waived.    Appellant first introduced the

transcript of Dr. Wise’s deposition testimony with her concise statement.

“An issue raised for the first time in a concise statement is waived.”

Beemac Trucking, LLC v. CNG Concepts, LLC, 134 A.3d 1055, 1058 (Pa.

Super. 2016) (citation omitted). Appellant failed to make this argument to

the trial court in opposition to Defendants’ summary judgment motion. As

such, the argument is waived.      See Pa.R.A.P. 302; Pa.R.C.P. 1035.3.

Therefore, the trial court correctly granted Defendants’ summary judgment

motion.

     Judgment affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2017




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