J-A26008-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THOMAS SLEE AND KEVIN R. MILEY AND               IN THE SUPERIOR COURT OF
FRANK B. MILEY, JR., ADMINISTRATORS                    PENNSYLVANIA
OF THE ESTATE OF MARY SLEE,
DECEASED

                        Appellants

                   v.

FRANK MOZDY, M.D. AND THE
CHAMBERSBURG HOSPITAL

                        Appellees                    No. 613 MDA 2014


            Appeal from the Judgment Entered March 27, 2014
             In the Court of Common Pleas of Franklin County
                     Civil Division at No(s): 2011-2593


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                         FILED DECEMBER 05, 2014

     Appellants, Thomas Slee, Kevin R. Miley, and Frank B. Miley, Jr., as

administrators of the estate of Mary Slee (Decedent), appeal from the March

27, 2014 judgment entered in favor of Appellees, Frank Mozdy, M.D. and the

Chambersburg Hospital. After careful review, we affirm.

     The trial court succinctly summarized the relevant factual and

procedural background of this case as follows.

                 This medical malpractice case was tried before
           a jury on November 18 and 19, 2013. Prior to trial,
           Frank Mozdy, M.D. (“Dr. Mozdy”) stipulated to a
           breach in the standard of care of [Decedent] during
           her hospitalization in May 2008. The trial was solely
           on the issues of causation and damages. The jury
           found that Dr. Mozdy’s conduct was not a factual
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          cause of [Decedent]’s harm and therefore did not
          address the issue of damages.

                After previously having a nodule on her left
          upper arm frozen, in 2006 when the nodule returned
          [Decedent] had it surgically removed. In addition to
          removing the entire tumor, the doctor also removed
          two sentinel lymph nodes.         Pathology results
          indicated that Mary had melanoma, but that no
          metastases had occurred through her lymphatic
          system.

                On May 30, 2008, [Decedent] was admitted to
          Chambersburg Hospital for shortness of breath. A
          CT scan of her chest was performed in order to rule
          out a pulmonary embolism. While the CT scan did
          not reveal a pulmonary embolism, it did show a 6.4
          mm nodule in the right lower lobe of [Decedent]’s
          lung. The radiologist recommended a follow-up in
          three months.     However, [Decedent] was never
          informed    of   the    radiologist’s    findings or
          recommendation, nor were they noted in her
          discharge summary prepared by Dr. Mozdy [Dr.
          Mozdy stipulated that his failure to inform Decedent
          of the recommended follow-up was a breach of the
          standard of care]. As a result, [Decedent]’s family
          physician, Dr. Anita Chadwick, never scheduled the
          recommended follow-up, which she would have done
          had she known about the radiologist’s findings.

                 On July 23, 2009, [Decedent] fell while at work
          and struck her head.       She was brought to the
          Chambersburg Hospital where she underwent an MRI
          … at the [insistence] of her family. The MRI revealed
          that [Decedent] had fifteen masses in her brain,
          some of which had bleeding and some of which had
          swelling. A CT scan of her chest showed that the
          nodule in her lung had increased in size since it was
          identified in 2008.

                [Decedent] was transferred to Johns Hopkins
          Hospital …. The tumors in [Decedent]’s brain were
          biopsied and found to be metastatic melanoma. The
          nodule in [Decedent]’s lung was never biopsied;

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              however, the experts agree to a reasonable amount
              of medical certainty that it was metastatic
              melanoma. Sadly, [Decedent] … died … on August
              11, 2011.

                     Three expert witnesses testified at trial. Dr.
              Russell Fuhrer, a board certified radiation oncologist
              testified on behalf of the [Appellants]. Dr. George
              Murphy, a board certified pathologist, and Dr.
              Michael Mastrangelo, a board certified medical
              oncologist, testified on behalf of Dr. Mozdy. The
              experts disagreed as to whether [Decedent] had
              tumors in her brain when she had the CT scan of her
              lung in May 2008.

Trial Court Opinion, 3/12/14, at 1-3 (footnote omitted). On November 19,

2013, the jury found that Dr. Mozdy’s negligence was not a factual cause of

harm to [Decedent]. Verdict Slip, 11/19/13. Appellants filed a motion for a

new trial on November 26, 2013. The trial court denied the motion on March

12, 2014 and entered judgment on March 27, 2014.             On April 7, 2014,

Appellants filed a timely notice of appeal.1

       On appeal, Appellants raise the following issue for our review.

              A. Whether the trial court abused its discretion in
              failing to grant a new trial when the medical
              testimony in this case was so clear and uniform that
              reasonable minds could not have differed on the
              question of whether the delay in [Decedent]’s
              diagnosis and treatment decreased her life span, and
              therefore caused her harm?

____________________________________________


1
  Appellants and the trial court have timely complied with Pennsylvania Rule
of Appellate Procedure 1925.       Specifically, the trial court adopted the
reasoning set forth in its March 12, 2014 opinion denying Appellants’ post
trial motion.



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Appellants’ Brief at 11.

      We begin by noting our well-settled standard of review

with regard to a motion for a new trial.

                      Our review of the trial court’s denial of a new
              trial is limited to determining whether the trial court
              acted capriciously, abused its discretion, or
              committed an error of law that controlled the
              outcome of the case. In making this determination,
              we must consider whether, viewing the evidence in
              the light most favorable to the verdict winner, a new
              trial     would    produce     a    different   verdict.
              Consequently, if there is any support in the record
              for the trial court’s decision to deny a new trial, that
              decision must be affirmed.

Joseph v. Scranton Times, L.P., 89 A.3d 251, 260 (Pa. Super. 2014)

(citations omitted).

      In the instant case, Appellants aver the jury verdict in this case was

against the clear weight of the evidence. Appellants’ Brief at 8. However,

we observe, “[a] new trial based on weight of evidence issues will not be

granted unless the verdict is so contrary to the evidence as to shock one’s

sense of justice; a mere conflict in testimony will not suffice as grounds for a

new trial.”   Daniel v. William R. Drach Co., Inc., 849 A.2d 1265, 1267

(Pa. Super. 2004) (citation omitted).

              Upon review, the test is not whether this Court
              would have reached the same result on the evidence
              presented, but, rather, after due consideration of the
              evidence found credible by the [jury], and viewing
              the evidence in the light most favorable to the
              verdict winner, whether the court could reasonably
              have reached its conclusion.


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Id. (citation omitted).

      Appellants advance the argument that “[t]he testimony was so clear

that the [t]rial [c]ourt’s failure to grant a new trial was a miscarriage of

justice.” Appellants’ Brief at 13. We cannot agree. At trial, the jury heard

testimony from three medical experts. Dr. Russell Fuhrer was qualified as

an expert in radiation oncology and the treatment of metastatic melanoma.

N.T., 11/19/13, at 19.    He testified, on behalf of Appellants, as to two

possible scenarios had Decedent received follow-up care three months after

her hospitalization in May 2008, as recommended by the radiologist.

            Q. Now Doctor, … you provided two different
            scenarios for what if [Decedent] had a proper work-
            up in 2008, is that true?

            A. Yes.

            Q. Can you please tell us what the first one was?

            A. So, if she had received the proper work up 11
            months prior to 2009, and either there would have
            been no metastasis or smaller brain metastasis in
            the brain at that point.

                                      …

            Q. Do you have an opinion within a reasonable
            degree of medical certainty whether under [the first]
            scenario she would have had a better chance at
            living a longer, healthier life?

            A. Yes, she would have. There’s a narrow window in
            melanoma where resecting a single site of metastatic
            disease gives some patients a benefit in their
            survival advantage if it’s caught in just one site and
            it’s successfully operated on.

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                                    …

           Q. Now Doctor, based on [the second] scenario, did
           you reach a conclusion within a reasonable degree of
           medical certainty regarding whether earlier diagnosis
           and treatment of [Decedent]’s metastatic melanoma
           would have increased her chances of living a longer
           healthier life?

           A.    Nobody can predict the future.      You can’t
           specifically say, ya know, when we make decisions
           about treating an individual patient we base that on
           experience with other patients and experiences in
           the literature, and had she had just the pulmonary
           nodule and that been resected, that outcome could
           very well have been different.

                                    …

           Q. And based on the first scenario, a tumor in her
           lung, but not in her -- but no tumors in her brain,
           she had a better chance of avoiding the pain and
           suffering she went through?

           A. Yes.

           Q. The second scenario, she still would have had the
           pain and suffering but would have lived longer?

           A. There’s a greater likelihood of her living longer,
           yes.

Id. at 37-41. On cross-examination, Dr. Fuhrer agreed that metastatic

melanoma is among the more aggressive tumors and “that it generally

responds poorly to most treatments.” Id. at 54.

     Dr. George Murphy testified on behalf of Appellees and was qualified

as an expert in the fields of pathology and dermatology, with expertise in

the field of malignant melanoma. Id. at 76-77. He opined, “my experience


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has been that patients with brain metastases have a very poor prognosis in

melanoma. And so therefore, my opinion would be that her prognosis would

have not been a favorable one in 2008.” Id. at 94. He acknowledged his

professional role is to render diagnoses that lead to treatment, to sometimes

advise with regard to treatment, and to assess efficacy of treatment on

occasion.   Id.   He further acknowledged his expertise was not in medical

oncology by testifying, “[w]ell, my experience in working with medical

oncologists and melanoma oncologists has been that once brain metastases

have occurred, they’re extraordinarily difficult to effectively treat and to alter

quality of life and/or prognosis.        That would, of course, need to also be

evaluated from the context of medical oncology.” Id. at 95.

       Following the testimony of Dr. Murphy, Dr. Michael Mastrangelo

testified on Appellees’ behalf as an expert witness in the area of medical

oncology,   “competent    to   testify    with   respect   to   biology,   treatment,

metastasis, and prognosis of the disease.”          Id. at 125.     Dr. Mastrangelo

testified to a reasonable degree of medical certainty that the cancer spread

to Decedent’s brain prior to 2006. Id. at 128. Dr. Mastrangelo also testified

to the effect a follow-up visit would have had on Decedent’s prognosis.

            Q. Okay, and Doctor, do you have an opinion to a
            reasonable degree of medical certainty whether any
            follow-up of that CT in May of 2008 would have
            provided any significant improvement in the overall
            prognosis for [Decedent]?

            A. Once the tumor metastasizes beyond the primary
            site and is not in the regional lymph nodes, these

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           people die of their disease. The only question is
           when. … [I]t’s difficult to prove more intensive
           testing actually changes the outcome.

                  If you test more intensely, you find the disease
           earlier, we initiate the treatment earlier, prolongs life
           somewhat; however, it doesn’t cure you. You still
           die. The outcome is still the same.

Id. at 129-130.

     Based on the aforementioned testimony, the jury found the failure of

Dr. Mozdy to inform Decedent of the recommendation to follow-up within

three months of his treatment of her was not a factual cause of the harm

she suffered. See Verdict Slip, 11/19/13. The evidence revealed that the

type of cancer Decedent had was aggressive. Though Dr. Fuhrer testified on

behalf of Appellants that there was a “narrow window” where treatment may

have provided a benefit under one hypothetical scenario, he also agreed that

this type of cancer “responds poorly to most treatments.”              See N.T.,

11/19/13, at 39, 54.

     Therefore, viewing this evidence in the light most favorable to

Appellees, as verdict winner, we cannot conclude a new trial would result in

a different verdict. See Joseph, supra. The jury in this case found that Dr.

Mozdy’s departure from the standard of care was not the factual cause of

Decedent’s harm. After due consideration of the evidence, we conclude this

was a reasonable conclusion.     See Daniel, supra.       Therefore, we reject

Appellants’ argument that the jury verdict was against the clear weight of

the evidence.   See Appellants’ Brief at 8.

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J-A26008-14


     Based on the foregoing, we conclude the trial court did not abuse its

discretion when it denied Appellants’ motion for a new trial and entered

judgment in accordance with the jury’s verdict.        See Joseph, supra.

Accordingly, the trial court’s March 27, 2014 judgment is affirmed.

     Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/5/2014




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