J-A23024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BARBARA A. DAVIS,                       :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellant             :
                                        :
                                        :
            v.                          :
                                        :
                                        :
YURY L. BYKOV, INCORRECTLY              :
IDENTIFIED AS YURY I. BYBOV,            :
M.D., VSAS ORTHOPAEDICS, P.C.,          :
FORMERLY KNOWN AS VALLEY                :
SPORTS & ARTHRITIS SURGEONS,            :   No. 1194 EDA 2017
P.C.                                    :

              Appeal from the Order Entered January 31, 2017
              In the Court of Common Pleas of Lehigh County
                     Civil Division at No.: 2013-C-3960

BEFORE: PANELLA, J., DUBOW, J., and FITZGERALD, J*

MEMORANDUM BY DUBOW, J.:                         FILED OCTOBER 26, 2017

     In this medical negligence action, Appellant, Barbara A. Davis, appeals

from the Order entering Judgment in favor of Appellees, Yury L. Bykov (“Dr.

Bykov”) and VSAS Orthopaedics, P.C., following a jury trial.    After careful

review, we affirm on the basis of the trial court’s well-reasoned and

comprehensive Opinion.

     We adopt the facts as set forth in the trial court’s January 31, 2017

Pa.R.A.P. 1925(a) Opinion. See Trial Court Opinion, dated 1/31/17, at 2-8.

In summary, Appellant fractured her tibia and fibula while dismounting a

horse on December 23, 2011.         Dr. Bykov evaluated Appellant in the

emergency room at Lehigh Valley Hospital, diagnosed her with soft tissue


____________________________________
* Former Justice specially assigned to the Superior Court.
J-A23024-17


injury and a fractured tibia and fibula, and concluded that she needed

immediate surgery.      Dr. Bykov performed the surgery and inserted an

intramedullary rod inside her tibia bone to stabilize the fracture.

      Appellant was discharged from the hospital on December 26, 2011.

During follow-up treatment visits, there were numerous complications that

resulted in additional surgeries. An X-ray in January 2012 showed that the

intramedullary rod inside her tibia bone was no longer holding the fracture in

place and displaced through the front of the bone, and she underwent

surgery to remove the rod the next day.         Dr. Bykov continued to treat

Appellant, but a CAT scan in May 2012 showed that there was no healing at

the fracture site.

      Appellant followed up with another doctor at the Rothman Institute

and underwent an additional surgery.         Further treatment through 2014

improved Appellant’s leg condition and healing.         Appellant continues to

experience occasional pain in her right leg, and there is significant scarring

and a small bump on her leg, with intermittent swelling.

      On November 4, 2013, Appellant initiated this medical negligence

action by filing a Writ of Summons and then a Complaint on January 10,

2014, along with Certificates of Merit shortly thereafter. On September 29,

2016, this case proceeded to a jury trial.

      At trial, Appellant presented expert testimony that Dr. Bykov failed to

meet the standard of care because he failed to recognize a new fracture line


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in an X-ray in January 2012 and because he failed to recognize that the tibia

and fibula had shifted and become displaced. Appellant’s expert opined that

these failures caused Dr. Bykov to permit Appellant to begin bearing weight

when she should not have.        This caused the fracture to become more

displaced, heal in an improper position, and the bone to poke through the

skin. As a result, Appellant needed the placement of an external fixator and

additional surgeries, and proper healing was delayed. Dr. Bykov presented

expert testimony from Dr. Samir Mehta to contradict these claims and that

his care met the standard of care.

      Dr. Bykov, an orthopedic trauma surgeon, also testified about his

treatment of Appellant. Relevant to the issue on appeal, Dr. Bykov testified,

over Appellant’s objections, that: (1) he “felt that we did everything

appropriate and we did meet the standard of care[;]” (2) he agreed with

counsel that he did “bring to bear all [his] education, training, and expertise

and [did] so to the best of [his] abilities;” and (3) he did “bring to bear that

orthopedic trauma fellowship, [his] experience in dealing with tibia fractures,

[his] knowledge of rods and relative stability, and [applied] those concepts

to the best of [his] ability as a doctor[.]” N.T. Trial, 9/28/16, at 126, 224.

      Appellant objected because this evidence prejudiced her as a result of

the trial court essentially permitting Dr. Bykov to testify as to an improper

subjective standard of care. The trial court overruled Appellant’s objections

during trial, but allowed Appellant time to find cases to support her position.


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      The next day, Appellant again raised the issue, presented supporting

case law, and requested a mistrial. The trial court overruled the objections

and denied her request for a mistrial.

      Both counsel emphasized this point during closing arguments. During

the jury charge, the trial court instructed the jury about the objective

standard of care in its jury instructions at the end of trial.

      On September 29, 2016, the jury returned a defense verdict and

concluded that Dr. Bykov was not negligent.          Appellant filed a Post-Trial

Motion on October 7, 2016.        Appellant again argued that the trial court

improperly overruled her objections to Dr. Bykov’s statements regarding his

treatment of Appellant to the best of his abilities. Appellant contended that

this testimony improperly suggested an incorrect and subjective standard of

care. After briefing and argument, the trial court denied Appellant’s Post-

Trial Motion in an Opinion filed on January 31, 2017. The trial court entered

Judgment by Praecipe on March 2, 2017.

      Appellant filed a timely Notice of Appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.

      Appellant presents one issue for our review:

      Whether [Appellant’s] Motion for Post-Trial Relief should have
      been granted and a new trial ordered when [Dr.] Bykov’s
      testimony was permitted to be heard by the jury, above
      objection, during trial on September 28, 2016, regarding the
      improper standard of care in a medical malpractice case, thereby
      prejudicing [Appellant], who bears the burden of proof of her
      claims against [Appellees]?


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Appellant’s Brief at 4.

      “Our standard of review when faced with an appeal from the trial

court’s denial of a motion for a new trial is whether the trial court clearly and

palpably committed an error of law that controlled the outcome of the case

or constituted an abuse of discretion.” Blumer v. Ford Motor Co., 20 A.3d

1222, 1226 (Pa. Super. 2011) (citation and quotation omitted).               “In

examining the evidence in the light most favorable to the verdict winner, to

reverse the trial court, we must conclude that the verdict would change if

another trial were granted.” Id. “Further, if the basis of the request for a

new trial is the trial court’s rulings on evidence, then such rulings must be

shown to have been not only erroneous but also harmful to the complaining

[party].” Id. “Evidentiary rulings which did not affect the verdict will not

provide a basis for disturbing the jury’s judgment[.]” Id.

      “Moreover, the admission or exclusion of evidence is within the sound

discretion of the trial court.”     Id.     “In reviewing a challenge to the

admissibility of evidence, we will only reverse a ruling by the trial court upon

a showing that it abused its discretion or committed an error of law.” Id.

      The Honorable Carol K. McGinley has authored a comprehensive,

thorough, and well-reasoned Opinion, with references to relevant facts of

record and applicable case law.     The record is free of legal error and the

evidence supports the court’s ruling on the evidentiary issue. After a careful

review of the parties’ arguments and the record, we discern no abuse of


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J-A23024-17


discretion or error of law and we affirm on the basis of that Opinion. See

Trial Court Opinion, dated 1/31/17, at 8-17 (concluding: (1) Dr. Bykov’s

testimony was relevant to the standard of care and the knowledge, skill, and

care normally exercised in the medical profession; (2) the trial court clearly

and properly instructed the jury about the applicable objective standard of

care; (3) counsel also emphasized the objective standard of care throughout

their closing arguments; (4) Appellant failed to prove prejudice; (5) the

cases on which Appellant relied were distinguishable because they pertained

to “error of judgment” charges, which was not at issue in this case; and (6)

Appellant thus failed to meet her burden to prove that the trial court clearly

and palpably committed an error of law that controlled the outcome of the

case or constituted an abuse of discretion).

      The parties are directed to attach a copy of the trial court’s January

31, 2017 Pa.R.A.P. 1925(a) Opinion to all future filings.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/26/2017




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