J-A34025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT BUTKA                                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

JOSEPH ANDREWS, M.D. AND WVHCS
HOSPITAL

                                                   No. 682 MDA 2015


               Appeal from the Judgment Entered March 17, 2015
                In the Court of Common Pleas of Luzerne County
                       Civil Division at No(s): 476 of 2009


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                         FILED FEBRUARY 24, 2016

       Robert Butka appeals from the judgment entered March 17, 2015,1 in

the Luzerne County Court of Common Pleas, in favor of the defendants,

Joseph Andrews, M.D. (“Dr. Andrews”), and WVHCS Hospital, in this medical

malpractice action. On October 2, 2014, the jury returned a verdict finding
____________________________________________


1
  We note the March 17, 2015, judgment was entered only with respect to
Dr. Andrews. Accordingly, this Court notified Butka of the defect in the
docket, and, on November 20, 2015, he filed a praecipe for the entry of
judgment against WVHCS Hospital. Although the notice of appeal was filed
before the entry of judgment, this Court may overlook that defect and “treat
the appeal as having been taken from the final judgment in this case.” Am.
& Foreign Ins. Co. v. Jerry's Sport Ctr., Inc., 948 A.2d 834, 842 (Pa.
Super. 2008), aff'd, 2 A.3d 526 (Pa. 2010). See Pa.R.A.P. 905(a)(5) (“A
notice of appeal filed after the announcement of a determination but before
the entry of an appealable order shall be treated as filed after such entry
and on the day thereof.”). Accordingly, this appeal is properly before us.
J-A34025-15



Dr. Andrews negligent, but concluding his negligence was not a factual cause

of Butka’s harm.      On appeal, Butka argues the trial court erred in (1)

granting a partial nonsuit in favor of the defendants on the issue of negligent

record keeping, and (2) providing a jury instruction on the issue of negligent

record keeping. For the reasons below, we affirm.

      The facts underlying Butka’s malpractice claim are summarized by the

trial court as follows:

            On or about January 8, 2007, Robert Butka was eating
      pork that became lodged in the lower part of his esophagus. Mr.
      Butka first went to his primary care doctor who referred him to
      Wilkes-Barre General Hospital for barium study. That barium
      study revealed an obstruction of the distal esophagus, likely
      related to the foreign body. Robert Butka then went to the
      Wilkes-Barre General Hospital Emergency Room where he
      consulted with Dr. Joseph Andrews.        Dr. Joseph Andrews
      performed an upper endoscopy for removal of the foreign body
      by placing a small snare through a scope and wrapping it around
      the food bolus, which was eventually removed. Afterwards a
      small tear of the esophagus was noted which was repaired the
      next day.     [Butka] alleges [Dr. Andrews] performed the
      procedure improperly and improperly sedated [Butka] during the
      endoscopic procedure.

Trial Court Opinion, 2/6/2015, at 1.

      Butka initiated this medical malpractice action by writ of summons on

January 8, 2009.          Thereafter, he filed a complaint on April 24, 2009,

alleging, inter alia, Dr. Andrews was negligent in failing to properly perform

the endoscopy, failing to timely identify the esophageal tear, and failing to

properly follow-up with Butka.        Butka also alleged WVHCS Hospital was




                                       -2-
J-A34025-15



vicariously liable for the negligence of its agent, Dr. Andrews.2    The case

proceeded to a jury trial on September 29, 2014.

       During trial, Dr. Andrews’ counsel moved for a partial nonsuit with

regard to Butka’s claim of negligent record keeping, an issue that had arisen

during trial and was not pled in the complaint. N.T., 9/29/2014-10/2/2014,

at 503. The court granted the partial nonsuit, and, additionally, instructed

the jury that the evidence of negligent record keeping was to be considered

only for impeachment purposes, and not as substantive evidence of Dr.

Andrews’ negligence. Id. at 777.

       On October 2, 2014, the jury returned a verdict finding Dr. Andrews

was negligent, but also finding his negligence was not a factual cause of the

harm to Butka. See Verdict Slip, 10/2/2014. Butka filed timely post-trial

motions seeking judgment notwithstanding the verdict or a new trial, based,

in part, upon the trial court’s grant of a partial nonsuit and jury instruction

on the issue of negligent record keeping. The trial court denied the motion

on February 6, 2015, and subsequently denied a motion for reconsideration.

Judgment was entered on the verdict, and this timely appeal followed.3
____________________________________________


2
  Although Butka originally named six healthcare providers as defendants,
only Dr. Andrews and WVHCS Hospital remained at the time of trial.
3
  On April 20, 2015, the trial court ordered Butka to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Butka
complied with the court’s directive, and filed a concise statement on May 11,
2015.




                                           -3-
J-A34025-15



     In his first issue, Butka argues the trial court erred when it granted a

partial nonsuit on the claim of negligent record keeping.          Butka asserts

“negligent   record keeping”   is   not   a   recognized   cause   of   action   in

Pennsylvania, and, therefore, he was not required to submit any proof on

that issue or include the claim in his complaint. Butka’s Brief at 9. Rather,

he contends, the evidence regarding the lack of “significant critical

information” in his medical records was relevant for other reasons.        Id. at

15. He notes that, in a medical malpractice case, the plaintiff must show the

doctor defendant did not “have the same knowledge and skill and use the

same care normally used in the medical profession[.]” Id. at 14. To that

end, Butka asserts: “Whether or not documentation in medical records – or

more appropriately, for purposes of the instant case, lack thereof –

constitutes negligence under these standards is a question for the jury.” Id.

Therefore, citing Magette v. Goodman, 771 A.2d 775 (Pa. Super. 2001),

appeal denied, 790 A.2d 1017 (Pa. 2001), he claims “the jury in this case

should have been permitted to draw an inference that the records in this

case which were devoid of significant critical medical information were

unfavorable to [Dr. Andrews’ and WVHCS Hosptial].” Butka’s Brief at 15.

     The trial court explained, however, it granted a partial nonsuit on the

issue of negligent record keeping because the claim was not properly before

the jury.    First, the court noted Butka’s “[c]omplaint makes no reference

whatsoever to a failure to properly document [Butka’s] chart [or] that … Dr.

Andrews[] failed to maintain and keep adequate medical records.”             Trial

                                     -4-
J-A34025-15



Court Opinion, 2/6/2015, at 11.        Additionally, it emphasized none of the

three reports submitted by Butka’s expert gastroenterologist, Dr. Maxwell

Chait, referenced “a breach in the standard of care by Dr. Andrews based

upon a failure to maintain adequate medical records and/or a failure to

document the hospital chart.” Id. at 12. The court opined:

                In the case at bar, there is no medical testimony by way of
         an expert report to support a theory of negligence based upon
         “inadequate record keeping.” The pleadings are void of any
         allegation of the sort. Therefore, [Butka] and his expert were
         not permitted to bring forth any evidence to support such a
         claim. It would have been outside the pleadings and beyond the
         fair scope of the medical reports and prejudicial to [Dr. Andrews
         and WVHCS Hospital], who had no notice to prepare for such a
         claim.

Id. at 14.

         We find no reason to disagree with the sound reasoning of the trial

court.    First, Butka’s argument is self-defeating.   He contends there is no

recognized cause of action for negligent record keeping in Pennsylvania, but,

also claims the trial court abused its discretion in granting a nonsuit on that

issue. If there is no recognized cause of action for negligent record keeping,

there would have been no reason for the issue to proceed to the jury.

         Moreover, we agree with the trial court that Butka failed to assert this

claim in his complaint, or produce evidence to support the claim through his

expert reports.      The complaint alleged Dr. Andrews was negligent based

upon the following:

         a) Failure to properly perform the upper endoscopy on January
            9, 2007, resulting in a tear of the proximal stomach and distal
            esophagus.

                                       -5-
J-A34025-15


        b) Failure to timely identify the tear of the proximal stomach and
           distal esophagus that occurred as a result of said upper
           endoscopy.

        c) Failure to follow-up with [Butka] to timely and properly
           identify and treat post-operative complications.

Complaint, 4/24/2009, at ¶77(a)-(c). See also id. at Count III, ¶2(a)-(c)

(asserting WVHCS Hospital’s vicarious liability for acts of its agent Dr.

Andrews).

        Nowhere in the complaint did Butka assert that (1) Dr. Andrews

negligently omitted information from Butka’s medical records, (2) the

omission violated the doctor’s duty of care, or (3) the omission was a factual

cause of Butka’s injuries. Therefore, the court properly determined that the

issue of negligent record keeping was not a proper issue for trial.              See

Estate of Swift v. Northeastern Hosp. of Philadelphia, 690 A.2d 719,

723 (Pa. Super. 1997) (“While it is not necessary that the complaint identify

the specific legal theory of the underlying claim, it must apprise the

defendant of the claim being asserted and summarize the essential facts to

support that claim.”), appeal denied, 701 A.2d 577 (Pa. 1997).

        Furthermore, the court correctly found that a claim of negligent record

keeping was not raised in Butka’s expert’s report.             Although Dr. Chait did

state    Butka’s   hospital   records   “lacked   sufficient    documentation”   and

contained “conflicting” information, which made it “difficult to determine

exactly what happened to Mr. Butka to result in the occurrence of the

tear[,]” he did not opine the lack of documentation violated a standard of

care, or caused Butka’s injuries.       See Expert Report of Maxwell M. Chait,

                                        -6-
J-A34025-15



M.D., 9/4/2014, at 3. As noted by the trial court, an expert’s testimony is

limited to information within the fair scope of his expert report.        See

Pa.R.C.P. 4003.5(c).

      When applying the “fair scope” rule, our court has held that:

         In deciding whether an expert’s trial testimony is within
         the fair scope of his report, the accent is on the word
         “fair[.]” The question to be answered is whether, under
         the particular facts and circumstances of the case, the
         discrepancy between the expert’s pre-trial report and his
         trial testimony is of a nature which would prevent the
         adversary from preparing a meaningful response, or which
         would mislead the adversary as to the nature of the
         response.

      Brady v. Ballay, Thornton, Maloney, Maloney Med., 704
      A.2d 1076, 1079 (Pa.Super. 1997) (quoting Jones v.
      Constantino, 429 Pa.Super. 73, 631 A.2d 1289, 1294-95
      (1993)).

Corrado v. Thomas Jefferson Univ. Hosp., 790 A.2d 1022, 1029 (Pa.

Super. 2001). Here, a claim that Dr. Andrews’ purported negligent record

keeping violated a standard of care owed to Butka, or in any way caused his

injuries, was not within the “fair scope” of Dr. Chait’s expert report.

      Lastly, we note Butka’s reliance on Magette, supra, is misplaced. In

that case, a panel of this Court considered, inter alia, whether “the trial

court erred by failing to charge the jury with a permissive adverse inference

instruction.”   Magette, supra, 771 A.2d at 780.        While a nurse tried to

remove the decedent from anesthesia following surgery, the decedent died

of cardiac arrest.     Id. at 776-777.    The decedent’s estate requested a

permissive adverse inference charge because the doctor “discarded an EKG



                                      -7-
J-A34025-15



strip which would have been material to [its] case,” in violation of hospital

policy “to retain medical records for a minimum of seven years following

discharge.” Id. at 780. The trial court declined to give such an instruction.

On appeal, the panel reversed the judgment in favor of the hospital,

concluding the doctor failed to provide a satisfactory explanation for his

actions, and “the trial court erred in denying [the estate’s] request for an

adverse inference instruction.” Id. at 781.

       Here, our review of the record reveals Butka never requested an

adverse inference instruction, nor objected to the trial court’s jury charge on

that basis. Therefore, Magette is distinguishable on its facts, and Butka’s

claim premised on the court’s failure to give an adverse inference instruction

is waived.4 See Krepps v. Snyder, 112 A.3d 1246, 1254-55 (“[I]f a party

fails to object specifically to a trial court’s jury instruction, the objection is

waived and cannot be raised in a subsequent appeal.”) (citation omitted),

appeal denied, 125 A.3d 778 (Pa. 2015).

       In his second issue, Butka argues the trial court abused its discretion

when it instructed the jury on negligent record keeping.

       In examining jury instructions, our standard of review is limited
       to determining whether the trial court committed a clear abuse
       of discretion or error of law controlling the outcome of the case.
       Because this is a question of law, this Court’s review is plenary.
____________________________________________


4
  Furthermore, as discussed infra, the jury was instructed they could
consider Dr. Andrews’ alleged negligent record keeping when determining
the doctor’s credibility.



                                           -8-
J-A34025-15


      In reviewing a challenge to a jury instruction, the entire charge
      is considered, as opposed to merely discrete portions thereof.
      Trial courts are given latitude and discretion in phrasing
      instructions and are free to use their own expressions so long as
      the law is clearly and accurately presented to the jury.

Cooper ex rel. Cooper v. Lankenau Hosp., 51 A.3d 183, 187 (Pa. 2012)

(internal citations omitted).

      As noted above, the trial court provided a specific jury instruction on

the issue of negligent record keeping. The court charged the jury:

            You’ve heard evidence regarding negligent record keeping.
      You may consider it only for the limited purpose of impeachment
      or credibility.   You should not consider it for substantive
      evidence of defendant’s negligence, breach of standard of care,
      or cause of injury.

Id. at 777. Butka contends the court’s charge “neither defined nor clarified

negligence, and instead, misled the jury during its deliberations.”      Butka’s

Brief at 17.    As evidence of this, he emphasizes that during deliberations,

the jurors asked, “can negligence be based on lack of documentation? … And

if we find [Dr. Andrews] negligent, can we not find him as a cause for

harm?”    N.T., 9/29/2014-10/2/2014, at 804-805.         Butka asserts “a plain

reading of these questions reveals the confusion caused by [the court’s

instruction].” Butka’s Brief at 17.

      Moreover, Butka argues this instruction contradicted the standard

charge   on    professional   negligence,   which   permits   an   inference   of

negligence “where there is negligent, careless, or an unskilled performance

by a physician of the duties imposed on him or her by the professional

relationship with the patient or where the physician shows a lack of proper


                                      -9-
J-A34025-15



care and skill in the performance of a professional act.” Id. at 18 (emphasis

omitted). He asserts the court’s instruction “specifically prohibited such an

inference by instructing the jury that it could not presume negligence or

causation based upon ‘negligent record keeping.’” Id.

      The trial court, however, determined the instruction was proper

because Butka “kept bringing up the issue [of negligent record keeping] in

front of the jury” despite the fact that he did not plead facts to support such

a claim in his complaint, and did not present expert evidence that Dr.

Andrews’ alleged negligent record keeping violated a standard of care, or

caused Butka’s injuries. Trial Court Opinion, 2/6/2015, at 16. We agree.

      The trial court’s instruction properly framed the issue of negligent

record keeping for the jury.   The jury was, in fact, permitted to consider

whether the omissions in Butka’s records undermined Dr. Andrews’

credibility.   They were not, however, permitted to consider whether Dr.

Andrews’ alleged failure to properly document Butka’s care in the medical

records, itself, violated the standard of care of a physician.   As discussed

above, Butka presented no expert evidence to support such claim.

      Accordingly, because we conclude Butka is entitled to no relief, we

affirm the judgment in favor of Dr. Andrews and WVHCS Hospital.




                                    - 10 -
J-A34025-15



     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2016




                          - 11 -
