J-S82040-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

    JAMES E. HELMICK, JR., EXECUTOR OF       :     IN THE SUPERIOR COURT OF
    THE ESTATE OF LINDA L. HELMICK,          :           PENNSYLVANIA
    DECEASED, AND JAMES HELMICK IN           :
    HIS OWN RIGHT,                           :
                                             :
                    Appellant                :
                                             :
                       v.                    :
                                             :
    INDIANA REGIONAL MEDICAL CENTER,         :
    ARTHUR J. DEMARSICO, D.O., NANCY         :
    R. FLYNN-MCGARVIE, M.D., AND JOHN        :
    POLENTA, M.D.,                           :
                                             :
                    Appellees                :      No. 1066 WDA 2017

                      Appeal from the Order July 13, 2017,
                in the Court of Common Pleas of Indiana County,
                     Civil Division at No(s): 10156 C.D. 2014

BEFORE:       BENDER, P.J.E., STEVENS, P.J.E.,* and STRASSBURGER, J.**

MEMORANDUM BY STRASSBURGER, J.:                        FILED: March 1, 2018

        James E. Helmick, Jr., as Executor of the Estate of Linda L. Helmick

(Linda), and James Helmick in his own right (collectively, Helmick), appeals

from the order entered on July 13, 2017, which made final the order granting

summary judgment in favor of Dr. Arthur J. DeMarsico.1 We affirm.


1 On June 16, 2017, the trial court entered an order granting summary
judgment in favor of Dr. DeMarsico. Helmick timely filed an application for
determination of finality pursuant to Pa.R.A.P. 341(c), which provides as
follows:

        When more than one claim for relief is presented in an action,
        whether as a claim, counterclaim, cross-claim, or third-party claim
        or when multiple parties are involved, the trial court or other
        government unit may enter a final order as to one or more but

* Former Justice specially assigned to the Superior Court.
**Retired Senior Judge assigned to the Superior Court.
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     On June 14, 2011, Linda sought emergency treatment at the Indiana

Regional Medical Center (IRMC) for severe leg pain. She was seen by Dr.

Michael Merrell, an emergency room physician. He evaluated and released

her with a prescription for pain medication and instructed she follow up with

her doctor if needed.

     Linda saw her primary care physician, Dr. Joseph Lamantia, the

following day, reporting numbness in her left foot and other issues.      Dr.

Lamantia ordered tests, prescribed medication, and instructed Linda to return

in two weeks. The following day, Linda returned to the IRMC emergency room,

as she was in more pain and allegedly unable to walk. She was seen by Dr.

Nancy R. Flynn-McGarvie.       After an examination, Dr. Flynn-McGarvie

prescribed pain medication and released Linda.

     Linda returned the following day to the IRMC emergency room reporting

increased pain. She was seen by Dr. John Polenta, who began an intravenous

infusion of pain medication.    Dr. Polenta consulted via phone with Dr.

DeMarsico, a vascular surgeon, that evening. Dr. Polenta placed the following

note in Linda’s chart: “Discussed case with on-call physician Dr. DR (sic)




     fewer than all of the claims and parties only upon an express
     determination that an immediate appeal would facilitate resolution
     of the entire case. Such an order becomes appealable when
     entered.

Pa.R.A.P. 341(c). On July 13, 2017, the trial court granted Helmick’s motion.
Thus, this appeal is properly before us.


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DeMarsico start PLETAL 100[.]”2 Complaint, 8/31/2013, at ¶ 59. Linda was

then discharged from the IRMC.

      Linda returned to the IRMC emergency room the following afternoon

with severe pain.    Upon evaluation, it was determined that Linda needed

emergency vascular intervention. She was transferred to UPMC Shadyside

Hospital in Pittsburgh, where she was diagnosed with a “complete occlusion

of all three tibial arteries in the left leg, as well as a calcification and free

floating thrombus (clot) in the distal aorta, which was felt to be responsible

for the left leg’s arterial embolic event.” Id. at ¶ 70. Despite intervention,

Linda developed gangrene in her foot, and on June 22, 2011, Linda’s leg was

amputated below the knee.

      On August 31, 2013, Helmick3 filed a medical malpractice complaint in

the Court of Common Pleas of Allegheny County4 against IRMC, Dr. DeMarsico,

and several other doctors, alleging all deviated from the standard of care or

increased Linda’s risk of harm, which resulted in the amputation of her leg.

With respect to Dr. DeMarsico, Helmick claims “[h]e … should have been aware



2 PLETAL is “an FDA approved drug for patients that have claudication,”
otherwise known as a limp. N.T., 12/2/2015, at 47.

3Linda died on July 14, 2016, during the pendency of this litigation. Thus,
her husband, as executor of her estate, was substituted as plaintiff.

4 On September 25, 2013, the parties stipulated to transfer of venue to
Indiana County.



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that Linda [] had signs of an acute arterial occlusion, which would require

prompt intervention.” Id. at ¶ 117. Helmick avers that Dr. DeMarsico should

have evaluated Linda in person or advised that she be transported to another

facility.

       After filing preliminary objections, Dr. DeMarsico eventually filed an

answer and new matter on September 4, 2014. On February 12, 2015, Dr.

DeMarsico requested that Helmick file an expert report. In December 2015,

Helmick took Dr. DeMarsico’s deposition.5      At that time, Dr. DeMarsico

requested Helmick respond to expert interrogatories.        Helmick did not

respond, and Dr. DeMarsico followed up with a letter to Helmick in July 2016

again making this request.

       On August 26, 2016, Dr. DeMarsico filed a motion to compel answers to

expert interrogatories. Counsel for Helmick failed to appear for argument,

and on October 12, 2016, the motion was granted. Helmick was given until




5 In that deposition, Dr. DeMarsico explained that because IRMC does not have
a vascular surgeon on staff, he travels from Altoona to Indiana one to two
times per month to see patients. In that capacity, he would perform minimally
invasive endovascular procedures when needed. He saw Linda in this setting
in July and August of 2010. Then, on June 17, 2011, Dr. DeMarsico received
a call from Dr. Polenta about a female emergency room patient. Dr. DeMarsico
did not document the conversation, but recalled having a short dialogue about
that patient. Although Dr. Polenta asked about PLETAL, Dr. DeMarsico stated
that he did not prescribe it because (1) he did not have enough information
about the patient as he did not examine her, and (2) he is neither an on-call
doctor for the IRMC nor does he see patients there with acute medical
problems.


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November 28, 2016, to comply with this discovery request. Helmick did not

comply.

         On May 5, 2017, Dr. DeMarsico filed a motion for summary judgment.

In that motion, Dr. DeMarsico argued, inter alia, that “despite efforts on the

part of Dr. DeMarsico to force [Helmick] to provide evidence that they can

establish prima faci[e] case, and despite an [o]rder of [c]ourt setting the

deadline for production of [Helmick’s] expert report against Dr. DeMarsico, no

such report has been forthcoming.” Motion for Summary Judgment, 5/5/2017,

at ¶ 2. Thus, Dr. DeMarsico requested summary judgment be granted in his

favor.

         Helmick filed a response, arguing that the reason they could not provide

an expert report was because of purportedly contradictory information

provided by Dr. DeMarsico. According to Helmick, in his September 14, 2014

answer and new matter, Dr. DeMarsico “fail[ed] to make specific denials to

allegations of identity, employment or control,” which resulted in judicial

admissions.6 Response, 6/2/2017, at ¶ 4.           Helmick suggests that in his


6 Pa.R.C.P. 1029(e)(1) governs the effect of failure to deny averments in a
complaint and provides the following.

         (e) In an action seeking monetary relief for bodily injury, death or
         property damage, averments in a pleading to which a responsive
         pleading is required may be denied generally except the following
         averments of fact which must be denied specifically:

               (1) averments relating to the identity of the person by
               whom a material act was committed, the agency or


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December 2, 2015 deposition testimony, Dr. DeMarsico reversed these

purported judicial admissions, resulting in Helmick’s being unable to produce

a report. Id. at ¶ 12. In addition, Helmick requested additional time to file an

expert report. On June 16, 2017, the trial court granted summary judgment

in favor of Dr. DeMarsico. The trial court concluded that summary judgment

was proper because

      [Helmick has] had nearly two years to obtain an expert report or
      alternatively[,] to review the discrepancies they now complain of
      in [Dr.] DeMarsico’s deposition and inform this [c]ourt of any
      resulting difficulties. Instead, even having been afforded multiple
      extensions, [Helmick] repeatedly failed to meet deadlines for
      obtaining an expert witness without explanation nor any prior
      attempt to bring this to the [c]ourt’s attention.

Trial Court Opinion, 9/6/2017, at 4. In addition, the trial court concluded that

the items which Helmick claims are admissions “did not fall within the

categories under Rule 1029(e)(1) for which a specific denial is required.” Id.

at 3. Therefore, the trial court rejected Helmick’s position that Dr.

“DeMarsico’s responses are preventing them from obtaining an expert report.”

Id.

      Helmick timely filed a notice of appeal, and both Helmick and the trial

court complied with Pa.R.A.P. 1925. On appeal, Helmick argues that (1) the




            employment of such person and the ownership,
            possession    or   control of the property or
            instrumentality involved;

Pa.R.C.P. 1029(e)(1).


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trial court erred in concluding that the failure to deny specifically certain

allegations were judicial admissions; and (2) that the trial court erred in not

striking the portions of Dr. DeMarsico’s deposition testimony that were

contrary to these judicial admissions.

      Before we consider these issues, we begin with our standard of review

in cases involving summary judgment for failure to file an expert report in

medical malpractice cases.

      A party may move for summary judgment

      (1)   whenever there is no genuine issue of any material fact as
            to a necessary element of the cause of action or defense
            which could be established by additional discovery or expert
            report, or

      (2)   if, after the completion of discovery relevant to the motion,
            including the production of expert reports, an adverse party
            who will bear the burden of proof at trial has failed to
            produce evidence of facts essential to the cause of action or
            defense which in a jury trial would require the issues to be
            submitted to a jury.

      Pa.R.C.P. 1035.2. In reviewing an order granting summary
      judgment, we view the facts in the light most favorable to the
      non-moving party and reverse the order only if there has been an
      error of law or a clear abuse of discretion. … [E]stablishing the
      elements of a medical malpractice cause of action generally
      requires the plaintiff to submit the opinion of a medical expert.
      Where the plaintiff fails to do so, the defendant is entitled to
      summary judgment unless the matter … is so simple, and the lack
      of skill or want of care so obvious, as to be within the range of
      ordinary experience and comprehension of even non professional
      persons.

Masgai v. Franklin, 787 A.2d 982, 987–88 (Pa. Super. 2001) (internal

citations and quotation marks omitted). “Where a plaintiff fails to produce an



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expert in a situation requiring one, the court should grant a defendant’s

motion for summary judgment.” Id. at 985.

      Here, Helmick does not dispute that he needs an expert report to

establish a prima facie case, but contends that his failure to produce one is

the fault of Dr. DeMarsico due to conflicts between his September 14, 2014

answer and deposition testimony. Helmick’s argument is belied by the record.

Even if the trial court were to conclude that Dr. DeMarsico’s general denials

constituted admissions,7 Helmick would still have to produce an expert report.

Helmick has not done so.         Moreover, if these alleged discrepancies were

actually the reasons Helmick could not produce an expert report, there was

no reason to wait until the filing of a motion for summary judgment to bring

this to the court’s attention.     Thus, because Helmick failed to produce an




7 According to Helmick, Dr. DeMarsico tried to deny in his deposition that Linda
was his patient, even though he “admitted” this in his answer. Helmick’s Brief
at 20. Our review of Dr. DeMarsico’s deposition testimony, as outlined supra,
reveals that Dr. DeMarsico simply was explaining the nature of his relationship
with Linda. Helmick also claims that Dr. DeMarsico “admitted” he was an on-
call physician in his answer, then claimed in his deposition testimony that he
was not. Id. at 21. Again, we conclude that Dr. DeMarsico’s deposition
testimony explains the nature of his relationship to IRMC. Finally, Helmick
claims that Dr. DeMarsico “admitted” that he prescribed Pletal and concurred
with Linda’s discharge. Id. at 23-24. Again, Dr. DeMarsico’s deposition
testimony explains his understanding of the conversation between him and
Dr. Polenta. We are hard pressed to see how these purported discrepancies
prevented Helmick from obtaining an expert for two years.



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expert report where one was required,8 we conclude that the trial court did

not err in granting summary judgment. See Masgai, 787 A.2d at 988.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 3/1/2018




8 Moreover, Helmick’s emergency medicine expert, Dr. Michael B. Stone,
appears to explain why Helmick is having difficulty obtaining an expert report
with respect to Dr. DeMarsico. In Dr. Stone’s report, he states: “While
consultation with a vascular surgeon was clearly indicated in this case, the
available documentation suggests that the emergency nature of [Linda’s]
condition was neither recognized by Dr. Polenta nor communicated to Dr.
DeMarsico.” Helmick’s Pre-trial Statement, Report of Dr. Michael B. Stone,
at 4 (emphasis added).


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