J-A15021-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GORDON AND ROBIE HORNIG, H/W,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellants

                     v.

LEHIGH VALLEY HOSPITAL AND VALLEY
PHYSICIAN GROUP AND STEPHANIE L.
GOREN-GARCIA, D.O. AND MATTHEW
DYE, D.O.,

                          Appellees                   No. 1780 EDA 2014


              Appeal from the Judgment Entered August 12, 2014
                In the Court of Common Pleas of Lehigh County
                      Civil Division at No(s): 2012-C-2599


BEFORE: BOWES, JENKINS AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                         FILED DECEMBER 07, 2015

       Gordon and Robie Hornig appeal from the judgment entered on a jury

verdict in favor of Appellees, Lehigh Valley Hospital, Valley Physician Group,

Dr. Stephanie L. Goren-Garcia, and Dr. Matthew Dye. We affirm.

       On June 15, 2012, the Hornigs instituted this medical malpractice

action to recover damages allegedly caused by the failure of Dr. Goren-

Garcia and Dr. Dye to discover that Mr. Hornig had sustained a ruptured

tendon following an incident that occurred on Saturday, July 17, 2010. That

day, Mr. Hornig was mowing his lawn when a stone was violently expelled

from the mower and struck him on the right ankle. Mr. Hornig was unable



*
    Former Justice specially assigned to the Superior Court.
J-A15021-15



to walk and was heavily bleeding. He was transported by ambulance to the

emergency room of Lehigh Valley Hospital.

      At the emergency room, Mr. Hornig was first examined by Dr. Dye,

who was then a fourth-year resident in the emergency department while Dr.

Goren-Garcia was the attending emergency department physician.          After

conducting an examination, Dr. Dye determined that Mr. Hornig’s tendon

function was intact. Mr. Hornig sustained a laceration, and his ankle was x-

rayed to determine if there was any debris in the wound. After the wound

was cleansed, the ankle was x-rayed again to ensure that all foreign matter

was removed. The laceration was sutured, and Mr. Hornig was discharged

with pain medication and instructions that he follow up with his primary care

physician within three days.

      On Monday, July 19, 2010, Mr. Hornig saw his primary care physician,

Dr. Kevin Rodowicz, who was not a named defendant in this action.        Mr.

Hornig was experiencing pain and, if he did not keep the ankle raised,

swelling.   After Dr. Rodowicz examined Mr. Hornig on July 19, 2010, Dr.

Rodowicz told him to visit again in one week to have the stitches removed.

On July 26, 2010, Mr. Hornig returned to Dr. Rodowicz, complaining of

limited range of motion in the ankle and of continued pain.    Dr. Rodowicz

removed the stitches. Mr. Hornig saw Dr. Rodowicz a third time on August

9, 2010, because he “was still unable to properly move the foot or dorsiflex

[, which means to move the toes back towards the body,] the foot.” N.T.

                                    -2-
J-A15021-15



Trial, 1/8/14, at 15.     Dr. Rodowicz then recommended that Mr. Hornig

consult with an orthopedic specialist.

      On August 9, 2010, Mr. Hornig spoke to Dr. Christopher Hawkins, an

orthopedist.    Dr. Hawkins ordered an MRI, which revealed that Mr. Hornig

had a “full thickness tear of the tibialis anterior tendon of the leg,” also

known as a ruptured tendon. Id. at 16. On August 17, 2010, Mr. Hornig

was seen by Dr. Jason Rudolph, an ankle specialist, and underwent surgery

three days later to repair and lengthen the tendon. Dr. Rudolph also freed

the tendon from scar tissue.

      Over the ensuing months, Mr. Hornig underwent physical therapy and

treated with Dr. Rudolph.      After Mr. Hornig continued to have pain and

remained unable to properly use his right foot and ankle, a second surgery

was performed on December 12, 2010.            Due to unabated pain and

diminished function in his right foot, Mr. Hornig was seen by a different

orthopedic surgeon, Dr. Alan Tuckman, who performed two additional

surgeries. Thereafter, the pain resolved, and Mr. Hornig was able to resume

his two jobs as well as perform all of his household chores and activities of

daily living.   Mr. Hornig continued to have a limp, used a boot for certain

functions, and was unable to run.

      The Hornigs’ position at trial was that Doctors Goren-Garcia and Dye

were negligent when they failed to diagnose Mr. Hornig’s ruptured tendon

while Mr. Hornig was in the emergency room and failed to recommend that

                                     -3-
J-A15021-15



he immediately consult with an orthopedist.     Their expert witness opined

that the delay in diagnosis of the ruptured tendon was malpractice and

caused Mr. Hornig’s existing disabilities. Appellees countered with an expert

witness whose conclusion was that the doctors were not negligent in that

they conducted the medically appropriate examination of the ankle to

eliminate the possible existence of a ruptured tendon. Appellees’ expert also

reported that the rock, which severed the tendon, rather than any delay in

diagnosis, was responsible for the continued injuries suffered by Mr. Hornig.

The jury determined that Appellees were not negligent and returned a

verdict in their favor.   The Hornigs filed a post-trial motion, which was

denied. This appeal followed.

     The Hornigs issues on appeal are as follows:

     A. Should this Court Order a New Trial on the Issues of
     Causation and Damages as Against Matthew Dye, D.O.,
     Stephanie L. Goren-Garcia, D.O., Lehigh Valley Hospital, and
     Lehigh Valley Physician Group Due to the Trial Court's Failure to
     Direct a Verdict in Plaintiffs Favor on the Issue of Negligence
     After Matthew Dye, D.O. Admitted that He Negligently Failed to
     Obtain a Consultation with an Orthopaedist Once He Suspected
     that Gordon Hornig Suffered a Ruptured Anterior Tibialis
     Tendon?

     B. Should this Court Order a New Trial When the Trial Court
     Abused its Discretion in Precluding Plaintiffs from Challenging
     Stephanie L. Goren-Garcia, D.O.'s Credibility on Cross-
     Examination with Rosen's Emergency Medicine after the Trial
     Court Permitted Dr. Goren-Garcia to Testify as to the Contents of
     that Text on Direct Examination over Plaintiffs' Objection Despite
     that Dr. Goren-Garcia "Opened the Door" as to the Contents of
     the Text?



                                    -4-
J-A15021-15



       C. Should this Court Order a New Trial When the Trial Court
       Abused its Discretion in Permitting Defendants' Orthopaedic
       Expert, Samir Mehta, M.D., to Testify as to the New Theory of
       Causation He Asserted in an Untimely Prepared and Produced
       Report but Effectively Precluding Gordon Hornig's Treating
       Physician from Testifying as to the Untimely New Theory and
       Purposely Precluding Plaintiffs' Orthopaedic Expert, Stuart D.
       Miller, M.D., from Addressing or Evaluating the Untimely New
       Theory During His Live Testimony?

Appellant’s brief at 3.

       The Hornigs first maintain that Dr. Dye admitted that he was negligent

and that they were thus entitled to a directed verdict 1 as to liability against

Dr. Dye and a directed verdict against the remaining defendants since they

were vicariously liable for Dr. Dye’s misfeasance.2            Thus, the Hornigs

contend that they are entitled to judgment in their favor as to liability

despite the jury’s contrary finding.           In other words, they seek judgment

notwithstanding the verdict.         “Our standards of review when considering
____________________________________________


1
  The Hornigs moved for a directed verdict following the close of the defense
evidence. N.T. Jury Trial, 1/10/14, at 141. They stated, “It is for Dr. Dye as
to negligence. It is for Dr. Goren-Garcia as to vicarious liability for Dr. Dye.
And it is as to Lehigh Valley Hospital for vicarious liability to Dr. Dye.” Id.
2
    The Hornigs’ argument is presented in a confusing manner. In their
statement of issues, they seek a new trial as to damages and liability based
upon the purported admission by Dr. Dye that he was negligent. The
Hornigs maintain that this admission entitled them to a directed verdict as to
liability. However, if the Hornigs were entitled to a directed verdict as to
liability, as they suggest, then there would be no need for a new trial on
liability. Instead, the matter of liability would be settled by the directed
verdict.     The Hornigs’ request for a new trial as to liability is thus
inconsistent with their position that they are entitled to a directed verdict on
liability. We address the position appropriately.



                                           -5-
J-A15021-15



motions for a directed verdict and judgment notwithstanding the verdict are

identical.”   Brown v. Philadelphia Coll. of Osteopathic Med., 760 A.2d

863, 868 (Pa.Super. 2000) (citation omitted). When we examine the trial

court’s refusal to grant judgment in favor of a party, we are required to

“consider the evidence, together with all favorable inferences drawn

therefrom, in a light most favorable to the verdict winner.” Id. at 867

(citation omitted). We reverse “only if we find an abuse of discretion or an

error of law which controlled the outcome of the case.” Id. at 868 (citation

omitted).

      In the present case, the Hornigs posit, “Dr. Dye admitted at trial that

he did not comply with the standard of care in treating Mr. Hornig in the

emergency department of Lehigh Valley Hospital.” Appellants’ brief at 29.

They reference pages 289 and 290 of the reproduced record. After review,

we disagree with the Hornigs’ characterization of Dr. Dye’s statements

therein.

      Dr. Dye never admitted that he violated the applicable standard of

care or that he was negligent.    Rather, Dr. Dye admitted that if he had

suspected that there was a ruptured tendon, the applicable standard of care

mandated that he immediately call an orthopedic surgeon. Specifically, Dr.

Dye testified that he would have called orthopedist, “If my exam had

exhibited some finding that made me suspect” the existence of a ruptured

tendon. N.T. Jury Trial, 1/9/14, at 221 (emphasis added). Dr. Dye repeated,

                                    -6-
J-A15021-15



“This -- again, I was saying that if I had expected [a ruptured tendon] or if I

had suspected it after my exam or based on my exam, I would have called

an orthopedist.”    Id. (emphases added).       Dr. Dye acknowledged that

medical standards dictate that an orthopedist be summoned immediately if a

ruptured tendon has been diagnosed.

      Nevertheless, the record, viewed in the light most favorable to

Appellees, as verdict winners, established that Dr. Dye conducted the

medically appropriate examination of Mr. Hornig’s ankle and concluded that

Mr. Hornig had not sustained a ruptured tendon. Specifically, the notes of

Dr. Dye’s examination revealed that the tendon was examined and that, in

Dr. Dye’s view, the tendon was intact. Dr. Dye testified that those notations

established that “tendon function was examined” on Mr. Hornig and that Dr.

Dye “did an exam that made me comfortable that the tendons were

functioning the way we want.” Id at 190.

      Dr. Dye explained that he conducted two functions to rule out the

possibility of a ruptured tendon. First, he moved aside skin and muscle and

viewed the tendon. Then, Dr. Dye conducted a range of motion test on the

ankle that satisfied him that the tendon was intact.     Id at 194.   Dr. Dye

delineated that an examination to establish that a tendon was intact would

mean he would check “every motion of the ankle. So I would ask him to




                                     -7-
J-A15021-15



dorsiflex the foot, to plantar flex the foot, move it side to side, invert, evert,

rotate. All the motions of that joint that I would expect[.]” Id. at 179.3 Dr.

Dye reported that Mr. Hornig performed all those motions normally. Id. Dr.

Dye continued:

              We test tendons in the emergency           room.    We test
        strength against resistance, and range of motion is typically a
        part of that. But the strength -- the money is in strength
        against resistance. If you can move your -- especially in this
        case where there's redundancy. There's multiple muscles and
        tendons that do the same thing. If you can move that extremity,
        but then, with resistance, you might have a noticeable weakness
        or deficit. So that exam is with resistance, are you able to move
        to -- are you as strong as you should be? . . . . In Mr. Hornig's
        case, I remember thinking that despite his pain, I felt like he
        was very strong. I could pull pretty hard.

               I remember testing -- and I do remember testing against
        resistance with dorsiflexion. I remember testing his great toe
        separately. And I remember thinking that [the tendon] was
        intact and I didn't question that. I was comfortable with that.

Id. at 180-81.

        To summarize, Dr. Dye reported that he did want to rule out the

possibility of a tendon tear and performed the appropriate tests by moving

aside skin and muscle and looking at the tendon and by manipulating his

patient’s foot. Thereafter, Dr. Dye concluded that Mr. Hornig did not have a

ruptured tendon.       Dr. Dye did not admit that he violated the standard of

care or was negligent.
____________________________________________


3
    Evert means to turn an object outward.




                                           -8-
J-A15021-15



      On cross-examination, Dr. Dye specifically was asked, “Now, you

indicated that you suspected a tendon injury.      Can we agree that if you

suspect a tendon injury, the standard of care requires you to refer the

patient to an orthopedist?”    Id. at 220.    Dr. Dye responded, “I think the

standard of care requires me to attempt to rule it out.”    Id. Dr. Dye was

adamant that, after his tests, he no longer thought that Mr. Hornig had

sustained a ruptured tendon.    Id. at 227.    Dr. Dye acknowledged that he

missed the ruptured tendon.

      We observe that the mere fact that a physician commits a medical

error does not render him negligent as a matter of law. See Passarello v.

Grumbine, 87 A.3d 285, 297 (Pa. 2014). Rather, to establish malpractice,

the plaintiff must show that the physician owed him a duty, there was a

breach of that duty, the breach was a substantial factor in causing the harm

suffered by the plaintiff, and damage resulted from the harm. Thierfelder

v. Wolfert, 617 295, 316-17, 52 A.3d 1251, 1264 (Pa. 2012). Breach of

duty is not present unless the physician deviated from the applicable

standard of care. See K.H. ex rel. H.S. v. Kumar, 122 A.3d 1080

(Pa.Super. 2015). In this case, Dr. Dye never admitted that he deviated

from the applicable standard of care; thus, we reject the Hornigs’ first

position.

      The Hornigs’ next allegation is that they are entitled to a new trial

because they were improperly restricted in their cross-examination of Dr.

                                    -9-
J-A15021-15



Goren-Garcia. Our standard of review as to a trial court’s evidentiary ruling

well settled.     “A trial judge has considerable latitude in determining the

scope of cross-examination and his determination will not be reversed in the

absence of an abuse of discretion unless a party suffers an obvious

disadvantage.”     Majczyk v. Oesch, 789 A.2d 717, 726 (Pa.Super. 2001)

(en banc). Additionally, our consideration of any allegation that a party is

entitled to a new trial “is grounded firmly in the harmless error doctrine

which underlies every decision to grant or deny a new trial.” Knowles v.

Levan, 15 A.3d 504, 507 (Pa.Super. 2011) (citation omitted). We do not

award a new trial “merely because some irregularity occurred during the trial

or another trial judge would have ruled differently; the moving party must

demonstrate to the trial court that he or she has suffered prejudice from the

mistake.”   Id.     Harmless error does not warrant a new trial, and error is

harmless if it did not affect the verdict. Id. at 508 n. 4.

      The Hornigs’ second issue is premised upon the following restriction in

questioning. Dr. Goren-Garcia first admitted that “the time frame that you

would send the patient [with a ruptured tendon] for an orthopedic consult

would be as soon as possible[.]”        N.T. Jury Trial, 1/10/14, at 126.   After

obtaining this acknowledgement, the Hornigs asked the question “that’s

what Rosen’s says, isn't it?”     Id.     At that point, the Hornigs sought to

question Dr. Goren-Garcia with the contents of “Rosen’s,” which is a treatise

entitled Rosen’s Emergency Medicine, Concepts, and Clinical Practice and

                                        - 10 -
J-A15021-15



was written by Marx, Hockberger, and Walls. The trial court refused to allow

the inquiry.

      Meanwhile, Dr. Goren-Garcia already had been fully examined on the

contents of that treatise.     She was asked “Do you know what Rosen's

textbook on emergency medicine says about concerns about tendon ruptures

-- anterior tibial tendon ruptures -- and referral to an orthopedic surgeon?”

Id. at 95.     Dr. Goren-Garcia responded, “Yes, I do.”    Id.   The record

continues as follows:

      Q Can you tell the jury what Rosen's textbook on emergency
      medicine says?

      A Sure. There are two very small . . . . paragraphs on injuries
      to the anterior tibial tendon.      In fact, sentences within
      paragraphs. What the book actually says is most of the
      discussion is related to spontaneous ruptures, not traumatic
      ruptures.   And the rupture is, at some point, refer to a
      orthopedic surgery for a decision about whether repair is
      indicated. And that implies that most of those spontaneous
      ruptures were in older patients, most likely less active than
      someone like Mr. Hornig. The sentence that Rosen's includes
      about traumatic implies that -- well, it says that if they are
      transected during trauma, they should be referred to
      orthopedic for further evaluation for consideration of
      surgical intervention.

Id. at 95-96 (emphasis added). Thus, the jury already had been apprised

precisely what Rosen’s said.

      Additionally, Dr. Dye was specifically questioned about Rosen’s, as

follows:

      Q   And we can agree that Rosen's Emergency Medicine is
      standard text in the area of emergency medicine?

                                    - 11 -
J-A15021-15




      A Yes.

      Q It's something that's used in medical schools?

      A Yes.

      Q It's something that you continue to use today?

      A Correct.

      Q And we can agree that pursuant to Rosen's Emergency
      Medicine, the standard of care is just what you testified to
      at your deposition. That if you suspect a tendon injury,
      you make a referral to an orthopedist right then, correct?

      A Correct.
      ....

      Q We can agree that standard of care would apply to both
      you and Dr. Garen-Garcia?

      A. Yes.

N.T. Jury Trial, 1/9/14, at 223 (emphasis added).

      Thus, the jury was well aware of what Rosen’s recommended when a

ruptured tendon is diagnosed.          It mandates that an orthopedist be

consulted.    Indeed, both doctors admitted that the applicable standard of

care required them to obtain an orthopedist immediately after a ruptured

tendon   is   diagnosed.    Rosen’s    was     consistent   with   this   standard.

Additionally, Dr. Dye was fully cross-examined on the contents of Rosen’s

and stated that it applied to Dr. Goren-Garcia. At trial, no one disputed that

Rosen’s and the standard of care were consistent and required an orthopedic

consult upon diagnosis of a ruptured tendon. Any error in the restriction of

                                      - 12 -
J-A15021-15



Dr. Gosen-Garcia’s questioning about the contents of Rosen’s was harmless.

It could not have affected the verdict because the jury was told about

Rosen’s recommendations twice.

      The Hornigs’ final complaint has two aspects.      First, they argue that

the trial court erred in permitting Appellees’ orthopedic expert witness, Dr.

Samir Mehta, to testify that scarring from the tendon rupture was the cause

of Mr. Hornig’s continuing disabilities in that this opinion was beyond the fair

scope of Dr. Mehta’s timely expert report. Secondarily, they maintain that

their expert Dr. Stuart D. Miller was improperly restricted during his direct

examination.

      The following facts are pertinent to the fair-scope averment.          On

October 20, 2013, Dr. Mehta issued a report indicating that Mr. Hornig’s limp

and inability to run would have occurred even if the tendon rupture had been

diagnosed on the day of the incident. He reported that projectiles striking

the tendon and tearing it was the cause of Mr. Hornig’s harm and that the

delayed discovery of the ruptured tendon had no effect on the fact that the

tendon did not fully repair.

      After that report was issued, Mr. Hornig agreed to undergo a defense

medical examination by Dr. Mehta on December 18, 2013.               After that

appointment, Dr. Mehta issued a supplemental report on December 24,

2013, indicating that scarring was present in the ankle and was the cause of

Mr. Hornig’s restricted use of his tendon.

                                     - 13 -
J-A15021-15



         The Hornigs complain that the December 24, 2013 opinion about the

scarring went beyond the fair scope of the original report from Dr. Mehta,

catching them off-guard and unable to defend against this new theory at

trial.    Appellees and the trial court both suggest that this fair-scope

argument was waived as it was not preserved in the Hornigs’ post-trial

motion. We concur. Our review of that document reveals a single mention

of Dr. Mehta. Specifically, the Hornigs maintained, “The trial court erred in

precluding Plaintiff expert Stuart D. Miller from opining as to the testimony

of Samir Mehta M.D.” Motion of Plaintiffs for Post-Trial Relief, 1/17/14, at ¶

11.

         We have noted, “If an issue has not been raised in a post-trial motion,

it is waived for appeal purposes.” Siculietano v. K & B Amusements

Corp., 915 A.2d 130, 132 (Pa.Super. 2006). In that case, this Court further

observed:

         Pennsylvania Rule of Civil Procedure 227.1(b)(2) indicates that
         the grounds for post-trial relief must be specified in the motion,
         and “grounds not specified are deemed waived.” In addition, the
         Comment to Pa.R.Civ.P. 227.1 states, “In requiring the motion to
         state the specific grounds therefore, motions which set forth
         mere ‘boilerplate’ language are specifically disapproved. A post-
         trial motion must set forth the theories in support thereof ‘so
         that the lower court will know what it is being asked to decide.’”
         See Treasure Lake Property Owners Association, Inc. v.
         Meyer, 832 A.2d 477 (Pa.Super. 2003) (holding that issues
         must be raised specifically in post-trial motion).

Id. at 133.




                                       - 14 -
J-A15021-15



      Nothing in the Hornigs’ post-trial motion alerted the trial court to their

present complaint, which is that Dr. Mehta was allowed to testify beyond the

fair scope of his initial report and that the Hornigs were unfairly surprised by

his supplemental opinion.      Hence, the trial court did not address that

position, and this aspect of the Hornigs’ third issue on appeal is waived.

      As noted, the third allegation raised on appeal also involves a

complaint that the Hornigs’ expert Dr. Miller was improperly restricted from

testifying about the scarring issue.    However, the Hornigs’ appellate brief

contains a single paragraph of argumentation as to this complaint.

Appellants’ brief at 43. Therein, the Hornigs fail to point to the place in the

record where their direct examination of Dr. Miller was curtailed, and they

neither set forth the basis for the trial court’s evidentiary ruling nor develop

reasoned argument as to why it was incorrect. Similarly, in this paragraph,

the Hornigs fail to reference any legal authority. Hence, we conclude that,

for a different reason, this position is also waived.

      As our Supreme Court observed in Commonwealth v. Perez, 93 A.3d

829, 837 (Pa. 2014), the rules of appellate procedure “set forth the

fundamental requirements every appellate brief must meet.”           The Court

admonished litigants:

      The briefing requirements scrupulously delineated in our
      appellate rules are not mere trifling matters of stylistic
      preference; rather, they represent a studied determination by
      our Court and its rules committee of the most efficacious manner
      by which appellate review may be conducted so that a litigant's

                                     - 15 -
J-A15021-15



      right to judicial review may be properly exercised. Thus, we
      reiterate that compliance with these rules by appellate advocates
      is mandatory.

Id. at 837-38 (citation omitted).     Therein, the Court ruled that “to the

extent [an] appellant's claims fail to contain developed argument or citation

to supporting authorities and the record, they are waived[.]”     Id. at 838;

see also Lackner v. Glosser, 892 A.2d 21 (Pa.Super. 2006) (undeveloped

arguments, which include those where no legal authority is cited, are

considered waived); Pa.R.A.P. 2119 (a) (providing that argument portion of

a brief must be divided into as many parts as there are issues raised and the

particular question raised shall be followed by “citation of authorities as are

deemed pertinent”).

      Herein, the Hornigs’ allegation that their direct examination of Dr.

Miller was improperly restricted is undeveloped and unsupported by citation

to authorities and the record. Hence, it is waived.

      Judgment affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/7/2015




                                    - 16 -
