J-A25011-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

JOSE BERDECIA-CORTES,         : IN THE SUPERIOR COURT OF
                              :      PENNSYLVANIA
               Appellant      :
                              :
          v.                  :
                              :
DENIS P. ROGERS AND MAIN LINE :
SPINE SURGERY CENTER, INC.,   :
                              :
               Appellees      : No. 2689 EDA 2013

            Appeal from the Judgment entered August 20, 2013,
               Court of Common Pleas, Montgomery County,
                      Civil Division at No. 2008-09196

BEFORE: DONOHUE, WECHT and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                        FILED OCTOBER 27, 2014

      Appellant, Jose Berdecia-Cortes (“Berdecia-Cortes”), appeals from the

judgment entered on August 20, 2013 in the Court of Common Pleas of

Montgomery County in favor of Appellees, Denis P. Rogers (“Dr. Rogers”)

and Main Line Spine Surgery Center, Inc. (“Main Line”).       For the reasons

that follow, we reverse and remand to the trial court for a new trial.

      In May 2005, Berdecia-Cortes, while employed by Delaware Valley Lift

Truck, Inc. (“Delaware Valley”), suffered a work-related injury to his spine,

sciatic nerve and shoulders. After returning to work in August of that year,

he aggravated the prior injuries and/or suffered new ones. On August 21,

2005, Dr. Rogers performed an independent medical examination of

Berdecia-Cortes at the request of Nationwide Insurance Company, the

workers’ compensation carrier for Delaware Valley. Dr. Rogers then referred



*Retired Senior Judge assigned to the Superior Court.
J-A25011-14


Berdecia-Cortes to Dr. Paul Marcotte, who after two office visits (and various

tests) advised Berdecia-Cortes (and reported to Dr. Rogers) that a surgical

fusion of multiple discs of the lumbar spine might be required as a last

option after pursuing less aggressive alternatives.        When Berdecia-Cortes

met with Dr. Rogers again, Dr. Rogers offered Berdecia-Cortes another

surgical   option,    a    percutaneous    disc   compression   using   a    Stryker

DeKompressor device. Berdecia-Cortes agreed to this alternative procedure,

and on May 4, 2006, Dr. Rogers performed the surgery.

      Meanwhile, Berdecia-Cortes was involved in workers’ compensation

disputes with Delaware Valley, which challenged, inter alia, Delaware

Valley’s obligation to pay for portions of the care provided by Dr. Rogers,

including the percutaneous decompression surgery.          In a utilization review

determination dated June 27, 2006, Dr. Michael D. Wolk (“Dr. Wolk”) found

that the percutaneous decompression surgery was not “reasonable and

necessary” because, based upon his review of medical literature, this

procedure    “is   still   considered   experimental.”1   On    appeal,     Workers’

Compensation Judge Karen A. Wertheimer affirmed Dr. Wolk’s decision.2

There were no appeals to this portion of Judge Wertheimer’s decision.


1
    See Exhibit P-12 to “Plaintiff’s Answer to the In Limine Motion of
Defendants to Preclude Evidence or Testimony on Grounds of ‘Variance’ in
the Expert Testimony of Plaintiff with the Amended Complaint.”
2
    See Exhibit A to “Defendants’ Memorandum of Law in Response to
Plaintiff’s Motion to Preclude Defendants from Contesting the Final U.R.O.
Determination.”


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     On April 10, 2008, Berdecia-Cortes filed a complaint against Dr.

Rogers and Main Line.    In an Amended Complaint filed on February 18,

2009, Berdecia-Cortes alleged that the May 4, 2006 surgery performed by

Dr. Rogers had “failed,” that the surgery had not abated his pain and

suffering, and that he “will continue to be required to undergo extensive

medical treatment” including “reparative or corrective surgery.”    Amended

Complaint, 2/18.2009, at ¶¶ 47-48. Berdecia-Cortes asserted two causes of

action against Dr. Rogers, both sounding in a failure to obtain informed

consent, the first pursuant to 40 P.S. § 1303.504 and the second in

negligence.   Berdecia-Cortes alleged that Dr. Rogers, to obtain informed

consent, should have (1) informed him that Dr. Marcotte had advised in

written reports that percutaneous decompression surgery was not advisable,

(2) reviewed Dr. Marcotte’s written reports with him, (3) referred him back

to Dr. Marcotte (or to another surgeon) for a second opinion, or (4) advised

him that the percutaneous decompression surgery was not an accepted or

approved treatment for his condition and/or it was still considered

experimental for his condition.   Id. at ¶ 43.     Berdecia-Cortes asserted a

claim of corporate negligence against Main Line.

     In a series of pre-trial rulings, the trial court dismissed the corporate

negligence cause of action against Main Line.      The trial court granted Dr.

Rogers motion to preclude Berdecia-Cortes from offering any evidence that

the percutaneous decompression surgery was experimental and denied



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Berdecia-Cortes’ motion to preclude Dr. Rogers from contesting the

“experimental” finding in the workers’ compensation proceedings. The trial

court also precluded Dr. Wolk from testifying and prohibited Dr. Alexander

Weingarten (“Dr. Weingarten”), Berdecia-Cortes’ primary liability expert,

from offering any opinions regarding informed consent. At the conclusion of

trial, the jury rendered its verdict in favor of Dr. Rogers, and the trial court

denied Berdecia-Cortes’ post-trial motion for a new trial.

      On appeal, Berdecia-Cortes seeks a new trial, raising five issues for

our consideration and determination. Four of these issues involve challenges

to the trial court’s pre-trial rulings and the fifth questions an evidentiary

ruling at trial. Our standard of review from a trial court’s denial of a motion

for a new trial is limited, as we will not reverse its decision absent a clear

abuse of discretion or an error of law that controls the outcome of the case.

See, e.g., Maya v. Johnson & Johnson, 97 A.3d 1203, 1218 (Pa. Super.

2014). Our standard of review of a trial court’s admission or exclusion of

evidence is based upon the principle that the admission of evidence is a

matter within the sound discretion of the trial court, and will not be reversed

absent a showing that the trial court clearly abused its discretion. See, e.g.,

Commonwealth v. Akbar, 91 A.3d 227, 235 (Pa. Super. 2014). A ruling

on evidence may constitute reversible error only if it was harmful or

prejudicial to the complaining party. Polett v. Pub. Commc'ns, Inc., 83

A.3d 205, 218-19 (Pa. Super. 2013), appeal granted, 91 A.3d 1237 (Pa.



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2014). The admissibility of expert testimony is left to the discretion of the

trial court, and the trial court’s decision will not be overruled absent a clear

abuse of discretion.      Hatwood v. Hospital of the University of

Pennsylvania, 55 A.3d 1229, 1239 (Pa. Super. 2012), appeal denied, 65

A.3d 414 (Pa. 2013).

      We begin with consideration of Berdecia-Cortes’ third issue on appeal,

as we consider it to be dispositive. Berdecia-Cortes contends that the trial

court erred in refusing to permit Dr. Weingarten to testify regarding a

physician’s duty of obtaining informed consent in Pennsylvania. During voir

dire cross-examination, Dr. Weingarten indicated that his knowledge

regarding Pennsylvania’s informed consent statute (40 P.S. § 1303.504)

came from various plaintiff’s attorneys for whom he had testified (including

counsel for Berdecia-Cortes).    N.T., 12/3/2012, at 35.      Based upon this

testimony,3 the trial court ruled that “Dr. Weingarten was unfamiliar with the

Pennsylvania Informed Consent Statute,” and thus did not qualify to offer

expert testimony pursuant to Rule 702 of the Pennsylvania Rules of Civil

Procedure because he did not possess “scientific, technical or other

specialized knowledge beyond that possessed by a layperson which will




3
    During voir dire, the trial court stated that “[w]e need to make a
determination and see whether or not this doctor is qualified to be an expert
witness in the issue of informed consent under the Pennsylvania Statute.
Id. at 63.


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J-A25011-14


assist the trier of fact to understand the evidence or to determine a fact in

issue.” Trial Court Opinion, 4/4/2014, at 4; N.T., 12/3/2012, at 75.

     In a claim alleging lack of informed consent,

           it is the conduct of the unauthorized procedure that
           constitutes the tort. Moure v. Raeuchle, 529 Pa.
           394, 604 A.2d 1003, 1008 (1992). A claim of a lack
           of informed consent sounds in the intentional tort of
           battery because an operation performed without the
           patient's consent is deemed to be the equivalent to a
           technical assault. Smith v. Yohe, 412 Pa. 94, 194
           A.2d 167, 174 (1963).          To obtain a patient’s
           informed consent, doctors must provide patients with
           ‘material information necessary to determine
           whether to proceed with the surgical or operative
           procedure or to remain in the present condition.’
           Duttry v. Patterson, 565 Pa. 130, 771 A.2d 1255,
           1258 (2001) (quoting Sinclair by Sinclair v. Block,
           534 Pa. 563, 633 A.2d 1137, 1140 (1993)). This
           information must give the patient ‘a true
           understanding of the nature of the operation to be
           performed, the seriousness of it, the organs of the
           body involved, the disease or incapacity sought to be
           cured, and the possible results.’ Id. (quoting Gray
           v. Grunnagle, 423 Pa. 144, 223 A.2d 663, 674
           (1966)). While doctors are not required to disclose
           ‘all known information,’ they are required to ‘advise
           the patient of those material facts, risks,
           complications and alternatives to surgery that a
           reasonable person in the patient’s situation would
           consider significant in deciding whether to have the
           operation.’ Gouse v. Cassel, 532 Pa. 197, 615 A.2d
           331, 334 (1992) (emphasis omitted).

Isaac v. Jameson Mem'l Hosp., 932 A.2d 924, 929 (Pa. Super. 2007)

(quoting Valles v. Albert Einstein Med. Ctr., 805 A.2d 1232, 1237 (Pa.

2002)).




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      Because a claim for lack of informed consent is a technical battery,

Pennsylvania appellate courts have sometimes said that ordinary negligence

principles do not apply.    See Montgomery v. Bazaz–Sehgal, 798 A.2d

742, 749 (Pa. 2002).       Where (as here), however, the tortious conduct

alleged is the undertaking of surgery without obtaining informed consent, at

its core, this action requires a showing that the physician “failed to conform

to a specific acceptable professional standard.” Pollock v. Feinstein, 917

A.2d 875, 878 (Pa. Super. 2007).       For informed consent in Pennsylvania,

this “specific acceptable professional standard” is the prudent patient

standard, Southard v. Temple Univ. Hosp., 781 A.2d 101, 106 (Pa.

2001), which is now codified at 40 P.S. § 1303.504:

            (a) Duty of physicians.--Except in emergencies, a
            physician owes a duty to a patient to obtain the
            informed consent of the patient or the patient’s
            authorized representative prior to conducting the
            following procedures:

                  (1) Performing surgery, including the
                  related administration of anesthesia.

                  (2) Administering          radiation      or
                  chemotherapy.

                  (3)   Administering a blood transfusion.

                  (4) Inserting    a    surgical   device   or
                  appliance.

                  (5) Administering     an   experimental
                  medication, using an experimental device
                  or using an approved medication or
                  device in an experimental manner.



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J-A25011-14



            (b) Description of procedure.--Consent is
            informed if the patient has been given a description
            of a procedure set forth in subsection (a) and the
            risks and alternatives that a reasonably prudent
            patient would require to make an informed decision
            as to that procedure. The physician shall be entitled
            to present evidence of the description of that
            procedure and those risks and alternatives that a
            physician acting in accordance with accepted medical
            standards of medical practice would provide.

            (c) Expert testimony.--Expert testimony is
            required to determine whether the procedure
            constituted the type of procedure set forth in
            subsection (a) and to identify the risks of that
            procedure, the alternatives to that procedure and the
            risks of these alternatives.

            (d) Liability.--

                  (1) A physician is liable for failure to
                  obtain the informed consent only if the
                  patient proves that receiving such
                  information     would    have  been    a
                  substantial factor in the patient's
                  decision whether to undergo a procedure
                  set forth in subsection (a).

                  (2) A physician may be held liable for
                  failure to seek a patient's informed
                  consent if the physician knowingly
                  misrepresents to the patient his or her
                  professional credentials, training or
                  experience.

40 P.S. § 1303.504.

      The certified record on appeal does not support the trial court’s rulings

with respect to Dr. Weingarten’s lack of expertise regarding informed

consent. Based upon his testimony during voir dire cross-examination that



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J-A25011-14


his   knowledge   of   Pennsylvania’s    informed    consent   statute   (40   P.S.

§ 1303.504) came from plaintiffs’ attorneys, counsel for Dr. Rogers argued

that Dr. Weingarten was “merely parroting” what he had been told by others

and that he had no competence on the issue. N.T., 12/3/2012, at 44-45.

The trial court added that the “only way for me to qualify him as an expert

and the only way for you to move him in as an expert is if he has specialized

knowledge about informed consent in Pennsylvania.”          Id. at 47.   The trial

court then reopened voir dire, at which time Dr. Weingarten testified at

length as follows:

      Q.    Dr. Weingarten, we want            to hone in on your
            expertise with regard to          the lack of informed
            consent. Over your career,        have you been involved
            in such an issue in litigation    matters or in treatment
            matters?

      A.    Well, I actually go through informed consent on a
            daily basis in my practice. Every procedure that we
            do in the office, as well as we even get informed
            consent when it comes to medication management.

            You know, we talk – you know, it’s a consent that
            talks about the risks, the benefits, the alternatives of
            whatever the issue is whether it’s medication
            management, whether it’s undergoing a procedure
            where we explain to the patient what the risks are of
            the medication, the procedure, what the benefits
            are, why we’re recommending it and what the
            alternatives are because patients, if there are
            alternatives that make sense, need to be given those
            alternatives because the definition – one of the
            definitions of informed consent is that the consent
            has to be given to a patient where any patient in
            that particular circumstance would be expected to
            get this information – again, risks, benefits and



                                        -9-
J-A25011-14


          alternatives – so that they can under – at least
          analyze the data, if you want to call it that, against
          what [] the risks are, what the benefits are, what
          their options are, what their alternative are so they
          can make an educated decision about what is going
          to happen to them vis-à-vis a procedure, vis-à-vis
          taking certain medications in terms of allowing the
          patient to be in charge of their own fate.

          Okay. That’s what we’re giving the patient. We’re
          giving the patient what we believe is the facts. The
          good facts, the benefits; the bad facts, the possibility
          of what could go wrong and other facts in terms of
          what other available options there are so that
          everybody, you know, has all the information they
          need to analyze it and make a decision that’s going
          to affect their body, their future, their family,
          whatever the issue is.

          That’s basically what informed consent does. It’s a
          written document that says that we’ve explained
          these things to them. Again, risks, benefits and
          alternatives. In many cases we write out the risks,
          benefits and alternatives so that they can initial it,
          eventually sign it and it’s witnessed so that there’s a
          record that we have educated the patient to the best
          of our ability of what they’re about to undergo,
          whether they want to undergo it, and whether there
          are other options that may be either safer or may be
          better that aren’t being put on the table at that
          moment in time which they have the option of
          exploring.

          So that in a nutshell is what informed consent is and,
          again, I do inform[ed] consent every single day that
          I have – that I run my practice because we always
          have procedures that we do every day.

          And, again, in medical/legal issues, this issue of
          informed consent always comes up in litigation
          matters. Not every, you know, case that I do but,
          you know, fairly often and that’s what we analyze,
          whether the patient was given the risks, the benefits



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J-A25011-14


            and alternatives and enough data to allow an
            average patient that’s in the same circumstance as
            whatever the case is to have been able to process
            the information in an informative way having been
            given all the data that they need to be given.

Id. at 58-62.

      Subsection 1303.514(b) provides that informed consent requires the

physician to advise the patient of, inter alia, “the risks and alternatives that

a reasonably prudent patient would require to make an informed decision as

to that procedure,” and subsection 1303.504(c) requires expert testimony

on informed consent to establish “the risks of that procedure, the

alternatives to that procedure and the risks of these alternatives.” 40 P.S.

§ 1303.504(b)-(c).     In   the    above-quoted       testimony,   Dr.   Weingarten

demonstrated a clear understanding of informed consent in Pennsylvania,

including a physician’s duty to provide the patient with the data necessary to

understand the risks, benefits, and alternatives to a proposed procedure.

Dr. Weingarten also established his experience in providing patients with

such information on a regular basis and his understanding of the

professional obligations of a physician to do so.          His knowledge of the

Pennsylvania statute (40 P.S. § 1303.504) was irrelevant in this context, as

his expert testimony was focused on whether Dr. Rogers had failed to

conform to a specific acceptable professional standard – namely to

provide   Berdecia-Cortes   with    the   “material    information   necessary   to

determine whether to proceed with the surgical or operative procedure or to



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J-A25011-14


remain in the present condition.” See, e.g., Pollock, 917 A.2d at 878. Dr.

Weingarten established his competence to offer expert testimony by

demonstrating his understanding of the applicable professional standard at

issue and his experience in complying with said professional standard.

      In accordance with subsection 1303.504(c), an expert witness may

offer his or her opinion that a physician has failed to comply with the

applicable professional standard for informed consent.     In Bey v. Sacks,

789 A.2d 232 (Pa. Super. 2001), for example, the appellant doctor (Dr.

Sacks) argued that the trial court should not have permitted the appellant’s

expert to testify “as to whether he believed that Dr. Sacks adequately had

presented the risks or alternative procedures to Mr. Bey before he elected to

have [his] tooth extracted.” Id. at 239. This Court disagreed, ruling that

this inquiry was “within the realm of legitimate direct examination.” Id.

      For these reasons, we must conclude that the trial court abused its

discretion in refusing to permit Dr. Weingarten to testify regarding whether

Dr. Rogers failed to comply with his professional obligations to obtain

Berdecia-Cortes’ informed consent prior to surgery in this case.    We must

likewise conclude that the trial court’s error was prejudicial to Berdecia-

Cortes and controlled the outcome of the case.      Both of Berdecia-Cortes’

causes of action against Dr. Rogers sounded in the alleged failure to obtain

informed consent, and the trial court’s ruling prohibited Berdecia-Cortes’

liability expert witness from testifying on that specific issue. Moreover, the



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J-A25011-14


trial court announced its ruling in the presence of the jury and repeated it

thereafter in ruling on subsequent objections – clearly communicating to the

jury that Dr. Weingarten was not qualified to offer an opinion on informed

consent.4     Accordingly, we must reverse and remand the case for a new

trial.



4
    In announcing its decision, the trial court stated:

         THE COURT: Okay. I will accept him [Dr. Weingarten] as
              an expert on pain management issues. I will not
              accept him – I will not qualify him as an expert
              witness in the area of informed consent in the State
              of Pennsylvania.

N.T., 12/3/2012, at 75. In ruling on an objection from counsel for Dr.
Rogers, the trial court indicated as follows:

         Q.   Doctor, I’m going to ask you to assume that the jury
              will be told by Mr. Berdecia and the jury may find
              that after the referral or the recommendation of Dr.
              Rogers on April 11th, 2006 for percutaneous disc
              discectomy that Dr. Rogers never provided the
              plaintiff with copies of the reports of Dr. Marcotte
              that we have been referring to here today.

              Do you have a professional opinion [] whether Dr.
              Rogers failed to comply with accepted medical
              standards in failing to give that information to … Mr.
              Berdecia?

         [Counsel for Dr. Rogers] Objection.        This part of his
              informed consent claim.

         THE COURT: I’ll strike the question. It’s not permissible.
              He’s not qualified as an expert in this area so he
              can’t testify to that.

Id. at 85-86.


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J-A25011-14


      In anticipation of the new trial, we address certain other issues raised

on appeal by Berdecia-Cortes. First, Berdecia-Cortes contends that the trial

court erred in refusing to apply the doctrine of collateral estoppel to the

decision of Workers’ Compensation Judge Wertheimer.               According to

Berdecia-Cortes, if the trial court had properly applied collateral estoppel

here, Dr. Rogers would have been “legally precluded … from contesting

liability” because the decision in the workers’ compensation proceedings

established that the surgery “was experimental in nature and therefore was

unreasonable as a matter of law.” Berdecia-Cortes’ Brief at 19-20.

      We disagree.    “Collateral estoppel, or issue preclusion, is a doctrine

which prevents re-litigation of an issue in a later action, despite the fact that

it is based on a cause of action different from the one previously litigated.”

Balent v. City of Wilkes–Barre, 669 A.2d 309, 313 (Pa. 1995).5 Collateral

estoppel applies only if five elements are established:

      (1)   the issue decided in the prior case is identical to one
            presented in the later case;

      (2)   there was a final judgment on the merits;

      (3)   the party against whom the plea is asserted was a
            party or in privity with a party in the prior case;

      (4)   the party or person privy to the party against whom
            the doctrine is asserted had a full and fair



5
  Application of collateral estoppel in a particular case is a question of law
over which our review is plenary. Cohen v. Workers' Compensation
Appeal Board (City of Philadelphia), 909 A.2d 1261, 1265 (Pa. 2006).


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            opportunity to litigate    the     issue   in   the   prior
            proceeding; and

      (5)   the determination in the         prior   proceeding was
            essential to the judgment.

Weissberger v. Myers, 90 A.3d 730, 733 (Pa. Super. 2014) (quoting

Catroppa v. Carlton, 998 A.2d 643, 646 (Pa. Super. 2010)).                This Court

has held that principles of collateral estoppel apply to decisions in workers’

compensation proceedings. Capobianchi v. BIC Corp., 666 A.2d 344, 348

(Pa. Super. 1995).

      The certified record on appeal reflects that Berdecia-Cortes has failed

to establish at least two of these required elements. First, with respect to

the third element, Dr. Rogers was not a party to the workers’ compensation

proceedings in question.     The action was instituted by Berdecia-Cortes’

employer (Delaware Valley), and the case caption reflects that the parties

thereto were Berdecia-Cortes and Delaware Valley.                 See Defendants’

Memorandum of Law in Response to Plaintiff’s Motion to Preclude Defendants

from Contesting the Final U.R.O. Determination, 11/30/2007, at Exhibit A

(“Jose Berdecia-Cortes v. Delaware Valley Lift Truck, Inc.”),             While Dr.

Rogers was a service provider for the charges at issue, Berdecia-Cortes has

provided no authority for the proposition that a service provider is a party to

a workers’ compensation proceeding for collateral estoppel purposes.




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      In addition, we agree with the trial court that Dr. Rogers was not in

privity with Delaware Valley.6 The certified record provides no support for

Berdecia-Cortes’ contention that the workers’ compensation decision “ended

and deprived” Dr. Rogers of “any entitlement to be paid” for the surgery at

issue in this case.    Berdecia-Cortes’ Brief at 32.     The outcome of the

workers’ compensation proceedings only absolved Delaware Valley of

responsibility for paying for the surgery, and did not preclude Dr. Rogers

from seeking payment from another source (e.g., from Berdecia-Cortes).

      The fifth element of the test for collateral estoppel, that the

determination in the prior proceeding was essential to the judgment, was

also not satisfied here.   In her decision, Judge Wertheimer concluded as

follows:

            The undersigned has carefully and thoroughly
            reviewed the medical report of Michael D. Wolk, M.D.
            and finds his opinion credible and supported by
            medical literature, clinical studies, and Dr. Marcotte’s
            report. Dr. Marcotte, a neurosurgeon, concluded
            that a simple decompressive surgery would not be of
            benefit to [Berdecia-Cortes]. Dr. Wolk mentioned
            that from his teleconference with Dr. Rogers, Dr.
            Rogers indicated that he had hoped Dr. Marcotte
            would perform the surgery, but he did not. As the
            consulting neurosurgeon declined to perform the
            surgery, there is significant merit to Dr. Wolk’s
            opinion of the surgery not being reasonable and



6
   For purposes of collateral estoppel, privity requires “such an identification
of interest of one person with another as to represent the same legal right.”
Catroppa, 998 A.2d at 647 (quoting Ammon v. McCloskey, 655 A.2d 549,
554 (Pa. Super. 1995)).


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J-A25011-14


           necessary. Moreover, Dr. Wolk indicated that the
           procedure is still considered experimental.

Defendants’ Memorandum of Law in Response to Plaintiff’s Motion to

Preclude Defendants from Contesting the Final U.R.O. Determination,

11/30/2007, Exhibit A at 15.

     We cannot agree with Berdecia-Cortes’ contention that Dr. Wolk’s

opinion that the percutaneous disc compression surgery was “experimental”

was essential to the determination in the workers’ compensation proceeding.

The determination at issue in that proceeding was a coverage issue,

specifically whether the surgery was “reasonable and necessary” to remedy

a workplace injury such that Berdecia-Cortes’ employer was responsible for

its costs. As the above-quoted language from Judge Wertheimer’s opinion

makes clear, Dr. Wolk’s opinion that the surgery was experimental was not

essential to this determination, and was instead mentioned only briefly

(essentially as an afterthought).   In this regard, we note that neither Dr.

Wolk, Judge Wertheimer, nor Berdecia-Cortes have referenced any authority

for the proposition that an experimental surgery can never be considered

“reasonable and necessary” in the workers’ compensation context.

     Next, Berdecia-Cortes claims that the trial court erred in refusing to

permit Dr. Wolk to testify.    Berdecia-Cortes listed Dr. Wolk as an expert

witness in his pre-trial statement, and in response to Dr. Rogers’ motion in

limine to exclude Dr. Wolk’s testimony, he indicated that Dr. Wolk’s expert




                                    - 17 -
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testimony would focus on whether the surgery “utilizing the Stryker

DeKompressor surgical device or tool was experimental… .” 7           Plaintiff’s

Answer to Defendants’ Motion to Preclude Plaintiff from Presenting Michael

Wolk, M.D. as an Expert Witness on Behalf of Plaintiff, 11/16/2012, at ¶ 8.

The trial court granted the motion in limine, stating that “Dr. Wolk made

absolutely no analysis or mention of whether the procedure, itself, was

performed properly, or whether there was any malpractice on the part of Dr.

Rogers.” Trial Court Opinion, 4/4/2014, at 4.

      In our view, the trial court erred in excluding Dr. Wolk as a possible

expert witness at trial. Subsection 1303.504(a)(5) provides that a physician

has a duty to obtain informed consent when “using an approved … device in

an experimental manner,” and subsection 1303.504(c) states that expert

testimony “is required to determine whether the procedure constituted the

type set forth in subsection (a).” 40 P.S. § 1303.504(a), (c). In his report,

Dr. Wolk cites to authoritative literature and studies in support of his finding

that “percutaneous lumbar disc decompression using the Dekompressor is …

still considered experimental.” Plaintiff’s Answer to the In Limine Motion of

Defendants to Preclude Evidence or Testimony on Grounds of ‘Variance’ in


7
  On appeal, Berdecia-Cortes also contends that Dr. Wolk should have been
permitted to testify regarding his conversation with Dr. Rogers while
performing his utilization review. Berdecia-Cortes’ Brief at 42. The certified
record does not reflect that Berdecia-Cortes ever offered Dr. Wolk as a fact
witness or otherwise informed the trial court that he could testify as a fact
witness regarding a conversation with Dr. Rogers. As such, the issue has
not been preserved for appeal and we will not address it. Pa.R.A.P. 302(a).


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the Expert Testimony of Plaintiff with the Amended Complaint, 11/4/2012,

Exhibit P-12 at 3.

      For these reasons, the trial court erred in precluding Berdecia-Cortes

from offering Dr. Wolk as an expert witness at trial on the limited issue of

whether the surgery performed by Dr. Wolk involved “using an approved …

device in an experimental manner.” Because Dr. Wolk’s report includes no

findings or opinions regarding informed consent or Dr. Rogers’ disclosures

(or lack thereof) to Berdecia-Cortes in this regard, he could not also testify

that Dr. Rogers violated any duty under the informed consent statute. Such

testimony would have to be provided by another expert witness.

      Berdecia-Cortes next contends that the trial court erred in dismissing

Main Line from the action.     In his Amended Complaint, Berdecia-Cortes

asserts a claim of corporate negligence against Main Line.      To support a

claim for corporate negligence against a hospital, unless the hospital’s

negligence is obvious, a plaintiff must produce expert testimony to establish

that the hospital deviated from an accepted standard of care and that the

deviation was a substantial factor in causing the harm to the plaintiff. See,

e.g., Welsh v. Bulger, 698 A.2d 581, 585 (Pa. 1997). We agree with the

trial court here that Berdecia-Cortes offered no expert testimony regarding

Main Line’s alleged corporate negligence. Most notably, the expert report of

Dr. Weingarten includes no opinions regarding Main Line’s activities in

connection with the surgery performed at its facility by Dr. Rogers.



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      On appeal, Berdecia-Cortes argues that Main Line could be held

responsible on a theory of respondeat superior. In the answer to Berdecia-

Cortes’s Amended Complaint, however, Dr. Rogers and Main Line denied

that any agency relationship existed between them, and Berdecia-Cortes has

not directed us to any evidence in the certified record to establish that an

employment relationship existed.

      Alternatively, Berdecia-Cortes contends that even if the relationship

between the hospital and physician was of the independent contractor

variety, Main Line can nevertheless be held liable on a theory of “ostensible

agency,” pursuant to which a hospital can be liable if it ”holds out” the

physician as its employee.      Parker v. Freilich, 803 A.2d 738, 747 (Pa.

Super. 2002) (quoting Capan v. Divine Providence Hospital, 430 A.2d

647, 649 (Pa. Super. 1980)). A “holding out occurs when the hospital acts

or omits to act in some way which leads the patient to a reasonable belief he

is being treated by the hospital or one of its employees.”                Id.   Again,

however, Berdecia-Cortes has not directed this Court to any evidence in the

certified   record   to   demonstrate    that    he   satisfied   these   evidentiary

requirements. As a result, no basis exists for us to conclude that the trial

court erred in dismissing Main Line.

      Judgment reversed.       Case remanded for a new trial.             Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/27/2014




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