J-A03034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    MATTHEW J. MCVEY, III, LEA BULLOCK            IN THE SUPERIOR COURT
    AND ESTATE OF TREVAUGHN MCVEY,                          OF
                                                       PENNSYLVANIA
                             Appellants

                        v.

    POTTSTOWN HOSPITAL COMPANY, LLC,
    INDIVIDUALLY AND/OR D/B/A
    POTTSTOWN MEMORIAL MEDICAL
    CENTER AND/OR D/B/A POTTSTOWN
    EMERGENCY MEDICINE ASSOCIATES,
    POTTSTOWN MEMORIAL MEDICAL
    CENTER, POTTSTOWN EMERGENCY
    MEDICINE ASSOCIATES, TODAY’S KID’S
    PEDIATRICS, P.C., ESTATE OF THOMAS
    J. BELL, D.O., DECEASED, MARVIN H.
    KROMASH, M.D., K. CONRAD, PA-C AND
    TRI-COUNTY EMERGENCY PHYSICIANS,
    INC.,

                             Appellees               No. 1148 EDA 2017


                Appeal from the Judgment Entered April 12, 2017
              in the Court of Common Pleas of Montgomery County
                        Civil Division at No.: 2009-43943


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED MARCH 15, 2018

        Appellants, Matthew J. McVey, III, and Lea Bullock, and the estate of

their late son TreVaughn McVey, purport to appeal from the denial of their


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*   Retired Senior Judge assigned to the Superior Court.
J-A03034-18


post-trial motion in this wrongful death and survival action alleging medical

malpractice.1, 2 TreVaughn died of the flu at age four. Appellants claim the

physician’s assistant (P.A.) failed to offer a flu shot for TreVaughn to his

mother, Ms. Bullock, at his annual physical examination a month or so earlier.

The P.A. claimed she did. There is no dispute that the P.A. did not record

either an offer or a refusal on TreVaughn’s medical chart. The jury rendered

a verdict for the defendants. The sole issue presented in this appeal is whether

the trial court erred in excluding testimony from Appellants’ expert witness

about the standard of care for omission of information on TreVaughn’s chart,

as beyond the scope of his expert’s report. Appellants maintain the ruling

prevented their expert from testifying that the failure to document a refusal

of a flu vaccination was a deviation from the relevant standard of care. We

affirm.

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1 Although counsel purports to appeal from the denial of the post-trial motion,
appeals are properly taken from the entry of judgment after the denial of the
post-trial motion. See Pa.R.A.P. 301; Pa.R.C.P. 227.4; Eichman v. McKeon,
824 A.2d 305, 310 n.1 (Pa. Super. 2003), appeal denied, 839 A.2d 352 (Pa.
2003) (appeal to Superior Court properly taken from judgment entered after
trial court has ruled on post-trial motions), see also Johnston the Florist,
Inc. v. TEDCO Const. Corp., 657 A.2d 511, 512 (Pa. Super. 1995). We have
amended the caption accordingly.

2Appellants sued numerous defendants, but the case proceeded to trial only
against Today’s Kids Pediatrics, P.C., the estate of Thomas J. Bell, D.O., (who
was deceased by time of trial, see N.T. Trial, 7/15/16, at 827), and P.A. Kristie
Conrad. (See Trial Court Opinion, 6/13/17, at 1 n.1). The estate of Dr. Bell,
and his practice group, were later dismissed from the case. (See Order,
4/12/17).



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       As noted, TreVaughn, then age four, died of the flu on February 29,

2008, about five weeks after his annual physical examination on January 17,

2008. At trial, Appellants asserted that P.A. Kristie Conrad failed to offer a flu

shot for TreVaughn at his January visit. Ms. Bullock testified that she would

have agreed to one if it had been recommended. P.A. Conrad testified that

she could not remember whether she offered, and Ms. Bullock refused, a flu

shot for TreVaughn. She nevertheless claimed, based on her general practice,

that she did offer (and always recommended) a flu shot.3            P.A. Conrad

conceded that she did not record either her offer of a flu shot or Ms. Bullock’s

declination on TreVaughn’s chart. (See N.T. Trial, 7/15/16, at 786-87).

       P.A. Conrad also acknowledged on cross-examination that she was

taught in her P.A. training “if it isn’t documented, it didn’t happen[.]” (Id. at

791; see also Trial Ct. Op., at 7). However, P.A. Conrad added her personal

observation that “you can’t always document every single thing that takes

place during a visit. It is just not physically possible.” (N.T. Trial, 7/15/16,

at 804; see also Trial Ct. Op. at 8).



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3 P.A. Conrad testified that she believed in flu shots, got them for herself and
her own children and recommended them for all her patients. She added that
TreVaughn would have had to return to the office for a flu shot, because on
the day of his annual examination he had a low-grade fever and cold
symptoms. (See Trial Ct. Op., 6/13/17 at 6 (citing N.T. Trial, 7/15/16, at
790-92)). At his examination, TreVaughn did receive vaccinations for
diphtheria, tetanus, pertussis, and polio. (See Trial Ct. Op., at 1-2). Posters
in the medical center and office handout literature recommended flu shots for
the patients.

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J-A03034-18


       Appellants sought to have their expert, Dr. Bennett Kaye, testify that

P.A. Conrad should have documented that the flu vaccine was recommended

and refused. (See Trial Ct. Op. at 8; see also N.T. Trial, 7/12/16, at 144).

However, after Dr. Kaye made this statement (based on a similar

recommendation and refusal involving a certified pediatric nurse practitioner

the year before), defense counsel objected on the ground that the assertion

(that the failure to document is a deviation from the standard of care) was

beyond the scope of Dr. Kaye’s written expert report.         (See N.T. Trial,

7/12/16, at 146).

       After protracted discussion and argument, the trial court sustained the

objection, and directed counsel to begin a new question. (See id. at 146-

154). The jury rendered a verdict for the defendants. Counsel for Appellants

filed a notice of appeal after the trial court denied the motion for post-trial

relief.4

       Appellants raise one question on appeal, which we reproduce verbatim

except for the bracketed identification of the parties and the final question

mark:

           Upon below [Appellants’] trial objection, did the Court of
       Common Pleas’ err in sustaining that objection to Dr. Bennett
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4 As already noted, counsel’s notice of appeal, taken from the denial of the
post-trial motion, was premature. But see Pa.R.A.P. 905(a)(5) (notice of
appeal filed after announcement of determination but before entry of
appealable order treated as filed after such entry and on day thereof); (see
also *1 n.1 supra). Both Appellants and the trial court complied with
Pa.R.A.P. 1925.

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J-A03034-18


      Kaye’s anticipated testimony regarding the requisite practice to
      document (i.e., “chart”) [sic] whether flu shots were discussed
      with Appellants − which claimed refusal of the shot was
      dispositively argued by below [Appellees] (without documented
      support)[?].

(Appellants’ Brief, at 10).

      Our standard of review is well-settled:

             When we review a ruling on the admission or exclusion of
      evidence, including the testimony of an expert witness, our
      standard is well-established and very narrow. These matters are
      within the sound discretion of the trial court, and we may reverse
      only upon a showing of abuse of discretion or error of law. An
      abuse of discretion may not be found merely because an appellate
      court might have reached a different conclusion, but requires a
      result of manifest unreasonableness, or partiality, prejudice, bias,
      or ill-will, or such lack of support so as to be clearly erroneous. In
      addition, [t]o constitute reversible error, an evidentiary ruling
      must not only be erroneous, but also harmful or prejudicial to the
      complaining party.

Jacobs v. Chatwani, 922 A.2d 950, 960 (Pa. Super. 2007), appeal denied,

938 A.2d 1053 (Pa. 2007) (citations omitted).

      In this case, our independent review of the record confirms that

Appellants were not prejudiced. It bears noting that even though the trial

court excluded further testimony about the standard of care, the jury was

permitted to hear Dr. Kaye’s testimony that the recommendation of a flu

vaccination on January 9, 2007 (at the preceding annual visit), and any

refusal, was not recorded on TreVaughn’s chart, and should have been. (See

N.T. Trial, 7/12/16, at 144).




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      Additionally, we agree with the trial court that there is no cognizable

cause of action in Pennsylvania for negligent record keeping without any

accompanying evidence of causation. (See Trial Ct. Op., at 10).

      Here, there is no evidence of causation. Nor could there be. The failure

to document a recommendation of a flu shot, and its refusal, did not cause,

and could not cause, TreVaughn’s death from influenza. Appellants offer no

authority to the contrary.

      Instead, they point us to the previously noted training maxim that “if it

is not documented then it did not happen.”           (Appellants’ Brief, at 18).

However, this mere bald assertion is not a legal principle, and cannot

substitute for one. Whatever value it may have as a teaching tool, it is not,

contrary to Appellants’ assertion, proof that an event did or did not occur.

      P.A.   Conrad    conceded    she   had   not   documented    a   flu   shot

recommendation (and refusal) on TreVaughn’s chart.           Nevertheless, she

maintained that she offered one. The entire question of whether P.A. Conrad

recommended a flu shot and Ms. Bullock refused it (or not), is really an issue

of credibility.   Weighing credibility was the province of the jury sitting as

factfinder. By its verdict, the jury obviously weighed the conflicting testimony

and found for the Appellees. We discern no basis to disturb the credibility

determination of the jury.

      Appellants also assert that the purported omission entitles them to a

new trial. This argument does not merit relief either.    “[W]e will not reverse


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J-A03034-18


the denial of a motion for a new trial absent a gross abuse of discretion or

error of law by the trial court.” Jacobs, supra at 96 (citation and internal

quotation marks omitted). For the reasons already discussed, we conclude

that Appellants have failed to meet their burden to persuade this Court that

they were prejudiced in such a way as to merit a new trial.

     Judgment affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/18




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