J-A06042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHRISTOPHER WHITE AND NINA WHITE,                   IN THE SUPERIOR COURT OF
INDIVIDUALLY AND AS                                       PENNSYLVANIA
ADMINISTRATORS OF THE ESTATE OF
RICHARD C. WHITE A/K/A RICHARD
CURTIS WHITE, DECEASED

                            Appellants

                       v.

RICHARD M. CORNISH, M.D., DARELL T.
COVINGTON, M.D., POCONO
EMERGENCY ASSOCIATES, P.C., AND
POCONO MEDICAL CENTER

                            Appellees                   No. 1806 EDA 2014


                       Appeal from the Order June 4, 2014
                In the Court of Common Pleas of Monroe County
                      Civil Division at No(s): 8231-CV-2012


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

MEMORANDUM BY JENKINS, J.:                               FILED APRIL 13, 2015

       Appellants Christopher and Nina White, as Administrators of the Estate

of Richard C. White, filed this medical malpractice action against Richard M.

Cornish, M.D., Pocono Emergency Physicians, P.C.,1 Darrell T. Covington,

M.D., and Pocono Medical Center.               The trial court granted summary

judgment for Dr. Covington, finding he owed no duty to Mr. White and

____________________________________________


1
  Appellants initially named “Pocono Emergency Associates, P.C.” as a
defendant.    The parties agreed the appropriate party was “Pocono
Emergency Physicians,” but did not formally correct the caption.
J-A06042-15



finding Appellants’ experts provided contradictory testimony.      We reverse

and remand.

      Mr. White was Dr. Covington’s patient beginning in 2003.          Opinion,

5/13/2014, at 3.    On July 22, 2009, Dr. Covington maintains he sent Mr.

White the following unsigned letter:

         This letter is to notify you that your past due account in
         the sum of $44.18 has been written off as an “Uncollected
         Bad Debt”. We have billed you on several occasions by
         statement with no response from you. As of thirty (30)
         days from the above date listed, we can no longer provide
         services to you as your doctor due to the non-payment of
         your account. If you pay this amount in full, we will
         reconsider seeing you as our patient.

         Should you have any questions, please call our office at
         (570) 421-8968 between the hours of 9:00 AM and 5:00
         PM on Tuesdays, Wednesdays or Fridays.

Letter From Darell T. Covington, M.D. to Richard C. White dated July 22,

2009, Motion for Summary Judgment of Defendant, Darell T. Covington,

M.D. at Exh. B. Mr. White did not pay this balance. Dr. Covington sent at

least one similar letter to Mr. White in the past, but resumed treating Mr.

White after discussing payment obligations with him.      N.T. of Dep. of Dr.

Covington, 2/6/2014, at 160-165 [Covington Dep. Vol. II].        However, Mr.

White did not visit Dr. Covington following the July 22, 2009 letter.

      On September 22, 2010, Mr. White was treated at the Pocono Medical

Center emergency department and discharged.          Report of Ira Mehlman,

M.D., at 2. On September 29, 2010, Mr. White visited Nicholas Teleo, M.D.,

a surgeon.    Id.   Dr. Teleo’s notes regarding Mr. White’s history state:


                                       -2-
J-A06042-15



“Incisional hernia – behind colostomy – watched by Dr. Covington.”

Covington Dep. Vol. II, at 151.2

       On October 3, 2010, Mr. White was again admitted to the Pocono

Medical Center emergency department, where Dr. Cornish, an emergency

room    physician,    treated    him.          Following   a    CT   scan,   a   radiologist

recommended a surgical consult.             Imaging Report, Pocono Medical Center

Imaging Services, dated 10/3/2010.               At Mr. White’s request, Dr. Cornish

called Dr. Covington, a colo-rectal surgeon. N.T. of Dep. of Dr. Cornish, at

124. The telephone call lasted three minutes and fourteen seconds. 3 Id. at

127-28, 165-68.         Dr. Cornish testified that the conversation with Dr.

Covington was a surgical consultation and that he relied on this conversation

when discharging Mr. White.           Id.      He stated that Dr. Covington said he

believed Mr. White was suffering from enteritis and did not require a surgical

admission to the hospital.          Id.     Further, Dr. Cornish testified that Dr.

Covington said he “would be happy to see [Mr. White] as an out-patient if no
____________________________________________


2
 Dr. Covington testified Dr. Teleo was wrong.                  Covington Dep. Vol. II, at
149-151.
3
  The contents of this telephone call are disputed. Dr. Covington disputes
Dr. Cornish’s version of the telephone call and claims he told Dr. Cornish
that Mr. White was not his patient.       N.T. of Dep. of Dr. Covington,
11/21/2013, at 71 [Covington Dep. Vol. I]; N.T. of Dep. of Dr. Cornish, at
166 (Dr. Covington did not say Mr. White was not his patient). We view the
disputed facts in the light most favorable to Appellants, the non-moving
parties. See Summers v. Certainteed Corp., 997 A.2d 1152, 1159
(Pa.2010).




                                            -3-
J-A06042-15



better in several days.” Id. at 128. Dr. Cornish stated Dr. Covington asked

questions to be presented to Mr. White, and that he [Dr. Cornish] relayed

Mr. White’s answers to Dr. Covington. Id. at 124.

     After this telephone conversation, Dr. Cornish discharged Mr. White

from the emergency department and gave discharge instructions, which

provided a diagnosis of gastroenteritis and listed Dr. Covington as the

follow-up contact.     N.T. of Dep. Dr. Cornish, at 127-31.         On October 3,

2010, the Pocono Medical Center emergency department faxed a copy of Mr.

White’s emergency room record to Dr. Covington. Covington Dep. Vol. I, at

97-100.    Dr. Covington received it, signed it, and placed it in Mr. White’s

chart. Id.

     On      October   5,   2010,   Mr.    White   returned   to   the   emergency

department. Covington Dep. Vol. II, at 231. That same day, Dr. Cornish

put the following note in the emergency room record concerning the visit of

October 3, 2010:

          The increased bowel distention on the CT compared to the
          CT from the 22-September, as well as the protracted
          nature of the illness and the increased WBC count
          prompted me to suggest to the patient that I consult
          surgery. The patient expressed desire for me to call Dr.
          Covington, who had operated him [sic] in the past. I
          described the case to Dr. Covington, to include the H&P,
          the physical exam, the labs and the CT readings. I
          reentered the patient’s room during that call to obtain
          detailed answers from the patient to some of Dr.
          Covington’s questions. Dr. Covington felt that the patient
          was likely to have an enteritis rather than a bowel
          obstruction on the basis of the watery diarrhea and
          elevated WBC, the continuance of flatus and the lack of


                                          -4-
J-A06042-15


          abdominal tenderness. He did not feel that he needed
          surgical admission, but would be happy to see him as an
          outpatient if no better in several days. I conveyed his
          impression to the patient.

Pocono Medical Center Emergency Record, Doctor Notes, 10/5/2010, Bates

No. 00371; N.T. of Dep. of Dr. Cornish, at 97-98.4

       Although Dr. Covington performed emergency surgery on Mr. White,

Mr. White died on October 8, 2010.5 Covington Dep. Vol. II, at 230. The

certificate of death completed by Dr. Covington lists the cause of death as

gangrenous/ischemic small bowel, sepsis, and multiple system failure.          Id.

at 230-33.     It also states Mr. White was in “septic shock” when admitted on

October 5, 2010. Id. at 229.

       Appellants produced expert reports from Ralph Silverman, M.D., a

colo-rectal    surgeon,     Albert   Weihl,    M.D.,   an   emergency   department

physician, and Ira Mehlman, M.D., an emergency medicine physician.

       Dr. Silverman opined:
____________________________________________


4
  Dr. Cornish entered this note after Mr. White returned to the emergency
department on October 5, 2010. N.T. of Dep. of Dr. Cornish, at 54. He
stated that Mr. White’s return to the emergency department “prompted me
to look at that chart from the 3rd to refresh my memory as to the patient’s
status and I think it’s probable to say if I had no other patients to see or no
other work that was pending that I would have just gone ahead and
completed the chart at that time.” Id. at 54-55.
5
  Dr. Covington testified that he received a call from the hospital on October
5, 2010 informing him that Mr. White was at the emergency room, was in
septic shock, and the surgeon that was at the hospital was performing
another operation. Covington Dep. Vol. II, at 167-69. Therefore, Dr.
Covington went to the hospital and operated on Mr. White because “there
was no one available to operate and [Mr. White] was dying.” Id.



                                           -5-
J-A06042-15


        Based on the fact that Dr. Cornish called Dr. Covington
        and that Dr. Covington said it was okay to discharge the
        patient, a formal consult was initiated. Mr. White’s past
        noncompliance with fiscal responsibilities is not an
        acceptable excuse to refuse care in a potential emergent
        situation especially when the consult has been initiated. As
        such, Dr. Covington’s refusal to allow a full presentation by
        Dr. Cornish of Mr. White’s case, and thus refusing to assist
        this ER doctor and patient, was a deviation from the
        standard of care.

        ...

        Surgical intervention was the only way to decrease Mr.
        White’s risk of further complications and death. Dr.
        Covington’s refusal to come to the ER and evaluate Mr.
        White contributed to a delay in the necessary surgical care
        and was a deviation from the standard of care which
        increased Mr. White’s risk of death.

Email from Ralph Silverman to Thomas J. Foley, dated Mar. 18, 2014.

     Dr. Weihl opined:

        In spite of the above, with ongoing unrelieved symptoms
        for over 10 days, marked presumed new abnormalities in
        laboratory testing indicating severe hyperglycemia, severe
        elevation of white blood count, moderate unexplained
        anemia, and new renal insufficiency, and a CT scan
        showing progressive abnormalities, Dr. Cornish relied upon
        only a telephone consultation with a surgeon and
        discharged Mr. White to his home.

        On October 3, 2010[,] Dr. Cornish deviated from the
        standard of care and discharged Mr. White from the
        Pocono Medical Center Emergency Department on a
        dangerous drug therapy plan. Mr. White instead required
        immediate admission to the hospital for medical treatment
        of his multiple, newly discovered, metabolic and
        hematologic abnormalities, and for surgical consultation
        with a surgeon who actually examined and evaluated the
        patient in person.

        On October 3, 2010, Mr. White could not be reasonably,
        prudently or safely discharged from the hospital.
        Telephone contact by Dr. Cornish was required with Mr.

                                    -6-
J-A06042-15


        White’s primary physician, and arrangement for admission
        to the hospital was required for urgently needed treatment
        and further medical and surgical evaluation. Discharging
        Mr. White to his home on October 3, 2010, in violation of
        the standard of care, exposed Mr. White to increased risk
        of harm and led directly to his death on October 8, 2010.

Letter from Albert C. Weihl, M.D., to The Foley Law Firm, dated Sept. 19,

2012, at 3-4.

     Dr. Mehlman opined:

        Dr. Cornish’s deposition remarks about the CAT scan of the
        abdomen/pelvis . . ., his patient’s wrongly labeled
        “aggressive” hydration . . . , the “black box” warnings
        about metformin . . . , the management and interpretation
        of [Mr. White’s] very critical glucose of >450 repeated and
        its appropriate management . . . , a failure to understand
        and know the critical concepts of SIRS . . . , and an
        apparent 3 minutes 14 second conversation with Dr.
        Covington . . . which he believes allowed him to discharge
        this patient [is] very concerning and either represent[s] a
        significant lack of knowledge, lack of concern, “asleep at
        the wheel”, or “something else” — and Dr. Cornish’s
        ultimate action of discharging this patient denied him a
        good outcome and survival. The standard of care of
        emergency medicine doctors is that they generally do not
        admit patients themselves, BUT they do get patients
        admitted by calling appropriate doctors, either of that
        patient or on call for the ED that day, who then admit the
        patients after an appropriate and meaningful conversation.
        Emergency medicine doctors do not send seriously ill
        patients requesting help home whatever anyone else tells
        them: that is the standard of care. And there are many
        mechanisms available to make the right thing, the right
        outcome happen[.] Dr. Cornish, when all is said and done,
        regardless of whatever (contested) conversation he might
        have had with Dr. Covington, did not make the right things
        happen, thus, he did not meet the standard of care on
        10/3/10, with patient [Mr. White], and that denied [Mr.
        White] the chance to survive and assured his death. On
        page 112 of his deposition, Dr. Cornish stated that “it was
        my judgment that he didn’t require admission”: this was


                                   -7-
J-A06042-15


          very wrong, and reflects the failures on multiple levels of
          Dr. Cornish to hear, understand and process the
          information he had on patient [Mr. White], and what it
          meant clinically, and what the standard of care required.
          This failure to admit and further evaluate and treat patient
          [Mr. White], assured his patient’s death.

          ...

          Regardless of what Dr. Covington might have thought,
          might have said in the roughly 3 minute and 14 second
          conversation, ultimately, Dr. Cornish should never have
          discharged patient [Mr. White] from what he knew, and
          should have understood, with the available ancillary tests
          he had (imaging and many abnormal serious lab tests,
          such as WBC, BUN/creatinine, glucose, Na, CO2).

Letter from Ira Mehlman, M.D. to Foley Law Firm, dated 3/17/2014, at 4-7.

       On March 17, 2014, Dr. Covington filed a motion for summary

judgment. On May 13, 2014, the trial court granted summary judgment in

favor of Dr. Covington.        On May 15, 2014, Appellants filed a motion for

reconsideration and vacatur of the May 13, 2014 order or, in the alternative,

for a stay of proceedings and appellate certification. On June 4, 2014, the

trial court issued an amended order, reaffirming summary judgment for Dr.

Covington, but certifying the order as a final order for appellate purposes

pursuant to Pennsylvania Rule of Appellate Procedure 341(c)6 and 42 Pa.C.S.

§ 702(a).7
____________________________________________


6
  Rule 341(c) provides: “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 governmental
unit may enter a final order as to one or more but 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
(Footnote Continued Next Page)


                                           -8-
J-A06042-15



      Appellants raise the following issues on appeal:

          I.    Whether the honorable trial court erred in granting
                summary judgment based upon the alleged lack of
                duty, or absence of a doctor-patient relationship,[]
                as between defendant[,] Dr. Covington[,] and
                decedent?

          II.   Whether the honorable trial court erred in applying
                Mudano v. Philadelphia Rapid Transit Co., 289
                Pa. 51, 137 A.104 (1927) and granting summary
                judgment     on   the    alternative   ground     that
                [appellants’] expert reports allegedly conflicted with
                one another?

Appellant’s Brief at 3 (unnecessary capitalization omitted).

      “[S]ummary judgment is appropriate only in those cases where the

record clearly demonstrates that there is no genuine issue of material fact

and that the moving party is entitled to judgment as a matter of law.”

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa.2010) (quoting

Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221

(Pa.2002)). A “trial court must take all facts of record and reasonable

inferences therefrom in a light most favorable to the non-moving party” and

“must resolve all doubts as to the existence of a genuine issue of material

fact against the moving party.” Id. (citing Toy v. Metropolitan Life Ins.

                       _______________________
(Footnote Continued)

appealable when entered. In the absence of such a determination and entry
of a final order, any order or other form of decision that adjudicates fewer
than all the claims and parties shall not constitute a final order.”
7
  Section 702(a) provides: “(a) Appeals authorized by law.--An appeal
authorized by law from an interlocutory order in a matter shall be taken to
the appellate court having jurisdiction of final orders in such matter.”



                                            -9-
J-A06042-15



Co., 928 A.2d 186, 195 (Pa.2007)). Therefore, a trial court “may only grant

summary judgment ‘where the right to such judgment is clear and free from

all doubt.’” Id.

      This Court “may reverse a grant of summary judgment if there has

been an error of law or an abuse of discretion.”    Summers, 997 A.2d at

1159 (quoting Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899,

902–03 (Pa.2007)). Whether there are no genuine issues as to any material

fact presents a question of law, and, therefore, our standard of review is de

novo. Id. “[W]e need not defer to the determinations made by” the trial

court. Id.

      Appellants’ first claim alleges the trial court erred in finding, as a

matter of law, that no doctor-patient relationship existed. We agree.

      To establish medical negligence, a plaintiff must prove “a duty owed

by the physician to the patient, a breach of that duty by the physician, that

the breach was the proximate cause of the harm suffered, and the damages

suffered were a direct result of harm.”     Vazquez v. CHS Professional

Practice, P.C., 39 A.3d 395, 397 (Pa.Super.2012) (quoting Quinby v.

Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1070–1071

(Pa.2006)).

      The trial court found Dr. Covington did not owe a duty to Mr. White

because no physician-patient relationship existed. It found, as a matter of

law, no physician-patient relationship existed on October 3, 2010, and the




                                   - 10 -
J-A06042-15



telephone conversation between Dr. Cornish and Dr. Covington did not

reestablish a physician-patient relationship. Opinion, 5-13/2014, at 5.

      If Dr. Covington and Mr. White had a physician-patient relationship,

then Dr. Covington owed Mr. White a duty to act within the standard of care.

See Tomko v. Marks, 602 A.2d 890, 892 (Pa.Super.1992) (duty owed by

physician “arises from the physician-patient relationship” (quoting Craddock

v.   Gross,   504   A.2d   1300,   1302   (Pa.Super.1986))).       There   is   no

Pennsylvania precedent discussing whether a physician-patient relationship

exists in circumstances similar to those presented in this case and,

therefore, we review decisions from other jurisdictions for guidance.

      In Campbell v. Haber, the New York Supreme Court, Appellate

Division, found an implied physician-patient relationship may have existed

where a physician called the cardiologist on call, who provided an opinion on

the test results, and the emergency room physician relayed the findings to

the patient and discharged him.      274 A.D.2d 946, 946-47 (N.Y.2000).         It

found that whether a physician-patient relationship existed was a question of

fact for the jury. Id. The dissenting opinion in Campbell found that “what

transpired during the brief telephone call . . . did not give rise to a physician-

patient relationship between [the cardiologist] and [the] plaintiff.       In the

absence of such relationship, there is no legal duty and hence no basis for

liability for medical malpractice.” Id. at 948. It noted there was no express

undertaking to provide medical treatment and the cardiologist did not

undertake to supervise the emergency room physician. The physician never

                                     - 11 -
J-A06042-15



formally engaged the cardiologist as a consultant and the cardiologist only

had the information provided to him by the physician. The dissent further

noted there was no prior or subsequent relationship with the plaintiff and the

cardiologist never had direct contact with the plaintiff. Id. It concluded that

“[l]iability should not be predicated on the sort of informal consultation

between professionals that occurred here.” Id.

       In Cogswell v. Chapman, 249 A.D.2d 865, 866 (N.Y.1998), the New

York   Supreme        Court,   Appellate     Division,      found   a    physician-patient

relationship can be established by telephone if the call “‘affirmatively

advis[es] a prospective patient as to a course of treatment” and it is

foreseeable that the patient would rely on the advice.                   In Cogswell, an

ophthalmologist discussed a patient’s injury with the emergency room

physician, including minimal activity restrictions and follow-up visits, and the

written instructions provided to the patient were identical to those the

ophthalmologist stated he provided to the emergency room doctor. Id. at

866-67.      The Court found an issue of fact existed regarding the

ophthalmologist’s level of participation because, under the totality of the

circumstances, a jury could find the ophthalmologist had more than an

informal interest and involvement in the patient’s care. Id. at 867.

       Alternately,    other   courts   have        found   that    no   physician-patient

relationship arises where a doctor is called for consultation, but does not

examine the patient, review the records, or anticipate a future physician-

patient relationship. See, e.g., Lopez v. Aziz, 852 S.W.2d 303, 305-307

                                           - 12 -
J-A06042-15



(Tex.App.1993) (no physician-patient relationship where doctor consulted

OB-GYN specialist by telephone and followed the specialist’s advice, where

there was no contract to perform services, specialist did not accept any work

relating to plaintiff, did not conduct any tests or review any test results, did

not prepare any reports, and did not bill plaintiff, noting specialist “did no

more than answer the professional inquiry of a colleague”); Reynolds v.

Decatur Memorial Hosp., 660 N.E.2d 235, 237-240 (Ill.App.1996) (no

physician-patient relationship existed where emergency room doctor called

specialist, advised him of the circumstances of plaintiff’s admission to

hospital, and specialist asked questions, but specialist did not treat the

patient or commit to further involvement in his care, did not see, examine or

diagnose plaintiff, and did not bill for services); cf. Hill v. Kokosky, 186

Mich.App. 300 (2002) (specialist owed no duty to patient, where patient’s

obstetrician contacted specialists by telephone for opinions regarding the

plaintiff’s case, obstetrician provided the case history, but did not refer

plaintiff to specialists and specialists did not examine plaintiff or review her

chart, plaintiff did not seek specialists’ medical advice or treatment, and

opinions were addressed to the obstetrician as a colleague and were

recommendations, not a prescribed course of treatment).

      We are constrained to concluded that, as in Campbell and Cogswell,

whether a physician-patient relationship existed between Dr. Covington and

Dr. White raises a genuine issue of material fact, which precludes summary

judgment.

                                     - 13 -
J-A06042-15



      Initially, a genuine issue of fact exists as to whether Dr. Covington

terminated the physician-patient relationship on July 9, 2009. The letter is

unsigned, and, although Dr. Covington likely sends such letters in his regular

course of business, Dr. Covington presented no proof he mailed the letter.

Further, assuming the letter was sent and received, Dr. Covington sent at

least one similar letter to Mr. White in the past and nevertheless resumed

treatment after discussing payment obligations.       However, the July 9, 2009

letter stated the relationship was terminated unless Mr. White paid the

balance due, which he failed to do.      Further, Dr. Covington provided no

treatment between the date of the letter, July 9, 2009, and the date of the

telephone call on October 3, 2010.

      In addition, a genuine issue of material facts exists as to whether the

telephone   conversation   re-established     a   physician-patient   relationship.

Unlike a blind telephone consultation where the doctor does not know the

patient, does not examine the patient, and does not review the records, Dr.

Covington knew Mr. White, Mr. White asked Dr. Cornish to call Dr.

Covington, Dr. Covington asked questions, which Mr. White answered

through Dr. Cornish, Dr. Covington received the medical records that same

day and placed them in Mr. White’s chart, and Dr. Covington told Dr. Cornish




                                     - 14 -
J-A06042-15



that Mr. White could see him if the problems persisted.8 The jury would be

in the best position to determine whether a physician-patient relationship

existed between Dr. Covington and Mr. White. Because a genuine issue of

material fact exists as to whether there was a physician-patient relationship,

summary judgment is not appropriate.

       We note that, unlike the cases in which other jurisdictions have found

no physician-patient relationship existed as a matter of law, Mr. White and

Dr. Covington had a prior physician-patient relationship, Dr. Covington told

Dr. Cornish that Mr. White could see him if the problems persisted, 9 Dr.

Covington received and signed Mr. White’s emergency room records, and he

placed the records in Mr. White’s chart.           See Lopez, 852 S.W.2d at 305-

307; Reynolds, 660 N.E.2d at 237-240; Hill, 186 Mich.App. at 300.

       Appellants next contend the trial court erred when it applied Mudano

v. Phila. Rapid Transit Co., 137 A. 104, 106 (Pa.1927), to find Appellants’

experts’ opinions conflicted with each other. Appellants’ Brief at 28-50. We

agree.

       In Mudano, the Supreme Court of Pennsylvania found that a plaintiff

fails to sustain his burden of proof if he presents conflicting expert
____________________________________________


8
  As we noted, Dr. Covington disputes this version of events. However, for
purposes of this appeal, we must view the facts in favor of the Appellants,
the non-moving party. See Summers, 997 A.2d at 1159.
9
  Dr. Covington denies informing Dr. Cornish that Mr. White could see him if
the problems persisted. Covington Dep. Vol. I at 93-94.



                                          - 15 -
J-A06042-15



testimony.    Mudano, 137 A. at 106.               The Court reasoned that if expert

testimony “was so conflicting regarding the proper inference to be drawn as

to render either one of two inconsistent inferences possible of adoption, the

adoption of the one or the other would be nothing more than a guess.” Id.

In Mudano, the Court found the trial court should have granted a

compulsory non-suit, as the two experts presented by the plaintiff were so

contradictory regarding the cause of plaintiff’s injury as to neutralize each

other’s opinions.

      In Brannon v. Lankenau Hospital, the plaintiff’s expert testified on

direct examination that the defendant’s conduct fell below the 1965 standard

of care.    417 A.2d 196 (Pa.1980). The next day on re-direct he stated he

could not answer whether the conduct fell below the standard of care, but

then re-affirmed, again on re-direct, that the conduct fell below the standard

of care.      Id. at 200.        The Supreme Court of Pennsylvania found a

compulsory non-suit not proper, reasoning the testimony was a “relatively

minor divergence in only a part of appellant’s expert testimony,” and “when

viewed     against   the     testimony    as   a   whole,   [it    did   not]    sufficiently

compromise[] the witness’ testimony on direct to justify removal of this

issue from jury consideration.” Id.

      In Brodowski v. Ryave, this Court noted that “conflicts in [expert]

testimony     are    fatal    only   if   absolute.”    885       A.2d   1045,     1060-61

(Pa.Super.2005) (quoting Brannan, 417 A.2d 200) (alteration in original).

The Court in Brodowski found no irreconcilable conflict where one expert

                                          - 16 -
J-A06042-15



testified that Dr. Ryave breached the standard of care “by failing to admit

Plaintiff to a ‘proper place prior to his departure’ even though he had more

than two hours to do so,” for failing to effectuate the proper consultation

with a neurologist, and for failing to properly sign out to the oncoming ER

doctor. Id. at 1061. A second expert testified that Dr. Ryave “did a very

good job in his evaluation and assessment” of Plaintiff and Dr. Ryave “did a

good job in his evaluation, but something fell apart after he left.    He was

meant to properly convey to the ER doctor who was taking over that this

patient needed to be admitted to the hospital for evaluation of stroke, but

something went awry at that point.” Id. The second expert also testified

that “part of [Dr. Ryave's] job was to . . . appropriately sign her out when he

left his shift at 7:00 p.m. There was clearly some kind of breakdown that

occurred at that point.” Id. This Court found:

         The experts’ testimony did not present an irreconcilable
         conflict such that the Mudano rule would apply to
         neutralize their opinions with regard to Dr. Ryave’s care.
         Both experts’ opinions were consistent in that Dr. Ryave
         may not have properly signed out before his departure.
         Moreover, although Expert Preston stated that Dr. Ryave’s
         evaluation, assessment, and differential diagnosis were
         proper, Expert Chamovitz did not specifically opine on
         these issues but, rather, opined on issues of treatment
         implementation. Overall, the two experts’ testimony did
         not present a Mudano conflict and the trial court erred by
         granting Dr. Ryave’s nonsuit on that basis.

Id.   The Brodowski court, however, found an irreconcilable conflict with

regard to the expert testimony regarding a second defendant, Dr. Vagano.

One expert testified Dr. Vagano should have obtained a neurology consult


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himself. Id. at 1061-62. A second expert, however, stated it would have

been a good idea to have the patient seen by a neurologist, but it was often

the attending doctor that decides upon a neurologist and it would not be Dr.

Vagano’s duty to obtain the consult. Id.

      Here, Appellants’ expert reports did not contain irreconcilable conflicts.

The experts opined that Dr. Covington, as a surgeon, deviated from the

standard of care when he provided his consultation by phone, without

examining the patient, and Dr. Cornish, as an emergency room physician,

deviated from a standard of care when he relied on the telephone

consultation.   Nothing would preclude a jury from relying on the experts’

testimony to find Dr. Covington, Dr. Cornish, or both, deviated from

standards of care.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2015




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