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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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