The opinion
J-A34010-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARILYN E. TAYLOR AND GREGORY L. IN THE SUPERIOR COURT OF
TAYLOR, HUSBAND AND WIFE PENNSYLVANIA
Appellants
v.
JOANNA M. DELEO, D.O.
Appellee No. 721 MDA 2015
Appeal from the Judgment Entered April 6, 2015
In the Court of Common Pleas of Dauphin County
Civil Division at No(s): 2009-CV-05258-MM
BEFORE: PANELLA, J., OTT, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED MARCH 07, 2016
Appellants, Marilyn E. Taylor and Gregory L. Taylor, Husband and Wife,
appeal from the judgment entered after a second jury found against the
Taylors in their medical malpractice claim against Appellee, JoAnna M.
DeLeo, D.O. The Taylors challenge the trial court’s denials of motions in
limine that they had filed prior to the second trial. After careful review, we
conclude that none of the Taylors’ issues require the grant of a third trial,
and therefore affirm.
We have previously summarized the factual background of this case as
follows.
The events that led to this medical malpractice suit unfolded
over the course of many years and involved a series of
laparoscopic procedures conducted on Mrs. Taylor that were
intended to address chronic abdominal pain and severe acid
J-A34010-15
reflux. Laparoscopic surgery, unlike more traditional “open”
surgery, relies on making small incisions in the abdomen, which
allow the insertion of surgical tools and of a fiber optic camera
by which the surgeon can see what she is doing. By not
requiring large incisions, such surgery is less invasive and
generally leads to faster recovery time. One known complication
from a laparoscopic procedure is an abdominal adhesion,
whereby scar tissue forms between internal organs and the wall
of the abdominal cavity, which can cause pain and complications
with digestion. Mrs. Taylor underwent three laparoscopic
procedures in the early 1990s, before she was Dr. DeLeo’s
patient, which resulted in extensive adhesions.
Mrs. Taylor became Dr. Deleo’s patient in 1996, when Dr. DeLeo
performed the first of what would be many surgical procedures.
Doctor DeLeo performed a laparoscopic lysis (or cutting) of
adhesions, removing the adhesions caused by her previous
procedures, in an attempt to relieve Mrs. Taylor’s chronic pain.
Between March 15, 1999 and May 22, 2008, Dr. DeLeo
performed a total of thirteen laparoscopic surgeries, although
Mrs. Taylor claims she only received short-term relief from each
procedure. On several occasions, Dr. DeLeo had to convert the
laparoscopic procedure into a more traditional “open” surgery, or
abandon the procedure all together, due to complications. On
three occasions, Dr. DeLeo caused small tears, or enterotomies,
in Mrs. Taylor’s bowels, which she then repaired.
Four days after Dr. DeLeo performed her final surgery on Mrs.
Taylor, Mrs. Taylor was admitted to the emergency room. She
was suffering from tears in her colon, which allowed the contents
of her bowels to leak into her abdominal cavity. This had led to
peritonitis and sepsis, potentially life-threatening conditions, that
required multiple follow-up surgeries and, the Taylors claim,
caused continuing debilitating effects.
Taylor v. DeLeo, No. 188 MDA 2012, at 1-3 (Pa. Super., filed 1/25/13)
(unpublished memorandum).
The Taylors subsequently filed a complaint in medical malpractice
against Dr. DeLeo, asserting that during a twelve year period, she had
performed the surgeries negligently and in some cases, unnecessarily. The
-2-
J-A34010-15
case was tried before a jury in September 2011, resulting in a defense
verdict. The Taylors appealed, arguing in relevant part that the trial court
had erred in instructing the jury on the “two schools of thought” doctrine
regarding the lysis of adhesions more than three times.
The “two schools of thought” doctrine in medical malpractice cases
provides an absolute defense when the defendant chose among two
commonly accepted treatment options. See Jones v. Chidester, 610 A.2d
964, 969 (Pa. 1992). After reviewing the record, this Court concluded that
there was no evidence that lysing adhesions thirteen times, as Dr. DeLeo did
in this matter, as opposed to up to three times, to relieve pain was
commonly accepted in the medical community. Thus, this Court reversed
the judgment and remanded for a new trial.
After remand, the Taylors filed a substantial number of motions in
limine, including a motion seeking permission to present evidence of Dr.
DeLeo’s loss of operating privileges at several hospitals during the relevant
time period, a motion seeking to preclude the testimony of Dr. DeLeo’s
expert, Mark Pello, M.D., F.A.C.S., and a motion to permit cross-examination
of Dr. DeLeo with treatises that Dr. Pello, but not Dr. DeLeo, conceded were
authoritative. The trial court denied all of the Taylors’ motions in limine,
and granted Dr. DeLeo’s motion to preclude cross-examination based upon
the content of certain published articles. The case proceeded to a second
jury trial.
-3-
J-A34010-15
The second jury also returned a defense verdict, and the Taylors filed
post-trial motions. Those motions were heard by a three-judge panel of the
trial court. After argument and briefs, the panel denied the Taylors’ post-trial
motions, and this timely appeal followed.
On appeal, the Taylors raise challenges to the trial court’s pre-trial
rulings on three issues. First, that the trial court precluded the Taylors from
presenting evidence about Dr. DeLeo’s loss of operating privileges at several
hospitals during the relevant time period. Second, that Dr. Pello’s testimony
was admitted in violation of the Frye test.1 Finally, that the Taylors were
prohibited from questioning Dr. DeLeo about medical treatises that her own
expert witness, Dr. Pello, conceded were authoritative. We will address these
issues in sequence.
The Taylors first argue that the trial court erred in ruling that evidence
of Dr. DeLeo’s loss of operating privileges at several hospitals during the
relevant time period was precluded pursuant to the Peer Review Protection
Act (“PRPA”), 63 P.S. §§ 425.1 – 425.4. As this issue raises an issue of the
interpretation and application of the PRPA, a statute, we are guided by the
following standard.
____________________________________________
1
Frye v. United States, 293 F. 1013 (D.C. Cir.1923). Under Frye, novel
scientific evidence must be generally accepted in the relevant scientific
community before it will be admitted. Pennsylvania Courts utilize the Frye
test. See Betz v. Pneumo Abex, LLC, 44 A.3d 27, 30 (Pa. 2012).
-4-
J-A34010-15
[W]e must determine whether the trial court committed an error
of law. Our standard of review is de novo. When interpreting
statutes, our goal is to effectuate the intention of the legislature.
We do so primarily by looking to the plain language of the statute.
If the language of the statute is clear and unambiguous, we will
not disregard it under the pretext of pursuing its spirit.
Dodson v. DeLeo, 872 A.2d 1237, 1241 (Pa. Super. 2005) (citations
omitted).
The PRPA was enacted to encourage the use of peer review in health
care facilities in an effort to ensure high professional standards in the
provision of medical care. See Piroli v. Lodico, 909 A.2d 846, 850 (Pa.
Super. 2006). Thus, the PRPA seeks to encourage the health care industry to
police itself. See Dodson, at 1242. It accomplishes this goal by providing
confidentiality provisions for “comprehensive, honest, and potentially critical
evaluations of medical professionals by their peers in the profession.”
Young v. The Western Pennsylvania Hospital, 722 A.2d 153, 156 (Pa.
Super. 1998) (citation omitted).
In relevant part, the PRPA provides that
[t]he proceedings and records of a review committee shall be
held in confidence and shall not be subject to discovery or
introduction into evidence in any civil action against a
professional health care provider arising out of the matters which
are the subject of evaluation and review by such committee and
no person who was in attendance at a meeting of such
committee shall be permitted or required to testify in any such
civil action as to any evidence or other matters produced or
presented during the proceedings of such committee or as to any
findings, recommendations, evaluations, opinions or other
actions of such committee or any members thereof: Provided,
however, That information, documents or records otherwise
available from original sources are not to be construed as
-5-
J-A34010-15
immune from discovery or use in any such civil action merely
because they were presented during proceedings of such
committee, nor should any person who testifies before such
committee or who is a member of such committee be prevented
from testifying as to matters within his knowledge, but the said
witness cannot be asked about his testimony before such a
committee or opinions formed by him as a result of said
committee hearings.
63 P.S. § 425.4. It is well established that under this provision,
[d]ocuments used in the determination of staff privileges are
exactly the type of documents the legislature contemplated
when drafting the Peer Review Protection Act. Granting, limiting,
or revoking staff privileges is one of the strongest tools the
medical profession uses to police itself.
Young, 722 A.2d at 156 (citation omitted).
On appeal, the Taylors implicitly concede that the evidence at issue is
normally protected by the PRPA. They argue, however, that Dr. DeLeo has
waived this protection by publishing the evidence through the filing of a
complaint against the involved hospitals for defamation. The trial court found
it “absurd” that a physician could be found to waive the peer review privilege
by asserting, in a publicly filed document, that the confidential information
had been improperly divulged to third parties.2 Furthermore, the trial court
concluded that it was the hospital’s answer to Dr. DeLeo’s defamation
complaint that published the confidential information sought to be used by
____________________________________________
2
Appellee argues that the peer-review privilege is unwaivable. We cannot
agree. A civil litigant may waive every right or privilege held by that litigant,
so long as the waiver is knowing and voluntary.
-6-
J-A34010-15
the Taylors. The trial court’s reasoning mischaracterizes the record in both
respects.
In her complaint against the hospital, Dr. DeLeo claimed that the
hospital and its agents had defamed her. Her complaint makes a passing
reference to the PRPA in paragraph 20, but does not detail in any manner
how the hospital violated the PRPA. In contrast, Dr. DeLeo’s complaint does
detail seven of the nine facts that the Taylors requested to introduce in their
pre-trial motion: (1) that Dr. DeLeo applied for reappointment to the
medical staff on December 8, 2006; (2) that the hospital’s peer review
committee voted not to recommend approval of Dr. DeLeo’s application; (3)
that another hospital committee voted not to extend laparoscopic surgical
privileges to Dr. DeLeo; (4) that Dr. DeLeo’s membership on the medical
staff of the hospital expired on April 3, 2007; (5) that Dr. DeLeo’s surgical
privileges at the hospital expired on April 3, 2007; (6) that another hospital
subsequently denied Dr. DeLeo’s application for appointment and surgical
privileges; and (7) that Dr. DeLeo did not have a medical staff appointment
at any hospital from April 3, 2007 until January 2008.
We therefore cannot agree with the trial court that Dr. DeLeo was
attempting to vindicate her rights under the PRPA in filing her defamation
suit against the hospital. Nor can we conclude that even a substantial
number of the Taylors’ requests were only available from the hospital’s
-7-
J-A34010-15
answer and new matter. Rather, all but two of the requests concern
information revealed in Dr. DeLeo’s complaint.
However, we conclude that the trial court did not abuse its discretion
in concluding that this evidence was inadmissible pursuant to Pennsylvania
Rule of Evidence 403. Under Rule 403, “relevant evidence may be excluded
if its probative value is substantially outweighed by the danger of unfair
prejudice.” Pa.R.E. 403. “‘Unfair prejudice’ supporting exclusion of relevant
evidence means a tendency to suggest decision on an improper basis or
divert the jury’s attention away from its duty of weighing the evidence
impartially.” Commonwealth v. Wright, 961 A.2d 119, 151 (Pa. 2008)
(citation omitted).
Our standard of review for evidentiary rulings is a narrow one:
When we review a trial court’s ruling on admission of evidence,
we must acknowledge that decisions on admissibility are within
the sound discretion of the trial court and will not be overturned
absent an abuse of discretion or misapplication of law. In
addition, for a ruling on evidence to constitute reversible error, it
must have been harmful or prejudicial to the complaining party.
Reott v. Asia Trend, Inc., 7 A.3d 830, 839 (Pa. Super. 2010) (citation
omitted).
The Taylors correctly argue that the requested information has
probative value, especially in cross-examination of Dr. DeLeo as a witness.
Had she testified as an expert, her lack of staff privileges would have been
relevant to her qualifications for expressing any relevant opinion. It is
important, however, to note that Dr. DeLeo was not presented as an expert
-8-
J-A34010-15
witness and did not opine on the standard of care at issue. She therefore
testified solely as a fact witness, not as an expert. See Lykes v. Yates, 77
A.3d 27, 32 (Pa. Super. 2013).
Dr. DeLeo’s lack of staff privileges at the time she performed the
surgery at issue in this litigation is not relevant to whether she met the
standard of care in performing the surgery. See id. Therefore, admission of
the requested evidence on cross-examination would have posed a grave
danger of encouraging the jury to decide on an improper basis. In other
words, there was a substantial likelihood of the jury deciding that Dr. DeLeo
was a bad surgeon and therefore had committed malpractice in this case,
rather than focusing on what Dr. DeLeo had actually done in treating Mrs.
Taylor. Thus, it was not an abuse of discretion for the trial court to conclude
that unfair prejudice of this evidence substantially outweighed its probative
value.
In their second issue on appeal, the Taylors argue that Dr. Pello’s
testimony violated the Frye rule. The Taylors’ argument is closely related to
the argument that led a prior panel of this Court to reverse and remand. In
reversing the first verdict, this Court noted that Dr. Pello testified that “he
knew of no cases where a doctor had performed the procedure more than
three times, nor of any learned treatise that advocated such an approach.”
Taylor v. DeLeo, No. 188 MDA 2012, at 8 (Pa. Super., filed 1/25/13)
(unpublished memorandum) (citation omitted). “Thus, if the Taylors only
-9-
J-A34010-15
presented the ‘repeated use’ theory, the ‘two schools of thought’ instruction
was inappropriate, for as Judge Turgeon and the Taylors agree, it should not
apply to multiple uses of the procedure.” Id., at 11.
Upon remand, the Taylors sought to preclude Dr. Pello from opining
that the repeated use of the lysis procedure more than three times was
within the accepted standard of care. In particular, the Taylors argued that
Dr. Pello’s opinion in this regard did not satisfy the Frye test as it did not
have general acceptance within the relevant medical community. The trial
court denied the Taylors’ motion, and Dr. Pello was permitted to testify that
in his opinion, performing the procedure 13 times on Mrs. Taylor was within
the accepted standard of care.
On appeal, the Taylors renew their argument that Dr. Pello’s standard
of care testimony failed the Frye test. The trial court did not explicitly
address this issue in its opinion, noting simply that the issue went to
credibility and not admissibility. See Trial Court Opinion, 3/25/15, at 19.
“[T]he admission of expert scientific testimony is an evidentiary matter
for the trial court’s discretion and should not be disturbed on appeal unless
the trial court abuses its discretion.” Commonwealth v. Harrell, 65 A.3d
420, 430 (Pa. Super. 2013) (citation omitted). The Frye test consists of a
two-step process, which is as follows.
First, the party opposing the evidence must show that the
scientific evidence is “novel” by demonstrating that there is a
legitimate dispute regarding the reliability of the expert’s
conclusions. If the moving party has identified novel scientific
- 10 -
J-A34010-15
evidence, then the proponent of the scientific evidence must
show that the expert’s methodology has general acceptance in
the relevant scientific community despite the legitimate dispute.
Commonwealth v. Foley, 38 A.3d 882, 888 (Pa. Super. 2012) (citation
and internal quotation marks omitted). See also Pa.R.E. 702. “However, the
conclusions reached by the expert witness from generally accepted principles
and methodologies need not also be generally accepted.” Tucker v.
Community Medical Center, 833 A.2d 217, 224 (Pa. Super. 2003)
(emphasis in original) (citation omitted). In the medical field, reliance upon
medical records and personal expertise in diagnosing and treating a patient
is a generally accepted methodology. See Cummins v. Rosa, 846 A.2d
148, 151 (Pa. Super. 2004).
Here, the Taylors are challenging whether Dr. Pello’s conclusion, that
performing the procedure 13 times on Mrs. Taylor was within the standard of
care, was generally accepted within the medical community. They are
correct in noting that the record does not support a finding that this
conclusion is generally accepted in the medical community. However, Dr.
DeLeo was not required to establish this in order to present Dr. Pello’s
expert testimony. Furthermore, there is no basis upon which to conclude
that reviewing the medical records and relying upon his own personal
expertise to reach this conclusion was a methodology not generally accepted
in the medical community. Thus, given our prior recognition of this
methodology in Cummins, we cannot conclude that the trial court abused
- 11 -
J-A34010-15
its discretion in permitting Dr. Pella to testify as to his opinion that Dr.
DeLeo’s actions met the standard of care.
In their final argument, the Taylors argue that the trial court erred in
precluding them from cross-examining Dr. DeLeo with learned treatises that
Dr. Pello conceded were authoritative. The Taylors concede that generally
speaking, learned treatises are hearsay and thus are inadmissible as
substantive evidence. See Appellants’ Brief, at 19. However, they argue that
learned treatises are admissible to cross-examine a witness, citing Aldridge
v. Edmunds, 750 A.2d 292 (Pa. 2000). In contrast, Dr. DeLeo argued, and
the trial court ruled, that while learned treatises may be appropriate in
cross-examining an expert witness, they may not be used to cross-examine
a non-expert party defendant pursuant to Burton-Lister v. Siegel, Sivitz
and Lebed Associates, 798 A.2d 231 (Pa. Super. 2002).
“It is well-settled that the scope of cross examination is a matter
within the trial court's discretion and will not be disturbed by this Court
absent an abuse of that discretion.” Commonwealth v. Kouma, 53 A.3d
760, 768-769 (Pa. Super. 2012) (citation and quotation marks omitted). In
Burton-Lister, this Court highlighted the danger inherent in the “polite
fiction” that the use of learned treatises during questioning could be limited
to the issue of the credibility of the expert witness. See Burton-Lister, at
239. The Burton-Lister court noted that the reason that such treatises
were admissible at all, their authoritativeness, would tend to influence a jury
- 12 -
J-A34010-15
to decide that the treatises were proof of the matter asserted therein. See
id.
In the present case, the trial court found that Dr. DeLeo had not been
qualified as an expert witness, and therefore pursuant to Burton-Lister the
danger of permitting the use of the learned treatises in cross-examining Dr.
DeLeo outweighed the limited probative value they might have in assessing
her credibility. We cannot conclude that this decision was an abuse of
discretion, and therefore conclude that the Taylors’ final issue on appeal
merits no relief.
Judgment affirmed. Jurisdiction relinquished.
Judge Jenkins joins the memorandum.
Judge Ott concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2016
- 13 -