Thomas, W. v. Evans, N.

J-A31039-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WALTER THOMAS, AS : IN THE SUPERIOR COURT OF

ADMINISTRATOR OF THE ESTATE : PENNSYLVANIA

OF WILLA MAE THOMAS, AND IN :

HIS OWN RIGHT :

:

Appellant :

:

:

v. : No. 2220 EDA 2016

:

:

NATHANIEL R. EVANS, III, M.D. & :

JEFFERSON UNIVERSITY :

PHYSICIANS & THOMAS JEFFERSON :

UNIVERSITY HOSPITAL :

Appeal from the Judgment Entered June 22, 2016

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): May Term, 2012 No. 01003

BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 14, 2018

Walter Thomas (“Appellant”), individually and as the administrator of

the Estate of Willa Mae Thomas, appeals the judgment entered in the Court of

Common Pleas of Philadelphia County in favor of Appellees Nathaniel R. Evans,

III, M.D., Jefferson University Physicians, and Thomas Jefferson University

Hospital (collectively “Appellees”). After careful review, we affirm.

The trial court set forth the following recitation of the facts:

Willa Mae Thomas [(“Decedent”)] was a 68-year old woman

in 2010. In September of that year, [Decedent] started to

experience symptoms, including a hoarse voice, a loss of appetite,

and a feeling of a “lump” in her throat.

____________________________________

* Former Justice specially assigned to the Superior Court.

J-A31039-17

[Decedent’s] primary care physician referred her to

[Appellee], Dr. Nathaniel Evans, a thoracic surgeon, after a chest

X-ray and CAT scan indicated there was a mass in her chest.

Dr. Evans ordered a needle biopsy for [Decedent]. The

needle biopsy was “undiagnostic” for cancer, but revealed that

there was necrotic tissue in the sample. Unsatisfied with these

results, and wanting more information, Dr. Evans recommended

a more invasive biopsy during which he hoped to obtain a bigger

tissue sample.

This procedure was performed on November 29th, 2010 by

Dr. Evans. He planned to perform a procedure called Video

Assisted Thorascopic Surgery (“VATS”). During this procedure,

however, it became apparent both that there was more necrotic

tissue in [Decedent’s] lungs,1 and that Dr. Evans would not be

able to obtain a suitable tissue sample through the VATS

procedure alone.

Dr. Evans therefore determined that it was appropriate to

perform a wedge biopsy, a procedure where a larger tissue sample

could be obtained. During this procedure, however, Dr. Evans

injured [Decedent’s] pulmonary artery, causing [Decedent] to

hemorrhage. The injury to [Decedent’s] pulmonary artery was

repaired, and she remained in the hospital for approximately two

and a half weeks. After she was discharged from the hospital,

[Decedent] spent a week in the nursing home, and then returned

to her home.

Despite the fact that during the winter months of 2011, her

health appeared to be improving, on March 18, [Decedent’s]

condition began to deteriorate. Thomas was admitted to Abington

Hospital and died on March 23, 2011.2

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1 During the surgery, Dr. Evans was able to obtain multiple biopsy samples

sent to the pathology department of the hospital, where pathologists were

waiting to review the samples with a microscope. Dr. John Farber, the most

senior pathologist, was able to telephone Dr. Evans in the operating room to

inform him that the samples contained necrotic tissue with rim of fibrosis.

2 The parties agree Decedent’s cause of death was sepsis and constriction of

the pericardium, but disagree as to whether Dr. Evans’s alleged deviation from

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Trial Court Opinion, 4/19/17, at 1-2.

Appellant, administrator of the estate of his deceased wife, commenced

this medical malpractice action against Appellees, averring that Decedent’s

death was caused by the negligence of Dr. Evans in choosing to perform the

wedge biopsy in which Decedent’s pulmonary artery sustained damage. The

complaint contained counts of negligence, informed consent, and negligent

infliction of emotional distress. After the trial court granted the preliminary

objections and a motion for summary judgment filed by Appellees, the only

claim remaining for trial was the negligence count.

Appellant filed a motion in limine to exclude use of the informed consent

form and testimony as to Dr. Evans’s discussion with Decedent and Appellant

about the risks and complications of her proposed lung biopsy. Given that the

trial court had dismissed Appellant’s informed consent claim, the trial court

ruled that the informed consent form was inadmissible, but indicated that Dr.

Evans was permitted to offer general testimony about the possible risks and

complications of the lung biopsy procedure.

The jury trial in this case commenced on January 11, 2016. At the

conclusion of the two-week trial, the jury determined that Dr. Evans was not

negligent and returned a verdict in favor of Appellees on January 26, 2016.

On February 4, 2016, Appellant filed a Motion for Post-Trial Relief, designating

a portion of the trial testimony to be transcribed. On February 16, 2016,

____________________________________________

the standard of care contributed to Decedent’s death. N.T. 1/12/16, at 208-

10; N.T. 1/15/16, at 196-200; N.T. 1/21/16, at 94-96.

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Appellees filed a response, arguing that additional portions of the trial should

be transcribed at Appellant’s expense. On May 10, 2016, the trial court issued

an order indicating which portions of the trial record the court reporter should

transcribe.

On June 22, 2016, Appellant filed a praecipe for the prothonotary to

enter judgment on the jury verdict in favor of Appellees pursuant to Pa.R.C.P.

227.4(b). Appellant filed a timely appeal from this judgment. Appellant

complied with the trial court’s order to submit a Concise Statement of Matters

Complained of on Appeal, but asked for permission to file an Amended Rule

1925(b) statement when he had received all the transcripts. On October 20,

2016, the trial court issued an order giving Appellant additional time to file

the concise statement before October 31, 2016. When Appellant apprised the

court that the transcripts were still not available, the trial court vacated its

October 20, 2016 order and indicated that a new order requesting an Amended

Rule 1925(b) statement would be filed when it was assured that all the notes

of testimony had been produced.

Upon the completion of the trial transcription, on November 17, 2016,

the trial court issued an order requesting that Appellant file an Amended Rule

1925(b) statement by November 28, 2016. Appellant complied with this

request in filing a timely Amended Rule 1925(b) Statement. On April 19,

2017, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).

Appellant raises the following issues for our review on appeal:

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1. Did the trial court err as a matter of law or abuse its discretion

where it permitted Dr. Evans to testify about his conversations

with [Appellant and Decedent] regarding the risks of

[Decedent’s] lung biopsy, after the court had dismissed

[Appellant’s] informed consent claim on summary judgment

and [Appellant’s] only remaining claim at trial was for

negligence?

2. Did the court err as a matter of law or abuse its discretion by

precluding [Appellant] from cross-examining Dr. Evans and Dr.

Evans’ standard of care expert upon matters that they testified

to on direct examination and which sought to discredit their

credibility including:

A. precluding the cross-examination of the credibility of Dr.

Evans’ testimony about his conversations with his patient

regarding the risks of [Decedent’s] lung biopsy using the

informed consent form?

B. precluding cross-examination of the credibility of Dr.

Evans’ statement that [Decedent] “showed no signs of

infection during the recovery period [at Thomas Jefferson

University Hospital]?”

C. precluding cross-examination of Dr. Evans regarding

whether he could have consulted more experienced

physicians when he confronted a thick, unusual tissue

and chain of lymph nodes even though Dr. Evans testified

about other times during [Decedent’s] case where he

consulted with more experienced physicians?

D. precluding the cross-examination of Dr. Detterback’s

statement that [Decedent] had an “at least 99 percent of

cancer” after the court denied [Appellant’s] motion In

Limine which sought to preclude this precise testimony?

3. Did the court err as a matter of law or abuse its discretion

where it denied [Appellant’s] Motion In Limine To Preclude

Certain Testimony of [Dr. Evans’s] standard of care expert and

permitted him to testify that no objective standard of care

controlled Dr. Evans’ surgical decisions and conduct, but rather

the surgical conduct was left entirely up to Dr. Evans’ own

subjective judgment?

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4. Did the court err as a matter of law or abuse its discretion

where it refused to grant [Appellant’s] motion to preclude Dr.

Farber, the treating pathologist, from offering expert opinions

as to the cause of the necrosis and fibrosis found in

[Decedent’s] pathology which were not disclosed to [Appellant]

in advance of trial?

Appellant’s Brief, at 2-3 (reordered for review).

As an initial matter, we note that Appellant requested a new trial in his

Motion for Post-Trial Relief based on the trial court’s alleged abuse of

discretion in evidentiary rulings. Although Appellant sought this relief from

the trial court, Appellant filed a praecipe for the entry of judgment pursuant

to Pa.R.C.P. 227.4 before the trial court ruled on the motion. Rule 227.4(1)(b)

permits any party to an action to praecipe the prothonotary for entry of

judgment if

one or more timely post-trial motions are filed and the court does

not enter an order disposing of all motions within one hundred

twenty days after the filing of the first motion. A judgment entered

pursuant to this subparagraph shall be final as to all parties and

all issues and shall not be subject to reconsideration.

Pa.R.C.P. § 227.4(1)(b).3 “The intent of this rule is to give all parties the

option of moving the case forward if there is a delay in the trial court's ruling

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3 We also note that the trial court was required to file a responsive Rule

1925(b) opinion despite its loss of jurisdiction to decide the Motion for Post

Trial Relief. This Court has provided that:

there is nothing contained in Pa.R.C.P. 227.4 which relieves

a trial court of responsibility for writing an opinion on the legal

merits of the issues presented by the parties for review.

Pa.R.A.P.1925. While a trial court in this situation is powerless to

act by entry of an order, the court is required to write an opinion

on the legal merits of the issues and to suggest what relief it would

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on post-trial motions. The parties have the right to not exercise this option.”

Hartner v. Home Depot USA, Inc., 836 A.2d 924, 927 (Pa.Super. 2003)

(citing Pa.R.C.P. 227.4, Explanatory Comment-1995, § I(a)). In such cases

where a party enters judgment pursuant to Rule 227.4, we may deem motions

for a new trial to be denied. Angelo v. Diamontoni, 871 A.2d 1276, 1279

(Pa.Super. 2005).

Appellant challenges the lower court’s denial of his Motion for Post-Trial

Relief, in which he requested a new trial. “[W]hen reviewing the denial of

a motion for new trial, we must determine if the trial court committed

an abuse of discretion or error of law that controlled the outcome of the

case.” Fletcher–Harlee Corp. v. Szymanski, 936 A.2d 87, 93 (Pa.Super.

2007) (citation omitted). All of Appellant’s issues challenge the trial court’s

discretion in ruling on evidentiary issues.

The admission or exclusion of evidence, including the admission

of testimony from an expert witness, is within the sound discretion

of the trial court. Thus, our standard of review is very narrow; we

may only reverse upon a showing that the trial court clearly

abused its discretion or committed an error of law. To constitute

reversible error, an evidentiary ruling must not only be erroneous,

but also harmful or prejudicial to the complaining party.

Crespo v. Hughes, 167 A.3d 168, 181 (Pa.Super. 2017) (citations omitted).

____________________________________________

have granted had it been able to take such action in a timely

fashion.

K-B Bldg., Co. v. Hermara Assocs., Inc., 709 A.2d 918, 919 (Pa.Super.

1998).

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First, Appellant argues that the trial court abused its discretion in

allowing Dr. Evans to testify as to his conversations with Decedent and

Appellant about the risks and complications associated with the lung biopsy

scheduled for November 29, 2010. Appellant contends that, as the trial court

had previously dismissed his informed consent claim and his only remaining

claim was for negligence, any testimony related to Dr. Evans’ discussion of

the risks of the lung biopsy with Decedent was irrelevant to the issue of

whether Dr. Evans was negligent in performing the procedure. Moreover,

Appellant argues that Dr. Evans’s testimony was unfairly prejudicial as it

allowed the jury to determine that Decedent’s consent to undergo the surgery

was the same as her consent to all the risks and complications even if the

surgery was performed negligently.

In response, Appellees argue that Appellant opened the door to the

admission of this informed consent evidence by introducing testimony that

would cause the jury to infer that Decedent did not provide informed consent

to the wedge biopsy. Appellees also argue that Dr. Evans’s testimony was

relevant to the standard of care as it went directly to his state of mind and his

appreciation for the risk of injury to Decedent’s pulmonary artery.

Our rules of evidence provide that evidence is relevant if it has “any

tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence.” Pa.R.E. 401. “All relevant evidence is admissible,

except as otherwise provided by law.” Pa.R.E. 402. Even if the evidence is

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relevant, the evidence may be still excluded if “its probative value is

outweighed by the danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.” Pa.R.E. 403.

In Brady v. Urbas, 631 Pa. 329, 111 A.3d 1155 (2015), a similar case

in which the plaintiff sought relief on a medical negligence claim and did not

raise an informed consent claim, our Supreme Court discussed the

admissibility of evidence of known risks and complications of treatment as

follows:

To prevail on a claim of medical negligence, the plaintiff must

prove that the defendant's treatment fell below the appropriate

standard of care. We therefore consider whether informed-

consent evidence is probative of that question. In undertaking

this inquiry, it is important to recognize that such information is

multifaceted: it reflects the doctor's awareness of possible

complications, the fact that the doctor discussed them with the

patient, and the patient's decision to go forward with treatment

notwithstanding the risks.

Some of this information may be relevant to the question of

negligence if, for example, the standard of care requires that the

doctor discuss certain risks with the patient. Evidence about the

risks of surgical procedures, in the form of either testimony or a

list of such risks as they appear on an informed-consent sheet,

may also be relevant in establishing the standard of care. In this

regard, we note that the threshold for relevance is low due to the

liberal “any tendency” prerequisite. Pa.R.E. 401. Accordingly,

we decline … to hold that all aspects of informed-consent

information are always irrelevant in a medical malpractice

case.

Still, the fact that a patient may have agreed to a procedure in

light of the known risks does not make it more or less probable

that the physician was negligent in either considering the patient

an appropriate candidate for the operation or in performing it in

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the post-consent timeframe. Put differently, there is no

assumption-of-the-risk defense available to a defendant physician

which would vitiate his duty to provide treatment according to the

ordinary standard of care. The patient's actual, affirmative

consent, therefore, is irrelevant to the question of negligence.

Moreover, … assent to treatment does not amount to consent to

negligence, regardless of the enumerated risks and complications

of which the patient was made aware. That being the case, in a

trial on a malpractice complaint that only asserts negligence, and

not lack of informed consent, evidence that a patient agreed to go

forward with the operation in spite of the risks of which she was

informed is irrelevant and should be excluded.

Brady, 631 Pa. at 339–42, 111 A.3d at 1161–63 (emphasis added, citations,

footnotes, and some quotation marks omitted).

However, consistent with its refusal to hold that all aspects of informed-

consent information are always irrelevant in a medical malpractice case, the

Supreme Court expressly indicated in Brady that it did not intend to preclude

a plaintiff from using such informed consent evidence for impeachment

purposes “if the plaintiff adduces evidence that she did not consent to a

particular risk.” Id. at 342, 111 A.3d at 1163 n. 8.

In this case, despite the trial court’s pretrial ruling that testimony with

respect to the Decedent’s informed consent was inadmissible, Appellant’s

counsel emphasized in his opening statement that Decedent did not want to

undergo surgery but only agreed to go forward with the lung biopsy only after

being assured by Dr. Evans that it would be a routine, minimally invasive

surgery. Counsel’s opening statement included the following statement:

[Decedent and Appellant] went for a follow-up visit with Dr. Evans

on November 4, 2010. Unfortunately all of that happiness that

they had over the good biopsy results dissipated because Dr.

Evans said, no, I still think it’s cancer, and we need to do an

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operation. I need to take you to surgery and I need to get a bigger

and better tissue sample so that we can find this out for sure.

You are going to find out [Decedent] did not want to have surgery.

She didn’t understand why since she already had a biopsy and it

wasn’t cancer, why she needed surgery. She was afraid. She was

afraid of getting cut up. She didn’t want scars on her body, but

Dr. Evans and her husband and her daughter based on what Dr.

Evans had said convinced her this was something she really

needed to do, and so [Decedent] went to surgery by Dr. Evans on

November 29th, 2010, and the additional assurance that

[Decedent] had received was this wasn’t going to be a big

operation. Dr. Evans was going to do what’s known as a minimally

invasive surgery.

***

Dr. Evans had told [Decedent] and [Appellant] that he was going

to do minimally invasive surgery. You heard a little bit about it in

the jury selection, what is called a VATS surgery, and that is an

acronym for Video Assisted Thorascopic Surgery …. For my

purposes it is a scope, and essentially Dr. Evans is in the operating

room, and with one eye is he looking through the scope through

incisions that had been placed into [Decedent’s] body. It is a two-

dimensional view of everything in her chest like you would have if

you do an open surgery.

And so [Decedent] was told, convinced that this was going to be

a minimally invasive surgery. It wasn’t going to take long, not

longer than maybe an hour, a hour-and-a-half, as much as two

hours. She probably wouldn’t have to stay in the hospital

overnight and then she would go home and she would be fine. We

could have a diagnosis and then we would proceed.

Notes of Testimony (N.T.), 1/12/16, at 33-35.

Appellant continued to highlight the issue of Decedent’s consent to the

surgery by repeatedly testifying on direct-examination that Decedent did not

want to have the biopsy but eventually agreed to have the procedure after Dr.

Evans told her it was a minor, routine procedure that “was no big deal.” N.T.,

1/14/16, at 41-42.

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[Appellant’s counsel]: Now, in that visit with Dr. Evans following

the biopsy on November 4, 2010, did you go with your wife there?

[Appellant:] Yes, I did.

[Appellant’s counsel]: And do you remember that conversation

with Dr. Evans on November 4th?

[Appellant:] Yes, I did.

[Appellant’s counsel]: Can you please tell us what happened at

that visit with Dr. Evans?

[Appellant:] We went into Dr. Evans’ office and he – first he told

us that she needed another biopsy, and my wife didn’t want to

take it, didn’t want a biopsy. He didn’t insist, but he ensured us

that she needed that to find out what was wrong with her. Me

and her really didn’t want to do that, but we had came too far and

he ensured us that taking the biopsy, it was a chance of him

finding out what the dark mass was in her chest.

[Appellant’s counsel]: Did he tell you that [Decedent] needed to

go and have surgery for his biopsy?

[Appellant:] Yes he did. That was the part that she really didn’t

want to do because he was going to cut her and she was very

upset about it, but he ensured her that he was only going to put

very small incisions in her skin and put some items in there to see

and take the biopsy. She really didn’t want to do it, but he insisted

that we had to do it because that’s the only way to get a big

enough sample to get a biopsy. He ensured us that he would do

that and take care of her.

[Appellant’s counsel]: The way the biopsy surgery was presented

to you and your wife by Dr. Evans, did it seem like it was going to

be any type of a major operation or big deal?

[Appellant:] No, it didn’t. He described it to us, a small incision

that would maybe take two stitches on the sewing up and it

wouldn’t leave no big scars or anything, and it was basically a

routine type thing, and it wasn’t no big deal. She would either go

home that evening or maybe spend the night in the hospital that

night and go home the next day. So we kind of did a quick talk

over and we didn’t want to do it, but I talked her into doing it.

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[Appellant’s counsel]: Did Dr. Evans tell you how long the surgery

would take?

[Appellant:] Approximately a couple of hours.

[Appellant’s counsel]: Did you and your wife trust Dr. Evans?

[Appellant:] Yes, I trusted him. Because he said – I asked him

was he going to do the surgery. He said I am going to do it with

my own hands and I am going to take care of your wife, and I

entrusted my wife with him.

N.T., 1/14/16, at 41-42.

Moreover, Appellant’s counsel delivered a narrative to the jury, accusing

Dr. Evans of being an inexperienced surgeon who did not foresee the risks

associated with a wedge biopsy and foolishly pursued this course of action. In

her opening statement, Appellant’s counsel stated:

[Decedent] was losing blood so fast that anesthesia couldn’t keep

up with her. They couldn’t get enough blood product fast enough

into her to keep her sustaining life. Fortunately she was at

Thomas Jefferson University Hospital where there were other

more experienced surgeons available to come in and help Dr.

Evans. More experienced surgeons that he could have called upon

before he decided to do his wedge biopsy, but he didn’t.

You will find out that Dr. Evans had completed his residency, his

physician in training in thoracic surgery in February, 2010, just

seven months before [Decedent’s] surgery. He was only an

attending physician for that seven months having primary

responsibility for his patients.

… So the surgeons came in and did what needed to be done under

this emergency situation that all could have been avoided.

N.T., 1/12/16, at 42-43.

Thereafter, upon direct examination of Dr. Evans by his counsel, Dr.

Evans clarified that he informed Decedent of the possible risks and

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complications of the lung biopsy that he had thoroughly contemplated before

recommending this course of action.

[Defense counsel:] Dr. Evans, did you have a conversation with

[Appellant] and [Decedent] about the risks that could be

associated with surgery that you were proposing to perform on

November 29th?

[Dr. Evans:] Certainly, yes.

[Defense counsel:] And could you discuss that with the jury,

please?

[Dr. Evans:] Well, I had the same discussion I have with every

patient I ever do chest surgery on. I explained to them that what

I expect the course of the operation to be and the potential risks

that are associated, especially in a case like this where we’re doing

a thoracoscopy. That I tell them there is always a small chance I

will have to make a bigger incision and there are multiple reasons

why that may happen. It doesn’t happen very often, but it does

happen, and I tell them that every operation there is a small

chance of death during or around the time of the operation. It’s

extremely unlikely but it does happen. I typically will given them

my estimation of the percentage of that happening for their

operation. So with an operation like here I would have said there

is a 1 to 2 percent chance of your having a life-threatening

complication during this operation.

N.T, 1/15/16, at 131-32.

In light of Appellant’s emphasis that Decedent had allegedly only

consented to a minor, routine, and minimally-invasive surgery and his

suggestion that Decedent was never advised of the potential for the life-

threatening consequences that ultimately ensued, it was not an abuse of

discretion for the trial court to allow Dr. Evans to briefly state that he had

advised Decedent of the risks associated with the biopsy to impeach

Appellant’s suggestion to the contrary. We reiterate that the Supreme Court

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in Brady expressly stated that its decision in no way precluded a plaintiff from

using informed consent evidence for impeachment purposes “if the plaintiff

adduces evidence that she did not consent to a particular risk.” Id. at 342,

111 A.3d at 1163 n. 8. Other than Dr. Evans’s isolated statement

contradicting Appellant’s suggestion that Dr. Evans had not advised Decedent

of the potential risks and complications of the surgery, the defense did not

pursue any further questioning with respect to Decedent’s consent to the

procedure. Accordingly, the trial court did not abuse its discretion in allowing

Appellees latitude to present this limited testimony to rebut Appellant’s

suggestion that Decedent did not consent to the risks posed by the biopsy.

In Appellant’s second issue, he argues that the trial court improperly

limited his ability to properly cross-examine defense witnesses, Dr. Evans and

Dr. Frank Detterback, the defense expert on standard of care. It is well

established that “[t]he scope of cross-examination is within the sound

discretion of the trial court, and we will not reverse the trial court's exercise

of discretion in absence of an abuse of that discretion.” Yacoub v. Lehigh

Valley Med. Assocs., P.C., 805 A.2d 579, 592–93 (Pa.Super. 2002) (citation

omitted). “[I]n setting limits on cross-examination, the trial court may

consider whether the cross-examination would be likely to confuse or mislead

the jury. As with any other type of evidence, to be admissible, it must be

relevant and also not unfairly prejudicial. Id. (citing Pa.R.E. 403).

Appellant’s claim with respect to Dr. Evans is three-fold: Appellant

claims that he was prevented from cross-examining Dr. Evans (1) in using the

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informed consent form to impeach his credibility, (2) in questioning his claim

that Decedent showed no sign of infection, and (3) in asking whether Dr.

Evans could have consulted more experienced physicians before pursuing the

wedge biopsy.

The trial court correctly precluded Appellant’s counsel from employing

the November 4, 2010 consent form in his cross-examination of Dr. Evans as

this document was irrelevant to Appellant’s negligence claim. As discussed

above, the Supreme Court in Brady affirmed the award of a new trial to the

appellee patient as the defendant physician was permitted to admit consent

forms into evidence and question appellee extensively as to her consent. The

Supreme Court reasoned that introduction of this evidence led to a substantial

possibility that the jury relied on an improper consideration in reaching its

verdict, that is the jury may have determined that the patient’s consent to the

procedure implied consent to the resultant injury.

In this case, Appellant himself had successfully moved to preclude the

admission of this document in his pretrial motion on the very basis set forth

in Brady. Accordingly, we find the lower court did not abuse its discretion in

refusing to allow Appellant to introduce the consent form, which would likely

have only served to confuse the jury and allow it to find liability on an improper

basis.

Appellant also claims that the trial court restricted him from cross-

examining Dr. Evans as to his claim that Decedent did not show any signs of

infection upon her discharge from Thomas Jefferson. Our review of the record

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reveals that Appellant’s counsel did cross-examine Dr. Evans with respect to

a finding of haemophilus influenza on Decedent’s bronchoscopy. Appellant’s

counsel also presented Dr. Evans with the fact that Decedent had elevated

white blood cell counts during her hospitalization, which Dr. Evans agreed

could be a sign of infection. Thus, Appellant’s counsel was able to question

Dr. Evans’s assertion that there were no signs of infection at Thomas

Jefferson.

The trial court did prevent Appellant’s counsel from further emphasizing

the finding of an elevated white blood cell count, as Appellant was attempting

to introduce a new theory of causation at trial, specifically that Dr. Evans had

missed an infection while Decedent was hospitalized at Thomas Jefferson,

which worsened and led to her death several months later.4 As Appellant had

not properly presented a theory of liability based on Dr. Evans’s failure to

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4 Appellant’s initial theory was that Decedent developed an infection during

her subsequent admission to Abington Memorial Hospital in March 2011 as

she was so debilitated from her hospitalization at Thomas Jefferson several

months earlier in late November – December 2010. Appellant’s complaint in

this case centered on Dr. Evans’ alleged negligence in choosing his surgical

technique and in pursuing the wedge biopsy.

Just weeks before trial was to commence, Appellant attempted to assert

for the first time that Dr. Evans was negligent in failing to diagnose and treat

an infection while Decedent was still a patient at Thomas Jefferson. Appellant

also identified Dr. Kevin G. Mennitt, M.D., as a new expert. Thereafter,

Appellees filed a motion in limine arguing that Appellant could not advance a

new theory of liability at this point as the request was untimely and involved

the allegations of postsurgical breaches in the standard of care of Dr. Evans

and other non-party physicians. Following oral argument, the trial court

granted Appellee’s motion and precluded Dr. Mennitt from testifying at trial.

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diagnose an infection at Thomas Jefferson, the trial court properly exercised

its discretion to appropriately preclude further questioning that would suggest

that the jury could find liability on an improper basis.

Moreover, we reject Appellant’s claim that his counsel was improperly

precluded from questioning Dr. Evans upon whether he should have sought

assistance from “more experienced surgeons” when he decided to further

pursue the wedge biopsy in attempting to dissect Decedent’s lymph nodes

from her pulmonary artery. This line of questioning suggested a new theory

of liability that Dr. Evans was negligent in failing to consult with other surgeons

in the midst of the wedge biopsy. Moreover, the question implied that Dr.

Evans lacked the training or experience to perform this portion of the biopsy.

The issue of whether Dr. Evans was negligent in failing to consult with

other surgeons during the operation is a matter requiring expert testimony,

as it is not within the ordinary knowledge of laypersons. Appellant’s liability

expert, Dr. Michael Greene, did not opine that Dr. Evans deviated from the

standard of care in proceeding with the wedge biopsy without consulting with

other surgeons. See Toogood v. Owen J. Rogal, D.D.S., P.C., 573 Pa. 245,

255, 824 A.2d 1140, 1145 (2003) (emphasizing that “because the negligence

of a physician encompasses matters not within the ordinary knowledge and

experience of laypersons a medical malpractice plaintiff must present expert

testimony to establish the applicable standard of care, the deviation from that

standard, causation and the extent of the injury”). Therefore, we conclude

that the trial court did not err in limiting this line of questioning.

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Appellant also argues that the trial court improperly limited his ability to

cross-examine Dr. Detterbeck, the defense’s standard of care expert. Dr.

Detterback, who serves as a professor and Chief of Thoracic Surgery at Yale

University School of Medicine, reviewed Decedent’s medical records and

testing results and opined that [Decedent] had “at least 99 percent chance”

that the mass in Decedent’s lung was malignant cancer. N.T. 1/20/16, at 34.

Appellant does not challenge the admission of this particular testimony

but argues that he was prevented from cross-examining Dr. Detterbeck with

respect to whether that Dr. Evans should have sought additional blood tests

or other studies to conclusively determine that Decedent had cancer or

whether Dr. Evans should have referred Decedent to an oncologist before

performing the thorascopic biopsy. As these matters are likewise outside the

ordinary knowledge of laypersons, Appellant was first required to establish

with expert testimony that Dr. Evans’s failure to take these steps was a

deviation from the standard of care. Appellant’s own expert, Dr. Greene, did

not testify or opine that Dr. Evans deviated from the standard of care in failing

to order additional tests or studies or in referring Decedent to an oncologist

before proceeding with the biopsy. As such, the trial court properly limited

Appellant from suggesting that Dr. Evans was negligent in these omissions

without first establishing that the standard of care required these steps.

In his third claim of error, Appellant argues that the trial court erred in

denying his motion in limine and permitting Dr. Evans’s standard of care

expert, Dr. Detterback to allegedly testify that Dr. Evans was not subject to

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an objective standard of care in deciding to proceed with the wedge biopsy

after observing that Decedent’s lymph nodes were stuck together and needed

to be separated. Instead, Appellant argues that Dr. Detterback improperly

suggested that the decision to proceed with the surgery should have been

guided under a solely subjective standard and left to Dr. Evans’s own

judgment.

When we review the record as a whole, we find that Appellant is taking

Dr. Detterback’s expert opinion and testimony out of context. Initially, we

note that Appellant’s expert, Dr.Greene, first testified that it was improper for

Dr. Evans to proceed with the wedge biopsy after determining that the VATS

procedure revealed more necrotic tissue in Decedent’s lungs, but did not allow

Dr. Evans to obtain a suitable tissue sample. Dr. Greene suggested that Dr.

Evans’s decision to perform the wedge biopsy did not fall within the standard

of care as it required him to separate the lymph nodes where were very close

to the pulmonary artery. Dr. Greene specifically opined that it would not be

prudent for a surgeon to commence any biopsy that would “put tension or

jeopardize the pulmonary artery.” N.T., 1/12/18, at 154-55.

In response, Dr. Evans presented the testimony of Dr. Detterback, who

opined that Dr. Evans acted appropriately within the standard of care in

choosing to proceed with a wedge biopsy after determining that the mass of

necrotic tissue in Decedent’s lung was likely cancer. Dr. Detterback felt that

Dr. Evans’ attempt to obtain a more suitable tissue sample was an appropriate

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choice as doctors would need to identify the type of Decedent’s tumor to best

define the treatment plan that Decedent would need.

[Defense counsel:] [W]as there any deviation from the standard

of care by Dr. Evans in his decision making with respect to

dissecting lymph nodes in an attempt to complete the wedge

resection?

[Dr. Detterback:] I don’t know think that deviates from the

standard of care. I do think it’s a, you know, judgment call of,

you know, what appears to be feasible to do, and I think you have

to try to do this carefully and see how this goes, but if it appears

that freeing up those lymph nodes is going to make you be able

to complete the wedge resection, then I certainly would have

proceeded in that fashion.

[Defense counsel:] And is that something that surgeons ---

thoracic surgeons like yourself … have been through programs are

trained to do every day?

[Dr. Detterback:] Yes, that’s certainly, what we do everyday.

[Defense counsel:] Now, notwithstanding the exercise of

appropriate care in the dissection of lymph nodes, is there not

involved a risk of injury to the pulmonary artery on those

branches?

[Dr. Detterback:] Well, certainly. I mean, there is clearly an

element of risk with surgery, and there is clearly an element of

risk with thoracic surgery, and I think that the pulmonary artery

is probably the thing we respect the most. You know, overall it’s

the instance of major bleeding which is typically from the

pulmonary artery is 1 percent in thoracic operations, and

interestingly it’s about 1 percent whether it’s a VATS case or an

open case, but clearly there is an element of risk that’s there, and

I think that any thoracic surgeron that has been significantly in

practice has encountered this situation at times. So you can’t say

that it can’t happen. It certainly does.

[Defense counsel:] And when it does happened and when it’s

happened to you, has it happened notwithstanding appropriate

care, appropriate decision making, and careful dissection?

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[Dr. Detterback:] Well, yes. It certainly has happened to me and

it’s happened despite trying to be very careful and thoughtful and

trying not to have that happened.

N.T, 1/20/16, at 51-52.

Dr. Detterback rejected Dr. Greene’s statement that the standard of

care always requires a surgeon to abandon any attempt to perform a biopsy

near the lymph nodes. Instead, Dr. Detterback explained that Dr. Evans’s

choice to continue with the wedge biopsy which was also an accepted course

of treatment if the surgeon proceeded with reasonable caution based on his

intraoperative findings:

[Defense counsel:] If I could, and that is when Dr. Evans

encountered lymph nodes which precluded him from completing

the wedge resection, do you have an opinion as to whether the

standard of care required Dr. Evans to abandon or abort the

wedge resection when he encountered the lymph nodes that he

could not staple through?

[Dr. Detterback:] Well, I do not think there is a standard of care

that would say that you have to abandon VATS or you have to do

this or that. I think that many --- it’s a judgment call as to what

the situation is like and what you can do and what you can do

safely. But you know, dissecting lymph nodes off of the

pulmonary artery is something that, you know, I do day in and

day out, every thoracic surgeon does day in and day out when you

resect lung cancer. That’s part of what you do, and you see how

that goes and you dissect them off. Can there be situations where

it’s more difficult or situations where it’s easier, certainly. Do you

have to exercise some judgment, yes. But can we, you know, --

I mean in retrospect you can say all sorts of things, but I don’t

think that you can say there is a standard of care that requires

one or the other. I think it’s a judgment call based on how things

seem to set up and what is feasible.

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N.T, 1/20/16, at 48-49. As a result, Dr. Detterback asserted that the objective

standard of care requires a physician to exercise reasonable care in the

treatment of his or her patients.

Our courts have recognized a “two schools of thought” doctrine which

holds that a physician will not be liable for choosing, in the exercise of her or

his judgment, one of two or more accepted courses of treatment where

competent medical authority is divided as to the proper course. Passarello

v. Grumbine, 624 Pa. 564, 585, 87 A.3d 285, 297 (2014) (citations omitted).

Thus, the parties’ disagreement as to whether Dr. Evans’s decision to proceed

with the wedge biopsy violated his standard of care is not a question of

admissibility, but concerns the weight of the evidence. The parties were free

to contest each theory through cross-examination and leave the ultimate

credibility determination to the factfinder.5 We thus find this claim to be

without merit.

In his last claim of error, Appellant argues that the trial court abused its

discretion in denying his motion to preclude Dr. John Farber, the treating

____________________________________________

5 Appellant’s sole citation to Pringle v. Rapaport, 980 A.2d 159, 170,

(Pa.Super. 2009) is unavailing as it does not concern the admissibility of an

expert’s opinion but focuses exclusively on the propriety of the trial court’s

instruction to the jury. The Pringle Court held that a jury must be charged

that a defendant-physician must be judged by an objective standard of care

and that trial courts should not give “error in judgment” jury instruction which

has a substantial risk of confusing the jury as to the standard of care.

Appellant does not challenge the jury instructions in this case and the trial

court properly charged the jury that Dr. Evans must be held to an objective

standard of care.

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pathologist who analyzed the lung biopsy samples that Dr. Evans sent to the

pathology department during Decedent’s November 29, 2010 surgery, from

offering expert testimony as to the cause of necrosis and fibrosis in Decedent’s

lung and chest. Appellant argues that Dr. Evans failed to properly disclose

this expert testimony in advance of trial pursuant to Pa.R.C.P. 4003.5

(requiring pre-trial identification of experts and disclosure of expert reports

“acquired or developed in anticipation of litigation or for trial”).

By way of background, we note that Appellant’s expert witnesses used

Dr. Farber’s pathology report to support their opinions that Decedent did not

have cancer. For example, Dr. Carl Schoenberger, a physician specializing in

pulmonary medicine, testified that Dr. Farber’s pathology report “proved

definitively” that Decedent did not have cancer as none of the samples showed

any evidence of malignancy. N.T. 1/13/16, at 182, 204-207. Although the

pathology report did not identify the cause of the necrosis in Decedent’s chest,

Dr. Schoenberger opined that the pathologist had diagnosed Decedent with

fibrosing mediastinitis (a benign disease). Id. at 206. Likewise, Dr. Greene

interpreted Dr. Farber’s report to conclude that Decedent’s abnormal tissue

was “consistent with fibrosis and necrosis and no cancer.” N.T. 1/11/16, at

152-53.

Thereafter, the defense called Dr. Farber as a fact witness to testify as

to his findings and conclusions made in preparing his pathology report and to

rebut the testimony of Dr. Schoenberger and Dr. Greene. Appellant made an

oral motion to preclude Dr. Farber from offering expert opinions, accusing the

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defense of failing to identify Dr. Farber as an expert witness prior to trial.

Defense counsel argued that Dr. Farber was a fact witness that was known to

Appellant since the beginning of the case as the treating pathologist who

authored the pathology report and Appellant had every opportunity to depose

Dr. Farber. Defense counsel advised the court that the jury should hear from

Dr. Farber as to what his findings and conclusions were from his pathology

report to contest the interpretation of the report by defense experts. The trial

court decided to allow Dr. Farber to testify but indicated he would rule on the

motion on a question-by-question basis.

Dr. Farber worked with Dr. Evans during Decedent’s November 29, 2010

surgery to analyze the cause of the mass in Decedent’s lung. Based on the

seventeen tissue samples that Dr. Evans provided to the pathology lab that

day, Dr. Farber testified that he found necrotic tissue in four areas: the

anterior mediastinum, the pericardium, the chest wall, and the lung.

Thereafter, Dr. Farber opined that there are “very, very few” disease

processes that will cause necrosis in all four areas and stated that these

findings “reduce[d] what this could be all about to virtually one thing…

cancer.” N.T. 1/22/16, at 112-13. Appellant’s counsel made an immediate

objection, which the trial court sustained.

In evaluating whether a fact witness has properly given expert

testimony, this Court has held the following:

Technical expertise does not ipso facto convert a fact witness, who

might explain how data was gathered, into an expert witness, who

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renders an opinion based on the data.” Branham v. Rohm &

Haas Co., 19 A.3d 1094, 1110 (Pa.Super.2011).

A pre-trial report by a non-party expert serves to

inform the opposing side of the identity of a party's

experts and the conclusions of the experts in order to

prevent unfair surprise and prejudice at trial.

However, a physician who is also a defendant may

testify as a fact witness in his own behalf without the

prior filing of an expert's report.

Havasy v. Resnick, 415 Pa.Super. 480, 609 A.2d 1326, 1333

(1992). “Fact testimony may include opinion or inferences so long

as those opinions or inferences are rationally based on the

witness's perceptions and helpful to a clear understanding of his

or her testimony.” Brady by Brady v. Ballay, 704 A.2d 1076,

1082 (Pa.Super.1997).

Deeds v. Univ. of Pennsylvania Med. Ctr., 110 A.3d 1009, 1017–18

(Pa.Super. 2015).

In this case, Dr. Farber was asked to clarify his specific findings on a

pathology report he made at the time that Dr. Evans was conducting the

wedge biopsy as part of Decedent’s treatment. Dr. Farber’s opinions were

formulated in the course of his duties in his capacity as the senior pathologist

at Thomas Jefferson. As Dr. Farber’s opinions were not developed in

anticipation of litigation, Rule 4003.5 does not apply. See Miller v. Brass

Rail Tavern, 541 Pa. 474, 664 A.2d 525, 531–32 (1995) (noting that the rule

of preclusion for failing to identify experts pursuant to Rule 4003.5 applies

only where the expert opinions were formulated “in anticipation of litigation

or for trial”).

Further, Dr. Farber was qualified to comment as a fact witness on

causation as his opinion was rationally based on his perceptions and diagnosis

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at the time he rendered his pathology testing on Decedent’s tissue for her

treatment. Dr. Farber’s testimony was helpful to the jury’s clear

understanding of the pathology report, which had been interpreted differently

by Appellant’s expert witnesses. See also Crespo, 167 A.3d at 182 (finding

physician “qualified to comment as a fact witness on causation because his

testimony was based on his observations, diagnosis, and medical judgment at

the time he rendered treatment to the appellee). Thus, we discern no abuse

of the trial court’s discretion.

For the foregoing reasons, we affirm the judgment entered in favor of

Appellees.

Judgment affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/14/18

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