# Grossman v. Barke > Superior Court of Pennsylvania · February 3, 2005 · 2005 Pa. Super. 45 URL: https://www.frixlaw.com/law-library/cases/4961361 ## Case - **Full name:** Elizabeth GROSSMAN, of the Estate of Marjorie L. Dudley, Individually, and Gordon Dudley, Sr., Individually v. James N. BARKE, M.D. - **Court:** Superior Court of Pennsylvania - **Decided:** February 3, 2005 - **Citations:** 2005 Pa. Super. 45; 868 A.2d 561; 2005 Pa. Super. LEXIS 100 - **Precedential status:** Published - **Opinion:** Dissent by Joyce - **Judges:** Bender, Bowes, Joyce - **Cited by:** 116 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4961361 ## How later opinions describe it (automated extraction) - holding that, where a physician told a diabetic patient to sit on an examination table, the physician left the room, and the patient fell off the examination table, expert testimony was needed to explain to the jury the impact of the patient’s medical condition on her ability … - stating that “[e]ven though [the plaintiff] did not separate his factual allegations into separate counts specifying the legal theories underlying the complaint, the trial court was obligated to consider what causes of action were supported by the facts alleged.” - stating, without the testimony of a medical expert, a “jury could have no basis other than conjecture, surmise[,] or speculation upon which to consider causation” (citation omitted) ## Opinion text DISSENTING OPINION BY JOYCE, J.: ¶ 1 While I agree with the esteemed Majority’s conclusion that Appellant’s claim sounds in medical malpractice, not ordinary negligence, I do not agree that Appellant has failed to establish the requisite elements of a medical malpractice claim. Accordingly, I dissent. ¶ 2 The Majority states that Appellant has failed to demonstrate, via its expert witness, that “Dr. Barke’s alleged acts or omissions deviated from the applicable standard of care and that such deviation was the proximate cause of Mrs. Dudley’s injuries.” Majority’s Opinion, at 572. Nevertheless, a review of Dr. Bayer’s expert report reveals that Dr. Bayer did opine, to a reasonable degree of medical certainty, that Appellee acted below the standard of care and that Appellee’s deviation from the standard of care caused Mrs. Dudley’s injuries. In Dr. Bayer’s report, he states that, at the time of her fall, Mrs. Dudley was sixty-eight years old and weighed approximately three hundred pounds. Dr. Bayer also indicates that Mrs. Dudley suffered from a number of health conditions including diabetes, hypertension, morbid obesity, diabetic neuro-pathy, anemia and cardiovascular disease. In view of Appellant’s physical characteristics and medical problems, Dr. Bayer opined that Appellee acted “negligently” by asking Mrs. Dudley to climb up on an examination table and to remain seated on the table while unattended. He further stated that “[g]ood safety rules of an office, clinic, or hospital are to assist the patient on and off this type of examination table.” Dr. Bayer also opined, to a reason *574 able degree of medical certainty, that Mrs. Dudley sustained injury (i.e. a hip fracture) as a result of Appellee’s negligent act. ¶ 3 The Majority appears to find the expert report inadequate, however, because Dr. Bayer also states that the instant situation “involves general liability and patient safety, not malpractice and inappropriate care.” See Majority’s Opinion, at 572. By highlighting this portion of the report, the Majority suggests that an expert report will not suffice unless the expert explicitly characterizes the physician’s actions as malpractice. I reject this approach because it places an improper emphasis on an expert’s utilization of “magic words” and because it ignores the thrust of Dr. Bayer’s opinion, namely, that (1) Appellee acted negligently when he ordered a woman in Mrs. Dudley’s condition to sit unattended on a table and (2) this negligence caused Mrs. Dudley’s injuries. ¶ 4 Furthermore, the actual meaning of Dr. Bayer’s statement that the instant case does not involve “malpractice or inappropriate medical care” becomes apparent upon a review of Dr. Bayer’s deposition. During his deposition, Dr. Bayer echoed the substance of his report, namely, that Appellee deviated from the standard of care and that this deviation caused Mrs. Dudley’s injuries. Dr. Bayer also explained that he hesitated to label Appel-lee’s conduct as “malpractice” because he thought that malpractice only occurred in instances where a physician did not provide the proper treatment for his/her patient’s medical condition. He also stated that he did not deem Appellee’s conduct “inappropriate medical care” because inappropriate medical care would only occur when the physician does not listen to his/ her patient or “pursue certain complaints that may be important.” Dr. Bayer’s Deposition, at 102. As the Majority indicates, medical malpractice involves a much larger class of cases than those involving improper treatment, failure to listen, or failure to investigate. Rather, the Majority. emphasizes that medical malpractice involves any claim (1) pertaining to an action that occurred during a professional relationship and (2) raising questions of medical judgment beyond. common knowledge and experience. Majority’s Opinion, at 570. Because Dr. Bayer did not recognize malpractice to encompass such a large variety of claims, he did not specifically characterize Appellee’s actions as malpractice. I would not find Dr. Bayer’s misunderstanding of the legal term “malpractice” fatal since the underlying substance of the report itself satisfy the elements of a malpractice claim. ¶ 5 Viewing the record in the light most favorable to the non-moving party, herein Mrs. Dudley’s Estate, I find that the trial court abused its discretion when it concluded that Appellant could not establish a medical malpractice claim as a matter of law. Therefore, I dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4961361. Public record. Not legal advice.