Beech, S. v. Sharan, A.

J-A19013-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

STEPHEN BEECH AND KATRINA : IN THE SUPERIOR COURT OF

BEECH, H/W : PENNSYLVANIA

:

Appellants :

:

:

v. :

:

: No. 3064 EDA 2022

ASHWINI D. SHARAN, M.D. AND :

JEFFERSON UNIVERSITY HOSPITAL, :

AND NEVRO CORPORATION :

Appeal from the Order Entered November 9, 2022

In the Court of Common Pleas of Philadelphia County Civil Division at

No(s): 191100980

BEFORE: BOWES, J., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 3, 2023

Stephen Beech and Katrina Beech, husband and wife (“Plaintiffs”),

appeal from the order granting the motion for summary judgment filed by

Aswini D. Sharan, M.D., Jefferson University Hospital, and Nevro Corporation

(“Defendants”).1 We affirm.

In 2019, Plaintiffs initiated the underlying negligence and loss of

consortium action against Defendants, based upon allegations that Dr. Sharan

“surgically implanted a Nevro Spinal Cord Stimulator (‘medical device’) onto

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* Retired Senior Judge assigned to the Superior Court.

1 The order was filed on November 7, 2022, but service upon the parties was

not docketed in accordance with Pa.R.C.P, 236(b) until November 9, 2022.

Hence, for purposes of this appeal, the order was entered on November 9,

2022. See Pa.R.A.P. 108(b).

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[Mr. Beech’s] person in a negligent manner resulting in injury[.]” Trial Court

Opinion, 3/6/23, at 1. Specifically, on November 7, 2017, Dr. Sharan

surgically implanted the medical device. Following the procedure, the device

and its component parts were tested and appeared to be implanted correctly.

Thereafter, but prior to being released from the hospital, Mr. Beech sneezed2

and felt a pop in his neck. It was subsequently determined through imaging

that the device had migrated, requiring a second surgery, performed three

days later, to reposition the device. See id. at 2.

Plaintiffs filed the instant cause of action based upon the theory that

“the migration of the device could only be a result of a deviation from the

‘standard of care and skill required of, and ordinarily exercised by the average

qualified medical professionals at a professional level.’” Id. (citing Amended

Complaint, ¶ 17) (cleaned up). Critically, Plaintiffs certified that expert

medical testimony was not necessary to litigate their claim against

Defendants. See Complaint, 12/20/19, at unnumbered 8 (certifying that

“[e]xpert testimony of an appropriate licensed professional is not necessary

for prosecution of the claim against Defendants”); Amended Complaint,

1/17/20, at unnumbered 8 (same). Thus, Plaintiffs neither presented nor

secured an expert by the conclusion of discovery.

Defendants filed a motion for summary judgment based upon Plaintiffs’

failure to secure a medical expert. Plaintiffs responded, arguing that “the

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2While not dispositive, we note that Plaintiffs allege in their brief that Mr.

Beech vomited, causing the device to move. See Plaintiffs’ brief at 20.

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malpractice alleged is so clearly within the common knowledge of the average

layman” that Plaintiffs were “not required to produce an expert report to

demonstrate the elements of medical malpractice.” Response of Plaintiffs to

Motion for Summary Judgment, 10/19/22, at unnumbered 2. The court

granted Defendants’ motion and this appeal followed.3 Both Plaintiffs and the

trial court have complied with Pa.R.A.P. 1925.4

On appeal, Plaintiffs frame their issue in this manner: “This appeal

concerns the role of the trial court judge in granting summary judgment

despite the existence of genuine[,] material[,] factually disputed issues in

existence.” Plaintiffs’ brief at 5 (cleaned up). Our standard of review for

orders granting summary judgment is well-settled:

An appellate court may reverse a grant of summary judgment if

there has been an error of law or an abuse of discretion. But the

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3 We note that Plaintiffs properly filed a motion for reconsideration and notice

of appeal within the requisite period, and the trial court denied Plaintiffs’

motion after the instant appeal commenced. See Pa.R.A.P. 1701 Note

(stating that “because the clock is running on the appeal period and the period

for reconsideration simultaneously, filing the notice of appeal at the same time

as or shortly after the motion for reconsideration will protect against waiver

of the appeal if the trial court or other government unit fails to act”).

4 The trial court posits that Plaintiffs waived all issues as a result of their six-

page narrative-form statement that did not conform to the dictates of Rule

1925(b). See Trial Court Opinion, 3/6/23, at 3-4; see also Commonwealth

v. Arnold, 284 A.3d 1262, 1279 (Pa.Super. 2022) (“A Rule 1925(b) concise

statement that is too vague can result in waiver of issues on appeal.”).

However, since the trial court was ultimately able to discern Plaintiffs’

complaint and address it, we decline to find waiver. See Commonwealth v.

Smyser, 195 A.3d 912, 916 (Pa.Super. 2018) (addressing claim, despite the

potential waiver for a non-compliant Rule 1925(b) statement, because the

trial court could “readily apprehend” the issue).

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issue as to whether there are no genuine issues as to any material

fact presents a question of law, and therefore, on that question

our standard of review is de novo. This means we need not defer

to the determinations made by the lower tribunals. To the extent

that this Court must resolve a question of law, we shall review the

grant of summary judgment in the context of the entire record.

Circle K, Inc. v. Webster Tr. of Webster Irrevocable Grantor Tr., 256

A.3d 461, 464 (Pa.Super. 2021) (cleaned up).

The trial court granted Defendants’ motion for summary judgment

based upon Pa.R.C.P. 1035.2(2), which provides as follows:

After the relevant pleadings are closed, but within such time as

not to unreasonably delay trial, any party may move for summary

judgment in whole or in part as a matter of law

....

(2) if, after the completion of discovery relevant to the

motion, including the production of expert reports, an

adverse party who will bear the burden of proof at trial has

failed to produce evidence of facts essential to the cause of

action or defense which in a jury trial would require the

issues to be submitted to a jury.

Pa.R.C.P. 1035.2. In Miller v. Sacred Heart Hosp., 753 A.2d 829 (Pa.Super.

2000), this Court explained that “[t]he purpose of Rule 1035.2 is to eliminate

cases prior to trial where a party cannot make out a claim or a defense after

relevant discovery has been completed[ and thus,] summary judgment is

appropriate where a party fails to produce evidence of facts essential to his

cause of action.” Id. at 833 (cleaned up). Regarding cases alleging medical

malpractice, we have highlighted the importance of Rule 1035.2 thusly:

Our courts have held that because the complexities of the human

body place questions as to the cause of pain or injury beyond the

knowledge of the average layperson, a medical malpractice

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plaintiff generally must produce the opinion of a medical expert to

demonstrate the elements of his cause of action. Thus if, at the

conclusion of discovery, the plaintiff fails to produce expert

medical opinion addressing the elements of his cause of action

within a reasonable degree of medical certainty, he has failed to

establish a prima facie case and may not proceed to trial. At this

juncture, a moving party is entitled to summary judgment under

Rule 1035.2. In the absence of competent evidence of medical

opinion, the plaintiff may avoid summary judgment only if the

matter is so simple, and the lack of skill or want of care so obvious,

as to be within the range of ordinary experience and

comprehension of even non[-]professional persons.

Id. (cleaned up).

We note that Plaintiffs’ primary allegations sound in negligence. Thus,

they were required to prove: “(1) a duty or obligation recognized by law; (2)

a breach of that duty; (3) a causal connection between the conduct and the

resulting injury; and (4) actual damages.” Grossman v. Barke, 868 A.2d

561, 566 (Pa.Super. 2005) (cleaned up). Since the action was based upon

medical malpractice particularly, Plaintiffs’ claim was also subject to the

following legal framework:

Medical malpractice is further defined as the unwarranted

departure from generally accepted standards of medical practice

resulting in injury to a patient, including all liability-producing

conduct arising from the rendition of professional medical

services. The underlying elements of negligence in a medical

malpractice claim, mirroring those of a basic negligence claim, are

more specifically described as a duty owed by the physician to the

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

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

suffered were a direct result of the harm.

One of the most distinguishing features of a medical malpractice

suit is, in most cases, the need for expert testimony, which may

be necessary to elucidate complex medical issues to a jury of

laypersons. In other words, because the negligence of a physician

encompasses matters not within the ordinary knowledge and

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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.

The expert testimony requirement in a medical malpractice action

means that a plaintiff must present medical expert testimony to

establish that the care and treatment of the plaintiff by the

defendant fell short of the required standard of care and that the

breach proximately caused the plaintiff's injury. Hence, causation

is also a matter generally requiring expert testimony.

Indeed, a jury of laypersons generally lacks the knowledge to

determine the factual issues of medical causation; the degree of

skill, knowledge, and experience required of the physician; and

the breach of the medical standard of care. In such cases, the

cause and effect of a physical condition lies in a field of knowledge

in which only a medical expert can give a competent opinion.

Without experts we feel that the jury could have no basis other

than conjecture, surmise or speculation upon which to consider

causation.

However, even in a negligence suit characterized as medical

malpractice, expert testimony is not always required if the alleged

negligence is obvious or within the realm of a layperson’s

understanding.

Id. at 566–67 (cleaned up).

According to Plaintiffs, Dr. Sharan’s alleged error in “failing to fully

secure the permanent implant requires no expertise, no medical knowledge or

education to understand since it is axiomatic that unsecured things move

when they are not fully secured.” Plaintiffs’ brief at 7-8. They maintain that

“[t]he facts of this matter are simple and do not require any expert assistance

in order for the trier of facts (jury) to find liability exists[.]” Id. at 6.

Therefore, they aver that the court erred “by refusing to find the circumstantial

evidence establish[ed] a prima facie case for medical negligence based upon

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the doctrine of res ipsa loquitur since Plaintiffs did not need expert testimony

to establish prima facie elements[.]” Id.

The trial court rejected this argument, noting that Plaintiffs incredibly

“invite the court to find that neurosurgery, or the surgical implantation of a

medical device including the number and type of sutures needed to hold said

device in place, is a common knowledge such that lay persons are able to

understand.” Trial Court Opinion, 3/6/23, at 5. In concluding that summary

judgment was proper pursuant to Rule 1035.2, the trial court found that

[i]n addition to being outside the common knowledge of a lay

person, Plaintiffs offered no evidence that the migration would not

have ordinarily occurred in the absence of negligence. Plaintiffs

offered no evidence that [Mr. Beech’s] sneezing, coughing, or

vomiting did not cause the medical device to migrate. There are

too many details left in the realm of conjecture. An expert opinion

is required in this matter.

In failing to produce an expert opinion to substantiate the

elements of their claim, Plaintiffs failed to establish a prima facie

case of medical negligence.

Id. at 6.

Upon review of the certified record, we discern no error in the trial

court’s decision to grant Defendants’ motion for summary judgment based

upon Rule 1035.2(2). Plaintiffs purport to liken what they deem the “easily

understandable concept . . . that a permanently implanted spinal cord

stimulator migrated because it was not fully secured and needed to be

removed and re-implanted higher, and in a more secure manner using the

longer strain relief loop” with “a boat not fully tied to a dock” or “a person

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forgetting to tie-down something on a roof rack on their car and then having

it fall off the roof of the car.” Plaintiffs’ brief at 25; see also id. at 35

(analogizing Dr. Sharan’s “simple human mistake” to “forgetting to fix a

button, to tie a shoe, to shut a window, or to flick a switch”). However, our

review of the record confirms the trial court’s finding that “Plaintiffs’ theory

[i]s too simplistic and not an accurate reflection of the procedure in this case.”

Trial Court Opinion, 3/6/23, at 5.

Moreover, while Plaintiffs posit that it is “axiomatic that unsecured

things move when they are not fully secured[,]” they nonetheless

acknowledge that they did not understand the need for the second surgery

until a nurse explained it. See Plaintiffs’ brief at 7-8, 27. In other words,

Plaintiffs did not conclude that Defendants were negligent until someone

versed in medicine explained what happened. The same would hold true for

a jury. Thus, the record bears out the trial court’s conclusion that a medical

expert was needed in this case and, without one, Plaintiffs could not establish

a prima facie case of medical negligence.

Based on the foregoing, we affirm the order of the trial court granting

Defendants’ motion for summary judgment.

Order affirmed.

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Date: 11/03/2023

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