NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 JODI WEISS, Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA v. REHABILITATION AND PAIN SPECIALISTS P.C., SALONI SHARMA, M.D., TITAN HEALTH CORPORATION T/D/B/A GAMMA SURGERY CENTER, DR. PAUL LIEBER, Appellees No. 1307 WDA 2012 Appeal from the Order July 16, 2012 in the Court of Common Pleas of Allegheny County Civil Division at No.: GD10-024404 BEFORE: GANTMAN, J., OTT, J., and PLATT, J. * MEMORANDUM BY PLATT, J. FILED: September 13, 2013 Appellant, Jodi Weiss, appeals from the order in favor of Appellee, Paul Lieber, M.D., following a jury verdict in his favor. 1 Appellant claims that Dr. * Retired Senior Judge assigned to the Superior Court. 1 Appellant only appeals from the jury verdict for Dr. Lieber. (See Appellant s Brief, at 7). She acknowledges that all other defendants were dismissed from the suit prior to jury deliberations. (See id.). The trial court granted motions for nonsuit as to Dr. Sharma, and for the corporate defendants, Rehabilitation and Pain Specialists P.C., and Titan Health Corporation T/D/B/A Gamma Surgery Center, to the extent that any claims are premised upon the conduct of [Melissa] Kauffman. (N.T. Trial, 5/08/12, at 464; see also Stipulation to Dismiss Less Than All Parties, filed 4/09/12, (agreeing to dismiss Titan Health Corporation t/d/b/a Gamma Surgery Center with prejudice)). Although Dr. Lieber is the only actual Appellee in (Footnote Continued Next Page)
Lieber failed to obtain her informed consent for a blood patch procedure. She asserts that the trial court erred by refusing to admit certain expert testimony, and by not giving a requested jury instruction on assumption of duty. She also challenges the weight of the evidence. On review, we conclude that the trial court improperly excluded required expert testimony. Accordingly, we are constrained to remand. As a preliminary matter, we must address whether we have jurisdiction to consider this appeal. Our review of the docket entries in the certified record reveals that, following the trial court s denial of Appellant s post-trial motions, counsel for Appellant erroneously praeciped the trial court to enter judgment on the denial of the post-trial motions, rather than the jury verdict. Judgment was entered. Counsel for Appellant then filed an appeal from the order entered on July 16, 2012, the denial of the post-trial motions. (See Notice of Appeal, 8/15/12). Generally, an appeal will only be permitted from a final order unless otherwise permitted by statute or rule of court. An appeal from an order denying post-trial motions is interlocutory. Pa.R.A.P. 301(a), (c) and (d). Thus, it follows that an appeal to this Court can only lie from judgments entered subsequent to the trial court s disposition of any post-verdict motions, not from the order denying post-trial motions. Because the entry of judgment was considered to be a prerequisite to the exercise of this Court's jurisdiction, it was long this Court s policy to quash an appeal from an order upon which judgment had not been entered. (Footnote Continued) this appeal, we will occasionally refer to Appellees in the plural for consistency with the usage of both of the litigants. - 2 -
* * * However, in [a prior case], a panel of this Court decided that it would not quash an appeal from an order denying posttrial motions, and would instead, in the interest of judicial economy, decide the merits of an appeal lying from the interlocutory order.... This Court reasoned: As long as the order from which a party appeals was clearly intended to be a final pronouncement on the matters discussed in the opinion [accompanying the order],... the appeal is properly before us and... we have jurisdiction to address the parties claims. The rationale behind treating this appeal as one from an entered judgment is to allow the appeal which is in progress to proceed, economizing judicial resources. Were we to quash an appeal from an order which, except for the entry of judgment, is otherwise final, we would expend judicial resources in the decision to quash, one of the parties would inevitably praecipe the prothonotary to enter judgment, and a subsequent appeal would be permitted to follow. Johnston the Florist, Inc. v. TEDCO Constr. Corp., 657 A.2d 511, 513-14 (Pa. Super. 1995) (case citations and internal quotation marks omitted). Accordingly, while we could quash this appeal for the reasons noted, because the failure to perfect the appeal was technical and not intentional, in the interest of judicial economy we will regard as done that which ought to have been done and consider the appeal even though judgment was not properly entered. Id. at 514 (quoting McCormick v. Northeastern Bank of Pa., 561 A.2d 328, 330 n.1 (Pa. 1989)). In this case, the facts underlying the appeal are not in substantial dispute. In January of 2010, Appellant sought treatment for chronic back - 3 -
pain from Dr. Saloni Sharma, a physician employed at Rehabilitation and Pain Specialists, P.C. (Rehabilitation). (See Appellant s Brief, at 3; Appellees Brief, at 2). Dr. Sharma prescribed a series of epidural steroid injections to relieve the pain. 2 During the second injection, on February 22, 2010, Dr. Sharma injected steroids into Appellant s spine, as a result of which she experienced a severe spinal headache. She returned to Rehabilitation the next day, where physician assistant Melissa Kauffman diagnosed her with a spinal fluid leak. When more conservative treatment did not resolve her symptoms, Appellant returned for an epidural blood patch, which involves injecting a small amount of the individual s own blood into the back to stop the spinal fluid leak. Appellee Lieber, physician and owner of Rehabilitation, performed the blood patch procedure at the Gamma Surgery Center on February 25, 2010. For this procedure Appellant signed a second consent form. 3 A witness and Dr. Lieber also signed it. 2 Appellant signed an informed consent form for these injections, which is not at issue in this appeal. 3 In pertinent part, the consent form which Appellant signed states: 2) The basic procedures of my surgery and the advantages and the disadvantages, risks and possible complications of alternative treatments have been explained to me by the doctor. Although it is impossible for the doctor to inform me of every possible complication that may occur, the doctor has answered all my questions to my satisfaction. As with ALL types of surgery, there is the possibility of other complications due to anesthesia, drugs, reactions, or other factors which may involve (Footnote Continued Next Page) - 4 -
After the blood patch procedure, Appellant complained that her back condition worsened and she began to have pain in her legs. She went to UPMC Mercy Hospital, where she was diagnosed with arachnoiditis. 4 She (Footnote Continued) other parts of my body, including a possibility of brain damage or even death. I am aware that there is a possibility of a hospital transfer in an emergency situation. Since it is impossible to state every complication that may occur as a result of surgery, the list of complications is incomplete. * * * 13) I AM STATING THAT I HAVE READ THIS CONSENT (OR IT HAS BEEN READ TO ME), AND I FULLY UNDERSTAND IT AND THE POSSIBLE RISKS, COMPLICATIONS AND BENEFITS THAT CAN RESULT FROM THE SURGERY. I ACCEPT ON BEHALF OF MYSELF AND/OR THIS PATIENT ALL OF THE ITEMS LISTED IN THESE PARAGRAPHS. (Answer and New Matter to Plaintiff s Second Amended Complaint, 3/22/11, at Exhibit A ( AUTHORIZATION FOR SURGICAL OR OTHER SPECIAL PROCEDURES, 2/25/10 (emphases, capitalization and bold, in original))). 4 Arachnoiditis is a pain disorder caused by the inflammation of the arachnoid, one of the membranes that surround and protect the nerves of the spinal cord. It can cause a number of symptoms, including numbness, tingling, and a characteristic stinging and burning pain in the lower back or legs, as well as debilitating muscle cramps, twitches, or spasms. It may also affect bladder, bowel, and sexual function. In severe cases, arachnoiditis may cause paralysis of the lower limbs. The disorder has no predictable pattern or severity of symptoms. See Arachnoiditis Information Page, National Institute of Neurological Disorders and Stroke, National Institutes of Health. (Last updated January 13, 2011); see also http://www.ninds.nih.gov. - 5 -
underwent a laminectomy 5 and implantation of a spinal stimulator. 6 (See Appellees Brief, at 2). Appellant filed a complaint which originally alleged claims for professional negligence and lack of informed consent. Notably, however, by the time of trial all of Appellant s claims of professional negligence had been withdrawn, and the trial proceeded solely on the claim of lack of informed consent. (See Trial Court Opinion, 3/20/13, at 1-2). Appellant maintains that at trial her counsel called Dr. Alexander Weingarten as an expert witness. (Appellant s Brief, at 18). 7 The court 5 Spinal laminectomy (also known as spinal decompression) involves the removal of the lamina [the arched bony roof of the spinal canal] (usually both sides) to increase the size of the spinal canal and relieve pressure on the spinal cord and nerve roots. See Low Back Pain Fact Sheet, U.S. National Library of Medicine, U.S. Department of Health and Human Services, National Institutes of Health (Page last updated: 22 March 2013); see also http://www.ninds.nih.gov. 6 Spinal cord stimulation is a treatment for back pain that uses a mild electric current to block nerve impulses in the spine. See Spinal Cord Stimulation, U.S. National Library of Medicine, U.S. Department of Health and Human Services, National Institutes of Health. (Page last updated: 22 March 2013); see also http://www.ninds.nih.gov. 7 More accurately, it appears that portions of Dr. Weingarten s videotaped deposition were played, or not played, for the jury. (See Appellant s Brief, at 9 n.3). Dr. Weingarten s deposition testimony is not included in the certified trial transcript, nor is there a DVD. However, portions of Dr. Weingarten s deposition or written reports appear as exhibits to various motions included in the certified record. Counsel for Appellant also included his deposition in her reproduced record. The law of Pennsylvania is well settled that matters which are not of record cannot be considered on appeal. Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006) (Footnote Continued Next Page) - 6 -
sustained objections to testimony from Dr. Weingarten characterized By Appellant as relating to what [Appellees] should have told [Appellant] and restricted his testimony to merely a description of what were the risks and benefits to a blood patch. (Id. at 19). Appellant also asserts that the trial court declined her counsel s request to instruct the jury on assumption of duty. (See id. at 11-14). The jury, in effect, rendered a defense verdict by concluding that Appellee Lieber obtained informed consent from Appellant. Specifically, the first question of the verdict sheet read: Did Dr. Lieber perform the February 25, 2010 blood patch procedure without first obtaining Jodi Weiss informed consent? The jury answered No. (Verdict Sheet, 5/09/12, at unnumbered page 1). As instructed for a No answer, the jury did not answer any further questions, and proceeded to return to the courtroom. (See N.T. Trial, 5/09/12, at 702). The court polled the jury, confirming that its verdict was unanimous. (See id. at 703-04). Appellant filed a timely motion for post-trial relief, which included a challenge to the weight of the evidence. (See Motion for Post Trial Relief, 5/18/12, at 2 10). The trial court denied the motion, deciding in the same (Footnote Continued) (citations omitted). [A]ny document which is not part of the officially certified record is deemed non-existent a deficiency which cannot be remedied merely by including copies of the missing documents in a brief or in the reproduced record. Id. (citations omitted). - 7 -
order that the denial of Appellant s motion rendered moot Appellees motion for post-trial relief (in support of the jury verdict). (See Order, 7/16/12). On the praecipe of Appellant, the court entered a verdict on the July 16, 2012 order, as already noted, and this appeal followed. 8 On appeal, Appellant presented five questions, but simultaneously dropped the final two, leaving the first three remaining questions for our review. 9 For clarity and completeness we note all five questions: 1. Whether the trial court erred in not instructing the jury at trial as to assumption of duty when it was uncontroverted by [Appellees] that they provided a written consent to the Appellant prior to the procedure being performed? 2. Whether the trial court wrongfully denied Appellant a new trial as the verdict was against the weight of the evidence? 3. Whether the trial court appropriately denied the Appellant s expert to testify [sic] at trial that the risks and benefits of a blood patch were different from a steroid injection when the trial court allowed [Appellees] to make the same argument at trial? 8 Appellant filed a court-ordered Rule 1925(b) statement on January 8, 2013. See Pa.R.A.P. 1925. The trial court filed its Rule 1925(a) opinion on March 20, 2013. As noted by Appellee, in Appellant s brief counsel purports to appeal from the order entered on March 19, 2013, the signature date of the trial court s Rule 1925(a) opinion. (See Appellant s Brief, at cover page; see also Appellee s Brief, at 3, n.2). In any event, counsel for Appellee also assumes, incorrectly, that the order denying post-trial motions was the final appealable order. (See Appellee s Brief, at 3, n.2). 9 Accordingly, we deem Appellant s fourth and fifth questions to be abandoned. - 8 -
4. Whether Pennsylvania should reject the Battery standard for informed consent and join the vast majority of other states in adopting a Negligence Standard for informed consent? 5. Did the Trial Court wrongfully allow [Appellees] to raise new defenses at the eve of trial despite said defenses being ascertainable to [Appellees] and a surprise to [Appellant]? (Appellant s Brief, at 2). 10 Appellant argues that she was not given an informed consent by Dr. Lieber. (Id. at 8). 11 She contends that even though she received (and signed) a general consent form which warned of various possible consequences, including brain damage and even death, she should have been warned of the specific possibility of arachnoiditis from the blood patch procedure. She also maintains that the trial court erred by not instructing 10 We note, for the benefit of Appellant s counsel, numerous failures in the brief to comply with our Rules of Appellate Procedure. See generally Pa.R.A.P. 2111. For example, the brief omits a statement of jurisdiction, and the order or other determination in question; the statement of scope of review and standard of review is incomplete. Appellee notes that Appellant s summary of the argument exceeds the page limitation then in effect. (See Appellees Brief, at 4 n.3). The brief omits a copy of the statement of errors complained of on appeal. See Pa.R.A.P. 2111(a)(11), (d). The brief routinely omits references to where in the record matters referred to appear. See Pa.R.A.P. 2117(c); Pa.R.A.P. 2119(c). 11 While the drafting formulation is somewhat obscure, if not misleading, it appears from the larger context of the argument that what Appellant maintains, in effect, is that Dr. Lieber did not provide sufficient specific information in the general consent form to enable her to give her informed consent to the procedure. - 9 -
the jury on assumption of duty, arguing that if Appellee assumed the duty to give an informed consent, it should have been a proper informed consent for the procedure given. (Id. at 9). She contends that there was no credible evidence that existed on the record for the jury to decide as they did. (Id. at 17). She further maintains that the trial court should have permitted the jury to hear her expert testify to his opinion that the informed consent allegedly given by Appellee Leiber [sic] was not sufficient and did not meet medical standards. (Id. at 9). She submits that this Court should enter judgment in her favor and remand to the trial court for a trial solely on the amount of damages. (See id. at 24). We disagree. Nevertheless, our review of the record, including the trial court opinion, confirms that, contrary to the requirements of the Medical Care Availability and Reduction of Error (MCARE) Act, 40 P.S. 1303.101-1303.910, the trial court prohibited Appellant s expert from testifying as to whether the informed consent form, and any accompanying oral advice, provided Appellant with adequate information about the material risks of the blood patch procedure, alternatives, and the risks associated with the alternatives. Accordingly, we are constrained to remand this matter for a new trial. Our standard of review for a challenge to the exclusion of expert testimony is well-settled. - 10 -
It is well established in this Commonwealth that the decision to admit or to exclude evidence, including expert testimony, lies within the sound discretion of the trial court. Moreover, 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. Ettinger v. Triangle-Pacific Corp., 799 A.2d 95, 110 (Pa. Super. 2002), appeal denied, 815 A.2d 1042 (Pa. 2003) (citation and internal quotation marks omitted). In Pennsylvania, an informed consent action sounds in battery rather than in negligence. See Montgomery v. Bazaz Sehgal, 798 A.2d 742, 744 (Pa. 2002). The Medical Care Availability and Reduction of Error (MCARE) Act, which became effective on March 20, 2002, codified the Pennsylvania law of informed consent. See Valles v. Albert Einstein Med. Ctr., 805 A.2d 1232, 1237 n.10 (Pa. 2002). In pertinent part, MCARE provides: Informed consent (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. - 11 -
(5) Administering an experimental medication, using an experimental device or using an approved medication or device in an experimental manner. (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 (some emphasis added). In this case, because of the trial court s exclusion of the testimony of Appellant s expert on the adequacy of the information provided to her, she was unable to offer the evidence required by MCARE. The jury was thus deprived of the opportunity to weigh Appellant s expert s evidence together with any rebuttal evidence from Appellee s expert, or Appellee himself. - 12 -
Therefore, under MCARE, the trial court made an error of law in deciding that the question of whether a reasonably prudent patient would require certain information regarding risks and alternatives is a question for the jury and cannot be the subject of direct expert testimony. (See Trial Ct. Op., 3/20/13, at 4). The trial court does not reference legal authority for its reasoning. (See id. at 4). However, the trial court s later reliance on Cooper v. Roberts, 286 A.2d 647 (Pa. Super. 1971), for the conclusion that the introduction of expert medical testimony is a usurpation of the role of the trier of fact, is misplaced. (See id. at 5). This Court attempted to clarify the Cooper holding in Festa v. Greenberg, 511 A.2d 1371, 1376-77 (Pa. Super. 1986), appeal denied, 527 A.2d 541 (Pa. 1987) (holding expert medical testimony necessary in informed consent action to establish existence of medically technical risks of which average juror has no knowledge). Our Supreme Court reasoned similarly in Moure v. Raeuchle, 604 A.2d 1003 (Pa. 1992): In order for a consent to be considered informed it must be shown that the patient was advised of those risks which a reasonable man would have considered material to his decision whether or not to undergo treatment. The determination of what is material is a jury question, and in making that determination the jury must be supplied with expert information as to the nature of the harm attendant to the procedure, and the probability of that harm occurring. Thereafter, the jury must determine whether the type of harm and the probability of its occurrence is information which a reasonable patient would consider in deciding whether to undergo the medical procedure. - 13 -
Id. at 1008 (citations and quotation marks omitted) (emphasis added); see also Fitzpatrick v. Natter, 961 A.2d 1229, 1247 (Pa. 2008) (remanding matter, under prior law, for consideration of expert evidence of informed consent, where trial court had excluded such expert testimony). Accordingly, we will remand this case to the trial court with direction to permit expert testimony, otherwise admissible, addressed to whether the blood patch procedure at issue here constituted the type of procedure set forth in sub-section 1303.504(a) of MCARE, and to identify the risks of that procedure, the alternatives to that procedure and the risks of those alternatives. See 40 P.S. 1303.504. Because we remand for a new trial, we decline to address the other issues raised in Appellant s brief. Order vacated. Case remanded with instructions. Jurisdiction relinquished. Judgment Entered. Deputy Prothonotary Date: 9/13/2013-14 -