SUCHARSKI v. PATEL et al

Filing 101

MEMORANDUM OPINION. SIGNED BY MAGISTRATE JUDGE TIMOTHY R. RICE ON 1/8/2014. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) 1/9/2014 ENTERED AND COPIES E-MAILED.(amas)

Exhibit B

Pentz v. Garvin - No. Cl-07-08727 - Ashworth, J. - December 22, 2010 - Civil Malpractice - Admissibility of Evidence - Relevancy - Unfair Prejudice - Expert
Testimony - Direct Evidence of Causation - Increased Risk of Harm - Jury Instruction

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW

No. Cl-07-08727

WILLIAM R. PENTZ and
MARY A. PENTZ

v.
ROBERT A. GARVIN, D.O.,
MAUREEN BARR, C.R.N.A.,
EPHRATA COMMUNITY HOSPITAL,
and ANESTHESIA AND PAIN
ASSOCIATES OF NORTHERN
LANCASTER COUNTY, P.C.

OPINION

BY:

ASHWORTH, J., DECEMBER 22, 2010

Before the Court for disposition is Plaintiffs' motion for post-trial relief following a
medical malpractice trial in which the jury returned a verdict in favor of Defendants. For
the reasons set forth below, this motion will be denied.

I.

Factual Background

The relevant facts established at the trial in this matter are as follows. Plaintiff William
Pentz was a 64-year-old gentleman who was diagnosed with prostate cancer. After

consultation with his urologist, it was decided that he would undergo a radical retropubic
prostatectomy at Ephrata Community Hospital.
On April 11, 2006, Robert A. Gavin, D.O., an anesthesiologist, performed a
preoperative anesthesia evaluation noting no significant anesthetic history.

1

(See

Notes of Testimony (N.T.) at 641.) On April 28, 2006, Plaintiff presented to the Ephrata
Community Hospital for the prostectomy. (N.T. at 280.) Defendant Maureen Barr, a
certified registered nurse anesthetist, delivered the anesthesia care. Dr. Gavin
supervised the anesthesia care. Mr. Pentz was evaluated in the anesthesia holding
area by Nurse Barr and then taken to the operating room for his surgery. (Id. at 279.)
Hospital records note that anesthesia began at 7:37 a.m. and ended at 12:1 O p.m. while
the notes indicate that the surgery started at 8:07 and ended at 11 :24. (Id. at 324.)
The intraoperative period was uneventful.

2

(Id. at 335.)

Based on the Anesthesia Record and testimony elicited at trial, reversal agents
were administered at 11 :15 a.m. and Mr. Pentz was switched from controlled ventilation
to assisted ventilation. (N.T. at 340, 350-53.) Between 11 :15 a.m. and 11 :30 a.m.,
Nurse Barr employed various means of gauging Plaintiff's return to consciousness and
ability to breathe on his own, including monitoring the trend of spontaneous
respirations, tidal volume (depth of breath), chest rise and fall, blood pressure and heart
rate, train-of-four (response to a peripheral nerve stimulator), oxygen saturation, and
BIS monitoring (a measure of the level of consciousness). (Id. at 349-50, 359-62, 3661

Mr. Pentz's past medical history included GERO, prostate cancer, hemorrhoids, kidney
stones, back pain, glaucoma, and arthritis. His past surgical history included right inguinal
hernia and testicular surgery, colonoscopy, and laser surgery of the eye, with no complications
of anesthesia. (See Notes of Testimony (N.T.) at 643-44.)
2

No allegations of negligence were raised with regard to the surgery itself, and the
surgeon, Paul J. Sisbarro, M.D., was not a party to this action.

67, 494, 499-503, 515-17.) Nurse Barr also evaluated Plaintiff's hand grip, and his
ability to respond to commands and open his eyes, prior to making the decision to
extubate. (Id. at 361-62, 530.)
Based on her evaluation of the responses, Nurse Barr extubated Plaintiff at
11 :30 a.m. (N.T. at 362-64, 494, 499-503, 515-17.) At that time, "[h]e was sufficiently
awake. He was following commands. His oxygen saturation was maintained. He was
doing his own breathing. It was nice and rhythmic. It had increased from the tidal
volume of 10 to 20 and so forth up to 300." (Id. at 500.)
After the extubation was performed at 11 :30 a.m., Mr. Pentz was still hooked up
to the operating room monitors, and was receiving oxygen by mask. (N.T. at 494-95.)
At 11 :37 a.m., Mr. Pentz was transported from the operating room to the PACU (Post
Anesthesia Care Unit). (Id. at 504.) He was not attached to monitors or oxygen during
his brief transfer to the PACU. (Id. at 497-99.) During the one-minute transport, Nurse
Barr noticed that the depth of Mr. Pentz's breathing was not as she would have liked it.
(Id. at 503-04.) Immediately upon his arrival in the PACU, Mr. Pentz was attached to
monitors and placed on an oxygen mask. (Id. at 504, 506, 511-12.) His vital signs
revealed a low heart rate, or bradycardia, and Nurse Barr observed minimal
respirations. (Id. at 505-06, 569.) Dr. Gavin was called by Nurse Barr. (Id. at 512.)
Interventions, including the administration of two doses of Atropine and
additional reversal agents, and placement of a laryngeal mask airway (LMA) were
successful in bringing up Mr. Pentz's heart rate. (N.T. at 510-13.) At 12:40 Mr. Pentz
was reintubated and connected to the ventilator.

3

At 2:40 p.m., Mr. Pentz was transferred to the ICU, ventilated. He was observed
to be bradycardic and hypoxic with apneic episodes. The next day, April 29, 2006, Mr.
Pentz was transferred from Ephrata Community Hospital to Lancaster General Hospital
where he was placed in a Phenobarbital-induced coma to control his seizure activity.
Additionally, Mr. Pentz had a tracheostomy performed to assist with long-term
management of his ventilation.
Eventually, Mr. Pentz awoke and demonstrated some ability to follow commands
but exhibited evidence of myoclonic movements. He also demonstrated possible vocal
cord paralysis and dysphasia. On June 1, 2006, Mr. Pentz was discharged from
Lancaster General Hospital to HealthSouth Rehabilitation Hospital in Reading,
Pennsylvania, where he remained until July 17, 2006.
Mr. Pentz has problems with verbal fluency, memory and attention. He also
experiences peripheral jerking of both the upper and lower extremities, severe fatigue
and loss of balance. He has great difficulty ambulating and he is generally wheelchair
bound or needs assistive devices to move. He continues to receive treatment for his
condition.

II.

Procedural History

This medical malpractice action was commenced by complaint on August 31,
2007. Plaintiffs William and Mary Pentz asserted claims of medical negligence against
Dr. Gavin and his anesthesia group, Anesthesia and Pain Associates of Northern
Lancaster, P.C., and Nurse Barr, and her employer, Ephrata Community Hospital.
Specifically, Plaintiffs alleged that Dr. Gavin, Nurse Barr and the PACU staff failed to
4

identify risk factors for administrating anesthesia, failed to properly administer that
anesthesia, extubated Mr. Pentz prematurely, and failed to properly protect him against
hypoxic episodes and failed to provide timely care. It was further alleged that as a
result of Defendants' alleged negligence, Plaintiff William Pentz suffered an acute
hypoxic event during which time he was deprived of oxygen.
The trial of this matter commenced on August 2, 2010. At trial, Plaintiffs'
negligence case focused on claims of premature extubation and improper postextubation monitoring. Nurse Barr was the target defendant. The crux of the causes of
action presented at trial was that Nurse Barr was negligent in failing to properly assess
the patient for potential risks at extubation. Additionally, it was alleged that Nurse Barr
was negligent for failing to properly evaluate the patient for extubation criteria and
extubating the patient prior to his being sufficiently awake and breathing. Nurse Barr
was charged with negligence for failing to request the presence of Dr. Gavin at the time
of extubation and for failing to adequately monitor Mr. Pentz following extubation.
Plaintiffs further sought to prove that Nurse Barr deviated from accepted standards of
care by failing to recognize and treat respiratory depression and hypoxemia in a timely
fashion.
The claims at trial against Dr. Garvin were that he failed to adequately and
properly supervise Nurse Barr and, specifically, that he failed to be present or failed to
direct her to call him to be present at the time of extubation of Mr. Pentz. Additionally, it
was alleged that Dr. Gavin was negligent in his pre-anesthesia evaluation of Mr. Pentz.

5

Trial concluded on August 12, 2010, when the jury returned a defense verdict.
The jury unanimously found that Dr. Gavin and Nurse Barr were not negligent. (N.T. at
854-55.) On August 17, 2010, the verdict was molded to reflect that the jury found no
negligence by Dr. Gavin and Nurse Barr, and that a verdict shall be entered in favor of
Defendants Dr. Gavin, Anesthesia and Pain Associates of Northern Lancaster, P.C.,
Nurse Barr, and Ephrata Community Hospital, and against Mr. and Mr. Pentz.
Plaintiffs filed a timely post-trial motion seeking a new trial on August 18, 2010.
They have raised four issues in their motion: (1) whether, during the cross-examination
of Nurse Barr, the Court improperly precluded Counsel from questions regarding her
failure to properly chart the administration of Fentanyl; (2) whether the Court improperly
precluded Plaintiffs' counsel from cross-examining Defendant's expert nurse
anesthetist, Brigid Squilla, C.R.N.A., about Defendant Barr's failure to account for
missing Fentanyl on the chart of William Pentz; (3) whether, during direct examination,
Plaintiffs' counsel was improperly precluded from eliciting the opinion of their expert
witness, James B. Eisenkraft, M.D., regarding whether the negligence of Nurse Barr
increased the risk of harm to Plaintiff William Pentz; and (4) whether, during the jury
charge, the Court improperly refused to instruct the jury on the issue of increased risk of
harm despite Counsel's requests for the instruction. Defendants filed timely responses.
The certified transcript was filed on October 7, 2010.

3

Briefs having now been filed by

the parties, this matter is ripe for disposition.
3

The Notes of Testimony include excerpts of the proceedings only. It must also be noted
that a portion of the direct testimony of Defendant Maureen Barr, C.R.N.A., is repeated in the
transcript. (See N.T. at 255-373 and 374-492.) Page references to her testimony are to the first
portion contained in pages 255 through 373 only.

6

Ill.

Standard of Review

The decision to grant or deny a request for a new trial is within the sound
discretion of the trial court and will not be disturbed absent palpable abuse of discretion
or error of law. Andrew v. Jackson, 800 A.2d 959, 962 (Pa. Super. 2002).
There is a two-step process that a trial court must follow when responding
to a request for a new trial. . . . First, the trial court must decide whether
one or more mistakes occurred at trial. These mistakes might involve
factual, legal, or discretionary matters. Second, if the trial court concludes
that a mistake (or mistakes) occurred, it must determine whether the
mistake was a sufficient basis for granting a new trial. ... The harmless
error doctrine underlies every decision to grant or deny a new trial. A new
trial is not warranted merely because some irregularity occurred during the
trial or another trial judge would have ruled differently; the moving party
must demonstrate to the trial court that he or she has suffered prejudice
from the mistake.

Lockley v. CSX Transp. Inc., 5 A.3d 383, 388 (Pa. Super. 2010) (quoting Harman ex
rel. Harman v. Borah, 562 Pa. 455, 467, 756 A.2d 1116, 1122 (2000) (citations
omitted)). Moreover, a new trial is warranted only where the jury's verdict is so contrary
to the evidence as to shock one's sense of justice. Neison v. Hines, 539 Pa. 516, 520,
653 A.2d 634, 636 (1995).

IV.

Discussion

A.

Cross Examination Regarding Fentanyl Wasting

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Initially, Plaintiffs contend the Court abused its discretion by precluding the cross
examination of Nurse Barr and defense expert nurse anesthetist, Brigid Squilla,
C.R.N.A., regarding Nurse Barr's failure to properly chart the administration of Fentanyl.
Mr. Pentz received Fentanyl during the course of his procedure. Fentanyl is a Class II
narcotic. Federal law and Ephrata Community Hospital policy require controlled
dispensation of Fentanyl. The hospital monitored Fentanyl through the Pyxis
medication management dispensing system. (N.T. at 16.)
The Ephrata Community Hospital Narcotics Log indicates that Nurse Barr signed
out two five-cc ampules of Fentanyl from the Pyxis System at 7:22 a.m. and 7:23 a.m.,
for use during Mr. Pentz's surgery. Thus, a total of ten ccs of Fentanyl was dispensed.

Nurse Barr notes on the first page of the Anesthesia Record, which runs from 7:30 a.m.
until 11 :00 a.m., that she administered eight ccs of Fentanyl. On the second page of
the Anesthesia Record, which goes from 11 :00 a.m. to approximately 11 :30 a.m.,
Fentanyl is written in one of the columns, however, no drugs are noted to be
administered. Fentanyl and Desflorane are the only two medications from the prior nine
medications noted on page one of the Anesthesia Record that appear on page two of
the Anesthesia Record.
Hospital Policy requires that any amount of a Class II narcotic, such as Fentanyl,
that is not used during the course of a procedure must be properly wasted. In order to
be properly wasted, the remaining narcotic must be emptied or destroyed in front of a
witness and both parties must sign that it was properly destroyed. This is entered into

8

the Pyxis System. (N.T. at 16.) Four other controlled substances, including Demerol,
Valium, Versed and Morphine, that were partially administered to Mr. Pentz by other
practitioners are noted in the Pyxis Narcotics Log to be properly wasted. The remaining
two ccs of Fentanyl from Mr. Pentz's care were not noted to be wasted and were not
returned to the pharmacy. The remaining two ccs of Fentanyl were unaccounted for
and Nurse Barr was unable to provide any explanation as to their whereabouts.
Prior to the testimony of Plaintiffs' liability expert anesthesiologist, Dr. Eisenkraft,
I held an in-chambers conference with counsel to address the admissibility of testimony
about Fentanyl wasting. I identified two issues as related to the oustanding two ccs of
this medication:
One, whether or not the two CCs of unaccounted-for Fentanyl has any
causation with the ultimate injury sustained by Mr. Pentz[.] ...
And the other issue with regard to the Fentanyl is the recordkeeping
and the proper wasting or the discrepancies in any recordkeeping with
regard to the wasting of the unaccounted-for two CCs. And I see that as
two separate issues.
(N.T. at 4.) After hearing argument of counsel, I requested and heard an offer of proof
from Dr. Eisenkraft on the subject. (Id. at 15, 31-35.) Plaintiffs' expert stated that he
thought he would testify that if a patient received two ccs of Fentanyl around the time of
extubation, it would contribute to the respiratory depression, or decreased breathing, as
well as a slow heart rate, as exhibited by Mr. Pentz in the PACU. (N.T. at 33; see also
Plaintiffs' Exhibit 508, Dr. Eisenkraft's Report of May 16, 2010 at 3.) I ruled that Dr.
Eisenkraft would be permitted to testify on the Fentanyl wasting issue. (Id. at 35.)
Plaintiffs, however, elected not to have their expert anesthesiologist testify on the
Fentanyl issue. (Id. at 154-55, 616.)

9

Although Plaintiffs chose not to present testimony in their case-in-chief linking
Fentanyl to the alleged injuries, they nonetheless wished to cross-examine Nurse Barr
and her nurse anesthetist expert, Brigid Squilla, on the Fentanyl documentation issue
described above. The defense objected to this line of questioning.
The issue of Nurse Barr's record or chart-keeping was a contested issue
throughout trial. Plaintiffs specifically alleged and set forth to prove that William Pentz
did not meet the criteria for extubation and, thus, Nurse Barr was negligent for
extubating him when she did. Nurse Barr's alleged failure to document the extubation
criteria on William Pentz's chart was critical evidence that she did not properly assess
his condition prior to extubation.
Nurse Barr disputed this contention, offering testimony on direct examination that
it was her practice to keep detailed anesthesia records, and that she did so in this case.
(N.T. at 321-46.) In an attempt to impeach her credibility on the issue of her detailed
chart-keeping, Plaintiffs planned to question Nurse Barr concerning her failure to
properly document the use and/or wasting of the two ccs of Fentnyl. Plaintiffs' counsel
raised the issue with the Court and counsel at sidebar prior to asking any questions.
(N.T. at 576-77.) Defense counsel objected to this line of questioning (Id. at 577), and I
sustained the objection, explaining:
The way this case is coming, given the relevancy or the fact that the
Fentanyl was never addressed, I'm going to rule now at this time that
the prejudicial effect outweighs the probative value in regard to Fentanyl
and the recording requirements. I'm not going to allow you to address
the Fentanyl, the recordkeeping for Fentanyl.
(N.T. at 578-79.) Plaintiffs claim this was error.

10

"Our Rules of Evidence vest the trial court with the authority to determine the
admissibility of evidence as well as to control the scope of examination." Rettger v.

UPMC Shadyside, 991 A.2d 915, 925 (Pa. Super. 2010). Rule 403 allows for the
exclusion of evidence that is confusing, cumulative, or unfairly prejudicial:
Although relevant, evidence may be excluded if its probative value is
outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.
Pa. R.E. 403. "Unfair prejudice," for purposes of this Rule, means "a tendency to
suggest a decision on an improper basis or to divert the jury's attention away from its
duty of weighing the evidence impartially." Pa. R.E. 403, Comment. See also Feld v.
Merriam, 461 A.2d 225 (Pa. Super. 1983), rev'd on other grounds, 485 A.2d 742 (Pa.

1984).
In addition, the Rules vest the trial court with the necessary discretion to limit a
party's presentation in an effort to achieve a just result:
The court shall exercise reasonable control over the mode and order
of interrogating witnesses and presenting evidence so as to (1) make
the interrogation and presentation effective for the ascertainment of
the truth, (2) avoid needless consumption of time and (3) protect
witnesses from harassment or undue embarrassment.
Pa. R.E. 611 (a). See Rettger, 991 A.2d at 925.
Here, evidence regarding the improper wasting of Fentnyl was irrelevant as it did
not establish any medical fact material to the issues being tried. Plaintiffs
acknowledged that this evidence was relevant only to the issue of witness credibility.
There is no evidence that the two ccs of Fentanyl were administered to Mr. Pentz either
prior to or immediately after the extubation. In fact, there is evidence to the contrary.
11

Nurse Barr's trial testimony and the medical records indicate that only eight ccs of
Fentanyl was administered. Any testimony regarding the alleged improper wasting of
Fentanyl would have created a confusing "trial within a trial." As I explained:

... I don't know how we eliminate from the jurors' minds the issue of
speculating as to what impact [Fentanyl] would have had because we
have heard that it's a narcotic and we have heard what it does to the
body. And once it's out there left unaddressed, I'm concerned that
the prejudicial effect outweighs the probative value.
(N.T. at 616.) I later reiterated:
... [W]hat is presently before me is the specter of what impact, if any,
2 ccs of Fentanyl would have on the plaintiff. I don't know how the
recordkeeping aspect of it can be parsed out or separated or sanitized
enough so as not to create or cause speculation on the part of the jury
of the impact of that 2 ccs.
(Id. at 619.) Accordingly, I ruled that the proposed cross-examination of Nurse Barr
was likely to divert the jury's attention from its duty of weighing the evidence impartially
and likely to suggest a decision on an improper basis. Thus, pursuant to Rules of
Evidence 402 and 403, cross-examination of Nurse Barr on this issue was properly
precluded.
On a related issue, Plaintiffs contend that this Court committed error by
preventing Plaintiffs' counsel from cross-examining Nurse Barr's expert witness about
the Fentanyl wasting. Nurse Squilla testified that "clearly [Nurse Barr] gave great
attention to detail" in her anesthesia record. (N.T. at 603.)
On cross-examination, Plaintiffs' counsel attempted to impeach Nurse Squilla's
opinion regarding Nurse Barr's record keeping by asking her about the missing Fentanyl

12

and why it had not been entered on Nurse Barr's otherwise "exemplary" chart.

4

(N.T. at

613-14.) Defense counsel objected to this line of questioning and, after the parties
argued their positions in chambers, I sustained the objection, stating:

I am ruling that the prejudicial effect of raising the specter of the Fentanyl
use outweighs the probative value. Even if the attempt is made to limit it
to the charting issues, there's no escaping the fact that once we raise the
specter or the issue of where did these two ccs of Fentanyl go, it, in my
opinion, either causes the jury to speculate as to what impact, if any, the
missing two ccs would have on the plaintiff if it had been administered to
him, or - and it forces the jury into a situation where they are either forced
to speculate or the parties would then feel obligated to call witnesses to
address what impact, if any, those two ccs would have.
So I am ruling that plaintiffs will not be permitted to get into any
questions regarding the Fentanyl.
(Id. at 612-13.)
The issue of Fentanyl wasting was not even raised in Dr. Eisenkraft's September
11, 2009 expert report (see Plaintiffs' Exhibit No. 50), which set forth the major bases of
Plaintiffs' claim for recovery. At trial, Plaintiffs declined to have Dr. Eisenkraft opine on
Fentanyl at all. This Court could not allow the jury to be misled into a decision based on
speculative considerations unrelated to the medical care rendered in this case.
The jury found that Defendants were not negligent based on facts and testimony
relevant to the care rendered. Plaintiffs cannot claim prejudice as the result of this
Court's refusal to admit irrelevant and misleading testimony into evidence.

B.

Increased Risk of Harm

4

Plaintiffs' contention that the defense represented Nurse Barr's record keeping as
"exemplary" is disingenuous. In fact, Brigid Squilla testified that Nurse Barr's care, including "the
appropriateness of the medications," not her record keeping, was exemplary. (N.T. at 603.)

13

Next, Plaintiffs claim the Court abused its discretion and committed legal error by
excluding testimony and declining a jury charge on the increased risk of harm causation
standard.
Prior to trial, Plaintiffs' liability expert anesthesiologist, Dr. Eisenkraft, produced
three expert reports dated September 11, 2009, May 16, 2010, and July 10, 2010. Dr.
Eisenkraft's September 11 , 2009 report set forth eight deviations from the standard of
care that he alleged took place in connection with Plaintiff William Pentz's treatment. At
the end of the report, Dr. Eisenkraft set forth his opinion on causation. He clearly and
unequivocally wrote that the alleged negligence was a direct cause of Plaintiff's injuries.
Dr. Eisenkraft expressed his opinion on causation as follows: "As a result of these
deviations, Mr. Pentz suffered a hypoxemic event that resulted in neurological
impairment." (See Plaintiffs' Exhibit 50, Dr. Eisenkraft's Report of September 11, 2009,
at 7.)
In the subsequent report dated May 16, 2010, Dr. Eisenkraft supplemented his
opinion on the issues of pre-anesthesia evaluation and improper extubation. (See
Plaintiffs' Exhibit SOB, Dr. Eisenkraft's Report of May 16, 201 O, at 1-3.) Although there
was no evidence that more than eight ccs of Fentanyl was administered to Plaintiff, "Dr.
Eisenkraft's May 16, 2010 report sought to turn the outstanding 2 ccs of Fentanyl into
an additional theory of recovery for the Plaintiffs." (See Defendant Barr's Brief in
Opposition to Post-Trial Motion at 6.) Explaining that Fentanyl is "a potent opioid that
causes respiratory depression" and bradycardia, Dr. Eisenkraft speculated in his report
that "if" Mr. Pentz had been given the remaining two ccs of Fentanyl "around" the time

14

of extubation, "this would well explain the subsequent events." (See Plaintiffs' Exhibit
508, Dr. Eisenkraft's Report of May 16, 2010, at 3.) At the conclusion of his May 16,
201 O, Report, Dr. Eisen kraft reinforced his opinion on direct causation. He confirmed
that he viewed Defendants' negligence as the factual cause of Plaintiff's injuries, stating
that "[t]he injuries that he sustained in this case would not have occurred absent
negligence." (Id. at 5.)
During the presentation of their case-in-chief, Plaintiffs' counsel elicited Dr.
Eisenkraft's opinions on deviation from the standard of care and his opinion on
causation. Dr. Eisenkraft stated that the negligence alleged was a direct cause of Mr.
Pentz's injuries. (N.T. at 159-60.) Despite this, Plaintiffs' counsel asked Dr. Eisenkraft
if he had an opinion "whether the care and treatment provided during Mr. Pentz's
treatment in the operating room and subsequent in the PACU increased his risk of harm
and was a factual cause of his injury?" (Id. at 116.) This question elicited an objection
from defense counsel, who argued that as Plaintiffs' expert stated in his reports and on
direct examination that the deviations from the standard of care in treating Mr. Pentz
were the direct cause of his injuries, Plaintiffs were then precluded from offering expert
testimony that Defendants' actions increased the risk of harm to William Pentz. (Id. at
116-17, 126-28.)
Plaintiffs argued in part that Defendants had notice of the claimed increased risk
of harm based on its inclusion in the complaint. (N.T. at 123, 129, 137-38, 139-40, 152;
see also Plaintiffs' Complaint at

,rn 42, 47, 60, 68.)

Additionally, Plaintiffs argued that

just because Dr. Eisenkraft opined that Defendants' deviations from accepted medical

15

practice were a direct and proximate cause of Plaintiff William Pentz's injuries should
not preclude him from also opining that these same deviations increased the risk of
harm to Plaintiff. (Id. at 133-34, 145-46, 152.)
Extensive argument was held in chambers and after thoroughly reviewing the
case law on the issue, and after reviewing the subcommittee note following the
applicable standard jury charge, I ruled that the increased risk of harm causation
standard would not be applied in this case and sustained Defendants' objection. (N.T.
at 155-57.) I ruled that Plaintiffs' expert, Dr. Eisenkraft, could not offer an expert
opinion concerning whether the negligence of Defendants increased the risk of harm to
Plaintiff. I offered the following explanation:
[']The principle of increased risk of harm is applicable where direct
evidence of causation is an impossibility[.] [W]here no expert can testify
that an action or a failure to act directly caused the result but can testify
to a reasonable degree of medical certainty that the action or inaction
increased the risk of the bad result occurring, that testimony provides a
factual basis from which the jury can answer the substantial factor or
factual cause question[,] namely, did the risk increased by the malpractice
actually cause the injury.['] [Pa. S.S.J.I. (Civ), 11.02, Subcommittee Note
at 3.]
Based upon the subcommittee note, and in the absence of any other
case law, I believe the facts are such and the report as submitted by Dr.
Eisenkraft, Dr. Eisenkraft is able to testify that - on direct causation that
the - and the specific language is as follows: [']As a result of these
deviations, Mr. Pentz suffered a hypoxic event that resulted in neurological
impairment.[']
I read that as a statement of direct causation. And insofar as he is
able to testify that an action or a failure to act directly caused the result, I
am not going to allow an instruction on the increased risk of harm and as
such, your question with regard to causation should be directed towards
direct causation.
(N.T. at 156-57.)

16

Consistent with this ruling, I refused to instruct the jury on the issue of increased
risk of harm despite Counsel's requests for the instruction. (N.T. at 701-02.) It is a
fundamental precept of Pennsylvania law that a trial court has the responsibility of
charging a jury on all issues relevant to the case. Clayton v. Sabeh, 594 A.2d 365,
366 (Pa. Super. 1991 ).
The proposed instruction at issue here, Pa. S.S.J.1. (Civ), 11.02, entitled
"Medical Malpractice - Factual Cause," states in relevant part:
(B)

Increased Risk of Harm [to be read when appropriate]

When a defendant physician negligently fails to act or negligently delays
in taking indicated diagnostic or therapeutic steps, and his or her
negligence is a factual cause of injuries to the plaintiff, that negligent
defendant physician is responsible for the injuries caused.
Where the plaintiff presents expert testimony that the failure to act or
delay on the part of the defendant physician has increased the risk of
harm to the plaintiff, this testimony, if found credible, provides a sufficient
basis from which you may find that the negligence was a factual cause of
the injuries sustained.
If there has been any significant possibility of avoiding injuries and the
defendant has destroyed that possibility, [he] [she] may be liable to the
plaintiff.
It is rarely possible to demonstrate to an absolute certainty what would
have happened under circumstances that the wrongdoer did not allow to
come to pass.
Pa. S.S.J. I. (Civ), 11.02(B) (2010). The Subcommittee Note further states:
[T]here is no cause of action in Pennsylvania for an increased risk of harm.
The principle of increased risk of harm is applicable where direct evidence
of causation is an impossibility. Where no expert can testify that an action
or a failure to act directly caused the result but can testify to a reasonable
degree of medical certainty that the action or inaction increased the risk of
the bad result occurring, that testimony provides a factual basis from which
the injury can answer the substantial factor or factual cause question,
17

namely, did the risk increased by the malpractice actually cause the injury.
Id., Subcommittee Note at 3 (emphasis added).
Because medical malpractice is a form of negligence, to state a prima facie
cause of action, a plaintiff must demonstrate the elements of negligence: a duty owed
by a physician to the patient, a breach of that duty, that the breach of duty was the
proximate cause of the harm suffered, and the damages suffered by the patient were
the direct result of that harm. Stimmter v. Chestnut Hill Hospital, 602 Pa. 539, 555,
981 A.2d 145, 154 (2009) (quoting Quinby v. Ptumsteadville Family Practice, 589
Pa. 183, 199, 907 A.2d 1061, 1070-71 (2006)). Normally, the plaintiff's medical expert
must testify, to a reasonable degree of medical certainty, that the defendant's
negligence caused the alleged injury. However, in Hamil v. Bashline, 481 Pa. 256,
392 A.2d 1280 (1978), the Pennsylvania Supreme Court adopted the increased risk of
harm standard for establishing causation in medical malpractice cases. The Court in
Hamil specified that the increased risk standard is only applicable to cases where direct

causation cannot be proven, because the harm at issue could have occurred in the
absence of negligence. Id. at 271, 392 A.2d at 1287.
The Pennsylvania Supreme Court addressed the issue of increased risk of harm
again in Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888 (1990). There the Court
reiterated that this relaxed standard for establishing causation is only applicable where
the standard of proof regarding medical expert testimony is an impossible standard and
the plaintiff is unable to show to a reasonable degree of medical certainty that the
physician's actions or omissions caused the resulting harm. Id. at 62, 584 A.2d at 892.

18

See also Billman, 761 A.2d at 1212 (increased risk of harm charge should only be
given where the plaintiff's expert cannot testify to direct causation); Wright v. Conte,
No. 2003-0578-CIVIL (Armstrong Co., Dec. 6, 2007), aff'd 968 A.2d 805 (Pa. Super.
2009) (same). Thus, where a plaintiff's expert testifies to direct causation, the jury
should not be charged on increased risk of harm. Snyder v. Hawn, 123 Dauph. 232
(2006), aff'd 935 A.2d 34 (Pa. Super. 2007). The case law is clear that a plaintiff
cannot proceed under both causation theories; evidence of direct causation precludes
application of the increased risk standard.
In the instant case, Plaintiffs' causation expert, Dr. Eisenkraft, was well able to
opine in his reports that Defendants' conduct was a direct cause of the alleged injuries.
(See Plaintiffs' Exhibit 50, Dr. Eisenkraft's Report of September 11, 2009 at 7;
Plaintiffs' Exhibit 508, Dr. Eisenkraft's Report of May 16, 2009 at 5.) His reports did not
state that he was unable, or that it was impossible, to testify that the alleged deviations
caused the harm. His reports did not state that the conduct in question merely
increased the risk of harm to the patient.

5

To the contrary, Dr. Eisenkraft's reports very

clearly and unequivocally rendered an opinion on direct causation. His reports
concluded that "[a]s a result of these deviations, Mr. Pentz suffered a hypoxemic event
that resulted in neurologic impairment," and that "[t]he injuries that he sustained in this
case would not have occurred absent negligence." Id.

5

Defense counsel further objected to any expert testimony by Dr. Eisenkraft as to
increased risk of harm as being beyond the scope of his reports. (See N.T. at 140, 143-44.)

19

Moreover, throughout the direct examination, Plaintiffs' expert, Dr. Eisenkraft,
repeatedly testified to direct causation. He then summarized his opinions as follows:
Q.

. .. Doctor, you've been good enough to work through your
opinions here this morning concerning the care and treatment
provided by the anesthesia team, if you will, Dr. Gavin and Miss
Barr.
Do you have an opinion to a reasonable degree of medical
certainty as to whether that care and treatement caused the
hypoxic event resulting in neurological impairment to Mr. Pentz?

A.

Yes.

Q.
A.

What is your opinion in that regard?
Well, that it did.

Q.

And your basis for that opinion?

A.

Review of the medical records.

Q.

What about the review?

A.

Well, looking at the evaluation of a patient, the kind of patient that
he was, the sort of surgery that he had, the amount of fluid that he
had, the failure to meet the extubation criteria. He was inadequately
recovered from the neurological block.
He wasn't really breathing as deeply as he should have been.
He was not as responsive as he should have been. He was awake
and responsive in the operating room at 11 :37 when he was
extubated and how come he was now obtunded after a short time,
such that they could try to put a breathing tube in or an LMA. You
have to be obtunded or depressed to tolerate that.
So I think taken together, he was not - he should not have been
extubated in that time. He didn't meet the criteria.
And then having been extubated, he was not being monitored
adequately so that they could intervene sooner to prevent the
adverse outcome.
When he got to the recovery room, they found he had a slow
heart rate. He wasn't breathing very well. They took care of what
they had to, the airway, the breathing, the circulation.
But obviously to get a bad neurological outcome, adverse
outcome, the situation must have gone on for a prolonged period
of time.

20

(N.T. at 159-61.) With this testimony, Plaintiffs' expert testified that Defendants'
negligence was the cause of Mr. Pentz's injuries to a reasonable degree of medical
certainty. Therefore, "[Plaintiff's] expert made the requisite link between [Defendants']
negligence and the harm suffered by [Plaintiff]" and the increased risk of harm
instruction was not warranted. Accordingly, my refusal to give it did not constitute error.
Moreover, the increased risk of harm instruction addressed the question of
causation, not negligence. Thus, even assuming, arguendo, that this jury instruction
should have been given, the jury never reached issues of causation, having found that
Defendants acted in accordance with the standard of care. (N.T. at 854-55.) Thus, any
alleged error regarding the testimony of Dr. Eisenkraft on causation had no impact on
the jury's determination of whether Defendants adhered to the standard of care, and
would be harmless error that would not warrant a new trial. See Wright v. Conte,
supra.

V.

Conclusion

For the reasons set forth above, Plaintiffs' Motion for Post-Trial Relief will be
denied.
Accordingly, I enter the following order:

21

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW

No. Cl-07-08727

WILLIAM R. PENTZ and
MARY A. PENTZ

v.
ROBERT A. GARVIN, D.O.,
MAUREEN BARR, CRNA,
EPHRATA COMMUNITY HOSPITAL,
and ANESTHESIA AND PAIN
ASSOCIATES OF NORTHERN
LANCASTER COUNTY, P.C.

ORDER

AND NOW, this 22nd day of December, 2010, upon consideration of Plaintiffs'
Motion for Post-Trial Relief and the briefs filed by the parties, it is hereby ORDERED
that said Motion is DENIED.

22

BY THE COURT:

DAVID L. ASHWORTH
JUDGE
ATTEST:

Copies to:

William A. Atlee, Esquire, Atlee, Hall & Brookhart, LLP, 8 North Queen
Street, Lancaster, PA 17608-0449
James P. Kilcoyne, Esquire, Kilcoyne & Nesbitt, LLC, Plymouth Meeting
Executive Campus, 630 West Germantown Pike, Suite 121,
Plymouth Meeting, PA 19462
Benjamin A. Post, Esquire, Post & Post, LLC, 200 Berwyn Park, Suite
102, 920 Cassatt Road, Berwyn, PA 19312