Hartman et al v. Whitestone Healthcare Group, LLC et al
Filing
149
MEMORANDUM (Order to follow as separate docket entry) re 131 MOTION for Summary Judgment filed by Sabor Healthcare Group, Whitestone Healthcare Group, LLC Signed by Magistrate Judge Joseph F. Saporito, Jr on 9/23/16. (ms)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
James Hartman and Joanne Shank,
Co-Administrators of the Estate of
Mildred M. Hartman, deceased, and
James Hartman and Joanne Shank,
in their own right,
Plaintiffs,
v.
Sabor Healthcare Group and
Whitestone Healthcare Group, LLC,
i/t/a Whitestone Care Center,
Defendants.
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Docket No.: 3:14-cv-02167
(Magistrate Judge Saporito)
MEMORANDUM
This diversity action is brought by James Hartman and Joanne
Shank (the “plaintiffs”) in their own right and as co-administrators of the
Estate of Mildred M. Hartman, deceased, against Saber (incorrectly
spelled Sabor) Healthcare Group and Whitestone Healthcare Group, LLC.
The action arises out of the care and treatment received by Mildred
M. Hartman (the “decedent”) while she was an inpatient at the
Whitestone Care Center (“Whitestone”) located in Stroudsburg, Monroe
County, Pennsylvania. The decedent was a resident of Whitestone from
February 12, 2014 through March 7, 2014, after she was released from the
Pocono Medical Center. (Doc. 1 ¶ 9). The plaintiffs alleged that while she
was a patient at Whitestone, the defendants failed to give the decedent
appropriate medication and prescribed rehabilitation. As a result, her
condition worsened, which ultimately resulted in her death on May 10,
2014, at 67 years of age. The plaintiffs’ complaint consists of six counts:
wrongful death, a survival claim, negligence, vicarious liability, corporate
negligence, and intentional infliction of emotional distress.
The
defendants moved to dismiss the action and to compel arbitration (Doc.
8) of the plaintiffs’ claims pursuant to the terms of a Resident and Facility
Arbitration Agreement (the “arbitration agreement”). On September 21,
2015, we deferred our ruling on the issue whether the decedent executed
the arbitration agreement pending a jury trial. (Doc. 33). Thereafter,
counsel for the parties stipulated that all claims, except those pursued by
a wrongful death beneficiary under 42 Pa. C.S.A. §8301(b), be remanded
to arbitration. (Doc. 73). We approved the stipulation. (Doc. 74). We
scheduled trial to commence on September 26, 2016, on the wrongful
death action. (Doc. 78).
Before us is the defendants’ motion for summary judgment. (Doc.
131). The motion has been briefed and is now ripe for disposition.
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I.
Background
The decedent was a resident of Whitestone from February 12, 2014,
through March 7, 2014, after she was released from the Pocono Medical
Center. (Doc. 1 ¶ 9; Doc. 131 ¶ 3). As her condition worsened, the
decedent was rehospitalized at Pocono Medical Center. (Doc. 1 ¶ 16; Doc.
131 ¶ 10). The plaintiffs aver that while the decedent was a patient at the
Whitestone facility, its staff failed to provide her adequate care which
included the failure to properly administer her prescribed Lasix from
February 20, 2014, to March 5, 2014. (Doc. 1 ¶¶ 17, 25-30; Doc. 131 ¶ 8).
Further, the Whitestone staff failed to administer her prescribed
Ramipril from March 1, 2014, to March 7, 2014. (Doc. 1 ¶¶ 17; Doc. 131;
¶ 9). The decedent was admitted to Pocono Medical Center on March 7,
2014, with acute chronic congestive heart failure. (Doc. 131 ¶ 10). As a
result, she developed swelling, increased fluid, and suffered from
congestive heart failure.
(Id. ¶ 17.)
The plaintiffs claim that the
treatment rendered by the Whitestone staff caused her to develop weeping
lacerations of her legs, anxiety and panic attacks, physical and emotional
injuries, and ultimately heart failure and death. (Id. ¶¶ 18,19, 21).
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In their motion for summary judgment, the defendants contend that
the plaintiffs’ expert witness, Dr. Edward Zurad, opined that the
discontinuation of the decedent’s Lasix and Ramipril was a cause of her
death. (Doc. 131 ¶ 22). In addition, the defendants assert that Dr. Zurad
was unable to cite any specific, objective or subjective data or literature
as a basis for his opinions concerning causation of the decedent’s death.
(Id. ¶¶
23-26). In response, the plaintiffs maintain that the expert
witness, Dr. Zurad, has thirty-one years of experience as an attending
physician and over 400,000 patient encounter visits. Further, they assert
that he thoroughly reviewed the decedent’s medical records and formed
the opinion that the defendants’ admitted negligence increased the
decedent’s risk of harm, and was a factual cause of her injury which
hastened her ultimate demise. (Doc. 145, at 3-4).
II.
Legal Standards
Under Rule 56 of the Federal Rules of Civil Procedure, summary
judgment should be granted only if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A fact is “material” only if it might affect the
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outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute of material fact is “genuine” only if the evidence “is such
that a reasonable jury could return a verdict for the non-moving party.”
Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all
inferences “should be drawn in the light most favorable to the non-moving
party, and where the non-moving party’s evidence contradicts the
movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell
Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
The party
seeking summary judgment “bears the initial
responsibility of informing the district court of the basis for its motion,”
and demonstrating the absence of a genuine dispute of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes
such a showing, the non-movant must set forth specific facts, supported
by the record, demonstrating that “the evidence presents a sufficient
disagreement to require submission to the jury.” Anderson, 477 U.S. at
251–52.
III.
Discussion
The plaintiffs bring their claim under Pennsylvania’s Wrongful
Death Act, 42 Pa. C.S.A. § 8301. Section 8301(b) of the Act provides that
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the right of action exists only for the benefit of enumerated relatives. In
order to recover in an action for wrongful death, the plaintiff must prove
that the death was caused by violence or negligence of the defendant, and
therefore, liability for wrongful death requires a determination that a
defendant’s negligence caused the death.
Quinby v. Plumsteadville
Family Practice, Inc., 907 A.2d 1061 (Pa. 2006). A wrongful death action
does not compensate the decedent, rather it compensates the survivors for
damages which they have sustained as a result of the decedent’s death.
Massey v. Fair Acres Geriatrics Ctr., 881 F. Supp. 2d 663 (E.D. Pa. 2012).
Under Pennsylvania law, to demonstrate a prima facie case of medical
malpractice, a plaintiff must establish that: (1) the medical practitioner
owed a duty to the plaintiff; (2) the practitioner breached that duty; (3) the
breach of duty was a proximate cause of, or a substantial factor in,
bringing about the harm the plaintiff suffered; and (4) the damages
suffered were the direct result of the harm. Montgomery v. S. Philadelphia
Med. Grp., 656 A.2d 1385, 1390 (Pa. Super. Ct. 1995); Mitzelfelt v.
Kamrin, 584 A.2d 888, 891 (Pa. 1990). In a case such as this one, if a
medical practitioner increases a patient’s risk of harm by failing to
administer prescribed medication in a timely fashion, the plaintiffs must
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prove that the increased risk of harm is a substantial factor contributing
to the death of the decedent. Mitzelfelt, 584 A.2d at 892; see also id.
(“[Once there is testimony that there was a failure to detect the cancer in
a timely fashion, and such failure increased the risk that the woman
would have either a shortened life expectancy or suffered harm, then it is
a question for the jury whether they believe, by a preponderance of the
evidence, that the acts or omissions of the physician were a substantial
factor in bringing about the harm.”).
In Mitzelfelt, the plaintiff underwent a surgery after which she
developed partial paralysis of all four extremities, was thereafter
substantially confined to a wheelchair, and was unable to care for herself.
Id. at 890. The issue on appeal—at trial the jury rendered a verdict for the
plaintiffs against a defendant doctor—was “what standard of proof is
required in medical malpractice cases when there is a percentage of risk
that harm would occur, even in the absence of negligence.” Id. at 889. The
court employed a two-part test. Id. at 894. The first step is to determine
whether the medical expert for the plaintiff “could testify to a reasonable
degree of medical certainty that the acts or omissions complained of could
cause the type of harm that the appellant suffered.” Id. Secondly, the
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court must “determine whether the acts complained of caused the actual
harm suffered by the appellant.” Id. As to the second part of the test,
Pennsylvania courts apply a “relaxed standard,” requiring only a finding
that the physician’s action (or omission) was a substantial factor in
causing the injury. Id. In other words, a plaintiff is not required to show,
to a reasonable degree of medical certainty, that the acts or omissions of
the physician actually caused the harm to the plaintiff. Id.
Whitestone relies upon Mitzelfelt, in support of its position that Dr.
Zurad’s
testimony
is
insufficient
to
establish
causation
under
Pennsylvania law. Mitzelfelt was an appeal of a decision after a full trial
on the merits. In particular circumstances, summary judgment may be
appropriate when a plaintiff is unable to produce an expert to testify that
to a “reasonable degree of medical certainty” that the physician’s actions
were a “substantial factor” in causing the plaintiff harm. See In re Paoli,
35 F.3d at 752. However, this is not one of those cases because Dr. Zurad
reaches precisely that conclusion. In his reports and at his deposition, Dr.
Zurad clearly opines “to a reasonable degree of medical certainty” that
Whitestone’s “[n]egligence resulted in an agonizing period of clinical
deterioration, increased the intensity of Mrs. Hartman’s escalating
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suffering, abbreviated her life span and resulted in a hastened death.”
(Doc. 131-5, at 20). Under Mitzelfelt, the plaintiffs have met their burden
of proving a prima facie case and are entitled to a trial on the merits.
Therefore, Whitestone’s motion for summary judgment will be denied.
In their motion for summary judgment, the defendants further
contend that the plaintiffs have failed to adduce the requisite expert
witness testimony to prove causation because Dr. Zurad’s expert opinion
testimony is unreliable and thus, inadmissible. It is undisputed that
expert testimony is necessary to prove causation in this case. The
admissibility of the expert testimony is a question of law governed by Fed.
R. Evid. 702 and the Supreme Court’s decision in Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579 (1993). Daubert imposed a “gatekeeping” role
upon district courts, “in order to ensure that any and all scientific
testimony or evidence admitted is not only relevant but reliable.” Id. at
589 & n.7. Rule 702 provides:
If a scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data,
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(2) the testimony is the product of reliable
principles and methods, and (3) the witness has
applied the principles and methods reliably to the
facts of the case.
Fed. R. Evid. 702.
Under Rule 702, there are three distinct
substantive restrictions on the admission of expert testimony:
qualifications, reliability, and fit. United States v. Mathis, 264 F.3d 321,
335 (3d Cir. 2001); Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir.
2000).
Here, the defendants posit that the plaintiffs’ sole expert witness,
Dr. Zurad, is unreliable because he points to no particular medical
evidence or peer-reviewed literature in support of his opinions. But a
medical expert’s failure to cite published, peer-reviewed studies or medical
literature does not render his expert opinion unreliable and inadmissible.
See Heller v. Shaw Indus., Inc., 167 F.3d 146, 154-56 (3d Cir. 1999).
Moreover, the defendants’ dissatisfaction with the (lack of) specificity in
Dr. Zurad’s references to particular medical evidence goes to the proper
weight of his testimony, rather than its admissibility. See Voilas v. Gen.
Motor Corp., 75 F.Supp 2d 452, 462 (D.N.J. 1999) (“[F]ederal Courts have
generally found that the perceived flaws in an expert’s testimony often
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should be treated as matters properly to be tested in the crucible of the
adversarial system, not as the basis for truncating that process.”) (internal
quotation marks omitted). In any event, we have denied the defendants’
motion in limine on the admissibility of Dr. Zurad’s expert opinion
testimony. (See Doc. 142). Accordingly, as it stands now, the plaintiffs
have satisfactorily demonstrated that the evidence presents a sufficient
disagreement to require submission of this case to the jury. See Anderson,
477 U.S. at 251-52. The defendants’ motion will be denied.
An appropriate Order follows.
s/ Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge
Dated: September 23, 2016
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