Berger v. Schetman

883 A.2d 631, 2005 Pa. Super. 308, 2005 Pa. Super. LEXIS 3401
CourtSuperior Court of Pennsylvania
DecidedSeptember 6, 2005
StatusPublished
Cited by5 cases

This text of 883 A.2d 631 (Berger v. Schetman) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berger v. Schetman, 883 A.2d 631, 2005 Pa. Super. 308, 2005 Pa. Super. LEXIS 3401 (Pa. Ct. App. 2005).

Opinions

OPINION BY

BENDER, J.:

¶ 1 Carol Berger, the plaintiff below, appeals from the judgment, dated August 25, 2004, entered following the denial of her post trial motion on July 1, 2004, in which she requested a new trial based on her and her trial counsel’s allegation that a defense expert witness committed perjury. We affirm.

¶ 2 In a previous memorandum decision, we set forth the following factual and procedural recitation of the instant case:

[Ms. Berger] instituted this action against [William Schetman, M.D.], his professional corporation, and Lankenau Hospital based on an alleged misdiagnosis of a condition affecting Appellant’s foot. Lankenau Hospital was dismissed prior to trial; the professional corporation was dismissed at trial.
In 1986, [Ms. Berger] was diagnosed with adult-onset diabetes and became insulin dependent. She also suffers from peripheral neuropathy, a condition that affects diabetic patients and results in a loss or absence of sensation in the hands and feet. On June 2, 1994, [Ms. Berger] became ill with a high fever and contacted the office of [Dr. Schetman], her family physician. She was prescribed an antibiotic and scheduled an appointment for Monday, June 6, 1994. On Saturday, June 4, 199[4], she noticed that her foot was swollen and black and blue, but due to the neuropathy, she did not feel pain, only discomfort.
At her scheduled appointment two days later, [Ms. Berger] presented to [Dr. Schetman] in a wheelchair. Her foot was swollen with significant pitting edema. [Dr. Schetman] ordered an ultrasound to eliminate deep vein thrombosis as a diagnosis but ordered no other diagnostic tests. When the ultrasound was negative, [Dr. Schetman] made a diagnosis of cellulitis, which is an infection of the tissue, prescribed antibiotics, and told [Ms. Berger] to stay off her feet.
[634]*634From June 6, 1994, through July 19, 1994, [Ms. Berger] remained under [Dr. Schetman’s] care. He saw her five times and also spoke to her on the telephone. Her foot remained swollen and uncomfortable during this period. [Dr. Schetman] continued to treat the condition as cellulitis.
On July 23, 1994, [Ms. Berger] traveled to Kansas to visit her brother. By July 29, 1994, her foot was extremely swollen and inflamed so she went to a doctor in Kansas for an evaluation. That doctor admitted her to the hospital and ordered various diagnostic tests, including an x-ray and bone scan. Those tests revealed a severely fractured foot. Specifically, [Ms. Berger’s] navicular bone was so fractured that it had been partially absorbed by her body. As a result of this fracture, [Ms. Berger] is permanently disabled, had to retire from her teaching job, and no longer is able to live independently.
[Ms. Berger] alleged that [Dr. Schet-man] negligently misdiagnosed her fractured foot and that his medical malpractice resulted in her permanent disability and loss of ability to live independently. The case proceeded to a jury trial. [Ms. Berger] presented two expert witnesses who opined that [Dr. Schet-man’s] failure to obtain diagnostic x-rays fell below the applicable standard of care and resulted in [Ms. Berger’s] permanent disability. [Dr. Schetman] also presented the testimony of two expert witnesses, family physician George Romanzo and orthopedic surgeon Michael Snedden, in addition to his own testimony. The experts testified that [Dr. Schetman’s] diagnosis and treatment of [Ms. Berger’s] condition was not a deviation from the applicable standard of care. The jury rendered a verdict in favor of [Dr. Schetman].
After the jury deliberations were concluded, [Ms. Berger], her counsel [ie., James E. Foerstner, Esq.], and the trial judge encountered each other in a hallway and engaged in a discussion. The record establishes that Dr. Romanzo was the trial judge’s personal physician, and the trial judge acknowledges that after the defense verdict, a conversation occurred among the trial judge, [Ms. Berger], and her counsel.
[Ms. Berger] and her counsel filed affidavits about the contents of that conversation in support of her motion for post-trial relief. Those affidavits indicate the following:
[The trial judge] told us that he talked to defense expert, George Romanzo, M.D., who was “[the trial judge’s] personal physician, and [the trial judge] said to him, ‘Do you really believe this woman did not have a malpractice case’?”
As per [the trial judge], Dr. Roman-zo said, “When I first read the records four years ago, I thought the case was defensible. However, after I reviewed the records for trial, I believe that this doctor committed malpractice.”
The Judge also said that, “It seemed to me that he [Dr. Schetman] focused on the first diagnosis he had and never wanted to depart from that.”
Affidavits of James E. Foerstner and Carol Berger, 11/9/01 and 11/8/01, at 2. [Ms. Berger] also recalled that after these statements, her counsel commented on professionals lying on the witness stand because they were paid to do so. The trial judge responded, “[T]hese things happen.” Affidavit of Carol Berger, 11/8/01, at ¶ 12.
In her motion for post-trial relief, [Ms. Berger] essentially alleged that the trial [635]*635judge should not have permitted the trial to continue after his conversation with Dr. Romanzo since the trial judge became aware that this expert witness committed perjury by testifying that [Dr. Schetman] had not deviated from the applicable standard of care when Dr. Romanzo actually believed that such a deviation had occurred.
Before that motion was decided, [Ms. Berger] filed a motion asking the trial judge to recuse himself from consideration of that motion and a second motion requesting an evidentiary hearing. The trial judge declined to recuse himself, refused to hold an evidentiary hearing, and denied the motion for post-trial relief. In his opinion denying relief, the judge stated that the affidavits recount an inaccurate and distorted version of the conversation among the judge, counsel, and [Ms. Berger], The judge indicates that he made statements that were intended to “console” counsel and his client after the adverse verdict and that nothing he stated “suggested perjury” on the part of Dr. Romanzo. Trial Court Opinion, 9/10/02, at 2, 3. This appeal followed the denial of [Ms. Berger’s] motion for post-trial relief and entry of judgment on the verdict.

Berger v. Schetman, No. 2365 EDA 2002, 833 A.2d 1141, unpublished memorandum at 1-5 (Pa.Super. filed August 11, 2003). In that first appeal, we determined that an evidentiary hearing was necessary to resolve the “significant and serious difference of opinion about the contents of the conversation among [Ms. Berger], her counsel, and the judge[,]” id. at 5, and the “dispute over what Dr. Romanzo said to the trial judge.... ” Id. at 6. We further noted that “[i]f Dr. Romanzo told the trial judge that he thought that [Ms. Berger’s] malpractice claim was valid, then Dr. Ro-manzo perjured himself by rendering a contrary opinion.” Id. at 6. At that time, however, we could not determine whether Ms. Berger should get a new trial because of these unresolved factual disputes. Accordingly, we remanded the case for consideration of Ms.

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Berger v. Schetman
883 A.2d 631 (Superior Court of Pennsylvania, 2005)

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Bluebook (online)
883 A.2d 631, 2005 Pa. Super. 308, 2005 Pa. Super. LEXIS 3401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berger-v-schetman-pasuperct-2005.