NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 18-2759 _____________
BRANDI BOOKER, Administrator, Estate of Elaine Booker, Appellant
v.
UNITED STATES OF AMERICA ______________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2-15-cv-05070) Chief District Judge: Hon. Juan R. Sanchez ______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a): June 20, 2019 ______________
Before: AMBRO, RESTREPO, and FISHER, Circuit Judges.
(Filed: October 24, 2019)
______________
OPINION* ______________
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. RESTREPO, Circuit Judge.
The estate of Elaine Booker appeals the District Court’s entry of judgment in favor
of the Government, against which Booker’s estate brought suit under the Federal Tort
Claims Act, 28 U.S.C. § 1346. Following a bench trial on the merits of Booker’s claims,
the District Court found that Greater Philadelphia Health Action (“GPHA”) and its agents,
Dr. Heather Ruddock and Dr. Monica Mallory-Whitmore, could not be held liable for
negligence with respect to the circumstances surrounding Booker’s unfortunate death.
Similar to the District Court’s findings, we hold that GPHA and its physicians did
not breach their duty of care in treating Booker. We therefore will affirm.
I.
In 2008, Booker, an employee of GPHA, underwent a routine screening for
tuberculosis as part of GPHA’s employee health program (the “Health Program”). The
results of Booker’s screening indicated that she had been exposed to the bacteria that causes
tuberculosis. Dr. Ruddock, GPHA’s Health Program physician, ordered a chest X-ray for
Booker, which did not indicate that she had active tuberculosis. As a result, Dr. Ruddock
diagnosed her with latent tuberculosis.
Dr. Ruddock wrote Booker a nine-month prescription for Isoniazid (“INH”). Dr.
Mallory-Whitmore, a GPHA physician who saw Booker in some capacity unrelated to the
tuberculosis screening, was the prescribing physician named on the medicine bottle.
Booker took the INH medication as prescribed for four months.
In late February 2009, Booker began to experience flu-like symptoms, and two
months later she began to experience a series of other physical issues, including vomiting
2 and loss of appetite. Booker was diagnosed with INH-induced liver toxicity on April 16,
2009, and, nine days later, she tragically died as a result of acute liver failure due to INH
toxicity. She was sixty-one years old.
Booker’s estate then brought a wrongful death suit against the Government under
the Federal Tort Claims Act, alleging that (a) Dr. Whitmore negligently treated Booker as
her prescribing physician, (b) Dr. Ruddock negligently treated Booker by prescribing INH
without subsequently monitoring her treatment, and (c) GPHA negligently supervised its
healthcare providers and negligently designed its Health Program. The District Court held
a three-day bench trial in May 2015. On July 19, 2018, after a procedural error was
resolved, the District Court entered judgment in favor of the Government on all three
claims, concluding that Booker’s estate failed to show by a preponderance of evidence that
GPHA or its agents breached their duty of care.
II.
The District Court had jurisdiction under 28 U.S.C. § 1346(b), and we have
jurisdiction pursuant to 28 U.S.C. § 1291. After a bench trial, we “review a district court’s
findings of fact . . . under the clearly erroneous standard.” Am. Soc’y for Testing &
Materials v. Corrpro Cos., 478 F.3d 557, 566 (3d Cir. 2007). We consider the Court’s
legal determinations de novo but must give “due regard . . . to the trial court’s judgments
as to the credibility of the witnesses.” DeJesus v. U.S. Dep’t of Veterans Affairs, 479 F.3d
271, 279 (3d Cir. 2007) (quoting Colliers Lanard & Axilbund v. Lloyds of London, 458
F.3d 231, 236 (3d Cir. 2006)).
3 III.
In Pennsylvania, it is settled law that a plaintiff must establish the four elements of
duty, breach, causation, and actual harm to succeed on a medical malpractice claim.
Hightower-Warren v. Silk, 698 A.2d 52, 54 (Pa. 1997). The plaintiff must present expert
testimony to establish these elements because the medical field is generally beyond the
scope of a layperson’s ordinary knowledge. Toogood v. Owen J. Rogal, D.D.S., P.C., 824
A.2d 1140, 1145 (Pa. 2003) (“[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.”).
The applicable duty of care in this case is the standard articulated by a credible
expert witness, as established through expert testimony.1 To establish the applicable duty
of care, the District Court found credible and relied on the expert testimony of Dr. Jennifer
Patterson, who testified on Plaintiff’s behalf, and Dr. James Hamilton, who testified on the
Government’s behalf. We see no reason to disturb these credibility findings. See DeJesus,
479 F.3d at 279.
1 See, e.g., Rittenhouse v. Hanks, 777 A.2d 1113, 1116–17 (Pa. Super. Ct. 2001) (determining the community standard of care by relying on expert testimony in a medical malpractice case following a patient’s death from liver failure allegedly caused by a cancer medication); Gunn v. Grossman, 748 A.2d 1235, 1239–40 (Pa. Super Ct. 2000) (determining the applicable duty of care by relying on expert testimony in a medical malpractice case involving a negligently prescribed drug). This case is a wrongful death action, based on an allegedly negligent prescription of medication. Because the facts of this case align more closely with that of medical malpractice or ordinary negligence, we decline to impose the duty applicable to a prescribing physician as set forth in White v. Weiner, 562 A.2d 378, 386 (Pa. Super. Ct. 1989). 4 IV.
A. Claim Involving Dr. Whitmore
Plaintiff’s claim involving Dr. Whitmore fails under the “duty” element of
negligence because Plaintiff failed to demonstrate that Dr. Whitmore owed Booker a duty
of care. Plaintiff presented no evidence that Dr. Whitmore was involved in Booker’s
tuberculosis screening or treatment. Thus, Dr. Whitmore did not owe Booker a duty of
care with respect to the INH prescription and has no liability for Booker’s death. See
Thierfelder v. Wolfert, 52 A.3d 1251, 1265–66 (Pa. 2012) (“The well-settled standard of
care for a general medical practitioner is to ‘possess and employ in the treatment of a
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 18-2759 _____________
BRANDI BOOKER, Administrator, Estate of Elaine Booker, Appellant
v.
UNITED STATES OF AMERICA ______________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2-15-cv-05070) Chief District Judge: Hon. Juan R. Sanchez ______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a): June 20, 2019 ______________
Before: AMBRO, RESTREPO, and FISHER, Circuit Judges.
(Filed: October 24, 2019)
______________
OPINION* ______________
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. RESTREPO, Circuit Judge.
The estate of Elaine Booker appeals the District Court’s entry of judgment in favor
of the Government, against which Booker’s estate brought suit under the Federal Tort
Claims Act, 28 U.S.C. § 1346. Following a bench trial on the merits of Booker’s claims,
the District Court found that Greater Philadelphia Health Action (“GPHA”) and its agents,
Dr. Heather Ruddock and Dr. Monica Mallory-Whitmore, could not be held liable for
negligence with respect to the circumstances surrounding Booker’s unfortunate death.
Similar to the District Court’s findings, we hold that GPHA and its physicians did
not breach their duty of care in treating Booker. We therefore will affirm.
I.
In 2008, Booker, an employee of GPHA, underwent a routine screening for
tuberculosis as part of GPHA’s employee health program (the “Health Program”). The
results of Booker’s screening indicated that she had been exposed to the bacteria that causes
tuberculosis. Dr. Ruddock, GPHA’s Health Program physician, ordered a chest X-ray for
Booker, which did not indicate that she had active tuberculosis. As a result, Dr. Ruddock
diagnosed her with latent tuberculosis.
Dr. Ruddock wrote Booker a nine-month prescription for Isoniazid (“INH”). Dr.
Mallory-Whitmore, a GPHA physician who saw Booker in some capacity unrelated to the
tuberculosis screening, was the prescribing physician named on the medicine bottle.
Booker took the INH medication as prescribed for four months.
In late February 2009, Booker began to experience flu-like symptoms, and two
months later she began to experience a series of other physical issues, including vomiting
2 and loss of appetite. Booker was diagnosed with INH-induced liver toxicity on April 16,
2009, and, nine days later, she tragically died as a result of acute liver failure due to INH
toxicity. She was sixty-one years old.
Booker’s estate then brought a wrongful death suit against the Government under
the Federal Tort Claims Act, alleging that (a) Dr. Whitmore negligently treated Booker as
her prescribing physician, (b) Dr. Ruddock negligently treated Booker by prescribing INH
without subsequently monitoring her treatment, and (c) GPHA negligently supervised its
healthcare providers and negligently designed its Health Program. The District Court held
a three-day bench trial in May 2015. On July 19, 2018, after a procedural error was
resolved, the District Court entered judgment in favor of the Government on all three
claims, concluding that Booker’s estate failed to show by a preponderance of evidence that
GPHA or its agents breached their duty of care.
II.
The District Court had jurisdiction under 28 U.S.C. § 1346(b), and we have
jurisdiction pursuant to 28 U.S.C. § 1291. After a bench trial, we “review a district court’s
findings of fact . . . under the clearly erroneous standard.” Am. Soc’y for Testing &
Materials v. Corrpro Cos., 478 F.3d 557, 566 (3d Cir. 2007). We consider the Court’s
legal determinations de novo but must give “due regard . . . to the trial court’s judgments
as to the credibility of the witnesses.” DeJesus v. U.S. Dep’t of Veterans Affairs, 479 F.3d
271, 279 (3d Cir. 2007) (quoting Colliers Lanard & Axilbund v. Lloyds of London, 458
F.3d 231, 236 (3d Cir. 2006)).
3 III.
In Pennsylvania, it is settled law that a plaintiff must establish the four elements of
duty, breach, causation, and actual harm to succeed on a medical malpractice claim.
Hightower-Warren v. Silk, 698 A.2d 52, 54 (Pa. 1997). The plaintiff must present expert
testimony to establish these elements because the medical field is generally beyond the
scope of a layperson’s ordinary knowledge. Toogood v. Owen J. Rogal, D.D.S., P.C., 824
A.2d 1140, 1145 (Pa. 2003) (“[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.”).
The applicable duty of care in this case is the standard articulated by a credible
expert witness, as established through expert testimony.1 To establish the applicable duty
of care, the District Court found credible and relied on the expert testimony of Dr. Jennifer
Patterson, who testified on Plaintiff’s behalf, and Dr. James Hamilton, who testified on the
Government’s behalf. We see no reason to disturb these credibility findings. See DeJesus,
479 F.3d at 279.
1 See, e.g., Rittenhouse v. Hanks, 777 A.2d 1113, 1116–17 (Pa. Super. Ct. 2001) (determining the community standard of care by relying on expert testimony in a medical malpractice case following a patient’s death from liver failure allegedly caused by a cancer medication); Gunn v. Grossman, 748 A.2d 1235, 1239–40 (Pa. Super Ct. 2000) (determining the applicable duty of care by relying on expert testimony in a medical malpractice case involving a negligently prescribed drug). This case is a wrongful death action, based on an allegedly negligent prescription of medication. Because the facts of this case align more closely with that of medical malpractice or ordinary negligence, we decline to impose the duty applicable to a prescribing physician as set forth in White v. Weiner, 562 A.2d 378, 386 (Pa. Super. Ct. 1989). 4 IV.
A. Claim Involving Dr. Whitmore
Plaintiff’s claim involving Dr. Whitmore fails under the “duty” element of
negligence because Plaintiff failed to demonstrate that Dr. Whitmore owed Booker a duty
of care. Plaintiff presented no evidence that Dr. Whitmore was involved in Booker’s
tuberculosis screening or treatment. Thus, Dr. Whitmore did not owe Booker a duty of
care with respect to the INH prescription and has no liability for Booker’s death. See
Thierfelder v. Wolfert, 52 A.3d 1251, 1265–66 (Pa. 2012) (“The well-settled standard of
care for a general medical practitioner is to ‘possess and employ in the treatment of a
patient the skill and knowledge usually possessed by physicians in the same or a similar
locality . . . .’” (emphasis added) (quoting Donaldson v. Maffucci, 156 A.2d 835, 838 (Pa.
1959))).
B. Claim Involving Dr. Ruddock
Although Dr. Ruddock owed Booker a duty of care as the Health Program physician
who interpreted Booker’s screening and prescribed INH as treatment for Booker’s latent
tuberculosis diagnosis, see id., we agree with the District Court that Dr. Ruddock adhered
to her duty of care. As a preliminary matter, both experts agreed that Dr. Ruddock’s
treatment of Booker’s latent tuberculosis—the nine-month prescription of INH in the
absence of contraindications and subsequent monitoring by a primary-care physician—was
appropriate. See Toogood, 824 A.2d at 1145.
Further, both experts testified that it was “equally appropriate” for Dr. Ruddock to
prescribe INH and monitor Booker’s liver function herself as it was for Dr. Ruddock to
5 refer Booker to her primary-care physician. Therefore, Dr. Ruddock cannot be faulted for
choosing one of two proper treatment options. See Donaldson, 156 A.2d at 838 (“[W]here
among physicians or surgeons of ordinary skill and learning more than one method of
treatment is recognized as proper, it is not negligence for the physician or the surgeon to
adopt either of such methods . . . .”).
C. Claim Involving GPHA
GPHA cannot be held vicariously liable for the negligence of its agents, Dr.
Mallory-Whitmore and Dr. Ruddock, because, as outlined above, its agents did not act
negligently. Thus, no negligence can be imputed to GPHA. See Scampone v. Highland
Park Care Ctr., LLC, 57 A.3d 582, 597 (Pa. 2012). Additionally, GPHA did not breach its
duty of care in designing the Health Program. The District Court credited the testimony of
the GPHA’s Director, Dr. Janet Young, that the Health Program requires tuberculosis
screening for the safety of GPHA’s patients and reasonably provides medical professionals
discretion to use their professional judgment in prescribing a specific treatment for latent
tuberculosis. The Health Program’s required screening and deference to the professional
judgment of medical professionals regarding appropriate treatment was well within the
standard of care. See Toogood, 824 A.2d at 1145; Donaldson, 156 A.2d at 838.
For the foregoing reasons, we will affirm the judgment of the District Court.