Grossman v. Barke

868 A.2d 561, 2005 Pa. Super. 45, 2005 Pa. Super. LEXIS 100
CourtSuperior Court of Pennsylvania
DecidedFebruary 3, 2005
StatusPublished
Cited by119 cases

This text of 868 A.2d 561 (Grossman v. Barke) 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
Grossman v. Barke, 868 A.2d 561, 2005 Pa. Super. 45, 2005 Pa. Super. LEXIS 100 (Pa. Ct. App. 2005).

Opinions

OPINION BY

BENDER, J.:

¶ 1 Elizabeth Grossman, executrix of the estate of Marjorie L. Dudley, individually, and Gordon Dudley, Sr., (collectively, “Plaintiff’)1 appeal from the March 14, 2003 order granting summary judgment in favor of James N. Barke, M.D. (“Dr. Barke”). We affirm.

¶ 2 A factual and procedural history of this case follows. In her complaint filed in this matter, Plaintiff alleged that on or about April 20, 1998, Marjorie L. Dudley (“Mrs.Dudley”) was in the office of her longtime family physician, Dr. Barke. See Complaint, 2/11/99, at ¶¶ 4, 5. Dr. Barke’s office was located in or on the grounds of the Charles Cole Memorial Hospital. Id. at If 4. On that date, Mrs. Dudley was 69 years old, weighed approximately 300 pounds, and was approximately 5'1" to 5'2" tall. Id. at ¶ 6; Plaintiffs Brief at 5. As asserted in the complaint, the purpose of Mrs. Dudley’s visit to Dr. Barke was to “obtain a pre-examination for a knee replacement.” Complaint, 2/11/99, at ¶ 4. However, in its brief, Plaintiff indicates that the purpose of the visit was for a “regular checkup.” Plaintiffs brief at 5. In any event, at the time of the visit, Mrs. Dudley had sutures in her ankle from a previous surgical procedure. Complaint, 2/11/99, at ¶8. Mrs. Dudley asked Dr. Barke if he would remove the sutures, and, [564]*564after agreeing to do so, Dr. Barke directed Mrs. Dudley to get on to the examination table at which time he left the room to find a suture removal kit. Id. at ¶¶ 9, 10. According to the complaint, Mrs. Dudley was “able to gain a sitting position on the examining table, however, before [Dr. Barke] returned she became dizzy or lost her equilibrium and fell from the examining table to the floor thereby incurring ... severe injuries.... ” Id. at ¶ 12. The fall resulted in a fractured pelvis that required several surgeries from which Mrs. Dudley suffered various complications including a bacterial infection in the effected hip, which eventually required removal of the hip.

¶ 3 Plaintiff filed a complaint on February 11, 1999.2,3 With regard to Dr. Barke, Plaintiff alleged that his negligence caused the injuries Mrs. Dudley suffered as a result of her fall from the examination table. As more fully described, infra, Plaintiff essentially contended that Dr. Barke, as Mrs. Dudley’s family physician, should have known that she could not stay safely seated on the examination table after climbing on to it herself given her history of diabetes with associated dizzy spells and other aspects of her physical condition.

¶ 4 However, a question arose with regard to whether Plaintiff stated a cause of action sounding in medical malpractice or ordinary negligence. Plaintiff indicated that, at the pretrial conference, there was discussion about whether the complaint was legally sufficient to support a cause of action of ordinary negligence, see Motion in Limine, 6/7/02, at I, where it appeared to the defense that Plaintiffs complaint against Dr. Barke sounded in medical malpractice. Plaintiff asserted that their expert, Jay D. Bayer, D.O., testified at his deposition that Plaintiffs case was “one of basic negligence as opposed to medical malpractice '(if there be a difference).” Id. Consequently, on June 7, 2002, Plaintiff filed a motion in limine seeking, inter alia, a determination of whether Plaintiffs complaint sufficiently stated a cause of action for ordinary negligence against Dr. Barke, “as opposed to a medical malpractice cause of action, if there be a distinction or differenee[.]” Id.

¶5 On August 29, 2002, following oral argument, the trial court denied Plaintiffs motion in limine. On January 7, 2003, the court issued an order setting forth its reasons for denying Plaintiffs motion in li-mine. Essentially, the trial court stated that expert medical testimony was necessary to explain diabetes and its symptoms to a jury of laypersons and to explain the standard of care of a physician dealing with a diabetic patient like Mrs. Dudlejr. The trial court concluded that the claims against Dr. Barke in Plaintiffs complaint were presented as medical negligence [565]*565claims, not ordinary negligence claims, as his alleged negligence was premised upon his professional knowledge of diabetes and other aspects of Mrs. Dudley’s physical condition (ie., age, weight, dexterity, etc.). Accordingly, the trial court denied Plaintiffs motion in limine based on its conclusion that the complaint was insufficient to state a cause of action for ordinary negligence. Notably, it appears that Plaintiff at no time sought to amend its complaint.

¶ 6 On January 27, 2003, Dr. Barke filed a motion for summary judgment, arguing that Plaintiffs claims were premised on medical negligence as opposed to ordinary negligence, and thereby required supportive expert testimony. Motion for Summary Judgment of Dr. Barke, 1/27/03, at ¶ 6. Dr. Barke contended that Dr. Bayer’s expert testimony did not support the medical negligence claims against Dr. Barke, “either on standard of care or causation.” Id, at ¶ 24.

¶ 7 In response, to Dr. Barke’s motion for summary judgment, Plaintiff argued that “the facts clearly predicate liability on ordinary negligence notwithstanding the fact that the negligence occurred in the doctor’s office and on an occasion where the plaintiffs decedent was at the doctor’s office per a regular appointment with her ‘family doctor’....” Answer to Motion for Summary Judgment, 2/24/03, at ¶ 6. Plaintiff further argued that Dr. Bayer’s expert opinion and testimony supported a cause of action for ordinary negligence, i.e., Dr. Bayer opined that Dr. Barke was aware of Mrs. Dudley’s diabetes and associated dizzy spells and that asking her to “jump up on the table” without assistance constituted negligence and deviation from the standard of care in terms of patient safety. See id. at ¶ 20. More specifically, Plaintiff argued that the complaint was sufficient to state a cause of action for ordinary negligence (which Plaintiff characterized as the “gravamen” of her complaint) because it averred that Dr. Barke was negligent in asking Mrs. Dudley to climb onto the examination table without assistance, that he allowed her to remain on the table unattended even though he knew that she was likely to lose her balance due to her diabetes and dizzy spells, and that he agreed to remove the sutures in her ankle without having the proper equipment immediately available. See id. at ¶ 21. Plaintiff argued that the factfin-der in the case would not- require the expertise of an expert medical witness to establish Dr. Barke’s negligence. See id. The trial court rejected Plaintiffs arguments and, on March 14, 2003, issued an order granting Dr. Barke’s motion for summary judgment and dismissing Plaintiffs complaint. On March 31, 2003, Plaintiff filed a timely notice of appeal.

¶ 8 In this appeal, Plaintiff argues that the trial court erred by granting summary judgment in favor of Dr. Barke because Dr. Bayer’s testimony supported the negligence claim as set forth in the complaint4 and because medical expert opinion was not required to prove Plaintiffs case of “liability and causation” given Mrs. Dudley’s physical attributes {i.e., elderly, short woman weighing over 300 pounds). See Plaintiff’s Brief at 3.

¶ 9 Initially, we note the following:

[566]

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Cite This Page — Counsel Stack

Bluebook (online)
868 A.2d 561, 2005 Pa. Super. 45, 2005 Pa. Super. LEXIS 100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grossman-v-barke-pasuperct-2005.