Hines v. Kosseim

76 Pa. D. & C.4th 247
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedAugust 15, 2005
Docketno. 1982
StatusPublished

This text of 76 Pa. D. & C.4th 247 (Hines v. Kosseim) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hines v. Kosseim, 76 Pa. D. & C.4th 247 (Pa. Super. Ct. 2005).

Opinion

QUIÑONES ALEJANDRO, J.,

[248]*248INTRODUCTION

On October 1, 2002, Gilbert Hines (plaintiff) filed a medical malpractice and professional liability civil action against Laura Kosseim M.D., Aba Barden Maja M.D., Joseph Ravenal M.D. and Penn Center for Primary Care, alleging negligence in failing to timely diagnose his prostate cancer. On March 10,2004, defendants Barden, Ravenal and Penn Center for Primary Care were dismissed as party defendants, and the case proceeded against only Dr. Kosseim (defendant).

On January 28, 2005, the trial jury found in favor of plaintiff and against defendant. Thereafter, defendant filed a post-trial motion for judgment n.o. v. and/or a new trial which was denied by this trial judge. Dissatisfied with the ruling, defendant filed this appeal.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

Based upon the evidence presented at trial, it is reasonable to infer that the jury considered the following relevant and pertinent facts when rendering its verdict:

Sometime prior to a medical visit to defendant, plaintiff, a 41-year-old African American male, had worked on a cancer awareness program designed to encourage African American males to be screened for prostate cancer.1 On January 7, 1999, plaintiff went to Penn Center for Primaiy Care for a complete routine physical examination, and for treatment and evaluation of an asthma [249]*249condition.2 Plaintiff was examined by defendant who performed, inter alia, a digital rectal exam and found no masses on plaintiff’s prostate.3 Defendant ordered laboratory blood studies which returned positive for elevated cholesterol.4 The blood studies ordered did not include a prostate-specific antigen (PSA) screening test.5

Plaintiff returned to Penn Center for Primary Care approximately 20 months later for another physical examination. He was examined by defendant.6 At that time, she did not conduct a digital rectal exam nor order a PSA blood screening test.7

On November 7,2001, plaintiff returned to Penn Center for Primary Care and this time was seen by Aba Barden Maja M.D., for complaints of fever, chills, and respiratory problems.8 He underwent a physical examination and a digital rectal exam, which was found to be abnormal. Dr. Barden ordered a PSA test.9 On November 13, 2001, Dr. Barden called plaintiff and informed him that his PSA was greatly elevated and that he needed to undergo a biopsy and further tests.10 Subsequently, plaintiff was diagnosed with prostate cancer.11

Plaintiff was seen by numerous physicians following the diagnosis of prostate cancer, some who recommended [250]*250conventional modes of treatments, including regular hormone therapy, chemotherapy and castration.12 Plaintiff rejected the majority of these recommendations and was advised by a physician that he might be able to live up to 10 years with castration but, without this surgery, his life expectancy was about six months.13 Plaintiff did not accept this treatment option,14 but instead, underwent hormone therapy which he later discontinued due to adverse side effects. He sought alternative treatment, including injections of a derivative of mistletoe, changed his diet, and took vitamins.15

Procedurally, a jury trial was originally scheduled for August 9,2004. However, due to plaintiff’s expert’s sudden unwillingness to testify, it was continued to allow plaintiff an opportunity to obtain a new expert. On January 24, 2005, a jury trial commenced. On January 28, 2005,16 the jury found in favor of plaintiff and against defendant in the amount of $2,859,770, and further found that plaintiff was 10 percent comparatively negligent and defendant was 90 percent comparatively negligent. The verdict amount was subsequently reduced by 10 percent, or $285,977, for an adjusted verdict award of $2,573,793.

On February 4, 2005, defendant filed a timely post-trial motion requesting judgment n.o.v. and/or a new trial. On February 7, 2005, plaintiff filed a motion for delay [251]*251damages. Oral argument was scheduled for these motions, and on April 14, 2005, this trial judge denied defendant’s post-trial motion, and granted plaintiff’s petition for delay damages in the amount of $184,026.71. The adjusted verdict amount was molded to reflect the award for delay damages to a total verdict award of $2,757,826.91.

As stated, dissatisfied with this trial judge’s ruling, defendant filed the instant appeal.

ISSUES

Defendant’s timely statement of matters complained of on appeal filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) avers:

“(1) The honorable trial court erred in twice overruling defendant’s objection to testimony from plaintiff’s fact witness, Richard Ruffin, that plaintiff is ‘an honest’ man, and in refusing on both occasions to strike the inappropriate character evidence and to instruct the jury that it should not consider the evidence, so as to warrant the granting of a new trial;
“(2) the honorable trial court erred in failing to discharge juror no. 10 when he disclosed he was a friend of plaintiff’s fact witness, Richard Ruffin, and that he could not be sure if he would be influenced in his decision-making because of that friendship, so as to warrant the granting of a new trial;
“(3) the honorable trial court erred in permitting plaintiff’s expert, Thomas Kasper M.D., to testify over defendant’s objections as to opinions not expressed in his written report, including the opinion that the grade [252]*252of plaintiff’s prostate cancer would not have been the same in 1999 as it was when diagnosed in 2001, and that therapy could not guarantee plaintiff an increased life expectancy, so as to warrant the granting of a new trial; and
“(4) the honorable trial court erred in permitting plaintiff’s expert, Thomas Kasper M.D., to testify over defendant’s objections as to opinions not stated to the degree of medical certainty required to be admissible, including the opinion that the grade of plaintiff’s prostate cancer would not have been the same in 1999 as it was when diagnosed in 2001, and that in 1999 the cancer was most probably localized to the prostate gland and had not spread to the regional lymph nodes or distantly to the bone as it had in December of2001, so as to warrant the granting of a new trial.”

LAW AND DISCUSSION

As noted, defendant claims that this trial judge committed four errors which would entitle her to either judgment n.o.v. and/or a new trial. This trial judge disagrees.

From the outset, it is important to mention that this case revolved on a determination of credibility of the highly contested issue of whether plaintiff requested to be screened for prostate cancer during the January 7,1999 physical examination performed by defendant.

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Bluebook (online)
76 Pa. D. & C.4th 247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hines-v-kosseim-pactcomplphilad-2005.