Keperling v. Rothacker

63 Pa. D. & C.4th 344, 2003 Pa. Dist. & Cnty. Dec. LEXIS 123
CourtPennsylvania Court of Common Pleas, Lancaster County
DecidedApril 10, 2003
Docketno. CI-99-12982
StatusPublished

This text of 63 Pa. D. & C.4th 344 (Keperling v. Rothacker) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lancaster County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keperling v. Rothacker, 63 Pa. D. & C.4th 344, 2003 Pa. Dist. & Cnty. Dec. LEXIS 123 (Pa. Super. Ct. 2003).

Opinion

FARINA,/.,

On December 20,1999, plaintiff commenced suit against Drs. Gerald W. Rothacker and Daniel W. Diehl and Orthopedic Associates of Lancaster Ltd (Orthopedic Associates) alleging medical negligence in failing to diagnose Kim S. Keperling’s Hodgkin’s Disease. Trial in the matter began on November 18, 2002, and the jury reached a verdict on November 26, 2002. The jury found that Dr. Rothacker and Orthopedic Associates were negligent in Mrs. Keperling’s treatment, but found that their negligence was not a substantial factor in causing her harm and eventual death. The jury found that Dr. Diehl was not negligent in his care of Mrs. Keperling and he is no longer a party to this action.

In April of 1991, Mrs. Keperling visited her family physician, Dr. Diehl, complaining of pain in her right hip. In February of 1992, she returned and reported [346]*346continuing pain. Dr. Diehl ordered several tests and eventually referred Mrs. Keperling to Dr. Rothacker for an evaluation after the radiologist who reviewed her x-rays expressed concern that the sclerotic bone in her hip could be cancer. Dr. Rothacker diagnosed her with osteitis condensans ilei, a benign condition, recommended she take Advil and told her the condition would go away on its own.

Mrs. Keperling continued to experience pain and returned to Dr. Diehl in December of 1992 and January of 1993. Dr. Diehl sent her back to Dr. Rothacker as radiologists who had examined Mrs. Keperling’s x-rays were again concerned that she may have cancer. Dr. Rothacker saw Mrs. Keperling in February of 1993. He did not believe it was cancer and did not perform a biopsy of the involved bone. Dr. Rothacker was unsure of what was causing the pain and changes visible in the bone and discussed Mrs. Keperling’s case with his colleagues and solicited opinions from other doctors. Dr. Rothacker never saw Mrs. Keperling again, nor did he follow up on her case.

Mrs. Keperling was diagnosed with Hodgkin’s Disease in February of 1998. She was treated aggressively with chemotherapy and a stem cell transplant. Unfortunately, the treatments were unsuccessful and she did not recover.

Presently before the court are plaintiffs’ post-trial motions and defendants’ cross-motion for post-trial relief. Plaintiff alleges that the court made four errors during the course of the trial. They complain that: (1) Dr. Creech testified beyond the fair scope of his pretrial expert reports; (2) Dr. Lackman testified beyond the fair scope of his expert reports; (3) Dr. Rothacker improperly testified about the basis for his opinions on the existence of cancer during his care; and (4) defense counsel improperly cross-examined plaintiff’s expert, Dr. [347]*347Friedman regarding his testimony in other cases. Plaintiff asks for a new trial on causation only, or in the alternative, a new trial on all the issues. Defendant’s cross-motion asks only that if a new trial is granted, it should be on all issues and not merely on causation.

In deciding whether to grant a new trial, the court must first determine if a factual, legal or discretionary mistake was made. Harman ex rel. Harmen v. Borah, 562 Pa. 455, 756 A.2d 1116, 1122 (2000). If a mistake was made, then the court must decide if the error was harmless. If it was not harmless, then a new trial is appropriate. Id. If the alleged mistake involves a discretionary act, then the trial court’s ruling must be reviewed for an abuse of discretion. Id. at 1123. An abuse of discretion only exists where the court has rendered a judgment that is manifestly unreasonable, arbitrary or capricious, where the court failed to apply the law, or where the decision was motivated by partiality, prejudice, bias or ill will. Id.

Plaintiff first claims the trial court erred in permitting Dr. Creech, a defense expert witness, to testify beyond the fair scope of his report in violation of Pennsylvania Rule of Civil Procedure 4003.5(c). In Dr. Creech’s initial report, he stated that it was “likely that Mrs. Keperling had a benign bony process from April 1991 until February 1998 and then developed an aggressive Hodgkin’s Disease . . . .” During his testimony in court, however, Dr. Creech stated an affirmative opinion that Mrs. Keperling did not have Hodgkin’s Disease in 1992 and 1993 and that the various radiological films taken during the course of Mrs. Keperling’s treatment affirmed this opinion. Plaintiff claims that this change from “likely” to “certainly” is a clear change of opinions that they could not be expected to prepare for during trial and thus constituted unfair surprise.

[348]*348The admission of expert testimony is at the sound discretion of the trial judge and is reviewed under an abuse of discretion standard. Burton-Lister v. Siegel, Sivitz and Lebed Associates, 798 A.2d 231, 240 (Pa. Super. 2002). Unfair surprise occurs when the discrepancy between pretrial disclosure and trial testimony is so great that the opposing party would be unable to mount a meaningful response. Hickman v. Fruehauf Corp., 386 Pa. Super. 455, 459, 563 A.2d 155, 157 (1989). Such a discrepancy does not exist here. Dr. Creech’s expert report, read as a whole, makes it very clear that he did not believe that Mrs. Keperling had cancer in 1992 and 1993. He uses the expressions “most unusual” and “exceedingly unusual” to describe the possibility that Mrs. Keperling had cancer much prior to her diagnosis in 1998. While he never states with absolute certainty that Mrs. Keperling did not have cancer in 1992 and 1993, given his use of the aforementioned language and the statement that it was “likely that Mrs. Keperling had a benign bony process,” I cannot find that plaintiff was unfairly surprised by trial testimony that was more definite. Additionally, plaintiff was aware of the existence of all the radiological studies. Defense counsel did not suddenly produce them during trial. There was no change in Dr. Creech’s opinion, merely a strengthening of the original opinion. The trial court did not abuse its discretion in permitting Dr. Creech to testify with certainty that Mrs. Keperling did not have cancer in 1992 and 1993.

Plaintiff further argues that this case is analogous to Walsh v. Kubiak, 443 Pa. Super. 284, 661 A.2d 416 (1995). In that case, the defendant’s expert report addressed only one theory of negligence which the plaintiff had advanced. Defense counsel, however, wished the expert to testify about two of the three theories of negli[349]*349gence asserted by the plaintiff, negligent performance of surgery, negligence in deciding to perform surgery and a lack of informed consent. The trial court precluded testimony as to the two theories not addressed in the expert report, negligence in deciding to perform surgery and informed consent. On appeal, the Superior Court affirmed the trial court stating that the expert report was not sufficient to put plaintiff on notice that the expert would be testifying to anything other than the performance of the surgery. A mere conclusory statement that “there is no indication of negligence” is not sufficient to allow the plaintiff to prepare a response. Id. at 293, 661 A.2d at 421.

The instant case is not the same.

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Related

Harman Ex Rel. Harman v. Borah
756 A.2d 1116 (Supreme Court of Pennsylvania, 2000)
Walsh v. Kubiak
661 A.2d 416 (Superior Court of Pennsylvania, 1995)
Burton-Lister v. Siegel, Sivitz and Lebed Associates
798 A.2d 231 (Superior Court of Pennsylvania, 2002)
Hickman v. Fruehauf Corp.
563 A.2d 155 (Supreme Court of Pennsylvania, 1989)
Mohn v. Hahnemann Medical College & Hospital
515 A.2d 920 (Supreme Court of Pennsylvania, 1986)

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Bluebook (online)
63 Pa. D. & C.4th 344, 2003 Pa. Dist. & Cnty. Dec. LEXIS 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keperling-v-rothacker-pactcompllancas-2003.