Klein v. Aronchick

85 A.3d 487, 2014 Pa. Super. 3, 2014 WL 46648, 2014 Pa. Super. LEXIS 4
CourtSuperior Court of Pennsylvania
DecidedJanuary 7, 2014
StatusPublished
Cited by34 cases

This text of 85 A.3d 487 (Klein v. Aronchick) 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
Klein v. Aronchick, 85 A.3d 487, 2014 Pa. Super. 3, 2014 WL 46648, 2014 Pa. Super. LEXIS 4 (Pa. Ct. App. 2014).

Opinion

OPINION BY

FORD ELLIOTT, P.J.E.:

Marsha and Kenneth Klein (collectively, “Klein” or “appellants”) appeal from the judgment entered February 23, 2012. After careful review, we reverse.

Marsha Klein suffered from chronic constipation for over 30 years. She consulted with Craig Aronchiek, M.D., a gastroenter-ologist, who prescribed Visicol, a pill form of sodium phosphate.1 Visicol was tested and approved as a preparation to cleanse the colon for a colonoscopy; Dr. Aron-chick’s prescription of Visicol for long-term treatment of chronic constipation was an off-label use.

Klein continued to take 9 grams of Visi-col daily for approximately five years. Eventually, she began to experience symptoms including dizziness and fatigue. Increased creatinine levels indicated kidney disease, and she was referred to K. Adu Ntoso, M.D., a nephrologist (kidney specialist), who took her off Visicol. Klein’s creatinine levels stabilized and her phosphate level dropped. According to Dr. Ntoso, Klein has only 19 percent kidney function versus 90 percent for a healthy 50-year-old woman. She suffers from permanent, progressive kidney disease.

[490]*490At trial, Klein’s expert, Bradley M. Denker, M.D., testified that her kidney failure was caused by long-term ingestion of Visicol as prescribed by Dr. Aronchick. Dr. Denker is a board-certified nephrologist and a professor at Harvard Medical School. Dr. Denker opined that it is clear from the medical literature that phosphate ingestion can cause kidney damage, and noted that Klein’s elevated phosphate levels after being on Visicol for five years was consistent with phosphate ingestion and chronic phosphate nephropathy. Dr. Denker testified that Klein did not have kidney disease prior to taking Visicol and her phosphate levels stabilized after stopping Visicol.

Defendants’ experts testified that there was nothing in the literature to support Klein’s theory that long-term use of Visicol for chronic constipation can cause kidney disease. Defendants also referred to Klein’s alleged history of bulimia, hypertension and NSAID use as alternative explanations for her kidney disease. Following trial, .the jury found Dr. Aronchick negligent; however, they determined that his negligence was not the factual cause of Klein’s injuries. Post-trial motions were denied, and this timely appeal followed.

Klein has raised the following issues for this court’s review on appeal:

I.Did the trial court err in precluding the plaintiffs from eliciting any testimony that the defendant’s negligence increased the risk of harm to Mrs. Klein, in the belief that a medical expert must specifically discuss “increased risk of harm” in his report, where (a) our courts have consistently held that a medical expert is not required to use “magic words” in his report, in order to testify on increased risk of harm; (b) Dr. Denker’s report discussed the risks of over-ingestion of Visicol; and (c) the testimony of defendants’ medical experts would not have changed if plaintiffs had elicited such testimony?
II. Was it reversible error to permit the defendants to introduce Mrs. Klein’s alleged remote history of bulimia, over plaintiffs’ strenuous objection, and repeatedly bring it up in a misleading attempt to persuade the jury that this was the cause of her kidney disease, where their own medical experts did not support this theory and the only one who discussed it in his report conceded that a causal connection could not be established?
III. Did the trial court err in allowing the defendants to present cumulative expert testimony from three medical experts, while preventing the plaintiffs from introducing any expert testimony that defendants’ negligence increased the risk of harm to Mrs. Klein?
IV. Did the trial court err in allowing defendants to introduce the contents of hearsay medical literature as substantive evidence?

Klein’s brief at 5.

In her first issue on appeal, Klein argues that the trial court erred in preventing Dr. Denker from testifying that Dr. Aronchick’s negligent over-prescription of Visicol and failure to monitor her over a period of years increased the risk that Klein would suffer permanent kidney damage. According to Klein, she was entitled to argue that Dr. Aronchick’s negligence either directly caused her kidney failure, or at least increased the risk of such harm occurring.2 We agree.

[491]*491“The admissibility of evidence is a matter addressed solely to the discretion of the trial court and may be reversed only upon a showing that the court abused its discretion.” Commonwealth v. Marshall, 748 A.2d 489, 492 (Pa.Super.1999), appeal denied, 563 Pa. 613, 757 A.2d 930 (2000) (citation omitted). “Thus our standard of review is very narrow.... To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party.” McManamon v. Washko, 906 A.2d 1259, 1268-1269 (Pa.Super.2006), appeal denied, 591 Pa. 736, 921 A.2d 497 (2007) (citations omitted).

In the seminal case on increased risk of harm, Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978), the decedent died of a heart attack. The plaintiffs medical expert, Dr. Cyril Wecht, testified that if the defendant had employed certain methods and treatment which he described, the decedent would have had a 75% chance of survival. Id. at 263, 392 A.2d at 1283. Dr. Wecht further testified that this substantial chance of recovery was terminated by the defendant’s failure to provide prompt treatment. Id. The defendant’s expert witness testified that death was imminent when the decedent arrived at the hospital and that he would have died regardless of any treatment the defendant might have provided. Id. Our supreme court held that Dr. Wecht’s testimony was sufficient to create a prima facie case of causation.

When a defendant’s negligent action or inaction has effectively terminated a person’s chance of survival, it does not lie in the defendant’s mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly.

Id. at 271-272, 392 A.2d at 1288, quoting Hicks v. United States, 368 F.2d 626, 632 (4th Cir.1966).

In Dr. Denker’s report, he states to a reasonable degree of medical certainty that Dr. Aronchick’s negligent over-prescription of Visicol for Klein’s chronic constipation directly caused her kidney disease. For example, Dr. Denker states, “In my opinion, Ms. Klein’s kidney disease is due to phosphate nephropathy from long term, unmonitored Visicol therapy for chronic constipation.” (Dr. Denker’s report, 7/12/10 at 1; RR at 57a.) “In my opinion, within all reasonable medical certainty, Mrs.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Matthews, A. v. Hospital of Univ. of PA
Superior Court of Pennsylvania, 2026
Lewis, R. v. Reading Hosp.
2025 Pa. Super. 191 (Superior Court of Pennsylvania, 2025)
Simbeck, T. v. Roscoe, G.
Superior Court of Pennsylvania, 2025
Sabakar, E. v. Stacy, D.
Superior Court of Pennsylvania, 2024
Cozza, F. v. Jekogian, N.
Superior Court of Pennsylvania, 2023
Com. v. Martinez, P.
Superior Court of Pennsylvania, 2022
Est. of Hayes, R. v. Coatesville Hospital
Superior Court of Pennsylvania, 2021
Talmadge, S. v. Ervin, F.
2020 Pa. Super. 176 (Superior Court of Pennsylvania, 2020)
Quivers, S. v. Manzetti, G.
Superior Court of Pennsylvania, 2019
Andrusis, C. v. Microvention, Inc.
Superior Court of Pennsylvania, 2019
Kirksey, R. v. Children's Hospital of Pittsburgh
Superior Court of Pennsylvania, 2019
Hassel, R. v. Franzi, J.
207 A.3d 939 (Superior Court of Pennsylvania, 2019)
Bradley, D. v. Thomas Jefferson Health System
Superior Court of Pennsylvania, 2018
Ponzini v. PrimeCare Medical, Inc.
269 F. Supp. 3d 444 (M.D. Pennsylvania, 2017)
Crespo, A. v. Hughes, W.
167 A.3d 168 (Superior Court of Pennsylvania, 2017)
Sycamore Restaurant Group, LLC v. Stampfi Hartke Associates, LLC
174 A.3d 651 (Superior Court of Pennsylvania, 2017)
Palar, K. v. Wohlwend, J.
Superior Court of Pennsylvania, 2017
Heath, D. v. Dellich, G.
Superior Court of Pennsylvania, 2016
Com. v. Gutshall, S.
Superior Court of Pennsylvania, 2016
McWhorter v. Greenwood Gaming
Superior Court of Pennsylvania, 2016

Cite This Page — Counsel Stack

Bluebook (online)
85 A.3d 487, 2014 Pa. Super. 3, 2014 WL 46648, 2014 Pa. Super. LEXIS 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klein-v-aronchick-pasuperct-2014.