J-A26023-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DARLENE LUTZ AND PAUL LUTZ : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DANIEL HECKMAN, M.D., ST. LUKE’S : ORTHOPEDIC SPECIALISTS AND ST. : LUKE’S HOSPITAL - ALLENTOWN : No. 826 EDA 2020 CAMPUS : : : APPEAL OF: DARLENE LUTZ :
Appeal from the Order Entered January 30, 2020 In the Court of Common Pleas of Lehigh County Civil Division at No(s): No. 2018-C-0201
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 06, 2021
Darlene Lutz (Lutz) and Paul Lutz (h/w) appeal from the order, entered
in the Court of Common Pleas of Lehigh County, granting summary judgment
in favor of Defendants-Appellees, Daniel Heckman, M.D., St. Luke’s
Orthopedic Specialists, and St. Luke’s Hospital – Allentown Campus. After a
thorough review of the record on appeal, we are constrained to affirm.
In September 2015, Lutz, a registered emergency room nurse,
sustained a work-related injury while trying to move a patient. As a result of
the injury, Dr. Heckman, a board-certified orthopedic surgeon, diagnosed Lutz
with a labral tear of her left rotator cuff and suggested surgery to repair the
tear. On February 1, 2016, Dr. Heckman performed a left shoulder ____________________________________________
* Former Justice specially assigned to the Superior Court. J-A26023-20
arthroscopy with subscapularis repair on Lutz at St. Luke’s Hospital –
Allentown Campus. Prior to the surgery, Lutz signed a “Consent to Procedure
or Surgery” form that specifically listed neurovascular injury and persisting
pain/stiffness/instability as possible risks or complications from the procedure.
Following surgery, Lutz suffered from pain, dysfunction, and other
discomfort.1 Lutz “sought care with Defendant [Heckman] as well as
additional care from other care providers after the surgery.”2 Doctor
Heckman’s post-surgical plan of care for Lutz consisted of prescription pain
relief medication and a course of physical therapy. Plaintiffs’ Amended
Complaint, 6/21/18, at ¶ 12. In August 2016, Lutz was involved in a motor
vehicle accident. As a result of the accident and “increasing and worsening
shoulder pain,” Deposition of Daniel Scott Heckman, M.D., 10/23/19, at 65,
Dr. Heckman ordered a magnetic resonance imaging (MRI) of her left
shoulder; the results of the MRI did not show any tears or structural problems.
Doctor Heckman told Lutz that he believed her “ongoing pain” was related to
subacromial bursitis and offered Lutz an injection due to inflammation in her
bursa, but she declined. Id. at 70-71. See also Progress Notes of Daniel
Scott Heckman, M.D., 9/1/16, at 1.
____________________________________________
1 In her amended complaint, Lutz alleges she suffered from “pain, coldness, numbness and tingling in her left upper extremity” as a result of the surgery. Plaintiff’s Amended Complaint, 6/21/18, at ¶ 19(f).
2Lutz last treated with Dr. Heckman at a follow-up appointment in September 2016.
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In September 2016, Lutz sought a second opinion from Orthopedic
Associates of Allentown, where she saw Gregor Hawk, M.D. Doctor Hawk
conducted a physical examination of Lutz and ordered an electromyogram
(EMG)/nerve conduction study be performed on her shoulder. Two EMGs were
performed on Lutz, on September 22, 2016 and December 13, 2016. The
December 13, 2016 EMG revealed that Lutz had significant left axillary nerve3
partial axonopathy compromise. In June 2017, Lutz was examined by Adam
B. Strohl, M.D., of Philadelphia Hand to Shoulder Center, who noted that Lutz
had atrophy of the left shoulder, and believed “that she had an injury to her
axillary nerve . . . [that] may be from a stretch retraction, suture placement,
and/or thermal coagulation or thermal injury.” Report of Adam B. Strohl,
M.D., of Philadelphia Hand to Shoulder Center, 6/16/17, at 2. Second opinions
from various doctors confirmed that the delay in diagnosing Lutz’s nerve injury
led to “the permanency of her medical condition.” Plaintiffs’ Amended
3 The axillary nerve is a major peripheral nerve of the upper limb. See https://teachmeanatomy.info/upper-limb/nerves/axillary-nerve (last visited on 12/16/20). The nerve arises from the brachial plexus at the level of the axilla at spinal roots C5 and C6. See https://www.howtorelief.com/axillary- nerve-course-motor-sensory-common-injuries (last visited on 12/16/20). Common symptoms of axillary nerve dysfunction include: numbness or tingling in the shoulder region; weakness in the shoulders, difficulty lifting arms above the head; and difficulty lifting objects. See https://www.healthline.com/health/axillary-nerve-dysfunction#symptoms (last visited on 12/16/20).
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Complaint, 6/21/18, at ¶ 14. Lutz continues to suffer from chronic pain and
discomfort in her left, upper extremity. Id. at ¶ 15.4
On January 23, 2018, the Lutzes filed a medical malpractice complaint
against Defendants alleging negligence and loss of consortium.5 On June 21,
2018, Lutz filed an amended complaint adding a fifth count, lack of informed
consent6 (battery).7 See Plaintiffs’ Amended Complaint, 6/21/18, at ¶ 35. In ____________________________________________
4 Lutz had three subsequent surgeries in July 2017 (open axillary nerve dissection), November 2017 (open revision biceps tenodesis) and February 2018 (biceps revision).
5Lutz alleged that her husband, Paul Lutz, suffered from loss of consortium due to Defendants’ negligence.
6 To the extent that Lutz alleges battery (lack of informed consent) against Defendants St. Luke’s Orthopedic Specialists and St. Luke’s Hospital – Allentown Campus, we recognize that our Court has held that a medical facility cannot be held vicariously liable for the failure of its physicians to obtain a patient’s informed consent. Valles v. Albert Einstein Med. Ctr., 805 A.2d 1232 (Pa. 2002) (battery that results from lack of informed consent is not type of action that occurs within scope of employment for purposes of vicarious liability).
7 See 40 P.S. § 1303.504 (informed consent statute outlining physician’s duties in obtaining informed consent of patient, description of procedure and expert testimony required to prove claim). Moreover, in order to show that a patient validly consented to a medical procedure, it must be shown that:
the physician disclosed all those facts, risks and alternatives that a reasonable [person] in the situation which the physician knew or should have known to be the plaintiff’s, would deem significant in making a decision to undergo the recommended treatment. . . . The physician is bound to disclose only those risks which a reasonable [person] would consider material to [the] decision [of] whether or not to undergo treatment.
Jozsa v. Hottenstein, 528 A.2d 606, 607 (Pa. Super. 1987) (citation omitted).
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the amended complaint, Lutz specifically claimed that Dr. Heckman
negligently performed her shoulder surgery, negligently failed to timely
diagnose and treat her post-surgical concerns, failed to secure her informed
consent, and did not indicate that the outcome of the surgery was a natural
risk of the procedure. Id. at ¶ 19. Lutz filed suit against Defendants, St.
Luke’s Orthopedic Specialists and St. Luke’s Hospital – Allentown Campus,
under the legal theory of vicarious liability. Id. at ¶¶ 23, 26. Lutz sought
“judgment against Defendants[,] jointly and severally[,] in excess of
$50,000.00.” Id. at 5-7.
On May 7, 2018, Lutz filed a single Pa.R.C.P. 1042.3 certificate of merit8
with regard to all Defendants.9 On June 5, 2018, Defendants filed a motion
8 Rule 1042.3 provides that a certificate of merit must be filed in any action “based upon an allegation that a licensed professional deviated from an acceptable professional standard.” Pa.R.C.P. 1042.3(a). In such case, the plaintiff’s attorney shall file a signed certificate of merit within sixty days after the filing of the complaint. Id. In the certificate, the plaintiff’s attorney shall acknowledge that either: “(1) an appropriate licensed professional has supplied a written statement that there is a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, [or] (2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, [or] (3) expert testimony of an appropriate licensed professional is unnecessary for the prosecution of the claim.” Pa.R.C.P. 1042.3(a)(1-3).
9 On April 12, 2018, the court granted Lutz’s March 22, 2018 unopposed motion for extension of time within which to file the required certificates of merit. The order required Lutz to file her certificates of merit by May 21, 2018, or risk Defendants filing a praecipe for entry of judgment of non pros.
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to strike Lutz’s certificate of merit and enter a judgment of non pros claiming
that the certificate was inadequate to satisfy the requirements of Rule 1042.3.
Specifically, Defendants contended that the physician’s written statement
supplementing Lutz’s certificate was insufficient where George L. Rodriguez,
M.D., a board-certified physician in physical medicine and rehabilitation, was
not qualified to offer an opinion on Dr. Heckman, an orthopedic surgeon.
Moreover, Defendants alleged that the same physician neither offered an
opinion regarding the alleged corporate negligence of Defendants St. Luke’s
Orthopedic Specialists and St. Luke’s Hospital, nor was he qualified to do so.
Finally, Defendants contended that Lutz’s certificate violated Rule 1042.3(b)
“by addressing all three [D]efendants in a single certificate.” Memorandum
Supporting the Motion of Defendants to Strike Plaintiff’s Certificate of Merit,
6/5/18, at 4. On July 2, 2018, Lutz filed a separate certificate of merit for
each of the Defendants. In support of the certificates, Lutz provided the same
letter from Dr. Rodriguez, dated March 21, 2018, which she had used to
supplement her May 7, 2018 certificate of merit.10 ____________________________________________
10 In his statement, Dr. Rodriguez opined that “there is a basis to conclude that the care, skill[,] or knowledge exercised by Daniel Heckman, M.D.[,] in the treatment, practice[,] or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in aggravating Darlene Lutz’s current medical condition.” Written Statement by George L. Rodriguez, M.D., 3/21/18, at 1. He also opined “within a reasonable degree of medical certainty, that as a direct and causal relation to the treatment provided by Dr. Heckman[,] her injuries are now severe and permanent with significant pain and suffering[,] and [] her function is extremely limited as well. It is expected that the conditions resulting from the treatment provided by Dr. Heckman will be permanent.” Id.
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On August 27, 2018, the court heard argument on Defendants’ motion
to strike/enter judgment of non pros. On September 6, 2018, the court denied
Defendants’ motion “to the extent that [Lutz] shall be permitted to file, within
thirty (30) days of the date of this [o]rder, additional [c]ertificates of [m]erit
from an alternate ‘appropriate licensed professional’ with documentation to
support [the] person’s qualifications as they relate to orthopedic surgery.”
Order, 9/6/18.11
On October 5, 2018, Lutz filed separate certificates of merit for each
Defendant. Attached to those certificates were statements from Norman B.
Stempler, D.O, an orthopedic specialist, indicating that after reviewing Lutz’s
medical records and examining her personally, he believes that “[t]here is a
basis to conclude that the skill, care[,] or knowledge exercised or exhibited by
[each] Defendant in the treatment, practice[,] or work that is the subject of
the complaint, fell outside acceptable professional standards and th[at] such
conduct was cause in bringing about the harm.” Norman B. Stempler, M.D.,
Certificate of Qualified Expert, 10/5/18. On June 19, 2019, the trial court ____________________________________________
11 The court specifically found that Dr. Rodriguez did not possess the knowledge and experience to render an opinion regarding the negligent performance of Dr. Heckman’s surgery sufficient to waive the “same subspecialty” or “board certification” requirements under 40 P.S. §§ 1303.512(c) or (d) of the Medical Care Availability and Reduction of Error (MCARE) Act. Trial Court Opinion, 9/6/18, at 8. While the court noted that Dr. Rodriguez may be qualified to render an opinion regarding allegedly negligent after-care and pain management following Lutz’s surgery, id., Lutz never supplemented Dr. Rodriguez’s report with one opining that Dr. Heckman’s post-surgical care deviated from acceptable medical standards. At most, his March 2018 report opines on the issue of causation, not breach of duty as a result of deviating from medical standards. -7- J-A26023-20
entered a case management order requiring Lutz to “identify and submit to all
other parties . . . [the] expert reports of all expert witnesses intended to
testify no later than November 1, 2019.” Order, 6/19/19, at ¶ 2.
On November 27, 2019, Defendants filed a motion for summary
judgment claiming that Lutz had yet failed to “produce any [expert] report
that sets for[th] the standard of care, an alleged deviation, or causation of
any damages, as it relates to the care rendered by Dr. Heckman.” Defendants’
Memorandum of Law in Support of Motion for Summary Judgment, 11/27/19,
at 3. Lutz filed a response to the motion on December 23, 2019, attaching
two expert reports—one from G. Russell Huffman, M.D., and one from Dr.
Stempler—and office notes from Lutz’s treating physician, Adam B. Strohl,
M.D.12 On January 29, 2020, the trial court held argument on the motion. On
January 30, 2020, the court entered an order granting summary judgment in
favor of Defendants and against Lutz.
Lutz filed a motion for reconsideration on February 12, 2020, and an
amended motion13 the following day, attaching supplemental reports from
12In July 2017, Dr. Strohl performed a follow-up surgical procedure on Lutz, a neurolysis of the axillary nerve, to relieve her left shoulder pain and dysfunction.
13The court notes the only discernable difference between Lutz’s motion for reconsideration and her amended motion for reconsideration are four additional exhibits.
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Drs. Stempler14 and Rodriguez, and new reports from Drs. Kenneth Kearns
and Dennis McHugh. On February 26, 2020, the court dismissed Lutz’s motion
as moot and denied her amended motion. Lutz filed a timely notice of appeal
and court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal.
Lutz presents the following issues for our consideration:
(1) Whether the [t]rial [c]ourt erred in entering summary judgment against [] Lutz.
(2) Whether the [t]rial [c]ourt erred [in concluding] that there is no material issue of fact as to whether the Appellees/Defendants, Daniel Heckman, M.D.[,] St. Luke’s Orthopedic Specialists and St. Luke’s Hospital Allentown Campus[,] negligently treated [] Lutz’s shoulder injury, by failing to exercise reasonable care in the performance of the surgery or negligently failed to diagnose and treat an axillary nerve injury following the surgery.
(3) Whether the trial court erred in finding that [Lutz] failed to proffer [an] expert opinion in support of her medical malpractice claims.
Appellant’s Brief, at 7.
The majority of Lutz’s issues boil down to one central question: Whether
the trial court erred in granting summary judgment when it determined that
there were no issues of material fact because Lutz failed to provide expert
opinion to support her medical malpractice claims.
14In fact, Dr. Stempler’s supplemental report, dated February 4, 2020, states that, “It is my opinion that the injury [sustained at Lutz’s place of employment] resulted in the surgery which was necessary and in my opinion did not fall below the standard of care.” Supplemental Expert Report of Norman B. Stempler, D.O., 4/4/20, at 1 (emphasis added).
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Initially we note that:
[S]ummary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. When considering a motion for summary judgment, the trial court must take all facts of record and reasonable inferences therefrom in a light most favorable to the non-moving party. In so doing, the trial court must resolve all doubts as to the existence of a genuine issue of material fact against the moving party, and, thus, may only grant summary judgment where the right to such judgment is clear and free from all doubt.
An order granting summary judgment will be reversed if the trial court committed an error of law or abused its discretion. The decision relating to whether there are no genuine issues as to any material fact presents a question of law, and therefore, on that question our standard of review is de novo. This means we need not defer to the determinations made by the lower tribunals. It is settled that, [i]f there is evidence that would allow a fact-finder to render a verdict in favor of the non-moving party, then summary judgment should be denied.
Malanchuk v. Sivchuk, 148 A.3d 860, 865-66 (Pa. Super. 2016) (en banc)
(internal citations and quotation marks omitted).
“Because medical malpractice is a form of negligence, to state a prima
facie cause of action, a plaintiff must demonstrate the following elements of
negligence: [(1)] a duty owed by the physician to the patient[; (2)] a breach
of that duty by the physician[; (3)] that the breach was the proximate cause
of the harm suffered[;] and [(4) that] the damages suffered were a direct
result of [the] harm.” Fessenden v. Robert Packer Hosp., 97 A.3d 1225,
1229 (Pa. Super. 2014) (internal citations omitted). “With all but the most
self-evident medical malpractice actions there is also the added requirement
that the plaintiff must provide a medical expert who will testify as to the
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elements of duty, breach, and causation.” Id. Expert testimony is also
required where allegations of corporate liability are involved, unless the
hospital’s negligence is obvious. Grossman v. Barke, 866 A.2d 561, 567
(Pa. Super. 2005).
“[T]he need for expert testimony in a medical malpractice claim will
rest upon the facts and averments of the individual case.” Ditch v.
Waynesboro Hosp., 917 A.2d 317, 323 (Pa. Super. 2007), aff'd, 17 A.3d
310 (Pa. 2011). “[I]f, at the conclusion of discovery, the plaintiff fails to
produce expert medical opinion addressing the elements of his cause of action
within a reasonable degree of medical certainty, he has failed to establish a
prima facie case and may not proceed to trial.” Miller v. Sacred Heart
Hosp., 753 A.2d 829, 833 (Pa. Super. 2000); see Pa.R.C.P. 1035.2(2).
Rauch v. Mike-Mayer, 783 A.2d 815, 823-24 (Pa. Super. 2001) (court may
properly grant summary judgment where evidentiary record contains
insufficient evidence of facts to make out prima facie cause of action or
defense). As is the situation in the present case, under Rule 1035.2(2), “if a
defendant is a moving party, he may make the showing necessary to support
the [entry] of summary judgment by pointing to materials which indicate that
the plaintiff is unable to satisfy an element of his cause of action.” Id. at 824.
At argument on the summary judgment motion, Lutz’s attorney stated
that causation had, in fact, been addressed in both Dr. Stempler’s and Dr.
Huffman’s expert reports. Specifically, Lutz’s counsel claimed that in Dr.
Stempler’s June 15th report, he opined that “[Dr. Heckman] perforated [Lutz’s]
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capsule and damaged the axillary nerve twisting it and resulting in severe,
disabling pain.” N.T. Summary Judgment Hearing, 1/29/20, at 2. Moreover,
counsel noted, “When you look at that statement by Dr. Stempler[,] as well
as the [c]ertificate of [m]erit where he indicates that Dr. Heckman’s treatment
and surgery of [Lutz] fell below the accepted professional standard of care,
that is sufficient to establish causation as to the surgery portion of this,
Your Honor.” Id. (emphasis added). Lutz’s attorney also stated that Dr.
Huffman’s report indicated that Lutz’s diagnosis of axillary nerve damage from
the surgery was delayed by Dr. Heckman. Id. at 5-6. Finally, counsel stated
that the “causation part of this” does not have to be addressed by expert
opinion where the jury could make the determination that there was causation
based on the nerve study, treating physician’s testimony, and Lutz’s own
testimony that she had complained to Dr. Heckman numerous times about the
post-surgical pain and he did not order any test to reveal her injury. Id. at
6.
In contrast, defense counsel pointed out that Lutz’s expert reports did
not discuss the lack of informed consent claim she made against Defendants.
Id. at 7. Moreover, Defendants argued that nowhere in their reports did Lutz’s
experts state what the standard of care was in performing her shoulder
procedure. Id. at 8. See Expert Report of Norman B. Stempler, D.O.,
6/15/18, at 4 (“In my opinion, . . . the patient suffered . . . multiple
complications from left shoulder arthroscopic surgery” and as a result
“remains totally and permanently disabled form her pervious employment as
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an emergency room nurse.”); IME of G. Russel Huffman, M.D., 5/28/19, at 11
(“[Lutz] underwent surgery, which by all records and accounts appeared to be
complicated by an axillary nerve injury. The axillary nerve injury diagnosis
was delayed [and s]he has had multiple surgeries after that to do a neurolysis
of the axillary nerve, revision biceps tendinosis[,] and revision subscapularis
repairs.”); Office Notes of Norman B. Stempler, D.O., 6/15/18, at 2 (“As a
result of the complication of [a surgical arthroscopy of the left shoulder], the
surgeon perforated [Lutz’s] capsule and damaged the axillary nerve twisting
it and resulting ins severe, disabling pain.”); Id. at 4 (“In my opinion, the
patient suffered an internal derangement of the left shoulder and underwent
arthroscopic surgery with multiple complications requiring three, possibly
four, additional surgeries, none of which are going to return her to full
functional activity.”).
At the conclusion of the summary judgment hearing, the trial judge
stated:
Admittedly, when I read the [expert] reports, the causation was lacking. I mean, it just stuck out. It just read like a different sort of expert report. It was more a review of [Lutz’s] records and the outcome as opposed to the expert testimony required in a medical malpractice that failure to do X results in Z.
N.T. Summary Judgment Hearing, 1/29/20, at 18-19. We agree.
Both parties cite to Rauch, supra, to support their positions on appeal.
In that case, the patient (decedent) fell, injuring her elbow. Id. at 818. One
of the defendant-doctors scheduled decedent for corrective surgery despite
the known fact that she had an extensive past medical history, including
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hypertension, diabetes, two myocardial infarctions with quadruple bypass
surgery, and a cerebrovascular accident affecting her left side. Id. In
addition, decedent was on several medications, and smoked an average of
one pack of cigarettes per day. Id. at 818-19. Pre-operative studies
suggested the possibility that the decedent had ischemic heart disease and
edema (which can be caused by congestive heart failure). Id. at 819. Finally,
prior to surgery, decedent occasionally complained of chest pain. Id.
Decedent was classified as “a patient with rather severe systemic disturbance
of pathology.” Id.
After consulting with an anesthesiologist, decedent decided to have
general anesthesia administered to her for her elbow surgery. Within minutes
of completing the surgery, decedent was placed on a 100 percent oxygen non-
breathing mask and her blood pressure registered at 230/120. One-half hour
following surgery, decedent “was giving inappropriate responses” to nurses,
“biting down on the suction device and . . . coughing up thick mucous.” Id.
One hour and ten minutes after surgery, decedent was intubated. Id. Two
hours following surgery, a chest x-ray revealed that decedent had pulmonary
edema and “vascular interstitial alveolar lung water accumulation.” Id.
Computed tomography (CT) scans later revealed that decedent had suffered
a stroke; decedent died due to complications from that stroke nine days after
surgery. Id.
Decedent’s representatives filed a medical malpractice complaint
against the decedent’s surgeon, anesthesiologists, anesthesia group, the
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regional health system, and the regional hospital that was the site of the
surgery. The complaint alleged negligence, corporate negligence, and
vicarious liability against the hospital. Following the completion of discovery,
including the production of expert reports, the defendants filed motions for
summary judgment alleging that the expert reports provided an insufficient
basis upon which to predicate a prima facie case and that plaintiff’s experts
were not qualified to give such opinions. Id. at 820. The trial court granted
summary judgment and dismissed all claims against defendants. Id.
On appeal, our Court reversed the trial court’s order granting summary
judgment in favor of defendants, finding that the plaintiff had provided
sufficient expert reports that “stat[ed] the acts of the [defendant] physicians
deviated from good and acceptable medical standards and that the deviation
was the proximate cause of the harm suffered [by the decedent].” Id. at 826.
Factually, the experts opined that the decedent “died of a stroke that was
caused by the [elbow] surgery and [general] anesthesia” administered during
the surgery. Id. Specifically, one expert opined that due to decedent’s severe
pre-existing medical conditions, she was not a candidate for general
anesthesia in an operation that merely pertained to her elbow, and that the
physicians responsible for recommending general anesthesia and
administering it to decedent “acted in reckless disregard of her welfare.” Id.
(emphasis added). Another expert opined that the decedent was high-risk,
that regional anesthesia was another surgical alternative, and that decedent
had the option to forego the surgery. Id. Coupling together expert reports,
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the Court found that plaintiff had provided “adequate expert opinion to make
out a prima facie case of medical malpractice against all physician
defendants.” Id.
The content of Lutz’s expert reports are qualitatively different than those
in Rauch. Critically, the reports in the current case lack the opinions
necessary to establish a prima facie case of medical malpractice against Dr.
Heckman and the remaining defendants. Here, Lutz’s experts opine that: (1)
Dr. Heckman’s shoulder surgery caused Lutz’s axillary nerve damage; (2)
there was a delay in diagnosing Lutz’s post-surgical nerve damage; and (3)
due to the delay in diagnosing the nerve damage, Lutz suffers from
irreversible, permanent nerve damage. Even taking together all of the expert
opinions proffered by Lutz, we have no professional opinion regarding
whether Dr. Heckman’s failure to timely diagnose Lutz’s axillary nerve
damage deviated from acceptable medical standards that proximately
caused her injury. Cf. Vicario v. Spiegel, 936 A.2d 503, 511-12 (Pa.
Super. 2007) (non-suit in favor of defendants reversed on appeal where
plaintiff’s expert’s testimony showed steadfast opinion, based on facts of
record, including risk factors for metastases, that patient should have
“absolutely” been referred to medical oncologist and that failure to do so
“deprived” her of “significant opportunity for treatment which significantly
increased” risk of harm); Cardoza v. Greenbaum, 866 A.2d 369 (Pa. Super.
2004) (where plaintiff’s experts presented testimony of failure to detect cancer
in timely fashion and such failure increased risk that plaintiff would have
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either shortened life expectancy or suffered harm, judgment affirmed in favor
of plaintiff who alleged negligence with regard to misreading and
misinterpretation of her mammograms over three-year period; only after
plaintiff has presented such expert testimony is it question for jury to
determine whether, by preponderance of evidence, physician’s acts or
omissions were substantial factor in bringing about harm).
Lutz’s omission is critical in light of the fact that Dr. Heckman testified
in his deposition that he felt Lutz’s complaints were part of the normal post-
operative healing process and that her pain was improving right before she
suffered a car accident six months following surgery in August 2016. See
Deposition of Daniel Heckman, M.D., 10/23/19, at 41, 54, 63; see also id. at
20 (Doctor Heckman stating 4-5 days post-op, Lutz’s complaint of shoulder
pain was “[n]othing that seemed outside of what you would expect”); id. at
21-22 (Doctor Heckman stating it is normal to have temporary tingling in
fingers following shoulder surgery); id. at 31-32 (Doctor Heckman “didn’t
think [one-month post-surgical complaints of spasms, continued pain and
axillary swelling, were] too far out of expected findings”); id. at 32 (Doctor
Heckman speculated Lutz’s pain may have been attributable to a lymph node
or “just tenderness at the surgical site”); id. at 37-38 (Doctor Heckman stated
that two-month post-operative pain and axillary swelling “seemed to fit within
an expected range for the post-op period”); id. at 39-40 (Doctor Heckman
stated any loss of deltoid function or atrophy for Lutz two months after surgery
was “not . . . beyond the expected post-op time”); id. at 41-42 (Doctor
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Heckman stated that at no point during post-op period did he think Lutz’s
recovery process was abnormal or anything “that seemed out of the ordinary”)
(emphasis added); id. at 45 (Doctor Heckman noting that he believed there
had been some progress in Lutz’s range of motion at two-month follow-up
appointment); id. at 48-49 (Doctor Heckman stating that at three-month
follow-up appointment, he “didn’t have a high suspicion for a specific nerve
injury at [that] point” and did not think an EMG was necessary at that time
because Lutz’s numbness and tingling were not focused and because she had
deltoid function); id. at 53-54 (at four-month and five-month follow-up
appointments, Doctor Heckman believed Lutz seemed to be getting slightly
better, “it seemed like her pain was becoming less and her range of motion
was improving” and her axillary swelling had improved); id. (Dr. Heckman
stated, “I don’t believe Lutz’s [axillary swelling] was a main concern” four to
five months following surgery); id. at 62-63 (Doctor Heckman stated that at
four- and five-month follow-up appointments, Lutz’s motion was improving,
pain was decreasing and, although pain “wasn’t resolved,” doctor thought “[it]
seemed to be improving and on the right track.”); id. at 52-53 (doctor stated
that it was possible Lutz’s motor vehicle accident six months after surgery
contributed to or exacerbated Lutz’s injuries); id. at 54, 56 (after car accident,
six months following surgery, Doctor Heckman testified Lutz “had a setback
and had worsening of her symptoms” and “had more pain”); id. at 58 (Doctor
Heckman stated he “never saw any atrophy that was outside of an expected
amount for a post-op period”); and id. at 55-56 (Doctor Heckman stated
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follow-up MRI six months after surgery showed structure repairs from surgery
were healed).
Moreover, Dr. Stempler’s blanket statement in his certificate of merit
opining that, “[t]here is a basis to conclude that the care, skill[,] or knowledge
exercised or exhibited by the Defendant in the treatment, practice[,] or work
that is the subject of the complaint, fell outside acceptable professional
standards and the such conduct was a cause in bringing about the harm,”15 is
similarly insufficient “evidence of facts to make out a prima facie cause” of Dr.
Heckman’s negligence in the delay of diagnosing Lutz’s nerve injury. Rauch,
supra. A certificate of merit is merely a filing certifying that an expert report
can be produced in a medical malpractice action; the certificate does not
supplant the ultimate expert report. See Womer v. Hilliker, 908 A.2d 269,
275 (Pa. 2006) (a purpose of certificate of merit is to signal to parties and trial
court that plaintiff “is in a position to support the allegations he has made
in his professional liability action.”) (emphasis added). Specifically, Dr.
Stempler’s generic statement does not opine, to a reasonable degree of
medical certainty, that the six-month delay in diagnosing the nerve injury, as
a result of Heckman’s post-operative treatment, was either a breach of his
duty or a proximate cause of Lutz’s permanent nerve damage. Id. Succinctly
stated, it leaves unanswered the vital questions as to whether Dr. Heckman’s
post-surgical care increased Lutz’s risk of harm or Lutz’s post-surgical
complaints of pain were part of the normal post-operative healing process. ____________________________________________
15 Norman B. Stempler, M.D., Certificate of Qualified Expert, 10/5/18. - 19 - J-A26023-20
In addition to Dr. Stempler, none of Lutz’s medical experts opined,
within a reasonable degree of medical certainty, with regard to: (1) the
standard of care for left arthroscopy surgery or how Dr. Heckman breached
the duty he owed to Lutz; (2) the standard of care for diagnosis and treatment
of an axillary nerve injury or how Dr. Heckman violated that standard of care;
(3) the purported lack of informed consent and battery alleged by Lutz; and
(4) what medical testing or treatment should have been provided to Lutz or
when that testing or treatment should have been offered. Trial Court Order,
1/30/20, at 1-3 n.1. See Catlin v. Hamburg, 56 A.3d 914, 920 (Pa. Super.
2012) (when alleging medical malpractice, determining whether there was
breach of duty requires determination of relevant standard of care and
whether defendant’s conduct met that standard). As Defendants point out,
the mere happening of a surgical complication does not automatically equate
to a physician’s negligence in performing the surgery. See Mitchell v.
Shikora, 209 A.3d 307, 315 (Pa. 2019) (“[T]here is no ‘presumption or
inference of negligence merely because a medical procedure terminated in an
unfortunate result which might have occurred despite the exercise of
reasonable care.’”) (citation omitted).
Moreover, it is well established that in a medical battery action, the
burden is on the plaintiff to prove that the operation performed was not
authorized by him or her. Moure v. Raeuchle, 604 A.2d 1003, 1008 (Pa.
Super. 1992). Therefore, Lutz had to prove that Dr. Heckman’s contact
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exceeded the scope of consent that she gave him.16 Finally, expert testimony
is generally required where the subject matter is beyond the knowledge of the
average layperson—such as in a case where a patient alleges lack of informed
consent for a shoulder arthroscopy. Id. In the present case, Lutz presents
nothing in her expert reports regarding a lack of informed consent or battery,
let alone an opinion stating that a reasonable person would want to know if
an injury consistent with axillary nerve damage may occur before deciding to
have shoulder arthroscopy surgery. See Nogowski v. Alemo-Hammad,
691 A.2d 950 (Pa. Super. 1997). Thus, Lutz’s expert reports did not meet the
threshold to overcome summary judgment on this claim as well. Festa v.
Greenberg, 511 A.3d 1271, 1277 (Pa. Super. 1986) (in informed consent
case, expert testimony required to establish existence of risks in particular
medical procedure, existence of alternative procedures, and feasibility of these
alternatives in patient’s case).17 ____________________________________________
16As previously noted, prior to surgery Lutz signed a “Consent to Procedure or Surgery” form that specifically listed neurovascular injury and persisting pain/stiffness/instability as possible risks or complications from the procedure. See supra, at 2. 17 A review of Dr. Strohl’s office notes indicates they are nothing more than a summary of his physical examination findings, a discussion of Lutz’s pain and shoulder dysfunction, and a recommendation regarding her medical options. The report provides no medical opinion regarding Dr. Heckman’s performance of the shoulder arthroscopy surgery and whether his actions fell below the acceptable standard of care. Notably, Dr. Strohl’s notes indicate that it is his belief that “she had an injury to her axillary nerve[,]” but that this injury could be a result of “a stretch retraction, suture placement, and/or thermal coagulation or thermal injury.” Expert Report of Dr. Adam B. Strohl, M.D., 6/16/17, at 2.
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To the extent that Lutz has preserved a claim regarding the trial court’s
refusal to permit her to supplement her expert reports, we find no merit to
the issue.18 At the conclusion of the parties’ summary judgment hearing, Lutz
asked for an extension within which “to allow Dr. Stempler to submit a
supplemental [expert] report” if the court were inclined to grant Defendants’
summary judgment motion. N.T. Summary Judgment Hearing, 1/29/20, at
16. The court denied the motion in its order granting summary judgment,
noting that Lutz had plenty of opportunities to supplement her expert reports,
but chose not to do so.19 See Pa.R.C.P. 1035.3(a), (b) (adverse party must
file response within 30 days after service of motion and any adverse party
may supplement record at that time).
Here, Defendants filed their summary judgment motion on November
27, 2019, after both the discovery deadline and Lutz’s expert report deadline
had passed. Moreover, the court did not hold argument on Defendants’
motion until January 29, 2020—more than 60 days after Defendants filed their
motion. Lutz attached Drs. Huffman’s and Stempler’s expert reports and Dr.
Strohl’s office notes, dated May 2019, June 2018, and June 2017, respectively,
18 Lutz’s issues in her Rule 1925(b) statement and those listed in the “Questions Presented” section of her appellate brief do not perfectly align with those argued in the “Argument” section of her brief.
19In addition to being given extra time to supplement her expert reports, the court granted Lutz’s motion for an extension of time and gave her an extra 30 days to file additional certificates of merit from an appropriate licensed professional, rather than grant Defendants’ motion to strike her certificate or enter a judgment of non pros. - 22 - J-A26023-20
to her response to Defendants’ summary judgment motion. She did not
attempt to supplement the record with any new expert reports or supplement
those existing reports in that 60-day window, let alone the 30-day time period
set forth in Rule 1035.32. In fact, it was not until she filed her amended
motion for reconsideration, more than two-and-a-half months after
Defendants filed their summary judgment motion and two weeks after the
court granted summary judgment, that Lutz filed any new reports. Under
such facts, we find no abuse of discretion in the court’s ruling. See Kelly v.
Siuma, 34 A.3d 86 (Pa. Super. 2011) (finding trial court properly refused to
consider appellant’s three new affidavits presented for first time in motion for
reconsideration); see also Rabatin v. Allied Glove Corp., 24 A.3d 388 (Pa.
Super. 2011) (issues raised for first time in motion for reconsideration after
entry of summary judgment may not be considered by this Court).
In conclusion, we recognize that while “there is no need for expert
reports to contain a formulaic incantation of identification and fault attribution
so long as the clear import of the reports implicates the named physician
defendants,” Rauch, supra, here, Lutz failed to produce any expert medical
opinion addressing the elements of her cause of action, within a reasonable
degree of medical certainty. Accordingly, “[s]he has failed to establish a prima
facie case and may not proceed to trial.” Miller, supra at 833; see Gartland
v. Rosenthal, 850 A.2d 671, 677 (Pa. Super. 2004) (“An expert’s failure to
express an opinion with the requisite certainty makes summary judgment
proper. Although the expert need not use special language, with expert
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medical testimony, the expert must state an opinion within a reasonable
degree of medical certainty.”) (emphasis added). Thus, the trial court
properly granted summary judgment in Defendants’ favor. See Pa.R.C.P.
1035.2.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 1/6/2021
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