Wilmer, E. v. Salkind, G.

• Court: Superior Court of Pennsylvania
• Decided: December 30, 2022
• Docket: 1220 EDA 2022
• Status: Unpublished

Opinion

J-A26033-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EMMA WILMER : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : GENE Z. SALKIND, M.D., TODD : No. 1220 EDA 2022 ANTHONY BURLINGAME, D.O., HOLY : REDEEMER HEALTH SYSTEM, HOLY : REDEEMER HOSPITAL, HUNTINGDON : VALLEY ANESTHESIOLOGY : ASSOCIATES :

Appeal from the Order Entered April 14, 2022 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 2016-30036

BEFORE: BOWES, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED DECEMBER 30, 2022

Emma Wilmer (Wilmer) appeals an order of the Court of Common Pleas

of Montgomery County (trial court) dismissing with prejudice her claims of

negligence and medical malpractice against Gene Z. Salkind, M.D.1 Prior to

trial, the trial court granted a dispositive motion in limine precluding the

testimony of Wilmer’s only expert witness concerning the applicable standard

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* Retired Senior Judge assigned to the Superior Court.

1 Wilmer had named several other individuals and entities as defendants in her complaint, but Wilmer has since filed praecipes for entry of non pros as to those parties, rending the order on review a final and appealable order for the purposes of Pa.R.A.P. 341. J-A26033-22

of care and, as a result, summary judgment was granted in Dr. Salkind’s favor.

Wilmer now argues that the trial court erred in precluding her expert’s

testimony and in ruling that Dr. Salkind is not collaterally estopped from

testifying about the reasonableness and necessity of the subject medical

procedure. We affirm.

I.

On May 4, 2014, Wilmer was injured at work, purportedly resulting in

herniated discs in segments C5-C6 and C6-C7 of her spine. Wilmer then

underwent an anterior cervical discectomy and fusion procedure on July 25,

2014, that was performed by Dr. Gene Salkind. Immediately after the

procedure, Wilmer developed a stutter and pain in her throat when

swallowing.

On July 29, 2014, Wilmer’s workers’ compensation insurance carrier

filed with the Pennsylvania Department of Labor & Industry a utilization review

request for “prospective review of recommended anterior cervical fusion at

C5-6 and C6-7 with removal of plate at C4-5.” During the review process, Dr.

Salkind failed to respond to requests for documents sent by the utilization

review organization (URO). On September 30, 2014, the URO issued a finding

that Dr. Salkind’s treatment of Wilmer was not reasonable or necessary under

34 Pa. Code § 127.464, which compels such a finding where “the provider

under review fails to mail records to the URO within 30 days of the date of the

request of the records[.]” 34 Pa. Code § 127.464.

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On November 3, 2014, Dr. Salkind petitioned for the review of the URO’s

determination, and the petition was assigned to a workers’ compensation

judge. Hearings on the petition were scheduled for December 9, 2014,

January 27, 2015, February 26, 2015, and April 14, 2015, but Dr. Salkind

failed to appear. Due to Dr. Salkind’s non-appearances, the workers’

compensation judge ruled on April 14, 2015, that his petition was dismissed.

Wilmer then filed a complaint in the Court of Common Pleas of

Philadelphia County which was later transferred to the trial court in

Montgomery County. In the complaint, Wilmer alleged that Dr. Salkind had

provided care below the standard required of physicians performing the spinal

fusion procedure she underwent, causing her injuries.

Wilmer retained an expert witness, Jonas Gopez, M.D., a board-certified

neurosurgeon. In his deposition, Dr. Gopez testified as to Wilmer’s speech

and swallowing impairment following her spinal fusion procedure on July 25,

2014. See Dr. Jonas Gopez Deposition Testimony Transcript, 11/8/2021, at

pp. 26-33. He testified that in his opinion, “the surgery was not medically

necessary or causally related to the May 4th, 2014 work injury.” Id. at p. 32.

Significantly, Dr. Gopez observed that the procedure performed by Dr.

Salkind was ultimately addressing degenerative changes in Wilmer’s spine

which had long predated the work injury she had in 2014. Dr. Gopez noted

that Wilmer previously injured her back at work in 2008, requiring a spinal

fusion surgery which was performed in 2009, as well as dozens of steroidal

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injections into her spine over the course of the following years. However, Dr.

Gopez opined that Wilmer’s speech and swallowing difficulties, “[i]n some way

or form, must be [caused by the spinal fusion procedure in 2014 because] . . .

she did not have [those symptoms] before, had the surgery, and developed it

immediately afterward.” Id.

On cross-examination, Dr. Gopez clarified that he examined Wilmer on

two occasions – July 2, 2015, and April 14, 2016, – and both times, Dr. Gopez

had been retained solely for the purpose of litigating workers’ compensation

claims; he was not retained at those times to give an opinion on whether the

surgery was medically necessary to treat Wilmer’s work-related injury on May

4, 2014, and the extent to which Wilmer had the ability to return to work. Id.

at pp. 9-10, 37-38. Accordingly, Dr. Gopez did not evaluate Wilmer for the

purpose of opining for a prospective malpractice action as to the standard of

care or whether Dr. Salkind had deviated from that standard. See id.

Dr. Salkind filed a motion in limine to preclude the testimony of Dr.

Gopez on the ground that his opinions did not relate to the standard of care

applicable in a medical malpractice action. Wilmer, in turn, filed an answer to

Dr. Salkind’s motion in limine, as well as a cross-motion to preclude Dr.

Salkind from testifying that the treatment he rendered was reasonable and

necessary. She argued that Dr. Salkind was collaterally estopped from

disputing issues which the workers’ compensation judge had already resolved

on the merits.

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The trial court granted Dr. Salkind’s motion in limine and ruled further

that it would treat the motion as a request for summary judgment based on

Wilmer’s failure to present any expert testimony on the applicable standard of

care. See Trial Court Order, 4/14/2022, at 1; see also Trial Court Opinion,

6/17/2022, at 4-6. Wilmer’s cross-motion in limine was denied, and her

complaint was dismissed with prejudice.

Wilmer timely appealed and now raises two issues for our consideration:

1. Did the [trial] court err in granting summary judgment when the testimony of plaintiff’s expert met [Wilmer’s] burden to show [Dr. Salkind’s] deviation from the standard of care and causation to a reasonable degree of medical certainty although he had not examined [Wilmer] for that specific purpose when he testified the surgery performed on [Wilmer] was not medically reasonable and necessary and [Wilmer’s] persistent speech and swallowing dysfunction was the result of the surgery performed by [Dr. Salkind]?

2. Did the [trial] court err in granting summary judgment when there was a final and binding order by a workers’ compensation judge that the surgery performed by [Dr. Salkind] was not reasonable and necessary and this finding acted as collateral estoppel on the issue before the court?

Appellant’s Brief, at 5 (renumbered).

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II.

Wilmer’s first claim on appeal is that the summary judgment order

should be vacated2 because it was predicated on the trial court’s erroneous

exclusion of testimony by her expert witness, Dr. Gopez.

In a medical malpractice action, a plaintiff has the burden of proving

that there is “a duty owed by the physician to the patient, a breach of that

duty by the physician, that the breach was the proximate cause of the harm

suffered, and the damages suffered were a direct result of the harm.”

Toogood v. Owen J. Rogal D.D.S., P.C., 824 A.2d 1140, 1145 (Pa. 2003);

see also Mitchell v. Shikora, 209 A.3d 307, 312 (Pa. 2019) (same).

“Because the negligence of a physician encompasses matters not within

ordinary knowledge and experience of laypersons, a medical malpractice

2 On review of the grant or denial of a motion for summary judgment, this Court’s standard of review is de novo, and our scope of review is plenary. See generally Khalil v. Williams, 278 A.3d 859, 871 (Pa. 2022). A trial court should grant summary judgment only in cases where the record contains no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See id.; see also Pa.R.C.P. 1035.2. The moving party has the burden of demonstrating the absence of any issue of material fact, and the trial court must evaluate all the facts and make reasonable inferences in a light most favorable to the non-moving party. See Khalil, 278 A.3d at 871. Summary judgment should only be granted “where the right to such a judgment is clear and free from doubt.” Id. (internal citation omitted). An appellate court may reverse a grant of summary judgment only if the trial court erred in its application of the law or abused its discretion. See id. A trial court’s decision to admit or exclude evidence, including the testimony of an expert witness, is likewise reviewed under an abuse of discretion standard. See Green v. Penn. Hosp., 123 A.3d 310, 325 (Pa. 2015).

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plaintiff must present expert testimony to establish the applicable standard of

care, the deviation from that standard, causation and the extent of the injury.”

Toogood, 824 A.2d at 1145.3

In this case, Wilmer’s first appellate claim turns on whether her expert

witness, Dr. Gopez, gave any testimony in his deposition which established

the applicable standard of care for the spinal fusion procedure performed by

Dr. Salkind. We find that the record supports the trial court’s conclusion that

Dr. Gopez did not give any testimony to that effect.

Although Dr. Gopez testified that in his opinion, the spinal fusion

procedure was “not medically necessary or causally related to the May 4, 2014

work injury,” he did so in the context of workers’ compensation proceedings

concerning Wilmer’s work-related injury on that date. Dr. Gopez observed

that the procedure performed by Dr. Salkind was intended to address

degenerative changes in Wilmer’s spine which had long predated the more

recent work injury she had in 2014. Nothing in Dr. Gopez’s testimony goes

to whether the surgery was necessary for reasons other than the work-place

accident on May 4, 2014.

Moreover, Dr. Gopez agreed that when he evaluated Wilmer, he had not

been retained to opine on Dr. Salkind’s alleged negligence or malpractice, and

3A trial court may admit or preclude expert testimony at its discretion. See Green, 123 A.3d at 325.

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no opinions on the standard of care that would apply in the context of a

negligence or medical malpractice action were ever given in his deposition

testimony in the present case. See Dr. Jonas Gopez Deposition Testimony

Transcript, 11/8/2021, at pp. 9-10, 37-38.4

Thus, Wilmer failed to raise a genuine issue of material fact as to

necessary elements of her claims, and the trial court did not abuse its

discretion or commit an error of law in granting summary judgment in favor

of Dr. Salkind on the ground that Wilmer failed to carry her initial burden of

proof. See Toogood, 824 A.2d at 1145.

III.

Wilmer’s second claim is that the trial court erred in denying her cross-

motion in limine to preclude Dr. Salkind from testifying as to the

reasonableness and necessity of the subject medical procedure. According to

Wilmer, Dr. Salkind is collaterally estopped from disputing those points

because they had been previously adjudicated at the workers’ compensation

proceedings.

It is unnecessary for us to reach the merits of this issue because it is

moot. As discussed above, the trial court did not err in ruling that Wilmer

failed to carry her initial burden of presenting expert testimony as to the

4 As to the method of the spinal fusion procedure itself, Dr. Gopez found no fault in Dr. Salkind’s performance. See Dr. Jonas Gopez Deposition Testimony Transcript, 11/8/2021, at pp. 46-49.

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standard of care and Dr. Salkind’s deviation from that standard. Our

disposition in that regard would remain intact regardless of whether the trial

court erred in ruling that Dr. Salkind would be able to testify at trial about

whether the procedure was reasonable or necessary.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/30/2022

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