The Superior Court of Pennsylvania (“Pennsylvania Appellate Court”), in its opinion filed on July 16, 2020, overturned a Pennsylvania birth injury medical malpractice verdict in the amount of $40,258,000 because the trial court erroneously permitted the Plaintiffs’ lawyer to cross-examine a defendant using a medical text that had not been offered or established as authoritative.
The Pennsylvania medical malpractice case involved the birth of twins: “As the second baby’s head and shoulders were being delivered, a “snapping” or “popping” sound was heard in the delivery room. Nurse Murdaco looked to see what was going on with the baby, and saw nothing. At the time the pop was heard, Nurse Murdaco confirmed that Dr. Troy was not “doing any sort of maneuvering, pulling, stretching, twisting, rotating, anything at the moment.” N.T., 1/16/18, at 163. Nurse Murdaco filled out an incident report describing that “a popping sound was heard by patient and staff” because she had never heard such a sound before and was afraid that perhaps they had injured Mrs. Charlton’s hip, knee, or back.”
“G.C. was later moved to the neonatal intensive care unit (NICU) at the Hospital as there was concern for a possible cervical and thoracic spinal cord injury. Several days later she was transferred to Children’s Hospital of Philadelphia (“CHOP”), where an MRI was performed on March 8, 2011. The MRI revealed “no definite abnormality of the cervical spine” but the reliability of the reading was qualified by a note that G.C.’s positioning during the test was less than optimal. An MRI performed eight months later, on November 9, 2011, depicted “evolution of a remote subdural hematoma with myelomalacia of [G.C.’s] spinal cord” and “[n]umerous foci . . . in keeping with pseudomeningolcele formation related to nerve root avulsion injury.” Plaintiffs’ Exhibit P16B-MRI Report, 11/9/11, at 22-23. In short, G.C. had a permanent spinal cord injury.”
The Plaintiffs alleged that Dr. Troy was negligent, and that his negligence caused G.C.’s neurological injuries. The Defendants maintained that Dr. Troy complied with the standard of care in every respect, and that G.C.’s injury occurred in utero due to intra-uterine growth restriction (IUGR) caused by placental insufficiency.
The Pennsylvania Appellate Court stated, “we find merit in the Defendants’ argument that the Charltons’ back-doored a theory of negligence based on excessive traction for which no standard of care or breach was established by Dr. Hamar. Although Dr. Hamar alternatively concluded that G.C.’s injury could have occurred because Dr. Troy exerted too much traction on G.C.’s flexed head, he offered no testimony regarding the standard of care for the use of traction, or that Dr. Troy deviated from that standard herein. Hence, nonsuit on the “too much traction” theory should have been granted, and the trial court erred in permitting the “too much traction” theory to be submitted to the jury. Unfortunately, Defendants did not request a special verdict that would require the jury to specify upon which theory it granted relief. Thus, we cannot discern from the general verdict whether the jury found Dr. Troy liable because he failed to use ultrasound to ascertain that G.C.’s head was in a flexed position, and maintain it in that position, or because he applied too much traction on G.C.’s properly-flexed head. The law is well settled that where a defendant fails to request a special verdict, he “cannot complain on appeal that the jury may have relied on a factual theory unsupported by the evidence when there was sufficient evidence to support another theory properly before the jury.””
The Volpe Textbook
The Defendants contended that the trial court committed reversible error in permitting the Plaintiffs to use the textbook Neurology of the Newborn (“Volpe text”) to cross-examine Dr. Troy when they did not establish that the text was authoritative and reliable. The Defendants argued that that error was compounded when the Plaintiffs’ attorney was allowed to read in excerpts from the text, which were clearly hearsay, as substantive evidence. In addition, the Defendants contended that the trial court abused its discretion in permitting the Plaintiffs to place Dr. Volpe’s credentials before the jury and argue the substance of the Volpe text in closing.
The Plaintiffs’ lawyer asked the defendant obstetrician whether he was familiar with “Neurology of the Newborn. It’s a neurology textbook specifically to newborn babies.” In response, Dr. Troy asked and received confirmation from the Plaintiffs’ lawyer that it was not an obstetrical textbook. Dr. Troy then stated that he “had not heard of that textbook before coming to this trial.” Despite the fact that Dr. Troy was unfamiliar with the Volpe text, and had not been asked whether he believed the text was authoritative or reliable, the Plaintiffs’ lawyer was allowed to read a portion of the text to the witness.
The trial court concluded that the Defendants were “making too much of a distinction between obstetrical and neurology literature” as “[t]his ha[d] to do with delivering a baby,” and overruled defense counsel’s objections to the use of the Volpe text.
The Pennsylvania Appellate Court stated: “We find that no foundation was laid that would establish the Volpe textbook as a learned treatise for the limited purpose of impeaching Dr. Troy. Our rules of evidence do not recognize a hearsay exception for a learned treatise. See Pa.R.E. 803(18). A “learned treatise” is any textbook, published work, or periodical that has been accepted as authoritative or as reliable authority by members of a specific professional community … Under Pennsylvania law, the contents of a learned treatise offered at trial to establish principles or theories is inadmissible hearsay, an extrajudicial declaration offered to prove the truth of the matter asserted … Experts may rely on authoritative publications in formulating their opinions, and, to a limited extent, our courts permit experts to briefly reference materials to explain the reasons underlying their opinions … While such materials are not admissible, an expert may be impeached with statements contained in a text or publication deemed authoritative or reliable by him or other experts in the same field.”
The Pennsylvania Appellate Court stated, “We find that the record does not support the trial court’s conclusion that Dr. Troy testified as an expert witness … Dr. Troy’s statement that he did nothing wrong to cause the injury to G.C. did not make him a causation expert as his testimony was based on his own observations and medical judgment at the time he rendered treatment … As a fact witness, Dr. Troy could only be cross-examined with a publication that he agreed was authoritative or reliable, and that foundation was not laid herein.”
“In order to cross-examine an expert with a treatise, either that expert or another expert in the field must attest to the publication’s reliability. Absent such a foundation, a text cannot be used to cross-examine even an expert witness. Thus, whether Dr. Troy is viewed as an expert or a fact witness, the trial court erred in permitting him to be cross-examined with a text that neither he nor any expert witness had established as authoritative and reliable in his field of obstetrics, or neurology for that matter.”
“It is beyond cavil that the Volpe text was used as substantive evidence, i.e., for the truth of the matter asserted. The reading of excerpts from the text invited the jury to view the ‘snapping’ or ‘popping’ sound heard during G.C.’s delivery both as evidence of Dr. Troy’s negligence and as proof that he caused the injury … Herein, absent a proper foundation, we find there was no permissible use of the Volpe text. Without Dr. Troy’s acknowledgement that it was authoritative or a standard work in his field, the textbook was inadmissible even for the limited purpose of impeaching him. The Volpe text was per se inadmissible as substantive evidence. Thereafter, placing the author’s credentials before the jury impermissibly bolstered the credibility of the inadmissible hearsay evidence. Finally, permitting the Charltons to argue the substance of the inadmissible excerpts in closing argument exacerbated the earlier errors.”
The Pennsylvania Appellate Court found that the Defendants were prejudiced by the error (“We find that the admission of the hearsay evidence from the Volpe text was extremely prejudicial”), and therefore ordered a new trial.
Source Charlton v. Troy, D.O., 2020 PA Super 170.
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