Appell. v. Abington, 2024 Pa. Super. LEXIS 541 (Pa. Super., December 13, 2024) (Stabile, J.)
OPINION BY STABILE, J.:
In this medical malpractice case, Alexander D. Kunkel appeals an order of the Court of Common Pleas of Montgomery County (trial court) denying his motion for post-trial relief. Kunkel received emergency medical care from Abington Memorial Hospital (AMH); Francesca Delach, M.D.; and Ryan Shadis, M.D. (collectively, Appellees) after being badly injured in an automobile accident. During the first two days of his hospital stay, the contact lenses Kunkel had been wearing remained on his eyes. He later asserted that Appellees were negligent in delaying their removal, and in failing to promptly treat his resulting eye injuries once they were removed. A jury found Appellees’ conduct to be negligent, but not the cause of Kunkel’s asserted injuries. Kunkel now contends that this adverse verdict resulted from the trial court’s exclusion of testimony on the issue of causation by two of his treating physicians and one of his expert witnesses. We affirm.
The trial court granted Appellees’ motion in limine as to Dr. Aquavella and Dr. Nissman. The testimony of these witnesses was found to be cumulative; it was also determined that neither witness would be permitted to testify as to the applicable standard of care. The ruling limited Kunkel to presenting] just one of those two experts, and he selected Dr. Aquavella. Pursuant to the trial court’s order, then, Dr. Aquavella was allowed to testify as to the causal link between Appellees’ conduct and Kunkel’s injuries, but Dr. Aquavella was not allowed to testify as to the applicable standard of care, i.e., what Appellees as emergency medicine and trauma physicians should have done differently. The trial court also reviewed the notes of Kunkel’s treating physicians, Dr. Mills and Dr. Orlin, and ruled that they had not formed opinions on causation until their depositions were taken in preparation for litigation.
Significantly, Dr. Aquavella repeatedly attempted to answer questions from Kunkel’s counsel regarding the treatment he believed should have been provided when the opacity was detected. See id., at 88-94. Appellees objected that such testimony was beyond the scope of Dr. Aquavella’s expertise because it related to the applicable standard of care. See id., at 89. The trial court enforced its pretrial order by sustaining Appellees’ objections on that ground. See id., at 89-96. The jury was then advised that Dr. Aquavella was only being called in his capacity as an expert on causation.
The jury found that Appellees were negligent in their care of Kunkel, but that Appellees were not liable for the eye injuries Kunkel had attributed to their negligent conduct.
In sum, neither expert physician was qualified to detail to the jury the treatment they thought Appellees, as emergency medicine and trauma physicians, should have provided. The absence of those predicate facts, in turn, prevented both physicians from opining on how Appellees caused the infection of Kunkel’s eyes once the lenses were removed. Kunkel does not challenge the portion of the trial court’s order prohibiting Dr. Aquavella and Dr. Nissman from testifying as experts on the standard of care owed by Appellees. Since that issue is not now before this Court, the trial court’s order limiting the testimony of Kunkel’s experts must be affirmed.
Opinions that physicians reach when treating their patients are not considered expert testimony in Pennsylvania because they are not produced in anticipation of litigation. See Katz v. St. Mary’s Hosp., 2003 PA Super 37, 816 A.2d 1125, 1127 (Pa. Super. 2003) (holding that where a doctor’s opinions and knowledge were acquired before an action commenced, the doctor’s “opinions proffered at trial fall outside the scope of Rule 4003.5.”). Accordingly, treating physicians do not need to be listed as experts to make such opinions admissible. See id. In the present case, the trial court found that (a) the record does not reflect that Dr. Mills and Dr. Orlin formed their opinions on causation during Kunkel’s treatment, (b) the physicians only formed their opinions on causation in preparation for litigation, and (c) those opinions were inadmissible because Kunkel had not identified the physicians as experts prior to trial.
The first time either of the physicians specifically linked Kunkel’s corneal injuries to contact lenses came in their deposition testimony. Accordingly, their opinions on medical causation were formed in preparation for litigation. These opinions would only have been admissible at trial had Kunkel timely followed the procedures outlined in Rule 4003.5. However, since Kunkel did not do so, the trial court acted within its discretion by precluding them from testifying on the cause of Kunkel’s asserted eye injuries.
