J-A15038-14

NON-PRECEDENTIAL DECISION

LYNN R. FORLANO AND NICHOLASFORLANO, H/W,

Appellees

v.

- SEE SUPERIOR COURT I.O.P. 65.37

CYNTHIA BERGMAN, M.D., THEHOSPITAL OF FOX CHASE CANCERCENTER, HOWARD C. HUTT, M.D.,JEANES HOSPITAL, DIANE DIGIORLAMO,M.D.,

APPEAL OF: CYNTHIA BERGMAN, M.D.,THE HOSPITAL OF FOX CHASE CANCERCENTER

IN THE SUPERIOR COURT OFPENNSYLVANIA

No. 2645 EDA 2013

Appeal from the Judgment Entered August 13, 2013In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): January Term, 2010 No. 003369

BEFORE: PANELLA, LAZARUS AND JENKINS, JJ.

MEMORANDUM BY JENKINS, J. FILED JULY 09, 2014

Appellants Cynthia Bergman, M.D. and the Hospital of Fox Chase

Cancer Center (“Fox Chase”), appeal from the judgment entered in this

medical malpractice action in favor of Appellees, Lynn and Nicholas Forlano.1

A jury found Appellants/Defendants Dr. Bergman and Fox Chase Cancer

Center liable in negligence for failing to diagnose and treat Mrs. Forlano’s

1 A jury returned a verdict in favor of the remaining defendants, ArthurMagilner, M.D., Diane DiGirolamo, M.D., Barton Milestone, M.D., HowardHutt, M.D., Holy Redeemer Hospital, and Jeanes Hospital. None of thesedefendants are parties to this appeal.

J-A15038-14

fallopian tubal/ovarian cancer.2 We affirm on the basis of the thorough and

well-reasoned trial court opinion.

In 1999, Dr. Helm at Temple University Hospital diagnosed Mrs.

Forlano with fallopian tubal/ovarian cancer. Following a hysterectomy,

removal of lymph nodes, and chemotherapy, the treatment was successful,

with subsequent studies showing no evidence of the disease. As a patient

with a history of cancer, Mrs. Forlano needed periodic checkups by a

gynecologic oncologist. When Dr. Helm left the area in 2000, Mrs. Forlano

began seeing Dr. Bergman for that purpose.

From 2000 until 2008, Mrs. Forlano was under Dr. Bergman’s care. Dr.

Bergman conducted various studies during this time, including CAT scans

and blood tests. She saw Mrs. Forlano twice in 2000 and three times in 2001

and informed her that everything remained normal. During a May 2001 visit,

Dr. Bergman noted in Mrs. Forlano’s medical charts “abdominal bloating”, “a

suggestion of a fluid wave” in the abdomen, and “[i]mpression, possible

recurrent disease.” Dr. Bergman ordered a CAT scan that revealed no

evidence of cancer or other abnormalities, and she concluded there was no

cause for concern. During the next seven years, until September 2008, Dr.

2 The jury awarded $1,671,455.09 to Mrs. Forlano for compensatorydamages, and $300,000 to Mr. Forlano for loss of consortium. Followingtrial, the trial court granted the Forlanos’ uncontested motion to mold theverdict to reflect the vicarious liability of Dr. Bergman’s employer, FoxChase.

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Bergman did not advise Mrs. Forlano (or note in her records) that any exams

revealed recurrent cancer.

In February 2003, an onset of pain brought Mrs. Forlano to Nazareth

Hospital, where she was diagnosed with a bowel obstruction caused by scar

tissue from her 1999 surgery.3 She underwent surgery and had the

obstruction removed. No evidence of cancer was mentioned or found. During

her June 2003 visit with Dr. Bergman, Mrs. Forlano informed Dr. Bergman

about the bowel obstruction surgery. Dr. Bergman advised Mrs. Forlano that

“everything was fine” in her pelvic region.

In 2004, Mrs. Forlano had two more regularly scheduled visits with Dr.

Bergman. During the second visit in June 2004, Dr. Bergman found a

“smooth roundness in [Mrs. Forlano’s] pelvic area” that she described as

“fluid.” She again conveyed to Mrs. Forlano that it was not uncommon to

develop fluid after having surgery, and that Mrs. Forlano should not be

concerned. Dr. Bergman ordered a periodic CAT scan performed in July. Dr.

Milestone, Fox Chase’s radiologist, identified a complex mass indicative of

recurrent ovarian or fallopian tube cancer. However, Dr. Bergman did not

3 The attending physicians at Nazareth Hospital diagnosed Mrs. Forlano withMeckel’s Diverticulum, which is “a pouch on the wall of the lower part of theintestine . . . .” U.S. National Library of Medicine, “Meckel’s diverticulum”,available at:http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001281/#disclaimer (lastviewed on June 12, 2013).

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record the results in her medical chart or inform Mrs. Forlano that the study

showed anything abnormal or cancerous.

In October 2004, Mrs. Forlano underwent an MRI ordered by Dr.

Bossard, her primary gynecologist, who worked at Jeanes Hospital. Dr.

Bossard informed Mrs. Forlano that the interpreting radiologist

recommended that she undergo a CAT scan. Dr. Bossard also recommended

that Mrs. Forlano take the MRI to Dr. Bergman at her next visit, which she

did in June 2005.

Before her next visit with Dr. Bergman, Mrs. Forlano contracted a

bacterial infection. Her family physician at Holy Redeemer Hospital treated

her with antibiotics, and she underwent a CAT scan. Her family physician

recommended she take the CAT scan to Dr. Bergman.

On her next visit with Dr. Bergman in June 2005, Mrs. Forlano brought

the MRI from Jeanes Hospital, which showed a mass, and the CAT scan from

Holy Redeemer. Dr. Bergman’s standard exam indicated the presence of

fluid, but she again reassured Mrs. Forlano that it was not cancer and

dismissed the need for a biopsy or PET scan. The Forlanos’ expert testified

that had Dr. Bergman ordered a biopsy at any time prior to 2008, the cancer

would have been diagnosed while still small, wholly resectable, and curable.

Although the “fluid” was increasing, which the physical and radiological

exams showed and Dr. Bergman noted in her charts, Dr. Bergman did not

inform Mrs. Forlano.

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During the first of her two regularly scheduled visits in January 2006,

Mrs. Forlano underwent a periodic CAT scan. Although the Fox Chase

radiologist stated the mass nearly doubled in size since the last scan, Dr.

Bergman never communicated that information to Mrs. Forlano.

In August 2008, Mrs. Forlano was admitted to Holy Redeemer Hospital

for a blood clot in her leg. Dr. Gharpure, a hematologist/oncologist, ordered

a CAT scan. Dr. Gharpure spoke to Mrs. Forlano about the presence of

something in her pelvic region. Mrs. Forlano replied that Dr. Bergman

informed her it was fluid and nothing to be concerned about. Dr. Gharpure

suggested she undergo a PET scan and biopsy after discharge, and Mrs.

Forlano agreed. Although the PET scan evinced a “solid mass” which clearly

indicated recurrence of the cancer, Dr. Bergman still suggested Mrs. Forlano

should not be concerned and insisted the mass was not cancer.

When Mrs. Forlano met with Dr. Gharpure for a biopsy follow up, Dr.

Gharpure showed her the location of the cancer in the PET scan.4 After

receiving a second opinion, which confirmed cancer, Mrs. Forlano began the

recommended treatment, chemotherapy followed by surgery. There was

some shrinkage of the tumor prior to surgery, but it was impossible to

remove the entire tumor because of its size and location. In 2009, Mrs.

4 Appellees assert that the two-year statute of limitations began at this time,which was sometime in late September or October 2008, and thus “wellwithin two years of when suit was instituted.” Appellees’ Brief at 12. Seealso Trial Court Opinion at 8; N.T. 7/13/2012 pp. 100-101.

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Forlano underwent seven cycles of chemotherapy followed by radiation. In

2010, notwithstanding continued treatment, her condition worsened,

exacerbated by the onset of a cancerous lesion in her spine that spread to

her bones and lungs. On October 25, 2012, a few weeks after trial, Mrs.

Forlano passed away.

Dr. Bergman maintained at trial that the studies and exams led her to

suspect cancer and obligated her to discuss this with Mrs. Forlano and

recommend further steps. She claimed that she had these discussions and

made these recommendations, which Mrs. Forlano refused. Mrs. Forlano’s

testimony and Dr. Bergman’s own records refute these assertions.

The Forlanos filed a motion for delay damages in the amount of $139,

622.775 based on the jury’s award for “past and future noneconomic loss”

and “past medical and related expenses.” Dr. Bergman and Fox Chase

disputed the award of delay damages for “past medical and related

expenses”, claiming they were not compensatory damages under Pa.R.C.P.

238 because a third party insurance company and Medicare paid for them.

The trial court granted the Forlanos’ motion in its entirety, in the amount of

$118,376.12.

5 The Forlanos originally included Mr. Forlano’s $300,000.00 award for “lossof consortium” in its original delay damages calculation. This was improper.The parties do not dispute that the trial court’s omission of this item in itsorder was proper. The delay damages calculation without the “loss ofconsortium” award is $118,376.12.

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Appellants filed a post-trial motion requesting judgment

notwithstanding the verdict or, alternatively, a new trial. The trial court

denied this motion, and Appellants timely appealed.

Appellants present the following issues for our review:

1. Whether the trial court erred as a matter of law inawarding Pa.R.Civ.P. 238 delay damages as to thatportion of the jury’s verdict award meant tocompensate private, third-parties as reimbursementfor past medical expenses paid by private, third-parties on Appellee's behalf?

2. Whether the trial court abused its discretion by

failing to grant a new trial in permitting Appellees’

causation and damages expert, Alan Fink, M.D., to

testify as to his interpretation and opinions of the

positron emission tomography (“PET”) scan?

3. Whether the trial court abused its discretion by

failing to grant a new tria l after permitting Appellees’

causation and damages expert, Alan Fink, M.D., to

testify that he believed Appellee suffered vertebral

collapse at trial?

4. Whether the trial court erred as a matter of law by

failing to grant a new trial in denying Appellants’

Motion for Summary Judgment on the basis that the

statute of limitations time barred the instant action?

5. Whether the trial court abused its discretion [] by

failing to grant Appellants judgment non obstante

veredicto or a new trial, where the jury's verdict is so

contrary to the weight of the evidence presented

that Appellees action is time barred by the statute of

limitations?

Appellants’ Brief at 6-7.

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The first issue in this appeal, whether the trial court erred in awarding

delay damages, requires that we interpret Pennsylvania Rule of Civil

Procedure 238. “[I]nterpretation of a rule of civil procedure presents a

question of law, for which [our] standard of review is de novo and scope of

review is plenary; therefore, [we are] not constrained by the interpretation

provided by the trial court.” Roth v. Ross, 85 A.3d 590, 592

(Pa.Super.2014) (internal citations omitted). We must then analyze the trial

court’s grant of delay damages for abuse of discretion. Id. “An abuse of

discretion is not merely an error of judgment, but if in reaching a conclusion

the law is overridden or misapplied, or the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown

by the evidence or the record, discretion is abused.” Id. at 592-93 (citing

Grossi v. Travelers Pers. Ins. Co., 79 A.3d 1141, 1163 (Pa.Super.2013)).

We agree with the trial court’s analysis that Mrs. Forlano’s

“past medical and related expenses” are compensatory, and that delay

damages are proper. Trial Court Opinion at 3-6.

In their second and third issues on appeal, Dr. Bergman and Fox

Chase request a new trial based on the admission of Dr. Fink’s expert

testimony. “[T]he admission of expert testimony is a matter within the

sound discretion of the trial court, whose rulings thereon will not be

disturbed absent a manifest abuse of discretion.” Brodowski v. Ryave, 885

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A.2d 1045, 1064 (Pa.Super.2005), appeal denied, 897 A.2d 449 (Pa.2006)

(citation omitted).

In reviewing a challenge to the trial court’s grant or denial of a new

trial, we undertake a dual-pronged analysis. Id. “[I]t is well-established law

that, absent a clear abuse of discretion by the trial court, appellate courts

must not interfere with the trial court's authority to grant or deny a new

trial.” Harman ex rel. Harman v. Borah, 562 Pa. 455, 466, 756 A.2d

1116, 1122 (2000). As our Supreme Court explained in Harman ex rel.

Harman, supra:

First, the appellate court must examine the decisionof the trial court that a mistake occurred. Theappropriate standard of review also controls thisinitial layer of analysis. If the mistake involved adiscretionary act, the appellate court will review foran abuse of discretion. See Commonwealth v.Widmer, 560 Pa. 308, 744 A.2d 745, 753 (2000)(decision whether verdict is against weight ofevidence is discretionary). If the mistake concernedan error of law, the court will scrutinize for legalerror. See Morrison v. Commonwealth, Dept. ofPublic Welfare, 538 Pa. 122, 646 A.2d 565, 571 n.8 (1994) (propriety of jury instructions entailsquestion of law).

[Second], [t]he appellate court must then determinewhether the trial court abused its discretion in rulingon the request for a new trial. ‘Discretion must beexercised on the foundation of reason.’ An abuse ofdiscretion exists when the trial court has rendered ajudgment that is manifestly unreasonable, arbitrary,or capricious, has failed to apply the law, or wasmotivated by partiality, prejudice, bias, or ill will.

If the trial court has provided specific reasons for itsruling on a request for a new trial, and it is clear that

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the decision of the trial court is based exclusively onthose reasons, applying a narrow scope of review,the appellate court may reverse the trial court’sdecision only if it finds no basis on the record tosupport any of those reasons. As a practical matter,a trial court’s reference to a finite set of reasons isgenerally treated as conclusive proof that it wouldnot have ordered a new trial on any other basis.Alternatively, where the trial court leaves open thepossibility that there were reasons to grant or deny anew trial other than those it expressly offered, or thetrial court justifies its decision on the ‘interests ofjustice,’ an appellate court must apply a broad scopeof review and affirm if it can glean any valid reasonfrom the record.

Id. at 1123-24 (internal citations and quotations omitted). The trial court

found Dr. Fink qualified to opine on Mrs. Forlano’s PET scans based on his 37

years’ experience as a neurologist treating patients with cancer, bone pain,

and neurological complications of metastases. The trial court found Dr. Fink’s

testimony that Mrs. Forlano suffered vertebral collapse supported by the

metastasis of Mrs. Forlano’s cancer to other parts of her body, including her

spine. These findings have sound bases in the record.

In their fourth issue on appeal, Dr. Bergman and Fox Chase argue the

trial court erred in denying their motion for summary judgment on the

statute of limitations issue. The denial of a motion for summary judgment is

not a cognizable issue in post-trial motions, See Note, Pa.R.C.P. 227.1(c),

and therefore cannot be raised on appeal. Even if this issue was cognizable

on appeal, we agree with the trial court that the statute of limitations

argument lacks merit. As the trial court reasoned:

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The voids in Dr. Bergman’s own physiciannotes, coupled with the testimony of Dr. Leuchter,corroborated Mrs. Forlano’s testimony that DrBergman (1) failed to diagnose the growing,cancerous, mass that she observed on numerousoccasions, and (2) failed to inform Mrs. Forlano ofher recurrent cancer. Thus, giving [the Forlanos] thebenefit of every reasonable inference of fact, thejury’s determination that prior to January 28, 2008,Mrs. Forlano neither knew nor should have knownthat she suffered harm because of Dr. Bergman’smedical care, was supported by [the Forlanos’]evidence.

Trial Court Opinion at 15.

Appellants’ fifth issue, i.e., that the trial court erred in failing to grant

them judgment non obstante veredicto or a new trial due to the statute of

limitations’ time bar, has been waived. A review of the certified record and

brief indicates that Appellants failed to cite to the reproduced record,

certified record, or any case law. Commonwealth v. Hardy, 918 A.2d 766,

771 (Pa.Super.2007) (reviewing courts do not act as counsel to develop

arguments on behalf of appellants).

Even if it were not waived, for the reasons provided above, we agree

with the trial court that the statute of limitations argument lacks merit. See

Trial Court Opinion at 15.

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court, we conclude

that Appellants’ arguments are without merit. The trial court opinion

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comprehensively discusses and properly disposes of these issues. See Trial

Court Opinion, 11/26/2013, at 3-31.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.Prothonotary

Date: 7/9/2014

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