Povrzenich v. Ripepi
The case of Povrzenich v. Ripepi, 2021 PA Super 46, involved the failure to timely diagnose and treat reflux nephropathy. Lacey Povrzenich was born in January 1996. From 1997 to 2007, Lacey was treated for five urinary tract infections (“UTI”) by her pediatrician, Dr. Dawn R. McCracken. In 2008, Lacey came under the care of pediatrician, Jennifer Ripepi, M.D. In February, while under Dr. Ripepi’s care, Lacey was treated at Monongahela Valley Hospital for dehydration. A urine screen revealed a UTI, as well as high creatinine levels, which can be indicative of a kidney problem. A CT scan of her pelvis was interpreted as normal. Based on the test results, Dr. Ripepi prescribed antibiotics, and upon completion of the treatment, Dr. Ripepi ordered another culture, which was reported as normal. In May 2008, Lacey returned to Dr. Ripepi with complaints of left-sided abdominal pain occurring daily and lasting several hours. Dr. Ripepi reviewed the urine test results and again prescribed antibiotics.
Shortly thereafter, Lacey’s family relocated and Lacey was seen at Mon Valley Community Health Services (“MVCHS”). On March 3, 2009, Lacey presented to MVCHS and was found to have high blood pressure, which apparently went unaddressed. She returned to MVCHS on May 4, 2010, and again was identified as having elevated blood pressure. Two weeks later, on May 18, 2010, Lacey presented to the emergency department at Mon Valley Hospital and was life-flighted to Children’s Hospital in Pittsburgh. There she was diagnosed with end-stage renal disease secondary to severe reflux nephropathy. Lacey was advised that she would need a kidney transplant and placed on dialysis immediately. In 2015, Lacey underwent a kidney transplant with a kidney donated by her mother. Since the transplant, Lacey has shown signs of rejection and required dialysis, and it is likely Lacey will require a second kidney transplant in the future.
On Sept. 20, 2013, Lacey’s parents filed a medical malpractice lawsuit against Dr. McCracken, Dawn McCracken, M.D., PC, Monongahela Valley Hospital, and MVCHS, claiming that these Defendants were negligent in failing to conduct further testing, and/or failing to refer Lacey to a specialist, resulting in additional damages due to delay in diagnosis of her kidney reflux. When Lacey reached the age of majority, she filed a second medical malpractice lawsuit against Dr. Ripepi, alleging she was negligent in failing to follow up on the UTIs and high creatinine levels, failing to recognize the abnormal labs, treating Lacey with repeated courses of antibiotics that aggravated the renal failure, and failing to refer Lacey to an appropriate specialist. Lacey maintained that if her condition had been detected earlier and properly treated, a less invasive surgical procedure could have been performed.
The cases were consolidated and proceeded to trial. Part of Lacey’s damage claim involved a claim for future medical expenses. In order to admit evidence of future medical needs and the estimated cost of such services, Lacey retained an expert, “life care planner,” Nurse Dana Bissontz, who was certified in this profession. Despite Ms. Bissontz’ qualifications, the trial court granted the Defendants’ motion to exclude Ms. Bissontz from testifying on the basis that she had "no specialized knowledge, skill, experience, training or education relating to kidney transplant patients’ needs." The trial court also ruled that no foundation was laid as to the testing, procedures and medications that are required for a patient who has undergone a kidney transplant and who likely will require a second kidney transplant.
After a two-week trial, a jury issued a verdict against Dr. McCracken and MVCHS for approximately $4.2 million dollars. Notwithstanding the verdict, Lacey appealed the trial court’s decision to exclude her expert life-care planner from testifying, and the trial court’s calculation of delay damages.
Pennsylvania Rule of Evidence, 702 governs testimony by expert witnesses. It provides in pertinent part that “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if . . . the expert’s scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson” and if it “will help the trier of fact to understand the evidence or to determine a fact in issue.” Pa.R.E. 702(a)(b). “In order to qualify as an expert witness in a given field, a witness normally need only possess more expertise than is within the ordinary range of training, knowledge, intelligence, or experience.” Miller v. Brass Rail Tavern, Inc., 664 A.2d 525, 528 (Pa.1995)). If an expert witness has any reasonable pretension to specialized knowledge on the subject under investigation, she may testify and the weight to be given to such testimony is for the trier of fact to determine. See James v. Albert Einstein Medical Center, 170 A.3d 1156, 1162 (Pa.Super. 2017).
Typically, a physician will provide the foundational testimony for the future medical care and treatment that will be necessary. Life care planners research the price of the various procedures, treatments and medications associated with the future medical care and render expert opinions on the cost to an individual. A life care planner is a recognized expert in Pennsylvania who “reviews medical records and bills to formulate an expert opinion projecting the future medical costs of an individual over her lifetime.” Deeds v. Univ. of Pennsylvania Med. Ctr., 110 A.3d 1009, 1012 (Pa.Super. 2015).
The Pennsylvania Superior Court reversed the trial court’s decision to exclude Ms. Bissontz from testifying, finding that Ms. Bissontz had sufficient specialized knowledge and experience to offer her expert opinions regarding the future medical expenses associated with post-kidney transplant care and an anticipated second kidney transplant. The fact that Ms. Bissontz had little experience with kidney transplant patients did not disqualify her from using her skills and experience to analyze the costs associated with such a procedure and its aftermath. Any lack of experience with kidney transplants in particular went to the weight of her testimony, not to its admissibility. See e.g. Wright v. Residence Inn by Marriott, Inc., 207 A.3d 970, 977 (Pa.Super. 2019). The Superior Court also reversed the trial court’s ruling based on a lack of foundation, explaining that Nurse Bissontz never had the opportunity to explain the factual foundation for her expert opinions. Consequently, the Superior Court concluded that the trial court abused its discretion in precluding Nurse Bissontz from testifying at trial, and ordered a new trial on future medical expenses, only. Finally, the Court remanded the question of delay damages to the trial court to determine whether during the periods Plaintiff sought and obtained discovery extensions, Plaintiff displayed a lack of diligence that delayed the trial of the case.
Pennsylvania Superior Court reverses Trial Court's decision to preclude expert witness from testifying. Ty Smith explains.