Calling a defense medical malpractice expert a ‘”$400,000 lounge singer”‘ during closing arguments does not require a new trial, the state Superior Court ruled last month.

Plaintiffs’ attorney Thomas J. Duffy Jr. called neuroradiology expert Dr. Todd Siegal a “‘$400,000 lounge singer’” during closing arguments in Gregory v. Malik , according to the unpublished decision issued by President Judge Kate Ford Elliott, Judge Mary Jane Bowes and Senior Judge Stephen J. McEwen Jr. on Dec. 22.

The doctor admitted he earned $400,000 a year as an expert witness, including $3,500 to testify in that trial, the panel said.

“The jury had heard the witnesses’ testimony and observed his ‘more casual’ attire and manner which, the trial court noted, were ‘markedly different from the other witnesses the jury had observed,’” the panel said. “The trial court concluded that this comment of plaintiff’s counsel ‘did not render the jury, who saw the witness, incapable of fairly weighing the evidence and entering an objective verdict.’”

Duffy, of Duffy & Partners in Philadelphia, said in an interview that the witness was dressed in a sport coat while other witnesses were dressed in suits.

“When everyone started screaming about it at trial, I thought, ‘I’ve said a lot worse in my day,’” Duffy said.

The panel also said that Philadelphia Common Pleas Court Judge Patricia A. McInerney acted within her discretion by simply admonishing the plaintiffs’ counsel to refrain from making such comments.

A new trial also was not warranted when Duffy rhetorically asked whether his own experts had been “‘bribed,’” the panel said, because there was no evidence that the plaintiffs’ experts had worked with plaintiffs’ counsel before this case, but Siegal admitted he had worked for two of the three defense firms involved in the trial.

Plaintiff Russone Gregory, who is incapacitated and had his case prosecuted by co-plaintiff Sandra Gregory, alleged that the defendants committed medical malpractice by failing to test and treat Russone Gregory for herpes encephalitis, which the plaintiffs’ expert opined is the most common form of swelling in the brain caused from infection or other sources of inflammation.

Russone Gregory was involuntarily committed to a private psychiatric hospital Nov. 2, 2003, after having paranoia and hallucinations over two weeks, the panel said. Gregory was transferred two days later to Frankford Hospital in Philadelphia and admitted through the hospital’s emergency room.

The jury found that one physician, as well as the hospital, were medically negligent. The jury awarded almost $440,000 in medical expenses and a little under $625,000 in non-economic losses. The verdict was later molded to include delay damages for a total verdict of $1.22 million.

Gregory suffered a brain injury resulting in deficiencies in his cognitive performance, contractions in his arms, an uneven gait and the inability to perform many of the functions he could previously perform, the panel said.

Losing defendants Frankford Hospital and Dr. Jay Klazmer, who performed a neurological consultation on Gregory, appealed the case.

The jury reached a defense verdict in favor of Dr. Abdul Malik, the emergency room attending physician, the panel said.

Frankford Hospital defense attorney Jay Brown, of Goldfein & Joseph in Philadelphia, said in an interview there was no dispute that Gregory had viral encephalitis, but there was an open question on whether Gregory suffered from herpes encephalitis, which is the only form of encephalitis for which there is treatment beyond palliative care.

On cross-examination, the plaintiffs’ expert conceded that “the probability that the patient has herpes encephalitis is going to be one out of five,” Brown said.

Brown said the defendants unsuccessfully argued that, with an open question of whether Gregory had herpes encephalitis, Gregory could not argue on a theory of increased risk of harm and get to the jury on the question of whether he had herpes.

Plaintiffs’ neurology expert Dr. Andrew Feigin testified that the most common symptom of herpes encephalitis is a change in mental status accompanied by a fever, the panel said. Feigin said that Klazmer violated the standard of care by failing to test for viral encephalitis by ordering an MRI and ordering a procedure that tests the cerebral spinal fluid for inflammation and infection in the brain, and by failing to test for the herpes virus with a polymerase chain reaction test, the panel said.

The plaintiffs argued that if Gregory had been tested for herpes encephalitis he could have been treated with the antiviral medication Acyclovir much sooner than 22 days after being admitted to Frankford Hospital, the panel said.

Citing the trial judge’s opinion, the panel said that even though Feigin could not testify to 100 percent reasonable certainty that Gregory had herpes encephalitis, the jury was free to accept or reject his testimony.

“Mindful of the fact that one hundred percent certainty was impossible here because a PCR test was not performed by Dr. Klazmer during the acute phase of Mr. Gregory’s infection, we agree with the trial court that Dr. Feigin’s testimony was sufficient to satisfy the requisite degree of certainty,” the panel said.

The jury was made aware that records from the Hospital of the University of Pennsylvania, to which Gregory was transferred from Frankford Hospital, did not indicate that Gregory had herpes encephalitis, the panel said.

Klazmer also argued that the trial court should have evaluated his conduct in light of the gross negligence standard set out in the state’s Mental Health Procedures Act because Gregory was transferred to Frankford Hospital and seen by Klazmer only two days after he had been admitted to a private psychiatric facility under involuntary commitment, the panel said.

The panel said the MHPA did not apply because Frankford Hospital did not have a contract with the private psychiatric facility to treat patients and Klazmer and Frankford Hospital did not participate in the decision to treat the patient under the MHPA.

The case has settled for a confidential amount after the Superior Court’s decision, Duffy and Brown said.

Defense attorney J. Michael Doyle, of Post & Schell in Philadelphia, representing Klazmer, did not respond to a request for comment.

( Copies of the 31-page opinion in Gregory v. Malik, PICS No. 11-0129, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m. ) •