A reference to a patient’s smoking history made by a medical expert in a lung cancer-related medical malpractice case warrants a new trial because it was both irrelevant and highly prejudicial, the state Superior Court has ruled.
On Monday, a three-judge panel upheld a Philadelphia judge’s ruling to grant a new trial in Sutch v. Roxborough Memorial Hospital.
The trial judge, Philadelphia Court of Common Pleas Judge Paul P. Panepinto, determined that his instruction to the jury to ignore remarks about a patient’s smoking history, a subject that he barred either side from bringing up in testimony, could not cure the possibility that jurors could believe that smoking caused the patient’s lung cancer.
Senior Judge John L. Musmanno wrote in the court’s memorandum opinion that information regarding smoking habits of the deceased Rosalind Wilson unfairly hampered the medical malpractice case of her daughter and executrix, Rosalind Sutch.
“As the trial court properly reasoned, [Sutch] would suffer unfair prejudice if the jury discovered that [Wilson] was a smoker for approximately 50 years, in that this information might lead the jury to hold [Wilson] accountable, to some extent, for contributing to the cause of her death,” Musmanno said.
In addition to the ability of the prejudicial information to affect the jury’s impartiality, Musmanno said Wilson’s smoking was deemed irrelevant to the issue of lung cancer causation in the case.
The case stems from Sutch’s allegations that the defendants failed to inform her mother that a chest X-ray performed at Roxborough Memorial Hospital on May 3, 2007, showed a suspicious nodule that would have required further examination, including a follow-up CT scan, Musmanno said.
During Wilson’s overnight hospitalization, no doctors informed her of the nodule in her lung, nor did they advise her to seek follow-up care, according to Musmanno. Wilson did not discover the existence of the nodule until 20 months later, when she was diagnosed with stage IV lung cancer.
According to Musmanno, Wilson died July 21, 2009, over two years after the nodule was first discovered.
During oral argument before the court in September, several defense lawyers argued a new trial was not warranted because “the isolated and unsolicited smoking reference was not so inflammatory and prejudicial as to prevent plaintiff from receiving a fair trial,” citing Dr. Jeffrey Geller and Roxborough Emergency Physician Associates’ brief.
Musmanno reasoned in his opinion, however, that the reference did impede a fair trial on the plaintiffs’ behalf, and based the court’s determination on its previous ruling in Poust v. Hylton, a case where the decedent was struck and killed by a tractor-trailer while riding a bicycle.
In that case, according to Musmanno, the trial judge granted the plaintiff’s motion to preclude the use of the word “cocaine” during the course of the jury trial.
During cross-examination, defense counsel asked an expert if the decedent had a “cocaine metabolite” in his system, Musmanno said. The Superior Court ruled that the trial court abused its discretion in denying the plaintiff’s motion for a mistrial, given the use of the word “cocaine,” which he termed “obviously prejudicial.”
“The grant of a mistrial was required in order to promote fundamental fairness, to ensure professional respect for the rulings of the trial court, to guarantee the orderly administration of justice, and to preserve the sanctity of the rule of law. Here … it is abundantly clear that no curative instruction could have obliterated the taint of defense counsel’s use of the word ‘cocaine’” during trial, Musmanno said, citing the Poust court.
The defendants argued that Panepinto’s curative instruction was enough to offset any prejudice that may have arisen due to the smoking reference, according to Musmanno.
Panepinto was in the best position to determine the effect the smoking reference had and the result any curative instruction would have rendered, according to Musmanno.
“We will not disturb his determination that no curative instruction could have removed the taint injected in the case by the obviously prejudicial smoking reference,” Musmanno said.
Sutch’s attorney, Matthew D’Annunzio of Klehr Harrison Harvey Branzburg in Philadelphia, said he was thrilled that the court supported Panepinto’s decision.
“It’s great to see them back up the trial judge to ensure a fair trial. The family is very gratified; it’s given them faith in the system,” D’Annunzio said. “They’re eager to have their day in court.”
“This was indisputable medical malpractice,” D’Annunzio continued. Defendants “found a tiny nodule and their own radiologist said a CT scan was necessary. That’s clear-cut. A 20-month delay and the cancer progressed to the point from where it was curable to the point where it was fatal.”
Judy May Packett of Raynor & Associates in Malvern, Pa., who represented Geller and Roxborough Emergency Physician Associates, said, “Obviously, we disagree with the Superior Court’s decision and, frankly, are surprised by it. We are confident, however, that we will achieve another defense verdict for Dr. Geller at a second trial.”
Joseph G. Zack of Post & Post, representing defendant Dr. Melanio Aguirre, declined comment.
Attorneys for defendants Roxborough Memorial Hospital, Dr. Sultana J. Afrooz and Andorra Radiology Associates did not return calls seeking comment.
(Copies of the 27-page opinion in Sutch v. Roxborough Memorial Hospital, PICS No. 13-3133, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •