The state Superior Court has granted a new trial to a woman who suffers from kidney failure in a medical malpractice case, ruling that she should have been able to introduce testimony from her expert detailing how a prescription drug and lack of monitoring contributed to her condition.

On Jan. 7, a three-judge panel said the plaintiffs in Klein v. Aronchick are entitled to a new trial, reversing a Philadelphia judge’s ruling that Dr. Craig Aronchick’s alleged negligence could not have been a factual cause of Marsha Klein’s renal failure.

The court also said that there were additional bases for reversal, including: the trial court’s admission of evidence of Klein’s alleged history of bulimia by the defendants; and allowing a defense expert to offer testimony based on learned treatises in violation of the hearsay rule.

Judge Kate Ford Elliott wrote that the trial court should not have excluded testimony from the plaintiff’s expert, Dr. Bradley M. Denker. According to the court’s decision, Denker was expected to give an opinion that Aronchick’s prescription and lack of monitoring of Klein’s condition caused harm, or at the very least increased the risk of harm to the plaintiff. Klein was prescribed the drug Visicol by Aronchick to treat her chronic constipation.

“Examining Dr. Denker’s report in its entirety, he opined, to a reasonable degree of medical certainty, that Klein’s severe and irreversible chronic renal failure was consistent with phosphate nephropathy caused by the Visicol treatment,” Ford Elliott said. “As such, Dr. Denker should have been permitted to testify regarding increased risk of harm.”

In a separate concurring and dissenting opinion, Senior Judge James J. Fitzgerald III agreed with the court’s overall ruling, but questioned whether the plaintiff could pursue direct causation and increased-harm arguments simultaneously.

Aronchick, a gastroenterologist, prescribed the sodium phosphate pill Visicol for off-label use to Klein. Klein suffered from chronic constipation for more than 30 years, according to Ford Elliott.

Klein took Visicol consistently for five years and eventually began to experience symptoms of dizziness and fatigue. According to Ford Elliott, Klein showed increased levels of creatinine in her system, which indicated kidney disease.

A nephrologist later determined that Klein had 19 percent kidney function as opposed to the 90 percent kidney function typical in a healthy 50-year-old woman, Ford Elliott said.

At trial, the jury found Aronchick negligent, but determined that his negligence was not the cause of Klein’s injuries, Ford Elliott said.

On appeal, Klein contended that the trial court’s preclusion of testimony from Denker about the increased harm Aronchick’s alleged negligence caused Klein was erroneous. Klein argued Denker needed to specifically discuss increased harm in his expert report, according to Ford Elliott.

In precluding testimony on increased risk, the trial court limited Denker’s testimony to direct causation. According to Ford Elliott, the defendants argued that Denker opined that Aronchick’s negligence was the direct cause of Klein’s condition, and therefore Denker could not speak to increased harm because the theories of increased harm and direct causation are mutually exclusive in terms of recovery.

However, Ford Elliott said that the state Supreme Court, in Jones v. Montefiore Hospital, determined that increased risk and direct-causation theories were not mutually exclusive, but rather, alternate theories of recovery.

Ford Elliott said, “A plaintiff is entitled to an instruction on increased risk where there is competent medical testimony that a defendant’s conduct at least increased the risk that the harm sustained by the plaintiff would occur.”

In her second issue on appeal, Klein argued that the trial court should not have admitted evidence of her alleged history of bulimia, and that the admission was prejudicial to her case. Ford Elliott said the trial court found the evidence relevant because it dealt with causation and it attacked Klein’s credibility, as Klein had denied that she had a history of bulimia.

But Ford Elliott said that any probative value of the evidence was clearly outweighed by its prejudicial effect.

“Klein’s disavowal of an alleged history of bulimia is a collateral matter and really has nothing to do with the case,” Ford Elliott said. “The bulimia issue was a red herring, and allowing cross-examination regarding the matter served no legitimate purpose.”

Lastly, Klein argued against the allowance of defense expert Dr. James R. Roberts’ testimony, which was based on studies published in the New England Journal of Medicine, according to Ford Elliott.

Klein contended that Roberts did not only reference the materials in question, but also was permitted to testify as “to the substance of the articles for the truth of the matter, thereby violating the hearsay rule,” Ford Elliott said.

“Dr. Roberts was offering these articles for their direct substantive effect and presenting them as authoritative and thus believable. Dr. Roberts was allowed to testify at length regarding specific details of the studies,” Ford Elliott added. “Dr. Roberts presented the materials for the truth of the matter, to bolster and corroborate his own opinion. This is not permitted.”

Ford Elliott concluded that Roberts was attempting to use medical articles to increase the credibility of his own opinion in the minds of the jury.

Barbara Axelrod of the Philadelphia-based Beasley Firm represented Klein. She said, “We feel the Superior Court’s decision was very careful, thorough and very appropriate.”

Benjamin A. Post of Post & Post in Berwyn, Pa., did not return a call seeking comment.

P.J. D’Annunzio can be contacted at 215-557-2315 or Follow him on Twitter @PJDAnnunzioTLI.

(Copies of the 39-page opinion in Klein v. Aronchick, PICS No. 14-0019, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •