author: TERESHKO, J.,

text:
    Wexler v. Hecht

      Lee S. Bender, for appellant.

      Thomas M. Savon, for appellee.
    August 13, 2003
   TERESHKO, J.,

Before the court is the appeal taken by Beverly Wexler from this court’s order of December 18, 2002. After considering defendant’s motion in limine to preclude plaintiff’s expert, Lawrence Lazar’s D.P.M. testimony critical of defendant Paul J. Hecht M.D., as well as defendant’s memorandum of law in support thereof, this court precluded Wexler’s doctor of podiatric medicine (Lawrence Lazar) from testifying as an expert witness against defendant doctor of medicine (Paul J. Hecht). Moreover, due to Wexler’s failure to provide a legally competent expert witness, this court, on the same day, granted Dr. Hecht’s motion for summary judgment and thereby dismissed Wexler’s complaint against Dr. Hecht. On January 8, 2003, Wexler appealed that order.

On January 16,1998, Beverly Wexler, who had complained of a bunion on her left foot, underwent foot surgery at the former Allegheny University Hospital-East, Hahnemann University, in Philadelphia, Pennsylvania. Paul J. Hecht M.D. and Donald W. Mazur M.D., both of whom have specialized in the subspecialty of orthopedic surgery, performed the procedure which was a left hallux valgus repair with proximal osteotomy and biofix absorbable screw.

On November 3, 1999, Wexler filed a complaint against Dr. Hecht and Dr. Mazur. Wexler alleged that as a result of the surgery, she experienced “significant recurrence of hallux abducto valgus deformity, metatarsus primus varus deformity in the first metatarsal, continued presence of the bunion, functional hallux limitus, reduced range of motion, pain and discomfort and related symptoms which required subsequent surgical repair.” (Compl. ¶6.) Wexler alleged that Drs. Hecht and Mazur breached the requisite standard of medical care and thus treated her negligently. (See Compl. ¶8a-n.) In a second count, Wexler further alleged that the defendants failed to fully and reasonably inform her of the material risks of the surgery and, therefore, committed a battery upon her. (Compl. ¶¶11-12.) Wexler maintained that as a result of the alleged negligence and the alleged battery, she suffered severe, painful, and permanent injuries and deformities to her left foot; disfigurement; pain and inconvenience; a loss of earnings and future earning capacity; medical bills; expenses related to her injuries; embarrassment, humiliation, mental anguish, loss of life’s pleasures, and damages. Specifically, Wexler demanded judgment in her favor against Dr. Hecht and Dr. Mazur, jointly and severally, in excess of $50,000, exclusive of interest and costs.

On March 7, 2000, this court issued a case management order that, among other things, ordered Wexler to submit to all other parties a curriculum vitae of, and expert report from, every witness she intended to call to testify at trial. Wexler was ordered to submit those credentials no later than July 2, 2001.

On September 18, 2000, a stipulation to dismiss was filed to dismiss with prejudice Dr. Mazur as a defendant, leaving Dr. Hecht as the sole defendant. Both parties agreed thereto.

On November 27, 2002, Dr. Hecht filed a motion in limine to preclude Wexler’s expert, Dr. Lazar, from testifying against him at trial, as well as a motion in limine to preclude the testimony of R. Case M.Ed. On December 13, 2002, Wexler filed an answer to the motion pertaining to Dr. Lazar and, on December 18, 2002, this court marked as moot the motion pertaining to Case, upon advice that Case would not be called as a witness at trial.

Also on December 18,2002, this court, following consideration of Dr. Hecht’s motion in limine, granted that motion by precluding Dr. Lazar from testifying as an expert witness against him. Since Wexler had offered no other competent expert into the record, this court, on the same day, granted Dr. Hecht’s motion for summary judgment, which was dispositive of the matter.

On January 8, 2003, Wexler appealed from the December 18, 2002 order. On January 14, 2003, this court ordered Wexler to submit a concise statement of matters complained of upon appeal, pursuant to Pa.R.A.R 1925(b). On January 24, 2003, Wexler made timely filing of her 1925(b) statement, in which she raises the following matters on appeal:

“Did the trial court err in finding that the plaintiff’s medical expert, a podiatrist, was not qualified to testify as an expert against the defendant, an orthopedist, in a medical malpractice case where:
“(1) The specialty overlap in practice;
“(2) The podiatrist knows, is aware of and can testify as to the standard of care in the field of orthopedics based on his own training and education, and especially where the defendant himself has testified as to what the standard of care is and the evidence shows that he failed to meet it;
“(3) Under MCARE Act §512 [sic] (c)(1), (2), (3), the plaintiff’s podiatrist expert practices in a subspecialty which has a substantially similar standard of care as the defendant orthopedist, is board-certified in a similar approved board as the defendant and has performed this particular procedure himself;
“(4) The subsequent treating physician who did two repair surgeries on the plaintiff is a podiatrist — not an orthopedist; and
“(5) The trial court erred and abused its discretion by failing to permit plaintiff’s expert to testify regarding his qualifications at the motion in limine hearing despite plaintiff’s counsel’s urging and request to hear from the expert in person.”

THE MOTION IN LIMINE TO PRECLUDE THE EXPERT

Pennsylvania courts have ruled that “[a] motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior to or during trial, but before the evidence has been offered.” Commonwealth v. Johnson, 399 Pa. Super. 266, 269, 582 A.2d 336, 337 (1990), aff’d, 534 Pa. 51, 626 A.2d 514 (1993) (citation omitted); see Commonwealth v. King, 456 Pa. Super. 72, 77, 689 A.2d 918, 921 (1997). Moreover, Pennsylvania courts, reviewing the scope and the purpose of a motion in limine, have ruled that “[a] motion in limine is a pretrial application before a trial court made outside the presence of a jury, requesting a ruling or order from the trial court prohibiting the ‘[sic] opposing counsel from referring to or offering into evidence matters so highly prejudicial to the moving party that curative instructions cannot alleviate an adverse effect on the jury.’ ” Commonwealth v. Noll, 443 Pa. Super. 602, 605, 662 A.2d 1123, 1125 (1995). (citation omitted)

The Noll court ruled, accordingly, that “[t]he purpose of a motion in limine is twofold: (1) to provide the trial court with a pretrial opportunity to weigh carefully and consider potentially prejudicial and harmful evidence; and (2) to preclude evidence from ever reaching a jury that may prove to be so prejudicial that no instruction could cure the harm to the defendant, thus reducing the possibility that prejudicial error could occur at trial which would force the trial court to either declare a mistrial in the middle of the case or grant a new trial at its conclusion.” Noll, 443 Pa. Super. at 605-606, 662 A.2d at 1125 (citation omitted); see Commonwealth v. Metzer, 430 Pa. Super. 217, 227, 634 A.2d 228, 232 (1993).

This court’s analysis of the legal competency of Wexler’s expert begins with the Medical Care Availability and Reduction of Error Act, known as the MCARE Act, which became effective on May 13, 2002.

Section 1303.512 of the MCARE Act addresses, in pertinent part, the matter of expert qualifications:

“(a) General rule. — No person shall be competent to offer an expert medical opinion in a medical professional liability action against a physician unless that person possesses sufficient education, training, knowledge and experience to provide credible, competent testimony and fulfills the additional qualifications set forth in this section as applicable.
“(b) Medical testimony. — An expert testifying on a medical matter, including the standard of care, risks and alternatives, causation and the nature and extent of the injury, must meet the following qualifications:
“(1) Possess an unrestricted physician’s license to practice medicine in any state or the District of Columbia.
“(2) Be engaged in, or retired within the previous five years from, active clinical practice or teaching. Provided, however, the court may waive the requirements of this subsection for an exert on a matter other than the standard of care if the court determines that the expert is otherwise competent to testify about medical or scientific issues by virtue of education, training or experience.
“(c) Standard of care. — In addition to the requirements set forth in subsections (a) and (b), an expert testifying as to a physician’s standard of care also must meet the following qualifications:
“(1) Be substantially familiar with the applicable standard of care for the specific care at issue as of the time of the alleged breach of the standard of care.
“(2) Practice in the same subspecialty as the defendant physician or in a subspecialty which has a substantially similar standard of care for the specific care at issue, except as provided in subsection (d) or (e).
“(3) In the event the defendant physician is certified by an approved board, be board certified by the same or a similar approved board, except as provided in subsection (e).” 40 PS. §1303.512. Expert qualifications.

For reasons that will be set forth in detail in what follows:

(1) This court, pursuant to section 1303.512(a) concluded that Dr. Lazar, while likely a competent podiatric surgeon, does not possess sufficient education, training, knowledge and experience in orthopedics and is not sufficiently familiar with the standard of care operative among orthopedic surgeons to provide credible, competent testimony about a standard of care appropriate to Dr. Hecht.

(2) Although Dr. Lazar does not possess an unrestricted physician’s license to practice medicine in Pennsylvania, he did opine extensively about the standard of care, risks to and alternatives available for Wexler, causation, and the nature and extent of Wexler’s injury, but by so opining Dr. Lazar ran afoul of section 1303.512(b)(1).

(3) Since orthopedic surgery, as a subspecialty of medical surgery, differs by definition in a material way from podiatric surgery, this court, pursuant to section 1303.512(c)(1), precluded Dr. Lazar from testifying against Dr. Hecht for the reason that Dr. Lazar provided no evidence that he was substantially familiar with an orthopedic standard of care that was applicable to the specific care required by Wexler.

(4) As a podiatric surgeon, Dr. Lazar does not practice in the same subspecialty of orthopedic surgery as Dr. Hecht, nor does Dr. Lazar practice in a subspecialty which has a substantially similar standard of care to orthopedic surgery for the specific care required by Wexler. Dr. Lazar thereby fails the test of section 1303.512(c)(2).

In Pennsylvania, case law principles are in complete accord with the MCARE Act’s requirements regarding expert testimony. Our Supreme Court has ruled that a plaintiff must submit a medical expert’s report to sustain the prima facie burden of a medical malpractice cause of action. See Toogood v. Rogal D.D.S., 2003 WL21241255 (Pa.) “[I]n malpractice cases ... a jury will not be permitted to find negligence without expert testimony to establish variance from accepted medical practice.” Strain v. Ferroni M.D., 405 Pa. Super. 349, 355, 592 A.2d 698, 701 (1991) (quoting Chandler v. Cook, 438 Pa. 447, 451, 265 A.2d 794, 796 (1970)). “[T]he patient must offer an expert witness who will testify to a reasonable degree of medical certainty, that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause of the harm suffered.” Rauch v. Mike-Mayer M.D., 783 A.2d 815, 824 (Pa. Super. 2001). (citations omitted)

To establish her case of professional negligence against Dr. Hecht, Wexler was required to show that the professional conduct of Dr. Hecht fell below the standard of reasonable medical practice as to orthopedic surgeons and that Wexler’s injuries were caused by Dr. Hecht’s failure to adhere to such orthopedic standards. See Lira v. Albert Einstein Medical Center, 384 Pa. Super. 503, 508-509, 559 A.2d 550, 552 (1989). “As a general rule, expert testimony is required to establish the standard of reasonable medical care.” Id. at 509, 559 A.2d at 552.

This court is mindful of the Pennsylvania Supreme Court’s ruling that “[i]n Pennsylvania, a liberal standard for the qualification of an expert prevails.” Commonwealth v. Marinelli, 570 Pa. 622, 640, 810 A.2d 1257, 1267 (2002). (See Bindschusz v. Phillips, 771 A.2d 803, 807 (Pa. Super. 2001)). “Generally, ‘if a witness has any reasonable pretension to specialized knowledge on the subject matter under investigation he may testify and the weight to be given to his evidence is for the [fact-finder]. ’ ” Id., 810 A.2d at 1267. (citations omitted) “It is also well established that an expert may render an opinion based on training and experience; formal education on the subject matter is not necessarily required.” Id., 810 A.2d at 1267. (citations omitted)

Nevertheless, “[a]s explained by our Supreme Court in Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968), the standard of care in medical malpractice actions is first and foremost what is reasonable under the circumstances.” Joyce v. Boulevard Physical Therapy & Rehabilitation Center P.C., 694 A.2d 648, 656 (Pa. Super. 1997). Pennsylvania courts have ruled that “it may appear that the scope of the witness’ experience and education may embrace the subject in question in a general way, but the subject may be so specialized that even so, the witness will not be qualified to testify.” Dambacher by Dambacher v. Mallis, 336 Pa. Super. 22, 43, 485 A.2d 408, 419 (1984). For example, a Pennsylvania court ruled that it was outside the specialization and competency of an anesthesiologist to testify as an expert witness on an autopsy report that a pathologist had written and already testified about. Capan v. Divine Providence Hospital, 270 Pa. Super. 127, 139, 410 A.2d 1282, 1287 (1980).

“While it is the law in Pennsylvania that a physician, testifying as an expert, should not be barred from testifying merely because he is not a specialist in the field about which he is rendering an opinion, Pennsylvania has not thereby opened the door to such an extent that any doctor can testify about any medical subject without limitation.” Arnold v. Loose, 352 F.2d 959, 962 (1965). (internal citations omitted; references omitted) “[T]he attorney who presents a medical expert has the initial burden of establishing his qualifications to render an opinion in a particular field.” Id., 352 F.2d at 962. The Arnold court held that the particular qualifications of an orthopedic surgeon did not in any way qualify him to render an expert opinion on diabetes or diabetic comas. Id., 352 F.2d at 963.

In the present matter, Wexler, pursuant to this court’s case management order of March 7, 2000, timely submitted the curricula vitae of Lawrence Lazar D.P.M., offering Dr. Lazar as her medical expert to testify about the standard of care given by an orthopedic surgeon. This court understands that Dr. Lazar is an expert in foot surgeries, as well as in post-surgical treatment and care of patients in accordance with standards adopted and followed by podiatric surgeons, and that Dr. Lazar could rightfully give a legally competent opinion about the reasonable standard of care applicable to a podiatric surgeon. But, as will be set forth in detail below, Dr. Lazar is not a licensed medical doctor, and a reasonable knowledge of standards of care offered by medical doctors in general and orthopedic surgeons in particular lies beyond the ken of a podiatrist who has neither formal academic training in, nor practiced, clinical experience of, an orthopedist’s approach to foot surgery or an orthopedist’s manner of post-surgical care and treatment of an orthopedic patient.

What is reasonable under the circumstances of the present case is that orthopedics is a particular subspecialty of medical surgery outside the area of expertise of a podiatric surgeon, and that, therefore, it would be unreasonable to qualify Dr. Lazar as an expert competent to opine about a standard of care distinctive of orthopedic surgeons.

Although Pennsylvania subscribes to a liberal standard for the qualification of experts, and although Pennsylvania is clear that formal education in a subject is not necessarily required to establish an expert in a given field, the court in Toogood held that a jury will not be permitted to find negligence without competent expert testimony to establish variance from accepted medical practice. Given the qualifications of Dr. Lazar, this court holds that Dr. Lazar is not legally competent to judge if Dr. Hecht’s care and treatment of Wexler amounted to a variance from medical practice appropriate to other orthopedic surgeons.

In this matter, this court utilized a straightforward application of the MCARE Act and the relevant case law principles to find that Dr. Lazar fails both statutory and case law tests for competent expert testimony.

This court recognizes that, in Pennsylvania, practitioners of one school of medicine or of one medical subspecialty may testify against specialists in another specialty if the particular circumstances of the case so warrant, “provided that the witness is familiar with the applicable standard of care.” See 61 Am.Jur.2d §326 at 76924; see also, Dambacher by Dambacher v. Mallis, 336 Pa. Super. 22, 485 A.2d 408 (1984) (citing rulings from other jurisdictions where courts have held, inter alia, that a physician unlicensed in podiatry was not qualified to testify in a malpractice action against a podiatrist, and that an orthopedic surgeon unfamiliar with the practice of podiatry was not qualified to testify as to the standard of care required of a podiatrist).

“[EJven if there is no requirement that a witness practice the same specialty as the defendant, the witness must be sufficiently familiar with the standard of care of the specialist and be able to give relevant testimony on the subject. Thus, in a malpractice action against a podiatrist, an orthopedic surgeon is not qualified to testify as an expert on the standards of good podiatric practice, where the expert testifies that he has had no training in podiatry, is not licensed in podiatry, and has received no instruction in the practice of podiatry, and is not familiar with podiatric journals and periodicals or with the standards of professional care generally observed by podiatrists.” See 61 Am.Jur.2d §326 at 76924. (footnotes omitted)

On July 6,2001, Dr. Lazar submitted a detailed report on the treatment Wexler received from Dr. Hecht. In his report, Dr. Lazar undertook “to determine, to a reasonable degree of medical certainty, whether or not there was a deviation from the normal standard of care.” (Dr. Lazar’s report at 2.) Dr. Lazar wrote that he is in complete accord with Dr. Hecht’s assessment that, based on the preoperative radiographs, Wexler’s intermetatarsal angle measured 18 degrees. Yet, based on postoperative radiographs, differences apparently appeared between Dr. Lazar’s and Dr. Hecht’s measurements of Wexler’s intermetatarsal angle. Dr. Lazar’s measurement was 14 degrees; another podiatrist, whom Dr. Lazar consulted, arrived at the same measurement. Dr. Lazar nowhere explicitly stated what measurement Dr. Hecht arrived at; instead, he wrote that “[i]n his deposition, Dr. Hecht states that a normal intermetatarsal angle to be 14 degrees.” (Report at 3.) (emphasis added) Dr. Lazar stated: “It is my opinion, that within a reasonable degree of medical certainty, Dr. Paul J. Hecht deviated from the normal standard of care in the following ways.” (Report at 3.) (emphasis added) Dr. Lazar thereupon itemized what he judged to be Dr. Hecht’s deviations from “the normal standard of care.”

To substantiate his opinion on the accuracy of his own measurements of Wexler and the inaccuracy of Dr. Hecht’s, Dr. Lazar averred that “[t]he scientific literature states that a normal intermetatarsal angle is less than or equal to eight degrees.” (Report at 3.) (emphasis added) Dr. Lazar never identified, however, which literature he relied upon to judge the different measurements as “normal.” Did he have in mind “norms” as formulated by podiatrists or “norms” as understood by orthopedic surgeons? Was “normal” what accorded with a podiatric understanding of Wexler’s surgery, or an orthopedic understanding of it? Dr. Lazar referred to that literature only genetically as “scientific,” without identifying the books, periodicals, or journals he was relying on, and without specifying whether that literature was orthopedic or podiatric literature.

Dr. Lazar, judging that Dr. Hecht’s surgery resulted in an “abnormal[]” medical condition for Wexler, again relied on an understanding of “norms” that he does not make explicit. (Report at 3.) This court can only reasonably infer that the “norms” Dr. Lazar appealed to, to judge Dr. Hecht by, are norms familiar to podiatrists, but not necessarily observed by orthopedic surgeons. Indeed, the two medical persons Dr. Lazar consulted in this matter were both podiatrists; he never consulted an orthopedic surgeon. Dr. Lazar relied on “[mjost textbooks covering the subject of bunion surgery” (report at 3), but again failed to identify whether those textbooks were podiatric textbooks or orthopedic ones.

This court cannot assume that there is a universal standard of care observed by surgeons of every system or school of surgery. Dr. Lazar did not identify even minimally a standard of care common to all surgeons, podiatrists and orthopedists alike. Nor did he provide evidence of where a podiatric approach and an orthopedic approach would coincide, or why an orthopedic surgeon should adhere to the standards of care appropriate to the sub-specialty of podiatric surgery.

Dr. Lazar opined that Dr. Hecht “failed to achieve adequate reduction by three degrees at a minimum,” (report at 3) and that “[a]s a result of this neglect, he failed to identify a delayed or non-union as well as an inadequate surgical reduction of the intermetatarsal angle.” (Report at 4.)

Dr. Lazar opined that “the majority of proximal metatarsal osteotomies performed in the United States are treated postoperatively with complete non-weight bearing and lower extremity casting.” (Report at 4.) Yet Dr. Lazar never specified if the majority of those surgical procedures were performed by podiatric surgeons or by orthopedic surgeons, again basing his opinion upon unclarified data.

As treatment of a part within the context of the whole is to treatment of one of its decontextualized parts, so is an orthopedic approach to surgery of the foot to a podiatric approach to the same surgery. Medical surgery is a specialty within medicine and orthopedics, which Dr. Hecht specialized in, is a subspecialty within medical surgery. Specifically, orthopedics is defined as “that branch of surgery which is specially concerned with the preservation and restoration of the function of the skeletal system, its articulations and associated structures.” Thus, the approach an orthopedic surgeon will take to a patient will be guided by his understanding of the patient’s entire skeletal system, including the skeletal system’s articulations and associated structures, viewing the foot as one part of the entire system.

By contrast, podiatry, which Dr. Lazar specialized in, is defined as “the care of the foot, including its anatomy, pathology, medical and surgical treatment, etc.” Hence, the approach a podiatric surgeon will take to a patient will be guided by his telescoped focus on the patient’s foot, that one part of the patient’s overall skeletal system that the podiatrist is specifically trained to study and care for. By way of contrast between the different modalities of treatment, the holistic approach an orthopedic surgeon takes may at times, for example, involve considering amputations, which the restricted approach a podiatrist takes may never consider, nor may a podiatrist consider administering anesthetics that often form part of an orthopedist’s holistic approach.

After reviewing Dr. Lazar’s report, this court concluded that the scope of podiatry, in this case, did not rise to a legally competent comprehension of an orthopedic manner of preoperatively thinking about and approaching the upcoming surgery or an orthopedic understanding of post-surgical care and treatment. Dr. Lazar provided no evidence that he was significantly familiar with an orthopedist’s distinctive holistic modality of performing surgery or with an orthopedist’s holistic post-surgical standards of care and treatment. Dr. Lazar never established that the norms by which he judged Dr. Hecht’s surgery on, and subsequent treatment and care of, Wexler were norms applicable to orthopedic surgeons.

Moreover, additional differences between orthopedic modalities of surgery and standards of care on the one hand and podiatric ones on the other hand can be inferred from the external indicia of the different kinds of formal training each surgeon had undertaken before commencing practice as a surgeon. As will be shown below, Pennsylvania statutes also reflect differences between the two types of surgery.

As a student, Dr. Lazar never attended a medical school proper, as Dr. Hecht had done; rather, Dr. Lazar attended a school designed to prepare students to practice in the restricted area of podiatric medicine. Dr. Hecht attended The University of Pennsylvania School of Medicine, in Philadelphia, Pennsylvania, and Dr. Lazar attended Temple University School of Podiatric Medicine, in Philadelphia, Pennsylvania. In the respective kinds of schools, the students study the academic, didactic material from vastly different points of view and learn to master not only the manual skills involved in surgery but also how clinically to care for and treat patient postoperatively in the light of those differences. In Pennsylvania, the Podiatric Practice Act reflects those differences by requiring that students pursuing a degree in podiatric medicine, at schools accredited to teach podiatric medicine, follow a required curriculum peculiar to podiatry. “The curriculum taught at schools of podiatric medicine and surgery shall be confined to subjects covered by the definition of podiatric medicine as contained in this Act.” 63 PS. §42.7.

Upon graduation, reflective of the different types of education received, the students from the different kinds of schools receive different degrees: the podiatrist, a D.P.M., and the physician, an M.D. Graduates from the two kinds of schools sit for different nationally administered board examinations and are certified to practice their respective fields by different state certifying boards. (See 63 P.S. §42.2(b), defining “board” to mean only “The State Board of Podiatry”; and 63 P.S. §422.2, defining “board” to mean only “The State Board of Medicine,” and defining “[m]edical doctor” to mean only an individual who has acquired one of six kinds of licenses to practice medicine and surgery issued by the Board of Medicine, where none of the possible licenses includes a license to practice podiatric medicine.) Dr. Lazar was certified by the American Board of Podiatric Surgery, and Dr. Hecht by the American Board of Orthopedic Surgery. Dr. Lazar’s last teaching assignment, at Ohio College of Podiatric Medicine, ended in 1996, and since that time he has done nothing more in his academic career but give two isolated lectures, one in 1997 and one in 1998, where neither lecture dealt with orthopedic matters or orthopedic standards of care, which is the central issue in the present case. In contrast, since 1994, Dr. Hecht has maintained a continuous teaching assignment in the area of orthopedics at various medical schools and teaching hospitals in Philadelphia.

There is also some significant disagreement between M.D.s and D.P.M.s about what constitutes the “foot.” After becoming board-certified, M.D.s are permitted to practice medicine with an unrestricted license, while D.P.M.s are permitted to practice only podiatric medicine. Indeed, in Pennsylvania, “podiatric medicine” is a defined term:

“ ‘Podiatric medicine’ shall mean the diagnosis and treatment including mechanical and surgical treatment of ailments of the foot, and those anatomical structures of the leg governing the functions of the foot and the administration and prescription of drugs incidental thereto. It shall include treatment of local manifestations of systemic diseases as they appear on the foot but shall not include amputation of the leg or foot or treatment of systemic diseases of any other part of the body.” 63 PS. §42.2(a).

The wording of that statute — by restricting podiatric medicine to matters of the foot, prohibiting podiatrists from performing amputations of the leg or foot, and prohibiting podiatrists from treating systemic diseases of other parts of the body — reflects the definitional differences between orthopedics and podiatry that this court set forth above: namely, orthopedics, by considering the entire skeletal system, deploys a holistic approach to surgery that podiatry cannot rise to.

Moreover, according to Pennsylvania law, a podiatrist is a defined health care provider.

“ ‘Health care provider.’ A primary health care center or a person, including a corporation, university or other educational institution licensed or approved by the Commonwealth to provide health care or professional medical services as a physician, a certified nurse midwife, a podiatrist, hospital, nursing home, birth center and except as to section 711(a), an officer, employee or agent of any of them acting in the course and scope of employment.” 40 P.S. §1303.103. (See 63 P.S. §425.2, the Peer Review Protection Act, for a similar, numbered series of different health care providers.)

When construing a statute, this court must construe “[w]ords and phrases ... according to rules of grammar and according to their common and approved usage;...” 1 Pa.C.S. § 1903(a). In the instant statute, the General Assembly chose to identify various and different health care providers by listing them in a series separated by commas. It listed, in part, a physician, a certified nurse midwife, and a podiatrist. This court construes the grammatical punctuation of the statute to mean that the General Assembly intended to differentiate physicians from podiatrists, as it differentiated physicians from certified nurse midwives. The difference between physicians and podiatrists is additionally, therefore, legislatively grounded.

Dr. Lazar concluded his report by opining that Dr. Hecht’s treatment of Wexler was negligent, and that said negligence was the legal cause of Wexler’s damages:

“Given the aforementioned events that took place under the care of Dr. Paul J. Hecht, it must be concluded that a deviation from the normal standard of care took place, and that this directly resulted in Ms. Wexler’s subsequent pain and need for additional surgery.” (Report at 4.)

At issue here, therefore, is whether Dr. Lazar can competently testify about the care and treatment rendered by Dr. Hecht, who had performed the instant surgery on Wexler’s foot and who cared for and treated her post-surgically.

In light of section 1303.512 of the MCARE Act, as well as long-settled law in Pennsylvania, this court, for the reasons set forth above, holds that Dr. Lazar is not qualified to opine about the alleged negligence of Dr. Hecht or about legal matters of causation. The specialties of orthopedics and podiatry do not sufficiently overlap to qualify Dr. Lazar as an expert in this matter. Dr. Lazar cannot knowledgeably and competently testify about the standard of care in the field of orthopedics. He neither practices in a subspecialty that has a substantially similar standard of care as Dr. Hecht’s subspecialty nor is he board-certified by a similar approved board.

Thus, since the differences between an orthopedic and a podiatric school of medicine and their respective standards of care and treatment are clearly evident when considered in the context of this case, this court granted Dr. Hecht’s motion in limine and precluded Dr. Lazar from testifying as a competent medical expert against Dr. Hecht at a trial.

THE MOTION FOR SUMMARY JUDGMENT

As stated above, Pennsylvania law requires a medical expert’s report as one element necessary to sustain a prima facie medical malpractice cause of action. After this court precluded Dr. Lazar from becoming her medical expert, Wexler offered the court no competent expert to testify as to Dr. Hecht’s alleged negligence. Consequently, since Wexler failed to meet the necessary elements for a prima facie medical malpractice cause of action, this court additionally granted Dr. Hecht’s motion for summary judgment.

In Pennsylvania, it is well settled that “[ajfter the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law ... (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2.

A comment on Rule 1035.2 explains, “it is clear that if a defendant is the moving party, he may make the showing necessary to support the entrance of summary judgment by pointing to materials which indicated that the plaintiff is unable to satisfy an element of his cause of action.” Pa.R.C.P. 1035.2, explanatory comment— 1996. (citations omitted)

The Pennsylvania Supreme Court has ruled that “[w]e have a summary judgment rule in this Commonwealth in order to dispense with a trial of a case (or, in some matters, issues in a case), where a party lacks the beginnings of evidence to establish or contest a material issue.” Ertel v. Patriot-News Co., 544 Pa. 93, 100, 674 A.2d 1038, 1042 (1996). “[T]he function of a summary judgment motion is to avoid a useless trial.” Dillon v. National R.R. Corp. (Amtrak), 345 Pa. Super. 126, 137, 497 A.2d 1336, 1341 (1985). (citations omitted) “Summary judgment may be granted only where the right is clear and free from doubt.” First Wisconsin Trust Co. v. Strausser, 439 Pa. Super. 192, 198, 653 A.2d 688, 691 (1995). (citation omitted) Thus, in Pennsylvania it is well settled that “the mission of the summary judgment procedure is to pierce the pleadings and assess the proof in order to see whether there is a genuine need for a trial.” Ertel, 544 Pa. at 100, 674 A.2d at 1042. (citations omitted) It is further well settled that “the court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party.” Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997). (citations omitted)

In this matter, Dr. Hecht moved for summary judgment as a matter of law when Wexler failed to produce a competent medical expert able to deliver an expert report on standard of care matters relevant to Dr. Hecht. As stated above, a report from a competent medical expert is essential to Wexler’s medical malpractice cause of action. Since Wexler failed to provide a competent expert, she lacked the evidence necessary to establish negligence against Dr. Hecht. Without that evidence, a trial on this matter would be useless.

After examining the entire record in a light most favorable to Wexler and resolving all doubts against Dr. Hecht, this court concluded that, since Wexler’s evidence was legally incompetent, Dr. Hecht’s right to summary judgment was clear and free from all doubt.

Having assessed all the evidence, therefore, this court granted Dr. Hecht’s motion for summary judgment.

CONCLUSION

For the reasons set forth above, this court respectfully requests the Superior Court to affirm its December 18, 2002 order that granted defendant/appellee’s motion in limine by precluding plaintiff/appellant’s witness from testifying at trial as a competent medical expert.

This court also requests the Superior Court to affirm its December 18, 2002 order that granted defendant/ appellee’s motion for summary judgment by ordering that this case be dismissed due to plaintiff/appellant’s failure to provide a medical expert as a necessary element in a medical malpractice cause of action.

      . See 61 AmJur.2d Physicians, Surgeons and Other Healers §195 (2002): “A physician is entitled to have his treatment of his patient tested by the rales and principles of the school of medicine to which he belongs, and not by those of some other school, because a person professing to follow one system or school of medicine cannot be expected by his patient to practice any other, and if he performs the treatment with ordinary skill and care in accordance with his school of practice, he is not answerable for bad results.” See also, 61 Am.Jur.2d Physicians, Surgeons and Other Healers §326 (2002): “Physicians of one school of practice may be incompetent to testify in malpractice actions against physicians of another school of practice, because the defendant in a malpractice action is entitled to the testimony of competent practitioners of his own school of medicine on the issue of whether he exercised the requisite degree of skill and care in providing medical treatment.”

      . Dorland’s Illustrated Medical Dictionary 1193 (28th ed. 1994). See 70 C.J.S. Physicians, Surgeons and Other Health-Care Providers §4 (1987): “An ‘orthopedist’ is one who practices orthopedics, [] or a surgeon engaged in that branch of medicine which deals with the correction of deformities and chronic diseases of the joints and spine.”

      . Id. at 1319. See 70 CJ.S. Physicians, Surgeons and Other HealthCare Providers §5 (1987): “Podiatrist; podiatry. A ‘podiatrist’ is one who treats only ailments of the human foot, and is distinguishable from a medical or osteopathic doctor who specializes in the treatment of the foot.” “Podiatry: is the surgical, medical, or mechanical treatment of any ailment of the human foot, except the amputation of the foot or any of the toes, and also without the use of an anesthetic other than a local one.” (internal footnotes omitted)

      . There is apparently considerable epistemological confusion over the meaning of the “foot.” Barbara J. Saffiet, Closing the Gap Between Can and May in Health-Care Providers ’ Scopes of Practice: A Primer for Policymakers, 19 Yale J. on Reg. 301, 320 (2002): “ ‘What is a foot?’ Does it include the ankle, or those tissues, ligaments and tendons connecting the ankle and the foot, or those leg bones (the tibia and the fibula) that terminate at the ankle or foot? This definitional question and the supplemental question of who decides — the legislature, the podiatry or medical board, or the courts — have provoked a good deal of costly and time-consuming controversy.” Safriet points out that courts in Connecticut and Tennessee have wrestled with the problem of defining the foot, despite the definition of the foot offered by the American Podiatric Medical Association. Id, at 320-22.

      . See 70 C.J.S. Physicians and Surgeons § 14(a) (1987): “Doing the ordinary work of a podiatrist does not constitute the practice of medicine and surgery within the meaning of a valid statute making it unlawful to practice without a license; but a podiatrist may be amenable to the statute where he performs acts which are outside the scope of podiatry.”


source: Caselaw Access Project

author: CHARLES, J.,

license: Public Domain

text:
    Hartman v. Oh

      C.P. of Lebanon County,
    no. 2002-01703.

      James E. Ellison, for plaintiffs.

      Joseph P. Hafer, for defendants.

      January 2, 2004
   CHARLES, J.,

In this medical malpractice case, defendants seek to erase a large portion of plaintiffs’ claims via the procedural vehicle of a motion for partial summary judgment. Defendants assert that there is insufficient support for the following claims:

(1) Negligent infliction of emotional distress;
(2) Intentional infliction of emotional distress;
(3) Intentional misrepresentation;
(4) Negligent misrepresentation;
(5) Punitive damages;
(6) Damages for an unborn child; and
(7) Filial loss of consortium.

Predictably, plaintiffs disagree and assert that all of their causes of action should be permitted to proceed. After reciting the factual background of this matter, we will address each of the disputed areas seriatim.

I. PROCEDURAL BACKGROUND

This obstetrical malpractice claim was originally filed in Lancaster County in September of 1996. Extensive discovery was conducted under the supervision of the Lancaster County Court of Common Pleas. In March of 2002, defendant filed a motion for partial summary judgment. Briefs, counter-briefs, supplemental briefs and a multitude of depositions were appended to the record. However, Lancaster County did not rule on the motion before it transferred venue to us in December of 2002.

The parties listed the summary judgment motion for argument before us in November of 2003. We conducted oral argument on November 21, 2003. This dispute is now before us for disposition.

H. FACTUAL BACKGROUND

According to the allegations of the complaint, plaintiff Melissa Hartman learned in October of 1994 that she was pregnant. Defendants provided Mrs. Hartman with obstetric care between December 13, 1994 and June 2, 1995. During this time, Mrs. Hartman expressed concern to defendants about the low level of her fetus’ activity as compared with her prior pregnancies. According to the complaint, the defendants assured Mrs. Hartman that her fetus was “fine.”

The complaint alleges that defendants first identified problems with Mrs. Hartman’s pregnancy during May of 1995. During May, defendants reportedly learned that the fetus suffered from an abnormally low “fundal height” and a barely detectable fetal heartbeat. Despite these problems, plaintiffs allege that defendants ordered no diagnostic tests or therapeutic measures.

During a medical appointment on June 1, 1995, Mrs. Hartman was told by defendants that they were unable to find any fetal heartbeat. She presented herself to the Ephrata Hospital on the same date. According to the complaint: “Upon leaving defendants’ office, Melissa Hartman went to Ephrata Community Hospital... where a sonogram was conducted, revealing fetal demise.” One day later, Dr. Oh delivered a stillborn baby girl, who the Hartmans named Faith Lynn Hartman.

Plaintiffs assert that Faith Lynn suffered from “intrauterine growth retardation which should have been detected by the defendants.” (Plaintiffs’ brief at page 3.) Plaintiffs further assert that had the intrauterine growth retardation been detected, Faith could have been delivered prior to her death.

EL LEGAL STANDARD FOR SUMMARY JUDGMENT

Summary judgment may be granted only in those cases where the record clearly demonstrates that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Dean v. PennDOT, 561 Pa. 503, 507, 751 A.2d 1130, 1132 (2000), citing P.J.S. v. Pennsylvania State Ethics Commission, 555 Pa. 149, 153, 723 A.2d 174, 176 (1999). The record must be viewed in the light most favorable to the opposing party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Id.

IV. LEGAL ANALYSIS

A. Negligent Infliction of Emotional Distress

In order to fully understand this tort, one must recall its evolution. Historically, no plaintiff could recover damages for emotional distress unless that plaintiff also suffered physical impact during an accident. See Potere v. City of Philadelphia, 380 Pa. 581, 589, 112 A.2d 100, 104 (1955). This so-called “physical impact” rule was relaxed in Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970). There, a plaintiff who was within the “zone of danger” created by an accident could also recover damages for emotional harm resulting from injuries to a close relative. This “zone of danger” rule was further amplified by our Supreme Court in the seminal case of Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). Sinn adopted a tripartite test that had been first articulated by the California Supreme Court in Dillon v. Legg, 441 P.2d 912 (Cal. 1968). That case required an analysis of three factors in order to determine recoverability of damages for emotional injury:

“(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it.

“(2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observation of the accident, as contrasted with learning of the accident from others after its occurrence.

“(3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.” Sinn v. Burd, supra at 170-71, 672 A.2d at 683.

With respect to the legal tests outlined above, there is very little dispute between the parties. However, there is a significant disagreement with respect to defendants’ position that there is an additional element that must be established in order to prove negligent infliction of emotional distress. Defendants claim that a plaintiff’s emotional distress must result in physical injury to a plaintiff. Plaintiffs disagree and argue that recovery for emotional distress should be permitted “without the presence of physical injury in instances where a parent witnessed negligently-caused injuries to a child.” (Plaintiffs’ brief at page 9.) On this issue, we disagree with plaintiffs.

The key case regarding this question is Abadie v. Riddle Memorial Hospital, 404 Pa. Super. 8, 589 A.2d 1143 (1991). Abadie was also decided in a medical malpractice context. In Abadie, the Superior Court specifically stated: “[T]he negligent actor is not liable when his conduct results in the emotional disturbance alone, without [bodily harm].” Id. at 11, 589 A.2d at 1145. Moreover, Abadie went on to state that the requirement of physical harm means something more than “psychological factors affecting physical condition.” Id. at 12, 589 A.2d at 1145. See also, Armstrong v. Paoli Memorial Hospital, 430 Pa. Super. 36, 44, 633 A.2d 605, 609 (1993).

Sifting through the above law, we conclude that in order to recover under a theory of negligent infliction of emotional distress, plaintiffs must establish:

(1) That recovery is permissible under the precepts of Potere v. City of Philadelphia, supra, or Niederman v. Brodsky, supra, or Sinn v. Burd, supra; and

(2) That the emotional harm suffered manifested itself in physical, and not merely psychological, manners and symptoms. See Abadie v. Riddle Memorial Hospital, supra.

As to Melissa Hartman, we believe plaintiffs can proceed to trial on a negligent infliction of emotional distress theory. As to Calvin Hartman, we will grant defendants’ motion for partial summary judgment.

(1) Claim of Melissa Hartman

No metaphor can adequately describe the unique symbiotic relationship between an expectant mother and her unborn child. In order to give life to her progeny, a mother may endure nine months of morning sickness, inconsistently spiking hormones, backaches, significant weight gain, and enforced sedentary behavior. That a woman endures this willingly (and often eagerly) is one of the true miracles of life. For us to conclude that the demise of a fetus leaves its host mother unaffected would be to belie human nature and depreciate the importance of motherhood. This we will not do.

Put into legal parlance, physical harm to a fetus physically impacts the mother (satisfying the pre-Niederman rule), places the mother within a zone of danger (satisfying the Niederman rule) and intimately affects someone who is uniquely bonded to the “victim” (satisfying the Sinn v. Burd rule). Moreover, giving birth to a stillborn child necessarily imparts physical harm to the mother, who must endure childbirth and all that that entails. In this case, the requirement of physical harm was further supported by Mrs. Hartman’s testimony in her deposition that she suffered a lump on her neck that developed following the stillborn birth of her daughter. She stated:

“It’s a knot. It goes up my head. Like, right now I am starting to get a real bad headache. And I get real bad headaches, and I never got them until I lost the baby. These headaches, I can’t even explain how the pain hurts. . . . Ever since I lost her, stress headaches, I mean the knot in my neck will start to hurt and pain will go shooting up through my head. . . . It’s just, it’s just like my head feels like it’s going to explode.” (N.T. 93-95.)

With respect to Melissa Hartman, we will deny defendants’ motion to dismiss the negligent infliction of emotional distress claim. Mrs. Hartman may seek, prove and recover damages for her physical and emotional pain.

(2) Claim of Calvin Hartman

Without demeaning the importance of fatherhood, human biology teaches us that the role of a childbearing woman is far more critical than that of the human male during gestation. We have little doubt that the father of a stillborn child can suffer emotionally. However, at no time is the father’s physical health endangered as a result of the pregnancy and stillbirthing process.

Plaintiffs claim that Calvin Hartman should be permitted to recover because he was present when the stillborn birth occurred. Plaintiffs also point to Mr. Hartman’s poignant description of feeling “helpless” during the latter part of his wife’s pregnancy. We agree with defendants that this is not enough.

There is no evidence anywhere in the record that Calvin Hartman suffered physical harm. In a supplemental deposition that occurred in May of 2002, Mr. Hartman admitted that he received no treatment from any medical professional as a result of this incident:

“Q. From September 9,1997 until the time you moved to Indiana County, did you see any physicians in the Lebanon/Lancaster area for any problems you attributed to Faith?

“A. No.” (N.T. 38-39.)

It is obvious to us that Mr. Hartman is seeking damages for purely emotional harm. We do not believe Pennsylvania law permits him to do this. Accordingly, we will grant defendants’ summary judgment motion as it relates to the negligent infliction of emotional distress claim of Calvin Hartman.

B. Intentional Infliction of Emotional Distress

In defining intentional infliction of emotional distress, the Pennsylvania Supreme Court recently stated that the language contained in section 46 of the Restatement (Second) of Torts, sets forth “the minimum elements necessary to sustain such a cause of action.” See Taylor v. Albert Einstein Medical Center, 562 Pa. 176, 181, 754 A.2d 650, 652 (2000). The Restatement provides as follows:

“Section 46. Outrageous conduct causing severe emotional distress

“(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

“(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

“(a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or

“(b) to any other person who is present at the time, if such distress results in bodily harm.” Restatement (Second) of Torts §46.

At issue in this case is whether defendants’ conduct could be considered “extreme and outrageous,” so as to trigger recovery under Restatement (Second) of Torts §46. The threshold question of whether a defendant’s conduct is outrageous must be made by the court. See Johnson v. Caparelli, 425 Pa. Super. 404, 411, 625 A.2d 668, 671 (1993). We should permit this type of claim only where the alleged objectionable behavior “exceeds all bounds of decency.” See Small v. Juniata College, 452 Pa. Super. 410, 682 A.2d 350 (1996); Britt v. Chestnut Hill College, 429 Pa. Super. 263, 632 A.2d 557 (1993).

Plaintiffs assert “the record is replete with evidence of the outrageous nature of defendants’ conduct.” (Plaintiffs’ brief at page 15.) Specifically, plaintiffs allege that the defendants were evasive and dismissive when fetal problems were first discovered and that they “coerced” Mrs. Hartman into continuing a non-viable pregnancy. Even if plaintiffs could establish these facts, they do not rise to the level of “extreme and outrageous” conduct so as to justify relief under section 46 of the Restatement.

Stripped to its essence, plaintiffs claim that defendants could have and should have provided better medical care for both Melissa Hartman and her unborn child. Almost by definition, this constitutes a medical malpractice negligence claim. In a light most favorable to plaintiffs, the evidence discloses that defendants’ treatment was hasty, tactless, and below the standard that should have been employed by a specialist in obstetrics. While these facts can give rise to a negligence verdict, they do not constitute “extreme” or “outrageous” conduct so as to support a claim for intentional infliction of emotional distress. Accordingly, we will dismiss plaintiffs’ intentional infliction of emotional distress claims.

C. Intentional Misrepresentation

Once again, the parties agree on the law as it relates to intentional misrepresentation, but disagree as to how that law should be applied to the facts of this case. Legally, both sides agree on a six-part test for intentional misrepresentation that was articulated by our Supreme Court in Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882 (1994). In Gibbs, the Supreme Court articulated the following elements for intentional misrepresentation:

“(1) a representation;

“(2) which is material to the transaction at hand;

“(3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false;

“(4) with the intent of misleading another into relying on it;

“(5) justifiable reliance on the misrepresentation; and

“(6) the resulting injury was proximately caused by the reliance.” See id. at 207, 647 A.2d at 889. (footnote omitted)

In support of their intentional misrepresentation claim, plaintiffs proffer the expert report of Dr. David Podrasky. Dr. Podrasky opines that there were four occasions when defendants should have realized that Mrs. Hartman’s fetus was in distress. Plaintiffs argue that the degree of intrauterine growth retardation should have been a huge “red flag” for defendants. Instead of reporting this condition, plaintiffs complain that “defendants falsely represented to Mrs. Hartman that her pregnancy was proceeding normally and concealed the very likely possibility that her baby suffered from intrauterine growth retardation.” (Plaintiffs’ brief at page 19.) Plaintiffs further allege that “defendants’ concealment withheld lifesaving measures and allowed Faith Lynn to die in útero.” (Plaintiffs’ brief at page 19.)

We have read the entirety of Dr. Podrasky’s eight-page report. (See exhibit D to motion for summary judgment.) While Dr. Podrasky does chastise defendants for failing to recognize diagnostic warning signs and for failing to order a diagnostic ultrasound, nowhere in his report does he accuse defendants of fraud or misrepresentation. We have also reviewed the report of Dr. Richard A. Fields, who likewise concluded that defendants’ treatment constituted “deviations in standard of care and that [these deviations] would account for the intrauterine fetal death.” (Exhibit C to motion for summary judgment.) However, Dr. Fields stopped short of accusing defendants of fraud or misrepresentation.

Once again, we emphasize that this dispute is one about negligence and not intentional misconduct. The record in this case is devoid of any evidence that defendants intentionally and knowingly made false statements to plaintiffs. Additionally, our review of the record did not reveal that defendants made any misrepresentations with the degree of recklessness necessary to support a claim for fraud or intentional misrepresentation. Accordingly, we will grant defendants’ summary judgment motion as it relates to plaintiffs’ claim for intentional misrepresentation.

D. Negligent Misrepresentation

The tort of negligent misrepresentation is similar in nature to that of intentional misrepresentation, with one critical difference. To be actionable, a negligently-uttered representation must be made in circumstances where its maker should have known of its falsity. See Gibbs v. Ernst, supra at 890. “Thus, negligent misrepresentation differs from intentional misrepresentation in that to commit the former, the speaker need not know his or her words are untrue, but must have failed to make reasonable investigation of the truth of those words.” Gibbs, supra at 890.

Both Dr. Podrasky and Dr. Field opined that defendants’ continued statements of reassurance to plaintiffs prevented plaintiffs from receiving treatment that could have prevented the tragic intrauterine demise of the Hartman’s unborn daughter. Both doctors also opined that there were ample “red flags” that should have caused defendants to have recognized a significant problem. Viewed in the light most favorable to plaintiffs, we believe that enough evidence exists to enable plaintiffs to pursue their claim for negligent misrepresentation. Therefore, as to that claim, defendants’ motion for partial summary judgment will be denied.

E. Pain and Suffering for Unborn Child

Our Supreme Court has spoken on the issue of whether a stillborn child can recover damages. In Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985), the Supreme Court clearly established “that the recovery afforded the estate of a stillborn is no different than the recovery afforded the estate of a child that dies within seconds of its release from its mother’s womb.” Id. at 207, 501 A.2d at 1089. In so declaring, the Supreme Court recognized that a parent’s injury resulting from a stillborn birth “has nothing to do with the deceased child’s independent injuries or possible pain and suffering....” Id. at 207, 501 A.2d at 1088. (emphasis in original)

The Supreme Court later limited the Amadio case by rejecting a wrongful death claim brought on behalf of a non-viable fetus. In Coveleski v. Bubnis, 535 Pa. 166, 634 A.2d 608 (1993), the court stated: “[I]t is clear from reading both the majority and concurring opinions in Amadio that the issue of whether a cause of action exists for a non-viable fetus was not decided. We decline to extend liability under our wrongful death and survival acts any further.” Id. at 169, 634 A.2d at 609. (footnote omitted)

In this case, both Dr. Field and Dr. Podrasky described Mrs. Hartman’s fetus as “viable.” Each doctor opined that a different course of treatment would have led to the survival of Faith Lynn Hartman. Thus, under the Amadio precedent, we hold that the claim submitted by the estate of Faith Lynn Hartman is viable.

A more troubling question exists as to the standard of proof needed to establish pain and suffering. The Supreme Court recognized this difficulty in its Amadio decision:

“Our prior concern that [an action on behalf of a stillborn fetus] creates difficulties in establishing proof, upon closer examination, must also give way. Difficulty in obtaining proof of the wrong should never bar the right to bring an action, once it is determined that a cause of action does, indeed, exist. Our caution in extending the right of suit on behalf of the estates of stillborn children may have partly had to do with our unfamiliarity with the problems that this type of litigation would spawn, but any such difficulties in proving damages cannot be deemed greater or different in character from difficulties attending the determination of damages in the case of an injured child who survived delivery for a few minutes, hours or days. These actions have been part of our law for some time, and we are confident that the experience gained from handling such matters has matured our bench to the point when we can now extend the application of these cases to cases where the child is bom dead due to death causing injury while en ventre sa mere.” Id. at 205-206, 501 A.2d at 1088. Lamentably, we find ourselves in the position of stating that the Supreme Court’s “confidence” in our ability to assess damages may have been optimistic.

To any adult, pain is experiential. No human being has escaped pain, illness or distress. This is the precise reason that juries are asked to quantify and award monetary damages as compensation for pain and suffering. After all, each juror knows by experience how pain can affect the lives of those suffering from it.

In stark contrast, pain suffered by a stillborn child is not experiential. If such pain exists, there is no way for the fetus to communicate or describe its pain. Until or unless medical science can establish what a fetus feels while in the womb, there is simply no yardstick by which intrauterine pain and suffering can be measured.

The above leaves us in a dilemma. On the one hand, we are instructed by our Supreme Court to permit a claim on behalf of a viable fetus “despite” problems of proof that such claims engender. On the other hand, we are also instructed that damages should not be calculated based upon “speculation.” See e.g., Martin v. Johns-Manville Corp., 508 Pa. 154, 165 n.5, 494 A.2d 1088, 1094 n.5 (1985) (“A jury may not award damages on the basis of speculation or conjecture.”). Quite frankly, we see no way to reconcile these two legal principles. As we see it, the only conceivable measure of a fetus’ pain and suffering would be via the tool of “speculation.”

At this point, we will resolve our dilemma by following Amadio. We will allow the pain and suffering claim of Faith Lynn Hartman to proceed beyond the summary judgment stage of these proceedings. We are cognizant that we are merely delaying resolution of our dilemma until another day in hopes that medical science and/or the Supreme Court will come forward with an answer that will help us. Absent new developments as set forth above, we will revisit this issue after the conclusion of the plaintiffs’ case in chief.

F. Punitive Damages

Defendants’ brief sets forth a request to dismiss plaintiffs’ request for punitive damages. We have reviewed the one-foot thick file that was forwarded to us by Lancaster County. We located a document filed on March 4, 1997. That document was signed by Gary Lathrope on behalf of defendants and read: “Please strike the punitive damages claim without prejudice in the above-captioned action.” We could locate no order entered pursuant to that praecipe.

In addition to the above, we have reviewed the contents of plaintiffs’ complaint. The complaint contained four counts, none of which mentioned or requested punitive damages. We also reviewed defendants’ answer, which likewise failed to mention punitive damages. Finally, we were able to locate no motion to amend that sought to add a claim for punitive damages to the complaint.

The bottom line as to punitive damages is that no such claim exists in this case. It is therefore not necessary for us to address defendants’ motion for partial summary judgment as it relates to a nonexistent claim.

G. Filial Consortium

Paragraph 38(d) of plaintiffs’ complaint seeks damages for “loss of contributions, support, consortium, comfort, counsel, aid, association, care and services of the decedent [Faith Lynn Hartman].” (Complaint, X38(d).) This type of claim is commonly referred to as a “loss of filial consortium” claim.

Claims for loss of consortium are common as between spouses. However, a significant question exists as to whether a loss of consortium claim exists as between a parent and a child.

Our Superior Court has instmcted us that no such claim exists. In McCaskill v. Philadelphia Housing Authority, 419 Pa. Super. 313, 615 A.2d 382 (1992), the court stated:

“While [the plaintiff] recognizes that claims for the loss of filial consortium have never been recognized in this jurisdiction, she urges this court to abandon the established common law and grant her recovery on this claim. We decline to do so.

“In Quinn v. City of Pittsburgh, 243 Pa. 521, 90 A. 353 (1914), our Supreme Court stated that claims for loss of consortium are limited to spouses and do not extend to the loss of a child’s consortium. This rule has remained undisturbed as the law of this jurisdiction. See e.g., Schroeder v. Ear, Nose and Throat Assoc., 383 Pa. Super. 440, 557 A.2d 21 (1989), appeal denied, 523 Pa. 650, 567 A.2d 653 (1989)....

“In Schroeder, the appellants were the parents of a fetus which was aborted during the course of medical treatment for the mother. There, holding that the appellants had put forth no cause of action we stated:

“We conclude that because there is no constitutional mandate compelling us to recognize a cause of action for loss of filial consortium, because there is presently no legal basis for allowing the cause of action, because there is no general or growing consensus that such a cause of action should be established, and because to allow such a cause of action is a policy determination which can most thoroughly and representatively be considered by the legislature, we do not recognize a parent’s cause of action for loss of a child’s consortium due to tortious interference of a third party. [Schroeder] at 444-45, 557 A.2d at 23....” Id. at 319, 615 A.2d at 384-85. See also, Jackson v. Tastykake Inc., 437 Pa. Super. 34, 648 A.2d 1214 (1994).

In the face of this seemingly clear pronouncement, several Pennsylvania lower courts have permitted parents to recover filial loss of consortium. The first and most significant of these cases was authored by Judge Stanton Wettick in Ehrman v. Mid-American Waste Systems of Pennsylvania Inc., 39 D.&C.4th 235 (Allegheny Cty. 1998). In Ehrman, plaintiffs sought filial consortium as a result of the death of their 19-year-old daughter. Judge Wettick cited chapter 6.10 of the Pennsylvania Suggested Standard Jury Instructions, which permits recovery of “pecuniary value of the services, society and comfort” that a child would have given to a family had that child lived. Judge Wettick also engaged in a lengthy analysis of cases where our Supreme Court permitted wrongful death damages that were essentially in the nature of “loss of consortium.” One of the cases cited by Judge Wettick was Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1 (1994), where the Supreme Court stated:

“Wrongful death damages are established for the purpose of compensating the spouse, children or parents of a deceased for pecuniary loss they have [suffered] as a result of the death of the decedent. . . . The damages recoverable in a wrongful death action include the present value of the services the deceased would have rendered to the family had she lived, as well as funeral and medical expenses.” Id. at 226, 648 A.2d at 4.

After a lengthy and considered discussion of Pennsylvania decisional law (which we will not repeat), Judge Wettick concluded:

“I summarize the case law as follows: Each party can find substantial case law supporting that party’s position. There is no explanation in the case law for these divergent views. There is no effort to reconcile these divergent views. In fact, the case law does not acknowledge the split of authority.

“While I find this to be a close call, I am adopting plaintiffs’ position that I should permit the recovery of those damages described by Justice Montamuro in Kiser v. Schulte, supra at 226, 648 A.2d at 4.

“The damages recoverable in a wrongful death action include the present value of the services the deceased would have rendered to the family, had she lived, as well as funeral and medical expense.” Id., 39 D.&C.4th at 253.

Since Judge Wettick’s opinion, several other trial courts have considered this perplexing issue. Predictably, there has been a split among these trial courts. For example, in Ballest v. Krafick, no. 1862 of 1999 (C.P. Westmoreland September 3, 1999) (Loughran, P.J.) and Verity v. Hershey Medical Center, no. 98 CV 3545 (C.P. Lackawanna May 17, 1999) (Minora, J.), the courts completely rejected a claim for filial consortium. On the other hand, the court in Wynkoop v. Luke, no. 1999-0142 (C.P. Armstrong September 23,1999) (Valasek, J.), permitted a claim for filial consortium “if [plaintiff] can prove that such loss resulted in the destruction of a reasonable expectation of a pecuniary advantage for them.” (Slip opinion at page 5.)

In a particularly well reasoned opinion, Judge Anthony of Erie County attempted to make sense of this “divergent” case law. In Estate of Mathews v. Millcreek, 45 D.&C.4th 376 (Erie Cty. 2000), Judge Anthony made several important points:

(1) A wrongful death action is a creature of statute. Had the legislature wanted to create a filial consortium cause of action, it could have easily done so. The Pennsylvania Wrongful Death Act is conspicuously silent as to the viability of filial consortium. See 42 Pa.C.S. §8301(c).

(2) The Supreme Court’s opinion in Kiser (upon which Judge Wettick relied so heavily) involved purely economic loss. Judge Anthony stated: “Economic loss has [always] been recoverable under a wrongful death action ... the court does not read the language utilized by Judge Wettick from the Kiser decision to be anything other than a statement of the law on economic damages.” Id. at 382-83.

We agree with Judge Anthony’s analysis. Moreover, to the conclusions articulated by Judge Anthony, we add one of our own:

(1) A trial court should not create a cause of action in absence of statutory or appellate authority.

Sifting through the above, we respectfully disagree with Judge Wettick’s conclusion in Ehrman. We do not find that Pennsylvania law supports a claim for filial consortium. Thus, we will not permit plaintiffs to recover for their loss of “consortium, comfort, counsel, aid, association, care and services of the decedent [Faith Lynn Hartman].” As to those claims, we will grant partial summary judgment. However, we will permit plaintiffs to present any proof they might have as to economic or pecuniary loss that they have or would suffer as a result of Faith’s death. We will then rule upon the viability of the economic clause claim as part of a motion for non-suit at the conclusion of plaintiffs’ case in chief.

V. CONCLUSION

Based upon the foregoing, we will enter an order dismissing some of plaintiffs’ claims but preserving others. As to the claims we have preserved, defendants will retain the right to seek further judicial action via the procedural vehicle of a motion for nonsuit. An appropriate order consistent with the above will be entered.

ORDER

And now, January 2, 2004, in accordance with the attached opinion, defendants’ motion for partial summary judgment is granted in part and denied in part as follows:

(1) Defendants’ motion as to Melissa Hartman’s negligent infliction of emotional distress claim is denied.

(2) Defendants’ motion as to Calvin Hartman’s negligent infliction of emotional distress claim is granted.

(3) Defendants’ motion as to plaintiffs’ intentional infliction of emotional distress claim is granted.

(4) Defendants’ motion as to plaintiffs’ intentional misrepresentation claim is granted.

(5) Defendants’ motion as to plaintiffs’ negligent misrepresentation claim is denied.

(6) It is not necessary for us to rule on defendants’ motion as to punitive damages, as no claim for punitive damages has been submitted in this case.

(7) Defendants’ motion as it relates to damages sought by the estate of Faith Lynn Hartman is denied.

(8) Defendants’ motion as to filial loss of consortium is granted in part and denied in part. Plaintiffs will be precluded from recovering noneconomic damages for loss of consortium, comfort, counsel, aid, association, care and services of Faith Lynn Hartman. However, if plaintiffs are able to establish economic losses stemming from the stillborn birth of Faith Lynn Hartman, they may recover such economic loss.

      . The concept of physical injury in this context is different than the requirement of physical impact that existed before the Niederman v. Brodsky case. Prior to Niederman, a plaintiff must have actually suffered physical impact in order to recover for emotional distress. Niederman relaxed a plaintiff’s burden to show that physical contact occurred at the time of the defendant’s negligence. However, Niederman did not address the question of whether one could recover purely emotional harm without any physical overlay to that emotional harm. Thus, the question we must now address is whether emotional harm without physical manifestations is compensable in Pennsylvania.

      . According to the American College of Obstetricians and Gynecologists, “labor results in severe pain for most women. There is no other circumstance where it is considered acceptable for a person to experience severe pain, amenable to safe intervention, while under a physician’s care.” American College of Obstetricians and Gynecologists Committee opinion no. 118, quoted by Dr. Carl Findrich of the Harvard Medical School in Pain Relief During Childbirth: A Comprehensive Review at www.womenshealthsection.com. Typically, a birth mother experiences muscle contraction pain, cervical nerve pain, pelvic pressure, back pain, and tissue stretching (or tearing). As one woman said, “it’s like I’ve got a bowling ball between my legs.” See www.pregnancycorner.com\pain-associated-with-childbirth.html. To help reduce this pain, most women in America receive epidural injections. See Rita Ruben, Epidurals and Other Approaches to Help Man

        age Labor Pain (U.S.A. Today, August 13, 2002). Even with epidural injections, patients routinely experience itching, backaches and headaches in addition to pre-epidural pain that accompanies normal childbirth contractions. See Findrich, supra.

      Women accept the pain of childbirth because the end result (birth of a baby) is worth the cost of the pain. Absent the reward of a living child, the birthing pain suffered by a mother is simply that — pain. In the context of a stillborn birth, the pain of childbirth imparts no benefit. Thus, it should be viewed no differently than pain that would be induced by trauma or disease.

      . We do not know why defendants filed this praecipe, as no punitive damages count was contained in the complaint. Moreover, without joinder by a plaintiff, a praecipe by defendants cannot legally defeat a plaintiff’s cause of action.

      . Other than medical or funeral expenses, we cannot conceive of what economic loss plaintiffs would be able to establish as a result of the death of an unborn child. However, we have been surprised in the past and will not foreclose the possibility that plaintiffs would be able to establish a viable economic loss claim under their wrongful death count.


author: BROWN, P.J.,

text:
    Scott v. Continental Insurance Co.

      C.P. of Lycoming County,
    no. 03-00052.

      David C. Shipman, for plaintiff.

      Douglas J. Kent, for defendant.
    January 15, 2004
   BROWN, P.J.,

This matter came before the court on the defendant’s preliminary objections to the plaintiffs’ complaint. When ruling on preliminary objections, the court must accept as true all well-pleaded facts in the plaintiffs’ complaint and all reasonable inferences deducible therefrom. Lowther v. Roxborough Memorial Hospital, 738 A.2d 480, 489 (Pa. Super. 1999). Preliminary objections in the nature of a demurrer may be sustained only if they are clear and free from doubt. Milliner v. Enck, 709 A.2d 417 (Pa. Super. 1998). With this standard in mind, the relevant facts follow.

On or about November 1, 1999, the plaintiffs applied for auto insurance from the defendant through an insurance agency in Williamsport, Pennsylvania. Complaint at ¶4. At that time, the plaintiffs signed a form relating to underinsured motorist coverage, which stated:

“By signing this waiver I am rejecting underinsured motorist coverage under this policy, for myself and all relatives residing in my household for losses and damages suffered if injury is caused by the negligence of a driver who does not have enough insurance to pay for all losses and damages. I knowingly and voluntarily reject this coverage.” Complaint a^5; exhibit 1.

The defendant issued an insurance policy to the plaintiffs effective November 11,1999, which had bodily injury coverage limits of $ 100,000 per person and no UIM coverage. Complaint at ¶6. The policy was renewed on November 11, 2000, with the same coverages, for a one-year period, and covered four vehicles. Complaint at ¶7; exhibit 2. On September 22, 2001, plaintiff Richard Scott was hit broadside by another vehicle that had gone through a stop sign, causing him to suffer bodily injuries. Complaint at ¶8. By letter dated November 26, 2002, the plaintiffs made a claim for UIM benefits under their policy, claiming the rejection form signed by them was invalid, because it did not comply with 75 Pa.C.S. §1731. Complaint at ¶¶9, 12-15. In a letter dated December 2,2002, the defendant denied the plaintiffs’ claim for UIM coverage. Complaint at ¶10.

On January 9, 2003, the plaintiffs filed a complaint containing two counts against the defendant. The first count is an action for declaratory judgment. The relief sought in this count was an order declaring the purported UIM waiver void and invalid and stating that the plaintiffs are entitled to $100,000 in UIM coverage, stacked by four vehicles, for a total of $400,000 in UIM coverage in connection with the accident on September 22, 2001. The second count is a claim for bad faith, seeking punitive damages, costs and attorney fees because the defendant did not have a reasonable basis for denying the plaintiffs’ claim for UIM benefits. The defendant filed preliminary objections to the plaintiffs’ complaint on March 25, 2003. In its preliminary objections, the defendant argues the rejection form at issue substantially complies with section 1731, and is valid and enforceable. In the alternative, even if the form violates section 1731, the defendant contends plaintiffs’ claims must still be dismissed because “no remedy is afforded them under the MVFRL.” The court heard argument on the defendant’s preliminary objections on August 20, 2003.

DISCUSSION

Section 1731 states in relevant part:

“(c) Underinsured motorist coverage.— .... The named insured shall be informed that he may reject underinsured motorist coverage by signing the following written rejection form:

“Rejection Of Underinsured Motorist Protection

“By signing this waiver I am rejecting underinsured motorist coverage under this policy, for myself and all relatives residing in my household. Underinsured coverage protects me and relatives living in my household for losses and damages suffered if injury is caused by the negligence of a driver who does not have enough insurance to pay for all losses and damages. I knowingly and voluntarily reject this coverage.

“(c.l) Form of waiver. — Insurers shall print the rejection forms required by subsections (b) and (c) on separate sheets in prominent type and location. The forms must be signed by the first named insured and dated to be valid. The signatures on the forms may be witnessed by an insurance agent or broker. Any rejection form that does not specifically comply with this section is void. If the insurer fails to produce a valid rejection form, uninsured or underinsured coverage, or both, as the case may be, under that policy shall be equal to the bodily injury liability limits. On policies in which either uninsured or underinsured coverage has been rejected, the policy renewals must contain notice in prominent type that the policy does not provide protection against damages caused by uninsured or underinsured motorists. Any person who executes a waiver under subsection (b) or (c) shall be precluded from claiming liability of any person based upon inadequate information.” 75 Pa.C.S. §1731. (emphasis added)

The document signed by the plaintiffs lacks the text of subsection (c) italicized above. The defendant asserts that the document substantially complies with subsection (c) and therefore constitutes a valid waiver despite the missing language. This court cannot agree. The language of the rejection form set forth in subsection (c) is not optional; it is required. 75 Pa.C.S. §1731; see also, Winslow-Quattlebaum v. Maryland Insurance Group, 561 Pa. 629, 633, 752 A.2d 878, 880 (2000) (“Section 1731 of the MVFRL provides the specific language that must, appear in the automobile insurance application in order for an insured to validly reject UIM protection.”); Allwein v. Donegal Mutual Insurance Co., 448 Pa. Super. 364, 384, 671 A.2d 744, 754 (1996) (“Insurers who fail to comply with the precise letter of the statute have consistently been required to provide full underinsured motorist coverage.”)

The defendant argues that the MVFRL was created to curb spiraling insurance costs; therefore, to further that legislative intent, substantial compliance should be sufficient. The statute, however, indicates insurers must specifically comply with its provisions. Subsection (c.l) states: “Any rejection form that does not specifically comply with this section is void.” This court can neither re-write the statute to utilize the word substantially in lieu of the word specifically nor interpret the word specifically to require something other than the language contained in the body of rejection form set forth in subsection (c). 1 Pa.C.S. § 1921(b) (“When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”) The appellate courts of this Commonwealth also have enforced the specific requirements of section 1731. See Lucas v. Progressive Casualty Insurance Co., 451 Pa. Super. 492, 680 A.2d 873 (1996) (insurer required to provide UM and UIM coverage equal to the insured’s bodily injury liability limits where rejection forms for UM and UIM were not printed on separate sheets of paper).

The defendant also asserts the form signed by the plaintiffs was approved by the Insurance Department and therefore, the court should find that the form is valid. The defendant relies on Winslow-Quattlebaum v. Maryland Insurance Group, 561 Pa. 629, 635-37, 752 A.2d 878, 880-82 (2000). Initially, the court notes that this case is at the preliminary objections stage and there is no information in the plaintiffs’ complaint to indicate that the form in this case was approved by the Insurance Department. Further, Winslow-Quattlebaum is distinguishable in several respects. First, Winslow-Quattlebaum involved the issue of whether the separate sheet requirement of section 1731 applied to the stacking of benefits. It did not involve an issue regarding the language used in the rejection form. In fact, there is language in Winslow-Quattlebaum, albeit dicta perhaps, that would support the plaintiffs’ claims. The Pennsylvania Supreme Court stated: “Section 1731 of the MVFRL provides the specific language that must appear in the automobile insurance application in order for an insured to validly reject UIM protection.” 561 Pa. at 633, 752 A.2d at 880. Second, the forms utilized by the insurance company in Winslow-Quattlebaum were not merely approved by the Insurance Department, but were mandated by regulation. Id. at 635-37, 752 A.2d at 881-82. The regulations at issue in Winslow-Quattlebaum (31 Pa. Code §68.103 and appendix A) required the statutory rejection form for UIM coverage and the rejection of stacked UIM coverage to be on the same sheet of paper. These regulations, however, were deleted effective July 31, 1999, because these provisions were redundant and unnecessary as they were sufficiently addressed within the Act. 29 Pa. Bulletin 4076. Finally, the forms signed by the insured in Winslow-Quattlebaum contained the precise statutory language and were exact replicas of the forms required by the Insurance Department. Id. at 633-34, 636, 752 A.2d at 880, 882. Here, the form signed by the plaintiffs is not an exact replica of the form contained in section 1731.

The defendant next contends that even if the document signed by the plaintiffs does not constitute a valid waiver, the plaintiffs’ complaint still must be dismissed because there is no remedy under the statute. Again, the court cannot agree. Subsection (c.l) states: “If the insurer fails to produce a valid rejection form, uninsured or underinsured coverage, or both, as the case may be, under that policy shall be equal to the bodily injury liability limits.” Therefore, if the form signed by the plaintiffs is invalid, the statute provides the plaintiffs with underinsured coverage equal to the bodily injury limits.

For the forgoing reasons, the court will deny the defendant’s preliminary objections.

ORDER

And now, January 15,2004, the court denies the defendant’s preliminary objections to the plaintiffs’ complaint.

      . The court has reviewed all the cases submitted by the parties. The defendant argued the trend of the more recent Pennsylvania Supreme Court cases was to relax the technical requirements or excuse strict compliance and negate the Superior Court cases cited by the plaintiffs. The court cannot agree. Instead, the court believes the cases are consistent and reconcilable as follows: the technical requirements contained in section 1731 for the outright rejection of UM and UIM coverage (i.e., the body of the rejection form must utilize the statutory language, the UIM rejection form must appear on a separate sheet from the UM rejection, the first named insured must sign the rejection and the rejection must be dated) are enforced; however, the courts do not impose the technical requirements for an outright rejection of UM or UIM coverage to other situations such as stacking of benefits or a request for lower limits. In fact, the court in Lewis v. Erie Insurance Exchange, 568 Pa. 105, 793 A.2d 143 (2002), specifically indicated that its decision was not in conflict with several of the Superior Court decisions cited by the plaintiffs such as Lucas, supra and Motorists Insurance Companies v. Emig, 444 Pa. Super. 524, 664 A.2d 559 (1995).

      . At this stage of the proceedings, the defense cannot offer evidence. Furthermore, this allegation likely would be the subject of discovery. Even assuming arguendo that the Insurance Department approved the form, it is possible the missing language got dropped during the printing process after the forms were allegedly approved.