Nigon v. Jewell, 2024 Pa. Super. LEXIS 128 (April 9, 2024) (Murray, J.).
Leslie Nigon, individually and as administratrix of the Estate of Thomas A. Nigon, deceased (the estate), appeals from the entry of summary judgment in favor of Thomas J. Malvar, M.D., individually and as a general partner of Malvar & Associates; Maritoni Malvar, M.D., individually and as a general partner of Malvar & Associates; and Malvar & Associates (sometimes referred to as the practice) (collectively, the Malvar Defendants), which effectively dismissed all claims against the Malvar Defendants in this medical malpractice action. We reverse and remand.
On May 14, 2019, Mr. Nigon was at home alone, recovering from the surgery. Mrs. Nigon was at work, where she received a call from her husband at approximately 9:00 a.m. informing her that her husband was in trouble. Mrs. Nigon rushed home and called an ambulance … Unfortunately, Mr. Nigon passed away from a massive bi-lateral pulmonary emboli[sm] cause[d] by [DVT] of his left lower extremity before the medical technicians could get Mr. Nigon to the local hospital.
After careful review, and mindful of our standard of review, we disagree with the trial court’s assessment that Dr. Thomas Malvar was entitled to judgment as a matter of law. Instead, we conclude the estate raised a genuine issue of material fact concerning Dr. Thomas Malvar’s liability.
Dr. Coris opined that Dr. Thomas Malvar deviated from the standard of care during his initial treatment of Mr. Nigon’s 2017 DVTPE by:
• Failing to conduct a thorough history, failing to appropriately follow up, failing to conduct a full physical exam, and failing to document the cause of Mr. Nigon’s new onset VTE;
• Failing to conduct a thorough and appropriate hematologic evaluation for thrombophilia when faced with Mr. Nigon’s new onset, unprovoked VTE;
• If Dr. [Thomas] Malvar was uncomfortable handling and caring for Mr. Nigon’s new onset VTE, he deviated from the appropriate standard of care by failing to consult with or refer Mr. Nigon to a hematology specialist;
• Failing to test Mr. Nigon for known and common hereditary thrombophilia diseases, including, but not limited to, a mutation of the prothrombin gene, which Mr. Nigon had—as evidenced by his family’s blood results;
• Improperly conducting the limited coagulopathies that Mr. Nigon did undergo, as they were conducted during acute VTE and done while Mr. Nigon was on anticoagulation medication;
• Failing to provide and/or document any follow up care for Mr. Nigon’s VTE after January of 2018; and
• Failure to provide appropriate patient education on VTE, a life-threatening condition. Dr. [Thomas] Malvar at no time had a discussion of future risk of VTE with initial evaluation and treatment, and at no time discussed the future settings of increased risk (i.e. surgery) that Mr. Nigon faced.
Dr. Coris opined that Dr. Thomas Malvar deviated from the acceptable standard of care by:
• Conducting a pre-operative evaluation that was severely devoid of content;
• Failing to do any risk assessment for VTE prior to clearing a patient for an orthopedic surgery with a known increased risk of VTE;
• Ignoring and not taking into account [Mr. Nigon’s] previous medical history and risks affiliated with medical history;
• Failing to mention prior VTE while clearing [Mr. Nigon] for an orthopedic surgery with an increased risk of VTE;
• Failing to appreciate the increased risk of VTE affiliated with Mr. Nigon’s orthopedic surgery;
• Failing to appreciate the increased risk of VTE Mr. Nigon faced because of his history of VTE;
• Inaccurately stating “There are no medical concerns” in clearance for orthopedic surgery;
• No discussion of peri-operative anticoagulation or increased risk of VTE with [Mr. or Mrs. Nigon];
• Failed to appropriately review Mr. Nigon’s medical records and medical history—which show a history of DVT and PE—prior to clearing him for surgery; and
• Failure to coordinate with orthopedic surgeon to ensure Mr. Nigon, who clearly needed anticoagulation in conjunction with his pending orthopedic surgery, received the needed anticoagulants.
After careful review, we conclude the record, viewed in the light most favorable to the estate, does not support the grant of summary judgment in Dr. Thomas Malvar’s favor. See Bourgeois, 242 A.3d at 650. We reiterate that this standard applies to expert reports, where the expert’s conclusions are supported by the record. See id. Moreover, “while conclusions recorded by experts may be disputed, the credibility and weight attributed to those conclusions are not proper considerations at summary judgment; rather, such determinations reside in the sole province of the trier of fact….” Summers, 997 A.2d at 1161.
In its second issue, the estate argues the trial court erred by disregarding agency law and dismissing Dr. Maritoni Malvar from the case.
After careful review, we conclude the trial court erred by dismissing Dr. Maritoni Malvar from the action.
Our review reveals Strain is distinguishable from the instant case. Significantly, the estate seeks to hold Dr. Maritoni Malvar liable as a general partner of Malvar & Associates, rather than as a principal with liability for an agent (as in Strain). Dr. Maritoni Malvar correctly states the estate did not establish she employs, supervises, or exerts any control over Dr. Thomas Malvar’s performance as a medical provider. However, because Drs. Maritoni and Thomas Malvar are members of a partnership, the principal-agent framework applied by the Strain Court is not at issue.
This Court previously has addressed medical malpractice claims levied against more than one physician, where each physician is named individually and as a partner in a professional partnership. See Keech v. Mead Johnson & Co., 398 Pa. Super. 329, 580 A.2d 1374 (Pa. Super. 1990) (addressing physician’s dismissal from medical malpractice suit in her individual capacity, though she remained in litigation as a partner); see also Grubb v. Albert Einstein Med. Ctr., 255 Pa. Super. 381, 387 A.2d 480 (Pa. Super. 1978) (en banc) (concluding physician could be held liable for a tort committed by a partner physician acting within the ordinary scope of their partnership). Because the trial court declined to consider partnership law in granting Dr. Maritoni Malvar’s motion for summary judgment, we need not undertake a lengthy discussion of the facts of Keech and Grubb. However, these cases illustrate that general partnership law can, in fact, be applied to physicians. Thus, the trial court erred by concluding that partnerships involving physicians must be categorically excluded from application of partnership law.
