J-A06042-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHRISTOPHER WHITE AND NINA WHITE, 

INDIVIDUALLY AND AS 

ADMINISTRATORS OF THE ESTATE OF 

RICHARD C. WHITE A/K/A RICHARD 

CURTIS WHITE, DECEASED 

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

RICHARD M. CORNISH, M.D., DARELL T. 

COVINGTON, M.D., POCONO 

EMERGENCY ASSOCIATES, P.C., AND 

POCONO MEDICAL CENTER

Appellees No. 1806 EDA 2014

Appeal from the Order June 4, 2014

In the Court of Common Pleas of Monroe County

Civil Division at No(s): 8231-CV-2012

BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED APRIL 13, 2015

Appellants Christopher and Nina White, as Administrators of the Estate 

of Richard C. White, filed this medical malpractice action against Richard M. 

Cornish, M.D., Pocono Emergency Physicians, P.C.,1 Darrell T. Covington, 

M.D., and Pocono Medical Center. The trial court granted summary 

judgment for Dr. Covington, finding he owed no duty to Mr. White and 

____________________________________________

1 Appellants initially named “Pocono Emergency Associates, P.C.” as a 

defendant. The parties agreed the appropriate party was “Pocono 

Emergency Physicians,” but did not formally correct the caption.
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finding Appellants’ experts provided contradictory testimony. We reverse 

and remand.

Mr. White was Dr. Covington’s patient beginning in 2003. Opinion, 

5/13/2014, at 3. On July 22, 2009, Dr. Covington maintains he sent Mr. 

White the following unsigned letter:

This letter is to notify you that your past due account in 

the sum of $44.18 has been written off as an “Uncollected 

Bad Debt”. We have billed you on several occasions by 

statement with no response from you. As of thirty (30) 

days from the above date listed, we can no longer provide 

services to you as your doctor due to the non-payment of 

your account. If you pay this amount in full, we will 

reconsider seeing you as our patient.

Should you have any questions, please call our office at 

(570) 421-8968 between the hours of 9:00 AM and 5:00 

PM on Tuesdays, Wednesdays or Fridays.

Letter From Darell T. Covington, M.D. to Richard C. White dated July 22, 

2009, Motion for Summary Judgment of Defendant, Darell T. Covington, 

M.D. at Exh. B. Mr. White did not pay this balance. Dr. Covington sent at 

least one similar letter to Mr. White in the past, but resumed treating Mr. 

White after discussing payment obligations with him. N.T. of Dep. of Dr. 

Covington, 2/6/2014, at 160-165 [Covington Dep. Vol. II]. However, Mr. 

White did not visit Dr. Covington following the July 22, 2009 letter.

On September 22, 2010, Mr. White was treated at the Pocono Medical 

Center emergency department and discharged. Report of Ira Mehlman, 

M.D., at 2. On September 29, 2010, Mr. White visited Nicholas Teleo, M.D., 

a surgeon. Id. Dr. Teleo’s notes regarding Mr. White’s history state: 
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“Incisional hernia – behind colostomy – watched by Dr. Covington.” 

Covington Dep. Vol. II, at 151.2 

On October 3, 2010, Mr. White was again admitted to the Pocono 

Medical Center emergency department, where Dr. Cornish, an emergency 

room physician, treated him. Following a CT scan, a radiologist 

recommended a surgical consult. Imaging Report, Pocono Medical Center 

Imaging Services, dated 10/3/2010. At Mr. White’s request, Dr. Cornish 

called Dr. Covington, a colo-rectal surgeon. N.T. of Dep. of Dr. Cornish, at 

124. The telephone call lasted three minutes and fourteen seconds.3 Id. at 

127-28, 165-68. Dr. Cornish testified that the conversation with Dr. 

Covington was a surgical consultation and that he relied on this conversation 

when discharging Mr. White. Id. He stated that Dr. Covington said he 

believed Mr. White was suffering from enteritis and did not require a surgical 

admission to the hospital. Id. Further, Dr. Cornish testified that Dr. 

Covington said he “would be happy to see [Mr. White] as an out-patient if no 

____________________________________________

2 Dr. Covington testified Dr. Teleo was wrong. Covington Dep. Vol. II, at 

149-151.

3 The contents of this telephone call are disputed. Dr. Covington disputes 

Dr. Cornish’s version of the telephone call and claims he told Dr. Cornish 

that Mr. White was not his patient. N.T. of Dep. of Dr. Covington, 

11/21/2013, at 71 [Covington Dep. Vol. I]; N.T. of Dep. of Dr. Cornish, at 

166 (Dr. Covington did not say Mr. White was not his patient). We view the 

disputed facts in the light most favorable to Appellants, the non-moving 

parties. See Summers v. Certainteed Corp., 997 A.2d 1152, 1159 

(Pa.2010).
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better in several days.” Id. at 128. Dr. Cornish stated Dr. Covington asked 

questions to be presented to Mr. White, and that he [Dr. Cornish] relayed 

Mr. White’s answers to Dr. Covington. Id. at 124.

After this telephone conversation, Dr. Cornish discharged Mr. White 

from the emergency department and gave discharge instructions, which 

provided a diagnosis of gastroenteritis and listed Dr. Covington as the 

follow-up contact. N.T. of Dep. Dr. Cornish, at 127-31. On October 3, 

2010, the Pocono Medical Center emergency department faxed a copy of Mr. 

White’s emergency room record to Dr. Covington. Covington Dep. Vol. I, at 

97-100. Dr. Covington received it, signed it, and placed it in Mr. White’s 

chart. Id.

On October 5, 2010, Mr. White returned to the emergency 

department. Covington Dep. Vol. II, at 231. That same day, Dr. Cornish 

put the following note in the emergency room record concerning the visit of 

October 3, 2010:

The increased bowel distention on the CT compared to the 

CT from the 22-September, as well as the protracted 

nature of the illness and the increased WBC count 

prompted me to suggest to the patient that I consult 

surgery. The patient expressed desire for me to call Dr. 

Covington, who had operated him [sic] in the past. I 

described the case to Dr. Covington, to include the H&P, 

the physical exam, the labs and the CT readings. I 

reentered the patient’s room during that call to obtain 

detailed answers from the patient to some of Dr. 

Covington’s questions. Dr. Covington felt that the patient 

was likely to have an enteritis rather than a bowel 

obstruction on the basis of the watery diarrhea and 

elevated WBC, the continuance of flatus and the lack of 
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abdominal tenderness. He did not feel that he needed 

surgical admission, but would be happy to see him as an 

outpatient if no better in several days. I conveyed his 

impression to the patient.

Pocono Medical Center Emergency Record, Doctor Notes, 10/5/2010, Bates 

No. 00371; N.T. of Dep. of Dr. Cornish, at 97-98.4

Although Dr. Covington performed emergency surgery on Mr. White, 

Mr. White died on October 8, 2010.5 Covington Dep. Vol. II, at 230. The 

certificate of death completed by Dr. Covington lists the cause of death as 

gangrenous/ischemic small bowel, sepsis, and multiple system failure. Id.

at 230-33. It also states Mr. White was in “septic shock” when admitted on 

October 5, 2010. Id. at 229.

Appellants produced expert reports from Ralph Silverman, M.D., a 

colo-rectal surgeon, Albert Weihl, M.D., an emergency department 

physician, and Ira Mehlman, M.D., an emergency medicine physician.

Dr. Silverman opined:

____________________________________________

4 Dr. Cornish entered this note after Mr. White returned to the emergency 

department on October 5, 2010. N.T. of Dep. of Dr. Cornish, at 54. He 

stated that Mr. White’s return to the emergency department “prompted me 

to look at that chart from the 3rd to refresh my memory as to the patient’s 

status and I think it’s probable to say if I had no other patients to see or no 

other work that was pending that I would have just gone ahead and 

completed the chart at that time.” Id. at 54-55.

5 Dr. Covington testified that he received a call from the hospital on October 

5, 2010 informing him that Mr. White was at the emergency room, was in 

septic shock, and the surgeon that was at the hospital was performing 

another operation. Covington Dep. Vol. II, at 167-69. Therefore, Dr. 

Covington went to the hospital and operated on Mr. White because “there 

was no one available to operate and [Mr. White] was dying.” Id.
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Based on the fact that Dr. Cornish called Dr. Covington 

and that Dr. Covington said it was okay to discharge the 

patient, a formal consult was initiated. Mr. White’s past 

noncompliance with fiscal responsibilities is not an 

acceptable excuse to refuse care in a potential emergent 

situation especially when the consult has been initiated. As 

such, Dr. Covington’s refusal to allow a full presentation by 

Dr. Cornish of Mr. White’s case, and thus refusing to assist 

this ER doctor and patient, was a deviation from the 

standard of care.

. . . 

Surgical intervention was the only way to decrease Mr. 

White’s risk of further complications and death. Dr. 

Covington’s refusal to come to the ER and evaluate Mr. 

White contributed to a delay in the necessary surgical care 

and was a deviation from the standard of care which 

increased Mr. White’s risk of death.

Email from Ralph Silverman to Thomas J. Foley, dated Mar. 18, 2014.

Dr. Weihl opined:

In spite of the above, with ongoing unrelieved symptoms 

for over 10 days, marked presumed new abnormalities in 

laboratory testing indicating severe hyperglycemia, severe 

elevation of white blood count, moderate unexplained 

anemia, and new renal insufficiency, and a CT scan 

showing progressive abnormalities, Dr. Cornish relied upon 

only a telephone consultation with a surgeon and 

discharged Mr. White to his home.

On October 3, 2010[,] Dr. Cornish deviated from the 

standard of care and discharged Mr. White from the 

Pocono Medical Center Emergency Department on a 

dangerous drug therapy plan. Mr. White instead required 

immediate admission to the hospital for medical treatment 

of his multiple, newly discovered, metabolic and 

hematologic abnormalities, and for surgical consultation 

with a surgeon who actually examined and evaluated the 

patient in person.

On October 3, 2010, Mr. White could not be reasonably, 

prudently or safely discharged from the hospital. 

Telephone contact by Dr. Cornish was required with Mr. 
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White’s primary physician, and arrangement for admission 

to the hospital was required for urgently needed treatment 

and further medical and surgical evaluation. Discharging 

Mr. White to his home on October 3, 2010, in violation of 

the standard of care, exposed Mr. White to increased risk 

of harm and led directly to his death on October 8, 2010.

Letter from Albert C. Weihl, M.D., to The Foley Law Firm, dated Sept. 19, 

2012, at 3-4.

Dr. Mehlman opined:

Dr. Cornish’s deposition remarks about the CAT scan of the 

abdomen/pelvis . . ., his patient’s wrongly labeled 

“aggressive” hydration . . . , the “black box” warnings 

about metformin . . . , the management and interpretation 

of [Mr. White’s] very critical glucose of >450 repeated and 

its appropriate management . . . , a failure to understand 

and know the critical concepts of SIRS . . . , and an 

apparent 3 minutes 14 second conversation with Dr. 

Covington . . . which he believes allowed him to discharge 

this patient [is] very concerning and either represent[s] a 

significant lack of knowledge, lack of concern, “asleep at 

the wheel”, or “something else” — and Dr. Cornish’s 

ultimate action of discharging this patient denied him a 

good outcome and survival. The standard of care of 

emergency medicine doctors is that they generally do not 

admit patients themselves, BUT they do get patients 

admitted by calling appropriate doctors, either of that 

patient or on call for the ED that day, who then admit the 

patients after an appropriate and meaningful conversation. 

Emergency medicine doctors do not send seriously ill 

patients requesting help home whatever anyone else tells 

them: that is the standard of care. And there are many 

mechanisms available to make the right thing, the right 

outcome happen[.] Dr. Cornish, when all is said and done, 

regardless of whatever (contested) conversation he might 

have had with Dr. Covington, did not make the right things 

happen, thus, he did not meet the standard of care on 

10/3/10, with patient [Mr. White], and that denied [Mr. 

White] the chance to survive and assured his death. On 

page 112 of his deposition, Dr. Cornish stated that “it was 

my judgment that he didn’t require admission”: this was 
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very wrong, and reflects the failures on multiple levels of 

Dr. Cornish to hear, understand and process the 

information he had on patient [Mr. White], and what it 

meant clinically, and what the standard of care required. 

This failure to admit and further evaluate and treat patient 

[Mr. White], assured his patient’s death.

. . . 

Regardless of what Dr. Covington might have thought, 

might have said in the roughly 3 minute and 14 second 

conversation, ultimately, Dr. Cornish should never have 

discharged patient [Mr. White] from what he knew, and 

should have understood, with the available ancillary tests 

he had (imaging and many abnormal serious lab tests, 

such as WBC, BUN/creatinine, glucose, Na, CO2).

Letter from Ira Mehlman, M.D. to Foley Law Firm, dated 3/17/2014, at 4-7.

On March 17, 2014, Dr. Covington filed a motion for summary 

judgment. On May 13, 2014, the trial court granted summary judgment in 

favor of Dr. Covington. On May 15, 2014, Appellants filed a motion for 

reconsideration and vacatur of the May 13, 2014 order or, in the alternative, 

for a stay of proceedings and appellate certification. On June 4, 2014, the 

trial court issued an amended order, reaffirming summary judgment for Dr. 

Covington, but certifying the order as a final order for appellate purposes 

pursuant to Pennsylvania Rule of Appellate Procedure 341(c)6and 42 Pa.C.S. 

§ 702(a).7

____________________________________________

6 Rule 341(c) provides: “When more than one claim for relief is presented in 

an action, whether as a claim, counterclaim, cross-claim, or third-party claim 

or when multiple parties are involved, the trial court or other governmental 

unit may enter a final order as to one or more but fewer than all of the 

claims and parties only upon an express determination that an immediate 

appeal would facilitate resolution of the entire case. Such an order becomes 

(Footnote Continued Next Page)
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Appellants raise the following issues on appeal:

I. Whether the honorable trial court erred in granting 

summary judgment based upon the alleged lack of 

duty, or absence of a doctor-patient relationship,[] 

as between defendant[,] Dr. Covington[,] and 

decedent?

II. Whether the honorable trial court erred in applying

Mudano v. Philadelphia Rapid Transit Co., 289 

Pa. 51, 137 A.104 (1927) and granting summary 

judgment on the alternative ground that 

[appellants’] expert reports allegedly conflicted with 

one another?

Appellant’s Brief at 3 (unnecessary capitalization omitted).

“[S]ummary judgment is appropriate only in those cases where the 

record clearly demonstrates that there is no genuine issue of material fact 

and that the moving party is entitled to judgment as a matter of law.” 

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa.2010) (quoting 

Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221 

(Pa.2002)). A “trial court must take all facts of record and reasonable 

inferences therefrom in a light most favorable to the non-moving party” and 

“must resolve all doubts as to the existence of a genuine issue of material 

fact against the moving party.” Id. (citing Toy v. Metropolitan Life Ins. 

(Footnote Continued) _______________________

appealable when entered. In the absence of such a determination and entry 

of a final order, any order or other form of decision that adjudicates fewer 

than all the claims and parties shall not constitute a final order.”

7 Section 702(a) provides: “(a) Appeals authorized by law.--An appeal 

authorized by law from an interlocutory order in a matter shall be taken to 

the appellate court having jurisdiction of final orders in such matter.”
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Co., 928 A.2d 186, 195 (Pa.2007)). Therefore, a trial court “may only grant

summary judgment ‘where the right to such judgment is clear and free from 

all doubt.’” Id. 

This Court “may reverse a grant of summary judgment if there has 

been an error of law or an abuse of discretion.” Summers, 997 A.2d at 

1159 (quoting Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899, 

902–03 (Pa.2007)). Whether there are no genuine issues as to any material 

fact presents a question of law, and, therefore, our standard of review is de 

novo. Id. “[W]e need not defer to the determinations made by” the trial 

court. Id. 

Appellants’ first claim alleges the trial court erred in finding, as a 

matter of law, that no doctor-patient relationship existed. We agree.

To establish medical negligence, a plaintiff must prove “a duty owed 

by the physician to the patient, a breach of that duty by the physician, that 

the breach was the proximate cause of the harm suffered, and the damages 

suffered were a direct result of harm.” Vazquez v. CHS Professional 

Practice, P.C., 39 A.3d 395, 397 (Pa.Super.2012) (quoting Quinby v. 

Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1070–1071 

(Pa.2006)).

The trial court found Dr. Covington did not owe a duty to Mr. White 

because no physician-patient relationship existed. It found, as a matter of 

law, no physician-patient relationship existed on October 3, 2010, and the 
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telephone conversation between Dr. Cornish and Dr. Covington did not 

reestablish a physician-patient relationship. Opinion, 5-13/2014, at 5. 

If Dr. Covington and Mr. White had a physician-patient relationship, 

then Dr. Covington owed Mr. White a duty to act within the standard of care. 

See Tomko v. Marks, 602 A.2d 890, 892 (Pa.Super.1992) (duty owed by 

physician “arises from the physician-patient relationship” (quoting Craddock 

v. Gross, 504 A.2d 1300, 1302 (Pa.Super.1986))). There is no 

Pennsylvania precedent discussing whether a physician-patient relationship 

exists in circumstances similar to those presented in this case and, 

therefore, we review decisions from other jurisdictions for guidance.

In Campbell v. Haber, the New York Supreme Court, Appellate 

Division, found an implied physician-patient relationship may have existed 

where a physician called the cardiologist on call, who provided an opinion on 

the test results, and the emergency room physician relayed the findings to 

the patient and discharged him. 274 A.D.2d 946, 946-47 (N.Y.2000). It 

found that whether a physician-patient relationship existed was a question of 

fact for the jury. Id. The dissenting opinion in Campbell found that “what 

transpired during the brief telephone call . . . did not give rise to a physicianpatient relationship between [the cardiologist] and [the] plaintiff. In the 

absence of such relationship, there is no legal duty and hence no basis for 

liability for medical malpractice.” Id. at 948. It noted there was no express 

undertaking to provide medical treatment and the cardiologist did not 

undertake to supervise the emergency room physician. The physician never 
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formally engaged the cardiologist as a consultant and the cardiologist only 

had the information provided to him by the physician. The dissent further 

noted there was no prior or subsequent relationship with the plaintiff and the 

cardiologist never had direct contact with the plaintiff. Id. It concluded that 

“[l]iability should not be predicated on the sort of informal consultation 

between professionals that occurred here.” Id.

In Cogswell v. Chapman, 249 A.D.2d 865, 866 (N.Y.1998), the New 

York Supreme Court, Appellate Division, found a physician-patient 

relationship can be established by telephone if the call “‘affirmatively 

advis[es] a prospective patient as to a course of treatment” and it is 

foreseeable that the patient would rely on the advice. In Cogswell, an 

ophthalmologist discussed a patient’s injury with the emergency room 

physician, including minimal activity restrictions and follow-up visits, and the 

written instructions provided to the patient were identical to those the 

ophthalmologist stated he provided to the emergency room doctor. Id. at 

866-67. The Court found an issue of fact existed regarding the 

ophthalmologist’s level of participation because, under the totality of the 

circumstances, a jury could find the ophthalmologist had more than an 

informal interest and involvement in the patient’s care. Id. at 867.

Alternately, other courts have found that no physician-patient 

relationship arises where a doctor is called for consultation, but does not 

examine the patient, review the records, or anticipate a future physicianpatient relationship. See, e.g., Lopez v. Aziz, 852 S.W.2d 303, 305-307 
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(Tex.App.1993) (no physician-patient relationship where doctor consulted 

OB-GYN specialist by telephone and followed the specialist’s advice, where 

there was no contract to perform services, specialist did not accept any work 

relating to plaintiff, did not conduct any tests or review any test results, did 

not prepare any reports, and did not bill plaintiff, noting specialist “did no 

more than answer the professional inquiry of a colleague”); Reynolds v. 

Decatur Memorial Hosp., 660 N.E.2d 235, 237-240 (Ill.App.1996) (no 

physician-patient relationship existed where emergency room doctor called 

specialist, advised him of the circumstances of plaintiff’s admission to 

hospital, and specialist asked questions, but specialist did not treat the 

patient or commit to further involvement in his care, did not see, examine or 

diagnose plaintiff, and did not bill for services); cf. Hill v. Kokosky, 186 

Mich.App. 300 (2002) (specialist owed no duty to patient, where patient’s 

obstetrician contacted specialists by telephone for opinions regarding the 

plaintiff’s case, obstetrician provided the case history, but did not refer 

plaintiff to specialists and specialists did not examine plaintiff or review her 

chart, plaintiff did not seek specialists’ medical advice or treatment, and 

opinions were addressed to the obstetrician as a colleague and were 

recommendations, not a prescribed course of treatment).

We are constrained to concluded that, as in Campbell and Cogswell, 

whether a physician-patient relationship existed between Dr. Covington and 

Dr. White raises a genuine issue of material fact, which precludes summary 

judgment. 
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Initially, a genuine issue of fact exists as to whether Dr. Covington 

terminated the physician-patient relationship on July 9, 2009. The letter is 

unsigned, and, although Dr. Covington likely sends such letters in his regular 

course of business, Dr. Covington presented no proof he mailed the letter. 

Further, assuming the letter was sent and received, Dr. Covington sent at 

least one similar letter to Mr. White in the past and nevertheless resumed 

treatment after discussing payment obligations. However, the July 9, 2009 

letter stated the relationship was terminated unless Mr. White paid the 

balance due, which he failed to do. Further, Dr. Covington provided no 

treatment between the date of the letter, July 9, 2009, and the date of the 

telephone call on October 3, 2010. 

In addition, a genuine issue of material facts exists as to whether the 

telephone conversation re-established a physician-patient relationship. 

Unlike a blind telephone consultation where the doctor does not know the 

patient, does not examine the patient, and does not review the records, Dr. 

Covington knew Mr. White, Mr. White asked Dr. Cornish to call Dr. 

Covington, Dr. Covington asked questions, which Mr. White answered 

through Dr. Cornish, Dr. Covington received the medical records that same 

day and placed them in Mr. White’s chart, and Dr. Covington told Dr. Cornish 
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that Mr. White could see him if the problems persisted.8 The jury would be 

in the best position to determine whether a physician-patient relationship 

existed between Dr. Covington and Mr. White. Because a genuine issue of 

material fact exists as to whether there was a physician-patient relationship, 

summary judgment is not appropriate.

We note that, unlike the cases in which other jurisdictions have found 

no physician-patient relationship existed as a matter of law, Mr. White and 

Dr. Covington had a prior physician-patient relationship, Dr. Covington told 

Dr. Cornish that Mr. White could see him if the problems persisted,9 Dr. 

Covington received and signed Mr. White’s emergency room records, and he 

placed the records in Mr. White’s chart. See Lopez, 852 S.W.2d at 305-

307; Reynolds, 660 N.E.2d at 237-240; Hill, 186 Mich.App. at 300.

Appellants next contend the trial court erred when it applied Mudano 

v. Phila. Rapid Transit Co., 137 A. 104, 106 (Pa.1927), to find Appellants’ 

experts’ opinions conflicted with each other. Appellants’ Brief at 28-50. We 

agree.

In Mudano, the Supreme Court of Pennsylvania found that a plaintiff 

fails to sustain his burden of proof if he presents conflicting expert 

____________________________________________

8 As we noted, Dr. Covington disputes this version of events. However, for 

purposes of this appeal, we must view the facts in favor of the Appellants, 

the non-moving party. See Summers, 997 A.2d at 1159.

9 Dr. Covington denies informing Dr. Cornish that Mr. White could see him if 

the problems persisted. Covington Dep. Vol. I at 93-94.
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testimony. Mudano, 137 A. at 106. The Court reasoned that if expert 

testimony “was so conflicting regarding the proper inference to be drawn as 

to render either one of two inconsistent inferences possible of adoption, the 

adoption of the one or the other would be nothing more than a guess.” Id.

In Mudano, the Court found the trial court should have granted a 

compulsory non-suit, as the two experts presented by the plaintiff were so 

contradictory regarding the cause of plaintiff’s injury as to neutralize each 

other’s opinions.

In Brannon v. Lankenau Hospital, the plaintiff’s expert testified on 

direct examination that the defendant’s conduct fell below the 1965 standard 

of care. 417 A.2d 196 (Pa.1980). The next day on re-direct he stated he 

could not answer whether the conduct fell below the standard of care, but 

then re-affirmed, again on re-direct, that the conduct fell below the standard 

of care. Id. at 200. The Supreme Court of Pennsylvania found a 

compulsory non-suit not proper, reasoning the testimony was a “relatively 

minor divergence in only a part of appellant’s expert testimony,” and “when 

viewed against the testimony as a whole, [it did not] sufficiently 

compromise[] the witness’ testimony on direct to justify removal of this 

issue from jury consideration.” Id.

In Brodowski v. Ryave, this Court noted that “conflicts in [expert] 

testimony are fatal only if absolute.” 885 A.2d 1045, 1060-61 

(Pa.Super.2005) (quoting Brannan, 417 A.2d 200) (alteration in original). 

The Court in Brodowski found no irreconcilable conflict where one expert 
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testified that Dr. Ryave breached the standard of care “by failing to admit 

Plaintiff to a ‘proper place prior to his departure’ even though he had more 

than two hours to do so,” for failing to effectuate the proper consultation 

with a neurologist, and for failing to properly sign out to the oncoming ER 

doctor. Id. at 1061. A second expert testified that Dr. Ryave “did a very 

good job in his evaluation and assessment” of Plaintiff and Dr. Ryave “did a 

good job in his evaluation, but something fell apart after he left. He was 

meant to properly convey to the ER doctor who was taking over that this 

patient needed to be admitted to the hospital for evaluation of stroke, but 

something went awry at that point.” Id. The second expert also testified 

that “part of [Dr. Ryave's] job was to . . . appropriately sign her out when he 

left his shift at 7:00 p.m. There was clearly some kind of breakdown that 

occurred at that point.” Id. This Court found: 

The experts’ testimony did not present an irreconcilable 

conflict such that the Mudano rule would apply to 

neutralize their opinions with regard to Dr. Ryave’s care. 

Both experts’ opinions were consistent in that Dr. Ryave 

may not have properly signed out before his departure. 

Moreover, although Expert Preston stated that Dr. Ryave’s 

evaluation, assessment, and differential diagnosis were 

proper, Expert Chamovitz did not specifically opine on 

these issues but, rather, opined on issues of treatment 

implementation. Overall, the two experts’ testimony did 

not present a Mudano conflict and the trial court erred by 

granting Dr. Ryave’s nonsuit on that basis.

Id. The Brodowski court, however, found an irreconcilable conflict with 

regard to the expert testimony regarding a second defendant, Dr. Vagano. 

One expert testified Dr. Vagano should have obtained a neurology consult 
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himself. Id. at 1061-62. A second expert, however, stated it would have 

been a good idea to have the patient seen by a neurologist, but it was often 

the attending doctor that decides upon a neurologist and it would not be Dr. 

Vagano’s duty to obtain the consult. Id.

Here, Appellants’ expert reports did not contain irreconcilable conflicts. 

The experts opined that Dr. Covington, as a surgeon, deviated from the 

standard of care when he provided his consultation by phone, without 

examining the patient, and Dr. Cornish, as an emergency room physician, 

deviated from a standard of care when he relied on the telephone 

consultation. Nothing would preclude a jury from relying on the experts’ 

testimony to find Dr. Covington, Dr. Cornish, or both, deviated from 

standards of care.

Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/13/2015