Crew, D. v. Penn Presbyterian Medical Center

J-A28005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DAVID CREW, ADMINISTRATOR OF : IN THE SUPERIOR COURT OF
THE ESTATE OF ESSIE CREW, : PENNSYLVANIA
DECEASED AND IN HIS OWN RIGHT :
:
Appellant :
:
v. :
:
PENN PRESBYTERIAN MEDICAL :
CENTER AND TRUSTEES OF THE :
UNIVERSITY OF PENNSYLVANIA AND :
PENN HOSPICE AT RITTENHOUSE :
AND PENN MEDICINE RITTENHOUSE :
:
Appellees : No. 869 EDA 2017
Appeal from the Judgment Entered February 15, 2017
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): June Term, 2014 No. 0162
BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MAY 09, 2018
Appellant, David Crew, Administrator of the Estate of Essie Crew,
Deceased and in his own right, appeals from the judgment entered in the
Philadelphia County Court of Common Pleas in favor of Appellees, Penn
Presbyterian Medical Center and Trustees of the University of Pennsylvania
and Penn Hospice at Rittenhouse and Penn Medicine Rittenhouse, in this
medical malpractice action. We affirm.
In its opinion filed on June 30, 2017, the trial court fully and correctly
sets forth the relevant facts and procedural history. Therefore, we have no
need to restate them.
J-A28005-17
Appellant raises the following issues for our review:
WHETHER THE TRIAL COURT ERRED AS A MATTER OF
LAW, ABUSED ITS DISCRETION AND COMMITTED
REVERSIBLE ERROR IN GRANTING APPELLEES’ MOTION
FOR PARTIAL SUMMARY JUDGMENT[?]
WHETHER THE TRIAL COURT ERRED AS A MATTER OF
LAW, ABUSED ITS DISCRETION AND COMMITTED
REVERSIBLE ERROR IN PERMITTING THE ADMISSION OF
THE CONSENTS FOR TREATMENT INTO EVIDENCE IN A
MEDICAL MALPRACTICE TRIAL AT THE TIME OF TRIAL[?]
WHETHER THE TRIAL COURT ERRED AS A MATTER OF
LAW, ABUSED ITS DISCRETION AND COMMITTED
REVERSIBLE ERROR IN NOT PERMITTING THE CONTENTS
OF FEDERAL AND STATE LAW, REGULATIONS AND
GUIDELINES TO BE USED AT TRIAL[?]
WHETHER THE TRIAL COURT ERRED AS A MATTER OF
LAW, ABUSED ITS DISCRETION AND COMMITTED
REVERSIBLE ERROR IN ALLOWING TESTIMONY
REGARDING SETTLEMENT[?]
WHETHER THE TRIAL COURT ERRED AS A MATTER OF
LAW, ABUSED ITS DISCRETION AND COMMITTED
REVERSIBLE ERROR BY FAIL[ING] TO CHARGE ON HARM
OF MEDICAL NEGLIGENCE REGARDING FAILURE TO EAT
OR PROVIDE HYDRATION[?]
(Appellant’s Brief at 6).
Our standard of review of an order granting summary judgment
requires us to determine whether the trial court abused its discretion or
committed an error of law. Mee v. Safeco Ins. Co. of America, 908 A.2d
344, 347 (Pa.Super. 2006).
Judicial discretion requires action in conformity with law on
facts and circumstances before the trial court after hearing
and consideration. Consequently, the court abuses its
discretion if, in resolving the issue for decision, it
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misapplies the law or exercises its discretion in a manner
lacking reason. Similarly, the trial court abuses its
discretion if it does not follow legal procedure.
Miller v. Sacred Heart Hospital, 753 A.2d 829, 832 (Pa.Super. 2000)
(internal citations and quotation marks omitted). Our scope of review is
plenary. Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001),
cert. denied, 536 U.S. 938, 122 S. Ct. 2618, 153 L. Ed. 2d 802 (2002). In
reviewing a trial court’s grant of summary judgment,
[W]e apply the same standard as the trial court, reviewing
all the evidence of record to determine whether there
exists a genuine issue of material fact. We view the record
in the light most favorable to the non-moving party, and
all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party.
Only where there is no genuine issue as to any material
fact and it is clear that the moving party is entitled to a
judgment as a matter of law will summary judgment be
entered. All doubts as to the existence of a genuine issue
of a material fact must be resolved against the moving
party.
Motions for summary judgment necessarily and directly
implicate the plaintiff’s proof of the elements of [a] cause
of action. Summary judgment is proper 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. In other words,
whenever there is no genuine issue of any material fact as
to a necessary element of the cause of action or defense,
which could be established by additional discovery or
expert report and the moving party is entitled to judgment
as a matter of law, summary judgment is appropriate.
Thus, a record that supports summary judgment either (1)
shows the material facts are undisputed or (2) contains
insufficient evidence of facts to make out a prima facie
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cause of action or defense.
Upon appellate review, we are not bound by the trial
court’s conclusions of law, but may reach our own
conclusions.
Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)
(internal citations and quotation marks omitted) (emphasis added).
After a thorough review of the record, briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Ellen Ceisler,
we conclude Appellant’s first issue merits no relief. The trial court opinion
comprehensively discusses and properly disposes of the question presented.
(See Trial Court Opinion, filed June 16, 2017, at 4-10) (finding: court
properly granted summary judgment in favor of Appellees Penn Presbyterian
Medical Center, Trustees of University of Pennsylvania, and Penn Medicine
Rittenhouse as to Appellant’s corporate negligence claim in Count II; in
support of his corporate negligence claim, Appellant offered reports of two
medical experts, Erane T. Allen, MPA, RN, CDONA, CNHA, and Dr. Perry
Starer, M.D.; neither expert offered opinion regarding whether Appellees
met relative standards of care; Appellant’s failure to provide proper expert
testimony precluded him from establishing existence of genuine issue of
material fact as to his corporate negligence claim against Appellees, Penn
Presbyterian Medical Center, Trustees of University of Pennsylvania, and
Penn Medicine Rittenhouse; Dr. Starer’s report, however, created genuine
issue of material fact concerning whether Appellee Penn Hospice at
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Rittenhouse was liable for corporate negligence; court’s granting summary
judgment in favor of Appellee Penn Hospice on Appellant’s Count II
corporate negligence claim, however, constituted harmless error; court
denied Appellees’ motion for summary judgment as to Appellee Penn
Hospice on Count I of Appellant’s complaint; Count I contained averments
which sounded in both vicarious liability and corporate negligence, and were
substantially same as those in Count II; although court granted summary
judgment as to corporate negligence claims in Count II, court did not
foreclose Appellant’s ability to have jury determine whether Appellee Penn
Hospice was liable for corporate negligence; moreover, even if Count I did
not allege corporate negligence claim against Appellee Penn Hospice, jury
concluded treatment Decedent received at Appellee Penn Hospice satisfied
relevant standard of care; court properly granted summary judgment as to
Appellant’s Count I negligence claim in favor of three Appellees, Penn
Presbyterian Medical Center, Trustees of University of Pennsylvania, and
Penn Medicine Rittenhouse; concerning Appellant’s claim of vicarious liability
in Count I, Appellant offered no evidence to support his assertion employees
or agents of Appellees Penn Presbyterian and Penn Medicine Rittenhouse
treated Decedent in negligent manner; evidence Appellant offered failed to
establish genuine issue of material fact regarding whether Appellee Trustees
was vicariously liable for alleged negligent care Decedent received; Appellant
provided no evidence of Appellee Trustees’ level of control over medical
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personnel at Appellee Penn Hospice who treated Decedent; webpage
printouts Appellant presented failed to establish Appellee Trustees managed
and oversaw Appellee Penn Hospice, because webpage failed to reflect
status of relationship between Appellee Trustees and Appellee Penn Hospice
in 2012, when Appellee Penn Hospice treated Decedent; further, although
Dr. Starer based his claim that Appellee Trustees employed Dr. Joshua Uy,
Decedent’s treating physician, on Dr. Uy’s deposition testimony, Appellant
failed to docket as independent filing, or submit as exhibit, Dr. Uy’s
deposition transcript; therefore, Dr. Starer based his opinion as to Dr. Uy’s
employment on material outside record; therefore, no genuine issue of
material fact supported Appellant’s claim of vicarious liability as to Appellee
Trustees; to extent Appellant challenges court’s grant of summary judgment
regarding corporate negligence claim in Count I, Appellant’s corporate
negligence claim fails for same reasons as Count II corporate negligence
claim).1 The record supports the court’s rationale, and we see no reason to
____________________________________________
1 We part with the summary judgment court’s decision to the extent the
court states Appellant waived his summary judgment challenge on appeal for
failure to file a post-trial motion. Here, Appellant was not required to file a
post-trial motion to preserve his summary judgment claim on appeal. See
Pa.R.C.P. 227.1(c), Note (stating: “A motion for post-trial relief may not be
filed to orders disposing of preliminary objections, motions for judgment on
the pleadings or for summary judgment…”). In any event, Appellant argued
in his post-trial motion that he was entitled to relief for several reasons,
including, the summary judgment court erred in granting partial summary
judgment in favor of Appellees and various trial court errors. Therefore,
even if Appellant had been required to include his summary judgment
(Footnote Continued Next Page)
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disturb it.
Our well-established standard of review of a trial court’s admission or
exclusion of evidence is very narrow:
These matters are within the sound discretion of the trial
court, and we may reverse only upon a showing of abuse
of discretion or error of law. An abuse of discretion may
not be found merely because an appellate court might
have reached a different conclusion, but requires a result
of manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support so as to be clearly
erroneous. In addition, to constitute reversible error, an
evidentiary ruling must not only be erroneous, but also
harmful or prejudicial to the complaining party.
Jacobs v. Chatwani, 922 A.2d 950, 960 (Pa.Super. 2007), appeal denied,
595 Pa. 708, 938 A.2d 1053 (2007).
The admissibility of a settlement agreement is governed by 42
Pa.C.S.A. § 6141:
§ 6141. Effect of certain settlements
(a) Personal injuries.—Settlement with or any
payment made to an injured person or to others on behalf
of such injured person with the permission of such injured
person or to anyone entitled to recover damages on
account of injury or death of such person shall not
constitute an admission of liability by the person making
the payment or on whose behalf the payment was made,
unless the parties to such settlement or payment agree to
the contrary.
* * *
(Footnote Continued) _______________________
challenge in a post-sentence motion, Appellant would have properly
preserved his claim for appeal.
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(c) Admissibility in evidence.—Except in an action
in which final settlement and release has been pleaded as
a complete defense, any settlement or payment referred to
in subsections (a) and (b) shall not be admissible in
evidence on the trial of any matter.
42 Pa.C.S.A. § 6141(a), (c). The Pennsylvania Rules of Evidence provide, in
relevant part, as follows:
Rule 408. Compromise Offers and Negotiations
(a) Prohibited Uses. Evidence of the following is not
admissible--on behalf of any party--either to prove or
disprove the validity or amount of a disputed claim or to
impeach by a prior inconsistent statement or a
contradiction:
(1) furnishing, promising, or offering--or accepting,
promising to accept, or offering to accept--a valuable
consideration in compromising or attempting to
compromise the claim; and
(2) conduct or a statement made during compromise
negotiations about the claim.
Pa.R.E. 408(a). See also Comment to Pa.R.E. 408 (stating: “Pa.R.E. 408 is
consistent with 42 Pa.C.S. § 6141”).
After a thorough review of the record, briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Marlene F.
Lachman, we conclude Appellant’s remaining issues merit no relief. The trial
court opinion comprehensively discusses and properly disposes of the
questions presented. (See Trial Court Opinion, filed June 30, 2017, at 7-26)
(finding: (2) “consent to hospice care” form has no relation to “informed
consent” form, because former does not identify risks of proposed surgical
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procedure; “consent to hospice care” form indicates consenter’s
understanding that treatment rendered in hospice will be palliative rather
than curative; in other words, hospice care consent form affirmatively
advised Decedent she would receive no curative treatment while she was
under hospice care; furthermore, Appellant’s counsel opened door to
introduction of hospice care consent form, when counsel stated Decedent’s
family did not intend Decedent to die while in Appellee Penn Hospice’s care;
(5) despite court’s contrary ruling, Dr. Starer testified on direct examination
that failure to provide nutrition and hydration caused Decedent’s death; Dr.
Starer explained that Decedent’s loss of skin integrity, which ultimately
contributed to her death, was due to her deficient nutrition; therefore,
Appellant cannot demonstrate he suffered prejudice as result of court’s
ruling prohibiting Dr. Starer’s testimony on Appellee Penn Hospice’s failure
to provide Decedent nutrition and hydration; (4) Appellee Penn Hospice did
not introduce evidence of Appellant’s settlement agreement with Park
Pleasant, and jury heard no testimony regarding that settlement; Appellee
Penn Hospice did cross-examine Dr. Starer about his statements in his
medical expert report concerning negligent care Decedent received at Park
Pleasant; Appellee Penn Hospice was permitted to cross-examine Dr. Starer
on his expert report opinions; failure to permit Appellee to cross-examine
Dr. Starer on his opinion as to Park Pleasant’s negligent care would have
given jury false impression that Dr. Starer opined only Appellee Penn
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Hospice was responsible for Decedent’s death; (3) in his post-trial motion
and brief, Appellant failed to identify specific federal and state laws,
regulations, and guidelines court should have allowed; while Appellant cited
in his post-trial filings “Federal Hospice Regulations, 42 CFR 418,” he failed
to identify which individual provisions of regulation were at issue; similarly,
Appellant only generally referenced 1,000-page federal Omnibus Budget
Reconciliation Act of 1987 (“OBRA”) and OBRA regulations; further,
Appellant referenced no state laws, regulations, or guidelines in his post-trial
filings; concerning Appellant’s related motion in limine, Appellant mentioned
42 CFR 418 et seq. and 42 CFR 418.56 and conceded 42 CFR 483 was
inapplicable; in post-trial filings, Appellant referenced his cross-examination
of Barbara Felder, certified nurse practitioner who worked at Appellee Penn
Hospice, on her knowledge of 42 CFR 418.81.1-116, regarding hospice
responsibility to provide food and dietary counseling; trial court correctly
determined cross-examination of Ms. Felder on need to give Decedent food
and water was irrelevant because Decedent’s treatment plan was silent on
dietary issues and Decedent did not require forced nutrition and hydration).
The record supports the trial court’s rationale, and we see no reason to
disturb it. Accordingly, we affirm on the bases of the trial courts’ opinions.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/18
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Circulated 04/16/2018 04:19 PM
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CIVIL TRIAL DIVISION
DAVID CREW, ADMINISTRATOR OF THE : SUPERIOR COURT
ESTATE OF ESSIE CREW, DECEASED AND : 869 EDA 2017
IN HIS OWN RIGHT
Plaintiff-Appellant COURT OF COMMON PLEAS
140601612
v.
PENN PRESBYTERIAN MEDICAL CENTER, :
et al.
Defendants -Appellees
Cr)
OPINION '1
ott,
ELLEN CEISLER, J. DATE: June 15, 200,
;TC
I. FACTS AND PROCEDURAL HISTORY
This Court adopts the facts and procedural history articulated by the Honorable Marlene
Lachman in Her Honor's opinion addressing Plaintiff-Appellant David Crew's ("Appellant")
appeal in this matter.
II. DISCUSSION
This Court respectfully requests that the instant appeal be quashed or denied for the
following reasons:
1. Appellant failed to docket a post-trial motion in the above -captioned matter and has
accordingly waived all potential appellate issues;
Crew Etal Vs Penn Presbytenan Medical Cenle-OPFLD
' 11111111111,111111001111111
2. In his Brief in Support of Motion for Post -Trial Relief, Appellant failed to explain, or
address in any manner, his basis for claiming that this Court erred by granting summary
judgment regarding his "Breach of Oral Contract" claim in favor of Penn Presbyterian
Medical Center ("Penn Presbyterian"), the Trustees of the University of Pennsylvania
("Trustees"), Penn Hospice at Rittenhouse ("Penn Hospice"), and Penn Medicine
Rittenhouse; therefore, Appellant has waived his ability to raise this issue on appeal;
3. Penn Presbyterian, the Trustees, and Penn Medicine Rittenhouse were entitled to
summary judgment regarding Appellant's "corporate negligence" claims from Count
II of his Sixth Amended Complaint;
4. This Court committed harmless error in granting summary judgment in favor of Penn
Hospice as to Appellant's "corporate negligence" claims from Count II of his Sixth
Amended Complaint;
5. Penn Presbyterian, the Trustees, and Penn Medicine Rittenhouse were entitled to
summary judgment regarding Crew's "negligence" claims from Count I of his Sixth
Amended Complaint.
Preliminarily, this Court maintains that Appellant has waived all potential appellate issues,
by virtue of his decision to docket a post -trial motion in only the case with which the above-
captioned matter had been consolidated, but not in the above -captioned matter itself. Pursuant to
the Pennsylvania Rules of Civil Procedure, "Post -trial motions shall be filed within ten days after
[] verdict, discharge of the jury because of inability to agree, or nonsuit in the case of a jury trial."
Pa. R.C.P. 227.1(c). Accordingly, "parties [must] file post-trial motions in order to preserve issues
for appeal. If an issue has not been raised in a post -trial motion, it is waived for appeal purposes."
L.B. Foster Co. v. Lane Enterprises, Inc., 710 A.2d 55 (Pa. 1998). Separately, it is well -settled
that, though two or more suits maybe be consolidated for a variety of reasons, such consolidation
cannot be deemed "complete," in that "the actions lose their separate identities and become a single
action... unless the actions involve the same parties, subject matter, issues, and defenses." Kincv
v. Petro, 2 A.3d 490, 494 (Pa. 2010) (emphasis added). Where consolidation is not complete in
nature, it does "not result in merger of the pleadings, or the loss of the separate identities of the
actions." Id. at 495.
2
In the instant scenario, Appellant filed two suits: One, docketed under Case ID
#140400958, in which he sued Park Pleasant Health Care Facility and Park Pleasant, Inc., and the
other, docketed under Case ID #140601612, in which he sued Appellees; the second case is the
source of this Court's order that Appellant currently seeks to challenge on appeal. Appellant
subsequently file a Motion to Consolidate, which was granted by the Honorable Lisa Rau on March
12, 2015, who specifically consolidated these two actions "for purposes of discovery and trial
under the caption of Crew v. Park Pleasant Health Care Facility et al., April Term, 2014, No.
00958." Rau Order, 3/12/15 at 2. The consolidated matters proceeded to trial, and Appellant
thereafter filed his Motion for Post-Trial Relief in his case against the Park Pleasant entities, but
not in this matter. Given that each of Appellant's two suits were lodged against entirely distinct
and separate parties, the Park Pleasant entities in the former and Appellees in the latter, complete
consolidation of these matters did not occur, meaning that Appellant was thus required to file post -
trial motions in both cases in order to preserve any potential issues for appellate review. Thus, as
Appellant only filed a post -trial motion of record in his Park Pleasant action, but not in his case
against Appellees, he has consequently waived his right to attack this Court's disposition of
Appellees' Motion for Partial Summary Judgment via an appeal to the Superior Court.
Assuming arguendo that Appellant has not waived all potential appellate issues, his request
for appellate relief regarding this Court's aforementioned partial summary judgment ruling is still
entirely without substantive merit. Under Pennsylvania law, a trial court should grant a party's
motion for summary judgment when "there is no genuine issue of material fact as to a necessary
element of the cause of action or defense which could be established by additional discovery or
expert report." Pa. R.C.P. 1035.2(1). In addition, such a motion must be granted in situations where
"an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts
essential to a cause of action or defense in which a jury trial would require the issues be submitted
to a jury," id. at 1035.2(2), as such a failure "establishes the entitlement of the moving party to
judgment as a matter of law." Young v. Com., Dep't of Transp., 744 A.2d 1276, 1277 (Pa. 2000)
(citing Ertel v. Patriot -News Co., 674 A.2d 1038, 1042 (Pa. 1996)). That having been said, the
court's sole function when addressing a motion for summary judgment is to determine whether
there is a genuine issue of material fact to be tried, rather than to decide issues of fact. Fine v.
Checcio, 870 A.2d 850, 862 (Pa. 2005). To that end, a trial court must resolve all doubts against
3
the movant, examining the case record in the light most favorable to the nonmoving party, and
"may grant summary judgment only where the right to such a judgment is clear and free from
doubt." Id. at 857 (citation omitted).
In this matter, this Court granted in part and denied in part Appellees' joint Motion for
Partial Summary Judgment on January 27, 2016. Specifically, this Court granted said Motion: 1.
As to all appellees regarding the "corporate negligence" claims contained in Count II of Plaintiff's
Sixth Amended Complaint; 2. As to all appellees regarding the "Breach of Contract Oral
Agreement" claims from Count III of Plaintiff's Sixth Amended Complaint; and 3. As to all
appellees except Penn Hospice regarding the "negligence" claims included in Count I of
Appellant's Sixth Amended Complaint)' Here, Appellant has preserved his ability to challenge
this ruling on appeal only as it relates to his corporate negligence and negligence claims. See
Appellant's Post -Trial Motion at 6-21; Appellant's Brief in Support of Motion for Post -Trial Relief
at 5-21.2 Both of these challenges are addressed infra, in seriatim.
First, this Court properly granted summary judgment in favor of Penn Presbyterian, the
Trustees, and Perm Medicine Rittenhouse regarding Appellant's "corporate negligence" claims
from Count II of his Sixth Amended Complaint. Corporate negligence is a doctrine first recognized
by the Pennsylvania Supreme Court in Thompson v. Nason Hosp., 591 A.2d 703 (Pa. 1991), and
cautiously expanded by our appellate courts since then, through which hospitals and certain, other
medical entities "can be held liable if [they] breach[] the non -delegable duty of care owed directly
to [a] patient to ensure 'the patient's safety and well-being" while under the entity's care.
This Court's January 27, 2016 order contained a typo, in that said order stated that summary judgment was granted
in favorof Penn Hospice regarding Count I, rather than Penn Medicine Rittenhouse (as had actually been This
Court's intent); however, this error was noticed and rectified by the parties and Judge Lachman, who proceeded with
the understanding that Plaintiff could still pursue his Count -based claim against Penn Hospice. See Trial
1
Worksheet at ("*The parties agree that the correct defendant was Penn Hospice-Rittenhouse.").
1
2 Though Appellant apparently also wishes to dispute the propriety of this Court's decision to grant summary
judgment regarding his "Breach of Oral Contract" claims against Appellees, he neglected to address that matter in
his Brief in Support of Motion for Post -Trial Relief. See Statement of Errors at 4 Brief in Support of Motion for
Post -Trial Relief at 1-31. Consequently, he has waived this issue. See Am. Future Sys., Inc. v. BBB, 872 A.2d 1202,
1215 (Pa. Super. Ct. 2005) (citations omitted) ("[O]nly those issues raised in a post-trial motion which are briefed or
argued before the court hearing the motion will be considered preserved for appellate review.").
4
Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582, 601 (Pa. 2012) (citing Thompson, 591
A.2d at 707). Under this theory, liability can attach where such an organization breaches its: "(1)
[] duty to use reasonable care in the maintenance of safe and adequate facilities and equipment;
(2) [] duty to select and retain only competent physicians; (3) [] duty to oversee all persons who
practice medicine within its walls as to patient care; [or] (4) [] duty to formulate, adopt, and enforce
adequate rules and policies to ensure quality care for the patients." Thompson, 591 A.2d at 707.
Because the duty to uphold the proper standard of care runs directly from the hospital to
the patient, an injured party need not rely on the negligence of a third -party, such as a
doctor or nurse, to establish a cause of action in corporate negligence. Instead, corporate
negligence is based on the negligent acts of the institution. A cause of action for corporate
negligence arises from the policies, actions or inaction of the institution itself rather than
the specific acts of individual hospital employees. Thus, under this theory, a corporation is
held directly liable, as opposed to vicariously liable, for its own negligent acts.
Welsh v. Bulger, 698 A.2d 581, 585 (Pa. 1997) (citing and quoting Moser v. Heistand, 681 A.2d
1322, 1325 (Pa. 1996)) (citations and punctuation omitted).
When pursuing a corporate negligence claim, it is well -settled that "a plaintiff must
produce expert testimony to establish that the [corporate entity] deviated from an accepted standard
of care and that the deviation was a substantial factor in causing the harm to the plaintiff," unless,
that is, the putative negligence is "obvious." Welsh, 698 A.2d at 585. In general, expert testimony
pertaining to any discipline can only be provided by a properly -qualified witness who has
"scientific, technical, or other specialized knowledge is beyond that possessed by the average
layperson... [which] will help the trier of fact to understand the evidence or to determine a fact in
issue[,] and [has used] methodology [that] is generally accepted in the relevant field." Pa. R.E.
702(a) -(c).
Here, Appellant offered reports from two medical professionals: 1. Erane T. Allen, MPA,
RN, CDONA, CNHA; and 2. Dr. Perry Starer, M.D. See Motion for Partial Summary Judgment,
Exs. C and E. While the former discussed the care provided to Essie Crew at Park Pleasant Nursing
Home, and the latter examined Essie Crew's treatment at both Park Pleasant and Penn Hospice at
Rittenhouse, neither Ms. Allen nor Dr. Starer offered opinions regarding whether or not Penn
Presbyterian, the Trustees, or Penn Medicine Rittenhouse had treated Essie Crew in a manner that
comported with these entities' respective corporate standards of care. See id. Given that the
5
existence of corporate negligence in this matter was undoubtedly far from obvious, Appellant's
failure to provide proper expert testimony meant that he could not establish that there was a
genuine issue of material fact as to this claim against these three entities. As such, this Court
appropriately granted summary judgment in favor of Penn Presbyterian, the Trustees, and Penn
Medicine Rittenhouse regarding Appellant's corporate negligence claims from Count II of his
Sixth Amended Complaint. See Gruenwald v. Advanced Computer Applications, Inc., 730 A.2d
1004, 1009 (Pa. Super. Ct. 1999) (quoting Johnson v. Harris, 615 A.2d 771, 775 (Pa. Super. Ct.
1992)) (punctuation omitted) ("[A] party responding to a motion for summary judgment may not
rest on pleadings; rather, it is his responsibility to show that a genuine issue of fact exists by
affidavit or otherwise.").
By contrast, and upon further review of Dr. Starer's report, it is apparent that this report
can be reasonably construed as creating a genuine issue of material fact regarding whether Penn
Hospice committed corporate negligence in connection with Essie Crew's medical treatment at its
facility. See Motion for Partial Summary Judgment, Ex. Eat 1-3, 6. However, as will be explained
infra, said error was ultimately harmless and thus does not provide a valid basis for granting
Appellant's request for a new trial. In situations where a party moves for a new trial, the trial court
must apply a two-step test:
First, the court must determine whether, colloquially speaking, a "mistake" (or mistakes)
was made at trial. Second, the court decides whether the mistake (or mistakes) is sufficient
basis for granting a new trial. The first decision-whether a mistake was made-may
involve factual, legal, or discretionary matters. However, the second and ultimate
decision-whether to grant a new trial-is always a discretionary matter because it requires
consideration of the particular circumstances of the case.
Morrison v. Com., Dep't of Pub. Welfare, Office of Mental Health (Woodville State Hosp.), 646
A.2d 565, 571 (Pa. 1994) (footnote omitted). When reviewing the issues raised by a litigant in their
post -trial motion, the trial court must remain cognizant that "[a] new trial is not warranted merely
because some irregularity occurred during the trial or another trial judge would have ruled
differently; [rather,] the moving party must demonstrate... that he or she has suffered prejudice
from the mistake." Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1122 (Pa. 2000)). Thus, if an
error was committed, but did not work prejudice upon the movant, said error must be deemed
harmless and cannot serve as the basis for granting their desired relief. Id.
6
In this matter, and as noted above, this Court denied the Motion for Partial Summary
Judgment as to Penn Hospice regarding Count I of Appellant's Sixth Amended Complaint. This
Count contains a confused and extremely lengthy mishmash of averments that sound in both
vicarious liability and corporate negligence, ones which are substantially duplicative of those in
Count II. Compare Sixth Amended Complaint at 3-18 (Count I) with id. at 18-31 (Count II). Thus,
though this Court granted summary judgment as to Count II's corporate negligence claims, Penn
Hospice was not given similar relief regarding Count I, meaning that this ruling did not ultimately
foreclose upon Appellant's ability to have the jury decide whether that entity had been corporately
negligent. See Verdict Sheet at 1 (asking the jury to determine if Penn Hospice's handling of Essie
Crew had "[fallen] below the applicable standard of care. In other words, was [Penn Hospice]
negligent?"). Moreover, even if one were to counterfactually construe Count I as articulating only
a vicarious liability claim, it remains the jury concluded the treatment received by Essie Crew at
Penn Hospice had satisfied the relevant standard of care. Id. Given this, the jury would have had
no factual basis for finding that Essie Crew had been harmed at Penn Hospice by the kind of
systemic, broad-based problems which would support a corporate negligence claim. Cf.
Thompson, 591 A.2d at 707 (discussing duties that, if not properly fulfilled, can result in corporate
negligence). Consequently, this Court's decision to grant summary judgment in favor of Penn
Hospice as to Appellant's corporate negligence claims in Count II of his Sixth Amended
Complaint was harmless error, at most, and was not grounds for granting Appellant's request for
a new trial.
In addition, this Court properly granted summary judgment in favor of Penn Presbyterian,
the Trustees, and Penn Medicine Rittenhouse regarding Appellant's "negligence" claims from
Count I of his Sixth Amended Complaint. To reiterate what was noted supra, Appellant
confusingly chose to draft Count I so that the averments contained therein sound in both corporate
negligence and vicarious liability. See Sixth Amended Complaint at 3-18. To the extent that
Appellant challenges this Court's decision regarding any of his Count I -based corporate negligence
claims against these appellees, he is not entitled to appellate relief due to his aforementioned failure
to offer expert testimony in support of such allegations.
7
With regard to Count I's vicarious liability -based allegations, his request for appellate relief
is also without merit.
Vicarious liability, sometimes referred to as imputed negligence, means in its simplest form
that, by reason of some relation existing between A and B, the negligence of A is to be
charged against B although B has played no part in it, has done nothing whatever to aid or
encourage it, or indeed has done all that he possibly can to prevent it. Once the requisite
relationship (i.e., employment, agency) is demonstrated, the innocent victim has recourse
against the principal, even if the ultimately responsible agent is unavailable or lacks the
ability to pay.
Scampone, 57 A.3d at 597 (citations and punctuation omitted). Here, Appellant offered no
evidence whatsoever to support his assertions that employees or agents of either Penn Presbyterian
or Penn Medicine Rittenhouse treated Essie Crew in a negligent manner, meaning that those
entities were entitled to summary judgment regarding Count I's vicarious liability claims. As for
the Trustees, the evidence presented by Appellant failed to create a genuine issue of material fact
regarding whether they were vicariously liable for any of the allegedly negligent medical care
given to Essie Crew. As has long been understood by Pennsylvania courts, "the classic common
law test of the employer/employee relationship is that an entity is an employer where it maintains
control or the right to control the work to be done and the manner of doing it." Kiehl v. Action
Mfg. Co., 535 A.2d 571, 573 (Pa. 1987) (citing Venezia v. Philadelphia Electric Co., 177 A. 25
(Pa. 1935)). "Where a parent/subsidiary relationship is established the question of which
corporation has control over an employee is determined by focusing on the functions performed
by each corporation and by the employee in addition to other indicia of control." Mohan v.
Continental Distilling Co., 222 A.2d 876, 879 (Pa. 1966) (emphasis added). Thus, an agency -type
relationship is not automatically deemed to exist between the corporate entity at the top of the
pyramid and those laboring at its component organizations; rather, it must be established on a case -
by-case basis whether a given worker or group of workers are actually employees of their parent
corporation. See Botwinick v. Credit Exch., Inc., 213 A.2d 349, 353-54 (Pa. 1965) (citations
omitted);3 Barnes v. Alcoa, Inc., 145 A.3d 730, 735 (Pa. Super. Ct. 2016).4 Thus, unless the answer
Neither the similarity of names between the parent and subsidiary corporation, nor the total ownership of the stock
of the subsidiary by the parent[,] nor the fact that a single individual is the active chief executive of both
corporations will per se justify a court in piercing the corporate veil if each corporation maintains a bona fide
separate and distinct corporate existence.
[T]he fact a parent company's name is listed on an employee's check is not evidence the employee is employed by
the parent company instead of the subsidiary. Instead, [a plaintiff must]... show [the parent company] had the power
8
to this question of agency is "yes," the parent corporation cannot be susceptible to a claim based
upon vicarious liability.
Here, Appellant stated that three pieces of evidence supported his vicarious liability claim
against the Trustees: 1. Appellees' Amended Answer, in which they admitted that "Penn Hospice
at Rittenhouse is the inpatient unit for Wissahickon Hospice, which is a wholly owned subsidiary
of the Trustees"; 2. Various webpage printouts, which showed that the Trustees "is the governing
board of the Penn Presbyterian Medical Center which manages, oversees[,] directs[,] and/or
operates the Penn Presbyterian Medical Center, Penn Hospice at Rittenhouse and Penn Medicine
at Rittenhouse; and 3. Dr. Starer's expert report, which established that Dr. Joshua Uy, M.D. was
employed by the Trustees and treated Essie Crew during her stay at Park Pleasant Nursing Home.
See Answer to Motion for Partial Summary Judgment at 6-7, 10; id., Exs. E, G, and H. None of
these, however, are sufficient enough to establish that a genuine issue of material fact exists
regarding whether vicarious liability might attach to the Trustees in this matter. First, though a
parent/subsidiary relationship of some sort undisputedly exists between the Trustees and Penn
Hospice, it remains that Appellant provided no evidence whatsoever about the former's level of
control (or lack thereof) over the medical professionals at the latter who allegedly gave Essie Crew
deficient medical care. Second, the aforementioned printouts, which Appellant clearly obtained
just before he responded to the Motion for Partial Summary Judgment in January 2016, were not
verified as accurately representing those websites as they existed in 2012, when Appellees were
caring for Essie Crew, and thus could not be used by this Court as a factor in her analysis. See
Wheeler v. Johns -Manville Corp., 493 A.2d 120, 122 (Pa. Super. Ct. 1985) (citing Irrera v. SEPTA,
331 A.2d 705 (Pa. Super. Ct. 1974).5 Finally, Dr. Starer's claim that Dr. Uy was employed by the
Trustees was based off of information Dr. Uy allegedly divulged while being deposed. See Answer
to Motion for Partial Summary Judgment, Ex. E at 6. As neither Appellant nor Appellees docketed
this deposition's transcript as an independent filing or as an exhibit, Dr. Starer's statement
regarding Dr. Uy's relationship with the Trustees rested upon evidence existing outside of the case
and authority to direct and control [an individual's] actions in order for him to be deemed an employee [of the parent
company].
5 Moreover, neither of these printouts addressed whether or not the Trustees exert control over those who work at its
subsidiaries.
9
record, rendering it an unsupported allegation that could not create a genuine issue of material fact.
See Krause v. Great Lakes Holdings Inc., 563 A.2d 1182, 1186 (Pa. Super. Ct. 1989) (citing
Thorsen v. Iron and Glass Bank, 476 A.2d 928, 930 n. 2 (Pa. Super. Ct. 1984)) ("Depositions
which are not filed and made a part of the record cannot be considered on a motion for summary
judgment."). Consequently, this Court appropriately granted Appellees' Motion for Partial
Summary Judgment as to Appellant's "negligence" claims from Count I of his Sixth Amended
Complaint.
III. CONCLUSION
For the aforementioned reasons, this Court respectfully requests that the instant appeal be
quashed or denied.
BY THE COURT:
C@
J.
10
Circulated 04/16/2018 04:19 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CIVIL TRIAL DIVISION
David Crew, Administrator of the Estate of :
Essie Crew, deceased and in his own right : June Term, 2014
V.S.
No. 01612
Penn Presbyterian Medical Center,
Trustees of the University of Pennsylvania,
Penn Hospice at Rittenhouse, and Superior Court Docket.
Penn Medicine Rittenhouse No. 869 EDA 2017
OPINION
Lachman, J. June 30, 2017
I. Factual and Procedural Background
On March 16, 2012, the Plaintiffs Decedent Essie Crew was admitted to Park
Pleasant Health Care Facility for nursing care, rehabilitation, physical, occupational, and
speech therapy. At the time of her admission, a Park Pleasant nurse noted that Ms.
Crew's skin was intact. Around April 23, 2012, Ms. Crew began to experience a loss of
skin integrity. On or before May 10, 2012, Ms. Crew developed sacral wounds, bilateral
contractures of her upper and lower extremities, and urinary tract infections.
Ms. Crew remained in Park Pleasant until June 14, 2012, when she was admitted
to the Penn Presbyterian Medical Center. There she was diagnosed with a perforated
gastric ulcer, a pressure ulcer, tarry stools which tested positive for blood, extended
spectrum Beta-Lactamase infection in urine, and a fractured finger, among other
conditions.
From June 14, 2012 to July 6, 2012, Ms. Crew received treatment and care at
Penn Presbyterian for a perforated gastric ulcer and pressure ulcers. She was released
from Penn Presbyterian Hospital in fair condition.
Crew Etai Vs Penn Presbyterian
Medical Cente-OPFLD
1
11111111,14111 161111111t11111
riPIPQ PI IPql IANIT Tn. Pa P rP WIR(hl r") t(PI I V riRr4nnn1
From July 6, 2012 until August 6, 2012, Ms. Crew was admitted to Penn Hospice
at Rittenhouse. Ms. Crew refused to eat and she was not forced -fed by the hospice. Due
to her lack of nutrition and hydration, she developed pressure sores. She died on August
6, 2012.
Plaintiff is the administrator of the estate of Essie Crew, and was her son. He first
filed suit against Park Pleasant Health Care Facility and Park Pleasant Inc., in this court
at April Term 2014, No. 00958. Two months later, he filed suit against Penn Presbyterian
Medical Center, the Trustees of the University of Pennsylvania, Penn Hospice at
Rittenhouse, and Penn Medicine Rittenhouse, in this court at June Term 2014, No. 1612.
The two actions were consolidated for purposes of discovery and trial, with the Park
Pleasant case being the lead case. The case against the Park Pleasant defendants was
settled before this case went to trial.
An Order dated January 27, 2016 by the Honorable Ellen Ceisler granted in part
the Penn Defendants' motion for partial summary judgment. The order created confusion
as to the identity of the proper defendant at trial. It dismissed the case against all of the
Penn Defendants except for Penn Medicine at Rittenhouse. The attorney for the Penn
Defendants asserted at trial that "Penn Medicine at Rittenhouse" is not a legal entity and
is only a descriptive name for a location of some of Penn's medical facilities. Penn's
attorney graciously permitted the Plaintiff to substitute "Penn Hospice at Rittenhouse"
(Penn Hospice) as the defendant in place of "Penn Medicine at Rittenhouse."
At trial, the Penn Defendants contended that Judge Ceisler's order limited
Plaintiffs pursuit of liability to establishing negligence on the part of Penn Hospice for the
2
decreased frequency of turning and repositioning Ms. Crew from every two to every three
hours. That was an incorrect interpretation of Judge Ceisler's order.
The order dismissed the claims against all four Penn Defendants in Count II for
corporate negligence and in Count ill for "breach of contract oral agreement." It dismissed
the claim for "negligence" in Count only against Penn Presbyterian, the Trustees, and
I
Penn Hospice. None of the claims in Count I were dismissed against Penn Medicine,
and all of them remained for trial. Because of the substitution of Penn Hospice for Penn
Medicine, all of those claims remained against Penn Hospice at trial.
Trial began on October 171 2016, and the jury delivered its verdict on October 27,
2016. The jury found that Penn Hospice was not negligent and did not answer the
causation or damages questions on the verdict slip.
Plaintiff filed a timely post -trial motion (PTM) challenging Judge Ceisler's grant of
summary judgment and various alleged trial errors committed by the trial judge. The trial
judge limited her review of the PTM to the alleged trial errors.
The trial judge denied the PTM and entered judgment on the jury's verdict on
February 15, 2017. Plaintiff filed a timely notice of appeal and a timely Pa.R.A.P. 1925(b)
Statement of Errors after being ordered to do so by the trial judge.
II. Issues on Appeal
Plaintiffs 1925(b) Statement lists four issues regarding the summary judgment
entered by Judge Ceisler, and six issues regarding alleged trial errors committed by this
trial judge. Judge Ceisler filed her own Pa.R.A.P. 1925 opinion on June 16, 2017,
addressing the summary judgment issues. Consequently, the trial judge will discuss
only
the issues of alleged trial error. The issues have been reordered so that all of the
3
summary judgment and all of the trial error issues are grouped together, although their
original section letters remain as in the original.
A. Summary Judgment issues
A. CORPORATE NEGLIGENCE
The trial court erred in granting Defendants' Motion for Partial
Summary Judgment dated January 27, 2016 (see Exhibit "A") that the
Plaintiff could not present a claim of corporate negligence against the
Defendants, Penn Presbyterian Medical Center, Trustees of the University
of Pennsylvania, Penn Hospice at Rittenhouse and Penn Medicine
Rittenhouse. Plaintiff did oppose Defendant's [sic] Motion for Summary
Judgment by Answer to same.
C. VICARIOUS LIABILITY
The trial court did err at law and abused its discretion when it did
dismiss certain vicarious liability claims on January 27, 2016 (see Exhibit
"A") against the Penn Defendants, and granted the Defendants' Motion for
Partial Summary Judgment on the vicarious negligence claims against Penn
Presbyterian Medical Center, Trustees of the University of Pennsylvania
and all Penn Defendants other than Penn Medicine at Rittenhouse which is
a fictitious name.
D. BREACH OF ORAL CONTRACT
The trial court did err at law and abused its discretion when it did
dismiss certain breach of oral contract claims on January 27, 2016 (see
Exhibit "A") against the Penn Defendants, and granted the Defendants'
Motion for Partial Summary Judgment on the breach of oral contract claims
against Penn Presbyterian Medical Center, Trustees of the University of
Pennsylvania and all Penn Defendants other than Penn Medicine at
Rittenhouse which is a fictitious name.
H. MOTION FOR MODIFICATION OR CHANGE OF DECISION
Plaintiff requests that the trial court modify or change its decision to
include a claim of corporate negligence and vicarious liability, and grant a
4
new trial. Plaintiffs counsel raised said issues prior to trial by Answer to
Motion for Summary Judgment.
B. Alleged trial errors
B. ADMISSION OF CONSENTS AND RELEASES AT TRIAL
The trial court committed an error of law and an abuse of discretion
in permitting the admission of the consents and releases signed by the
Plaintiff into evidence at the time of trial. Consents for treatment are
irrelevant to a cause of action in medical negligence pursuant to Brady v.
Urbas, 2015 Pa. Lexis 655 (Pa. 2015). The trial court admitted the consents
and releases into evidence over Plaintiffs objections, and they were
considered by the jury during their deliberations.
The trial court committed an error of law and abused its discretion
which did harm the Plaintiff when it denied Plaintiffs Motion in Limine,
Control No. 16101859 regarding informed consent and releases as the
Plaintiff did not consent to the negligence of the Defendants.
This admission of evidence to the jury was an abuse of discretion
and an error of law which did prejudice the Plaintiff. Further, the trial court
ignored stare decisis of the Pennsylvania Supreme Court on the issue which
was an error of law that did harm the Plaintiff.
E. FAILURE TO PERMIT EXPERT OPINION TESTIMONY OF
MEDICAL NEGLIGENCE REGARDING MALNUTRITION AND
DEHYDRATION
The trial court did err and abuse its discretion when it granted
Defendants' objection to preclude Plaintiff form [sic] introducing evidence
of Defendants' failure to provide Plaintiffs decedent with proper nutrition
or to provide hydration by Plaintiffs expert witness. This was an error at
law and an abuse of discretion which did prejudice the Plaintiff.
F. FAILURE TO PRECLUDE TESTIMONY AND EVIDENCE OF
PRIOR SETTLEMENT
Defendants were permitted to cross examine Plaintiff and his expert,
Dr. Perry Starer, on care and services rendered by Park Pleasant Nursing
5
home when the Park Pleasant case was a separate case that had been settled
prior to the trial in this case in contravention of 42 Pa.C.S. § 6141 (c) [sic]
The Pennsylvania Supreme Court states in Kincy v. Petro, 606 Pa. 524,2
A.3d 490 (2009) that cases which are "consolidated for purposes of
discovery and trial," retain tier [sic] separate case identities and do not
become a "merged" single action. This was an error of law and abuse of
discretion which did prejudice the Plaintiff.
G. REGULATIONS AS EVIDENCE OF NEGLIGENCE
The trial court committed an error of law and an abuse of discretion
which id [sic] prejudice the Plaintiff in prohibiting the Plaintiff's counsel or
his experts to introduce and explain to the jury of [sic] the provision of the
applicable federal and state laws on hospice care and regulations and
guidelines pertinent to the case. This was an error of law and abuse of
discretion which did prejudice the Plaintiff.
The trial court held that the federal and state laws, regulations and
guidelines on hospices were not to be considered by the jury for cross
examination on the standards of care of negligence. This was an error of
law and an abuse of discretion which did prejudice the plaintiff.
* * * * *
I. MOTION FOR JUDGEMENT [sic] NON OBSTANTE VERDICT
[sic] (OR SUCH OTHER RELIEF AS IS SPECIFIED BELOW)
Plaintiff seeks judgment against the Defendants because the jury
verdict was against the evidence and also against the weight of evidence
when it determined that Defendants were not negligent. Plaintiff is entitled
to judgment as a matter of law.
The Plaintiff asks for judgment n.o.v. to be entered in his favor,
pursuant to Pa.R.C.P. §227.1(a) (2) and direct the entry ofjudgment in favor
of Plaintiff.
Plaintiff is entitled to judgment n.o.v. since facts and evidence
demonstrate liability, damages and punitive damages.
Plaintiff is entitled to a judgment n.o.v. based on the law, in
conjunction with the evidence, and since the evidence was such that no two
6
reasonable minds could disagree that the outcome should have been rendered
in favor of the Plaintiff.
The trial court erred and abused its discretion in failing to grant, in
their entirety, Plaintiff's Motions for Directed Verdict.
The trial court's dismissal of Plaintiff's punitive damage claim was
against the law and the evidence which now requires the entry of a judgment
n.o.v., in favor of the Plaintiff, as to these claims.
J. VERDICT SHOULD NOT STAND
The verdict was against the law.
For the reasons sets forth below, none of the alleged trial errors warrant relief. For
the reasons set forth in Judge Ceisler's opinion, none of the summary judgment issues
warrant relief.
III. Discussion
A. Admission of the Consent for Hospice Care form was proper
Plaintiffs PTM contended that it was error to permit the defendants to introduce
the July 6, 2012 "Consent for Hospice Care" form signed by Plaintiff David Crew
authorizing Ms. Crew's admission to Penn Hospice. Pltf s Ex A.1 Plaintiff says that this
form was really an "informed consent" form, the admission of which is barred in non -
informed -consent cases by Brady v. Urbas, 631 Pa. 329, 111 A.3d 1155 (2015).
The Plaintiff filed a motion in limine (MIL) to preclude the introduction of this form
at Control No. 16101859. Plaintiff filed this MIL two weeks late at 10:40 a.m. on October
17, 2016, the first day of trial. NT 10/17/16 pp. 99-100. The trial judge initially denied the
1 The form is on the letterhead of Penn Medicine Wissahickon Hospice and refers
to Wissahickon Hospice instead of Penn Medicine at Rittenhouse in its text. The Hospice
at Rittenhouse is part of the Wissahickon Hospice organization or system.
7
motion without prejudice as untimely. NT 10/17/16 p. 100; see Order dated Oct. 17, 2016
at Control No. 16101859.
The next morning Plaintiffs attorney renewed her request that the court consider
the MIL because defense counsel was going to use the consent form in her opening
statement. The court then heard arguments on the merits of the motion and ruled:
THE COURT: Thank you. Okay. I've reviewed the consent.
I've reviewed Brady versus Urbas, which note is a case involving a
I
surgical consent form in a case in which informed consent was not
pled as an issue, and the Court pointed out that in a trial in a
medical malpractice complaint that only asserts negligence and not
lack of informed consent, evidence that a patient agreed to go
forward with the operation in spite of the risk of which she was
informed is irrelevant and should be excluded.
Ialso note that the Court pointed out and held that the
evidence that a patient affirmatively consented to treatment after
being informed of the risk of that treatment is generally irrelevant to
a cause of action sounding in medical negligence. This is not a
surgical situation. This is a consent that is not being offered for
standard of care per se. It is -- in terms of negligence. It is being
offered, as understand it, to indicate that the family knew that Ms.
I
Crew was progressing towards death medically, and, therefore,
eligible for hospice care and that the services were to be of a
palliative nature and that's the only thing that the consent may be
used for.
NT 10/18/16 pp. 9-10.
The "Consent to Hospice Care" form has no relation to an "informed consent" form
because it does not identify the risks of a proposed surgical procedure. On the contrary,
it states that "I understand the nature of the hospice care available and am aware that a//
treatment will be palliative rather than curative in nature. Treatment will be for the
management of symptoms and to provide comfort for my terminal illness of dementia."
(Emphasis added.) No surgical procedures were contemplated by the hospice; indeed,
8
no treatment of any type other than palliative was contemplated. "Palliative" means
"relieving or soothing the symptoms of a disease or disorder without effecting a cure."
American Heritage Medical Dictionary at 387 (2008) (emphasis added).
Brady involved a surgical consent form regarding the risks and complications of
an operation that was signed by the patient before the operation. Our Supreme Court held
that the surgical consent form was irrelevant and barred in a medical malpractice action
that was based on negligence and which did not also include a battery claim for lack of
informed consent. Far from identifying the possible risks of a surgical procedure, the
"consent for hospice care" form affirmatively told Ms. Crew and Mr. Crew that no treatment
aimed at curing her ills would be given to Ms. Crew while she was under hospice care.
This was not the same as the surgical consent form at issue in Brady.
Furthermore, Plaintiffs attorney opened the door to the introduction of the Consent
for Hospice Care form by stating in her opening statement that Ms. Crew's family "wanted
their mother to live. That was their intention. They were not taking her to Penn to pass
away." Defendant's PTM brief at p. 16, citing NT 10/18/16 pp. 78-79.
There was no error or abuse of discretion in allowing the introduction of the
Consent to Hospice Care form at trial.
B. The court did not abuse its discretion in preventing
Dr. Starer from testifying regarding the failure to
provide nutrition or hydration
Plaintiffs PTM asserted that the court abused its discretion in preventing Plaintiff's
expert, Dr. Perry Starer, from testifying that the hospice's failure to provide nutrition and
hydration caused or contributed to Ms. Crew's death. The short answer is that, despite
the court's rulings, Dr. Starer did, in fact, testify on direct examination that the failure to
9
provide nutrition and hydration caused or contributed to Ms. Crew's death. This is a
summary of his direct testimony on October 18, 2016:
p. 57. "[G]ood nutrition is important for the healing of a wound."
pp. 70-71 (emphasis added):
But just want to be clear, it's pressure that causes pressure ulcers.
I
Anemia doesn't cause pressure ulcers. Heart disease does not
cause pressure ulcers. Malnutrition does not cause pressure
ulcers. What these things do is impair the healing of the ulcer
-
once it occurs. So if a it would be the same if you created a
wound just by biting. If bit -- would never do that, but if you bit a
I I
piece of skin out, it was caused by the bite. But if then the person
has malnutrition, it's going to be tougher for them to heal the
wounds. So the same thing.
So pressure ulcers are caused by pressure. Vascular
disease can interfere with healing. Heart disease can interfere with
healing. Malnutrition can interfere with healing. And this is why
we take that into account and try and optimize these areas to assist
with healing once a wound has occurred.
p. 71. In treating a pressure wound, "You have to provide them with the fluids
and the nutrients to heal it."
pp 71-73.
Q. Let me just stop you there for a second. How important is
hydration in the healing of a wound?
A. I just mentioned hydration, and sometimes leave it out
I
because to me it's so obvious. Water is life. That's exactly -- that's
why we're on this planet instead of Mars. Life depends on water. It
is one of the most basic things. There's a water cooler here in the
room, and in order for the body to function, there has to be enough
fluid -- I'll make it simple once again so can understand it.
I
Imagine that the blood system is the highway, which is
carrying all the things you need to all the parts of the body and
taking away all the waste material and it's using, you know, trucks
to transport it. Well, the fluid is the -- is what makes everything
move. It's sort -- it's the transportation system. If we dry up, if we
10
become dehydrated, this all breaks down. The highway doesn't
function. Things start backing up and things start failing.
Q. Doctor, talk to us, if you will, for a moment about nutrition
and why that's important in the healing of a wound.
A. Well, hydration -- this is the way I was actually taught, and
it was an interesting experiment they showed us in college. We
know that both nutrition and hydration are important, but let's say
you can only have one. Which would you go for first? They did a
study. They said go to any restaurant and you'll see actually how it
works. What do you do first? Do you start eating or do you drink the
water? You pick up the water and drink first. Hydration is important.
Nutrition is important. They're both equally important, although I will
always list hydration first. You have to have them both, nutrition and
hydration, because if you become malnourished, you will not get
better. You will get worse.
If -- even if you are extremely healthy if you stop eating, you
are going to get sick. You will die. You will starve. If you already
have illnesses and you are not provided with nutrition, you will do
very, very poorly. You will die. We need food. It's that simple. It's
that obvious.
Q. Doctor, can you tell us what the medical standard of care
is for nutrition, for a person who has a wound and it's -- it needs
assessment and care?
[The Court overruled a defense objection to this line of questioning and permitted
Plaintiff's attorney to proceed.]
pp. 80-81:
Q. Doctor, what would be the medical standard of care for
hydration for this patient?
MS. KRAMER: Note my objection. Scope of the report.
THE COURT: Very well.
MS. KRAMER: Go ahead.
THE WITNESS: Well, the standard of care is to provide
necessary fluids and to monitor that the patient is not suffering from
overhydration or underhydration. That is to say you're not giving too
much and you're not giving too little.
11
BY MS. WILSON:
Q. Doctor, what would be the medical standard of care with
regard to nutrition for this patient?
MS. KRAMER: Same objection, Your Honor.
THE COURT: Noted.
THE WITNESS: The standard of care is to provide adequate
calories and protein. These include the participation of a dietician in
some settings by which you would determine what is needed based
upon the patient's body weight and conditions. The reason state
I
that is that you need a certain amount of calories in order which
[sic.] to just exist, but then you have an additional burden on the
body, such as a wound, then more calories are needed.
So the standard of care takes into account the recognition
that additional calories need to be provided and additional protein
needs to be provided if there is an existing skin wound.
p. 89. In discussing the Penn Presbyterian discharge summary:
'Nutrition is
what had said before: Calculating the necessary calories and
I protein and fluid
needed. Hospice is an evaluation for goals of care, how you want to approach
where the patient is going to be taken care of and how they're going to be taken
care of."
pp. 100-101. In discussing the Penn Presbyterian discharge summary as to
nutrition: "The diet. They're calling it a regular diet. It's not a specialized diet. It's
not saying a low salt diet, not low sugar. It's just a regular diet but with the
regular anything [sic.]. If there is solid food to be given, it should be ground up.
Make it easier to swallow. Liquids are to be provided and aspiration precautions
are just to ensure that while she's being fed, what is being given doesn't get
inhaled into the lungs."
pp. 116-117. discussing Exhibit P-11: "Since we are asking for hospice in this
In
case, which don't know if it's been described to you yet, can be considered
I
palliative care or comfort care or even preparing for death, you would want to
know what is the diagnosis that is driving all this. Sometimes it will say cancer in
there or some type or AIDS, In this case they wrote "dementia without behavioral
disturbance."
12
p. 120. A DNR [do not resuscitate order] says not to bring back a patient who
stops breathing or whose heart stops. "It doesn't say don't do anything else. It
means it's really that specific, but it doesn't say don't treat other things. If the
patient had an infection, that doesn't tell you not to treat the infection...."
p. 141:
Q. In the evaluation of wounds, would you look to see
whether or not someone was receiving nutrition?
A. Absolutely.
Q. Would you look to see whether or not a person was
receiving hydration or water?
A. Yes, I would.
Q. Would you see whether or not Mrs. Crew was receiving
water during this time?
A. I did not see that she was receiving water consistently.
p. 156:
A. There was a failure to meet the standard of care for
turning and repositioning for Ms. Crew during the period of time that
she was at Penn at Rittenhouse.
Q. And, Doctor, did those failures of care cause harm --
within a reasonable degree of medical certainty, did those failures
or deviations of care by Penn Medicine Rittenhouse cause harm to
Mrs. Crew?
A. Yes. Those failures in care did result in harm coming to
Ms. Crew.
Q. What was the harm that it caused?
A. It caused the integrity of her skin to be comprised, which
increased the nutritional burden upon her body which she was
unable to sustain.
Q. Sustain life or sustain?
A. Because she could not sustain her nutritional status, she
was unable to sustain life.
13
The Court sustained defense counsel's objection to this follow-up question as
being beyond the scope of Dr. Starer's report:
Q. Doctor, do you have an opinion within a reasonable
degree of medical certainty whether or not the professional
standards of care were met with regard to hydration for Mrs. Crew?
NT 10/19/16 pp. 156-157. Plaintiffs counsel then concluded with:
Q. Doctor, do you have an opinion within a reasonable
degree of medical certainty, based upon all of the information that
you shared with us during the coarse [sic] of this trial, whether or
not the harm that was caused to Mrs. Crew contributed to her
death?
A. I do have an opinion.
Q. What is your opinion within a reasonable degree of
medical certainty?
A. The harm that was caused to Ms. Crew was a contributing
factor to death.
Q. Were those harms caused by Penn Medicine's deviations
of care?
A. Yes, it was.
Q. And have all of your opinions rendered today been
rendered within a reasonable degree of medical certainty?
A. They have been.
NT 10/19/16 pp. 157-158.
Plaintiff did not demonstrate any prejudice from the court's rulings because Dr.
Starer was permitted to inform the jury and explain how the lack of nutrition and hydration
contributed to Ms. Crew's death. The jury heard that the harm Ms. Crew suffered by the
loss of skin integrity caused her to die because she "could not sustain her nutritional
status." This issue is without merit.
14
C. Itwas not an abuse of discretion to allow the defendants
to cross-examine plaintiffs expert on his opinions in his
written report, that the negligence of a co-defendant who
settled with the plaintiff contributed to Ms. Crew's death
Plaintiffs expert, Dr. Perry Starer, opined in his reports that the decedent received
negligent care and treatment at Park Pleasant Nursing Home which contributed to her
injuries and death. Those opinions were in the same reports in which Dr. Starer criticized
the decedent's care and treatment at Penn Hospice. At trial, the Defendants cross-
examined Plaintiff and Dr. Starer on the negligent care and services rendered by Park
Pleasant Nursing Home.
Plaintiff's PTM contended that because the Park Pleasant case was filed as a
separate case, evidence that it had been settled prior to the trial contravened 42 Pa.C.S.
§ 6141(c).2
2
6141. Effect of certain settlements
§
(a) Personal injuries. -- Settlement with or any payment made to an
injured person or to others on behalf of such injured person with the
permission of such injured person or to anyone entitled to recover damages
on account of injury or death of such person shall not constitute an
admission of liability by the person making the payment or on whose behalf
the payment was made, unless the parties to such settlement or payment
agree to the contrary.
(b) Damages to property. -- Settlement with or any payment made to
a person or on his behalf to othersfor damages to or destruction of property
shall not constitute an admission of liability by the person making the
payment or on whose behalf the payment was made, unless the parties to
such settlement or payment agree to the contrary.
(c) Admissibility in evidence. -- Except in an action in which final
settlement and release has been pleaded as a complete defense, any
settlement or payment referred to in subsections (a) and (b) shall not be
admissible in evidence on the trial of any matter.
(d) Credits on settlement or judgment. -- All settlements
and
payments by or on behalf of the person making payment under
subsections
15
court's
Plaintiff framed this issue in his PTM and in 1925(b) Statement as the
to the Plaintiffs
"failure to preclude testimony and evidence of prior settlement," referring
claim has no
pre-trial settlement with the Park Pleasant Nursing Home defendants. This
with
basis in fact. The Defendants never introduced any evidence of Plaintiff's settlement
the Park Pleasant Nursing Home defendants, and the jury did not hear anything about
that settlement. Plaintiffs PTM and brief did not identify any place in the trial record where
the settlement was presented to the jury.
This issue was waived. 'The failure to specify in a post -trial motion how the
grounds for relief were asserted at trial, or in pre-trial proceedings, will result in a waiver
of those grounds." Hinkson v. Corn., Dept of Transp., 871 A.2d 301, 303 (Pa. Cmwlth
2005) (quashing appeal), citing Hall v. Jackson, 2001 Pa. Super. 334, 788 A.2d 390, 401
n.9 (2001) ("the Hospital failed to specify in its post -trial motion how the grounds were
asserted at trial and, therefore, waived this argument pursuant to Rule 227.1(b)"). See
Pa.R.C.P. 227.1(b)(2) ("The motion shall state how the grounds were asserted in pre-trial
proceedings or at trial. Grounds not specified are deemed waived").
Even were this issue not waived, it still is without merit. The trial court correctly
ruled that Dr. Starer could be cross-examined about the opinions in his reports that
established the liability of the Park Pleasant Nursing Home defendants. The Superior
Court approved a non -settling defendant's use of the testimony of the plaintiff's expert to
(a) and (b) shall be credited to the person making the same against any
final settlement or judgment against such person, except that this section
shall not be construed in such a manner as to change, alter or amend the
effect of Subchapter B of Chapter 83 (relating to contribution among tort-
feaso rs).
42 Pa.C.S.A. § 6141.
16
establish that the settling defendant bore some responsibility for
the plaintiffs injuries, in
Herbert v. Parkview Hosp., 2004 Pa. Super. 287, 854 A.2d
1285, 1290-1291.
This same issue arose in a case that this trial
judge found very persuasive and
followed. Stang v. Smith, 39 Pa. D. & C.Sth 428, 444-46,
2014 WL 11300415, at *7-8,
2014 Pa. Dist. & Cnty. Dec. LEAS 943, 23-26;
(C.P. Carbon Cty. 2014).3 President
Judge Nanovic held in Stang that a non -settling
defendant may cross-examine the
plaintiff's expert on his report that established the
settling defendant's liability. Such
cross-examination may be used to impeach the expert and to prevent
the false impression
that the plaintiffs expert believes that the non -settling
defendant alone was responsible
for the decedent's death when in fact his
opinion is more complex than that. Cross-
examination is also permissible to prove the substantive
liability of the settling defendant
and does not violate the rule that one party
may not compel an expert for the opposing
party to offer an opinion against his will. 2014
WL 11300415, at *8. President Judge
Nanovic explained his decisions as follows:
Prior to trial, Plaintiffs medical experts opined
that not only the Non-
Settling Defendants, but also the Settling
Defendants, were negligent and
responsible for Decedent's death. In particular, in
Dr. Graham's expert
report he criticized the care provided by both the
Non-Settling and Settling
Defendants, opining that such care deviated from the
applicable standard
of care, and concluding that this deviation
caused or contributed to
Decedent's death. Dr. Rosenbaum, who was
critical of Dr. Chaudhry's
neurological care of the Decedent, also opined that
the delay in getting
Decedent to the hospital which resulted from Dr.
Lesitsky's failure to advise
Mrs. Stang to take her husband to the
hospital immediately for stroke
evaluation both increased the risk of harm and caused
or contributed to the
3This court recognizes that the "decisions of the
Court of Common Pleas are not
binding precedent; however, they may be considered for
their persuasive authority" by
the Superior Court. Fazio v. Guardian Life Ins.
Co. of America, 2012 Pa. Super.
62 A.3d 396, 411. 273,
17
against the Settling
Decedent's death. Absent settlement of Plaintiff's claims
on Plaintiffs behalf
Defendants, these experts were scheduled to testify
against the Settling Defendants.
that the testimony
Once settlement was reached, Plaintiff requested
critical of the
of Drs. Graham and Rosenbaum be limited to their opinions
Defendants be
Non-Settling Defendants only and that the Non-Settling
any opinions held by
barred from cross-examining Plaintiffs experts as to
September 16,
them critical of the Settling Defendants. By Order dated
Defendants'
2013, we refused to restrict the scope of the Non-Settling
requested by Plaintiff.
cross-examination of Plaintiffs medical experts as
In Boucher v. Pennsylvania Hospital, 831 A.2d
623 (Pa. Super.
2003), the Court stated:
of an
Generally, every circumstance relating to the direct testimony
adverse witness or relating to anything within his or
her knowledge
is a proper subject for cross-examination, including any
matter which
might qualify or diminish the impact of direct examination.
of cross-
Specifically regarding medical experts, the scope
or records
examination involving a medical expert includes reports
to refute
which have not been admitted into evidence but which tend
that expert's assertion.
denied, 847 A.2d
Id. at 629 (citations and quotation marks omitted), appeal
1371 (Pa. Super.
1276 (Pa. 2004). See also Kemp v. Qualls, 473 A.2d 1369,
direct testimony of
1984) (holding that "(e]very circumstance relating to the
or her knowledge was
an adverse witness or relating to anything within his
a proper subject for cross-examination, including
any matter which might
v. Hoover, 331
qualify or diminish the impact of direct examination"); Rose
may
A.2d 878, 882 (Pa. Super. 1974) (stating that "cross-examination
qualifying or
embrace any matter germane to the direct examination,
improperly
destroying it, or tending to develop facts which have been
suppressed or ignored by the plaintiff').
Without question, cross-examination of Plaintiffs medical
in
experts with respect to the entirety of their opinions as expressed
the
their expert reports was permissible for impeachment purposes:
medical
manner in which Plaintiff sought to limit the testimony of her
and
experts in her case -in -chief would otherwise have been skewed
that
given the false impression that these experts were of the opinion
the Non-Settling Defendants alone were responsible for Decedent's
death. Conley v. Mervis, 188 A. 350 (Pa. 1936) (explaining that the
limitations of cross-examination are not intended to provide a cloak for
the
18
concealment of material facts pertaining to issues touched upon in
direct
examination and that any limitation on the scope of
cross-examination that
would allow a party to ignore or otherwise suppress facts of an
adverse and
harmful character would defeat one of the vital reasons
for cross-
examination), overruled in part on other grounds by
DeWaele v.
Metropolitan Life Ins. Co., 58 A.2d 34 (Pa. 1948); see also
Pa.R.E.
611(a)(1) (requiring that the trial court's control over the mode and
order of
examining witnesses and presenting evidence allow for
effective
determination of the truth).
The Non-Settling Defendants had every right to point
the finger
and elicit evidence through Plaintiffs experts that
the cause of
Decedent's death was not the failure by Dr. Lesitsky to immediately
refer
Decedent to the emergency room for a physical evaluation or
any delay in
Dr. Chaudhry's neurological consult or
treatment-the Non-Settling
Defendants' experts being of the opinion that Decedent
would have
ultimately fully recovered from his stroke-but [for] the failure
to provide
DVT prophylaxis once Decedent was admitted to the
Hospital, for which the
Non-Settling Doctors argued they were not responsible.
Moreover, this evidence was also admissible to
provethe
substantive liability of the Settling Defendants. First, the evidence
was
not hearsay. The opinions being elicited were those
of the witness on the
stand being cross-examined and they were clearly
subject to questioning
by all parties. Nor did such questioning run afoul of
the rule that one
party may not compel an expert for the opposing party
to offer an
opinion against his will. Boucher, 831 A.2d at 632. "The basis
for this rule
is an acknowledgment of an expert's proprietary
interest in his own opinion,
and the recognition that he should not be required to
relinquish it without his
consent." Id. In contrast, the opinions at issue here were
independently
subject to disclosure for impeachment such that any
proprietary interest
against disclosure claimed by Plaintiffs medical experts is
illusory.
Nor was there any question that these experts were
competent to
express the opinions on which they were cross-examined: the
experts were
employed by Plaintiff; the opinions were prepared at Plaintiffs
behest, with
the intent of having them offered at trial against the Settling
Defendants; the
opinions were identical to those which Plaintiff intended to
present against
the Settling Defendants had settlement not been
reached; and,
understandably, no objection to competency was raised by Plaintiff.
19
Stang v. Smith, 39 Pa. D. & C.5th at 444-46, 2014 WL 11300415, at *7-8, 2014 Pa. Dist.
& Cnty. Dec. LEXIS at 23-26 (emphasis and paragraph breaks added).4
In the present case, the Penn defendants had "every right" to cross-examine Dr.
Starer regarding all of the opinions expressed in his expert reports for impeachment
purposes and as substantive evidence. As in Stang, the manner in which Plaintiff sought
to limit the testimony of his medical experts in his case -in -chief would otherwise have
been skewed and given the false impression that Dr. Starer was of the opinion that Penn
Hospice at Rittenhouse alone was responsible for Plaintiffs decedent's death. Id.
D. The trial court did not abuse its discretion in excluding
unidentified "federal and state laws, regulations and guidelines"
Plaintiff claims that "the trial court erred in not permitting the contents of federal
and state laws, regulations and guidelines to be used at trial." A fundamental problem
with this issue is that the Plaintiff's PTM and brief failed to identify the specific "federal
and state laws, regulations and guidelines" he claims were improperly excluded. Plaintiff
cited to "Federal Hospice Regulations, 42 CFR 418," without identifying to which of the
fifty-seven individual regulations he was referring. Plaintiff mentioned the thousand-page
federal Omnibus Budget Reconciliation Act of 1987 (OBRA) and "OBRA regulations,"
without providing a citation for the act or the regulations, and without citing to a specific
section of the act or regulations. His PTM filings did not mention any state laws or
regulations, or "guidelines" of any sort.
4 This portion of Stang was followed by Rapchak v. Haldex Brake Prod. Corp.,
No. 2:13 -CV -1307, 2016 WL 3752908, at *5 (W.D. Pa. July 14, 2016), which also is not
binding precedent.
20
This issue was raised in the Defendants' MIL No. 16100436 discussed at NT
10/17/16 pp. 47-56. During the discussion, the Plaintiff's only mention of specific hospice
regulations were 42 CFR 418, 42 CFR 418 et seq., and 42 CFR 418.56. NT 10/17/16 pp.
49, 50, & 53. Plaintiff admitted that the
MS. WILSON: Federal regulations issued by Medicare to
support COBRA [sic] are found at 42 CFR 483. agree that those
I
are not applicable to a hospice. They apply to skilled nursing
facilities, also known as nursing homes.
NT 10/17/16 p. 50.
The trial court deferred ruling on the motion in limine until the issue arose at trial.
NT 10/17/16 pp. 55-56.
Plaintiffs only post -trial citation to the trial record where the issue arose was NT
10/26/16 pages 21-36. Plaintiff wanted to cross-examine Barbara Felder, a certified
nurse practitioner who worked at Penn Hospice, on her knowledge of 42 CFR §§
418.81.1-116 regarding the hospice's responsibility to provide food and dietary
counseling. The trial court pointed out that the regulation identified by Plaintiff "sounds
like it is the menu of available options and care and treatment that must be part of an
institution's setup in order to qualify for Medicare," that it does not "in any way indicate
that each and every case, every patient must be provided with each and every one of
those menu items." NT 10/26/16 pp. 27-28. The trial court also pointed out that the
regulation's definition of dietary counseling relied on what was in the individual patient's
treatment plan, and that Ms. Crew's hospice treatment plan was silent on dietary issues
and forced nutrition and hydration. Id. p. 30. The trial court ruled as follows:
THE COURT: All right. So far you've shown that in dietary
provisions have to be -- have to be available and that they have to
21
be given if it's part of the patient's plan. I don't see anything about
dietary on this plan that you've shown.
MS. WILSON: So can I inquire of her what skin breakdown
precaution means?
THE COURT: I think it's fair game.
MS. WILSON: Okay.
NT 10/26/16 pp. 35-36.
The trial court correctly ruled that it was irrelevant to cross-examine the witness on
the need to give Ms. Crew food and water because Ms. Crew's treatment plan was silent
on dietary issues and did not require forced nutrition and hydration.5
E. The "Motion for Judgement [sic] Non Obstante Verdict [sic]
(or Such Other Relief as is Specified Below)" is boilerplate
that did not preserve any issue for review.
Plaintiffs 1925(b) Statement raises the following waived issues:
Plaintiff seeks judgment against the Defendants because the jury
verdict was against the evidence and also against the weight of evidence
5 At page 27 of his PTM brief, the Plaintiff raised the issue of the trial court's failure
to charge the jury on negligence per se. Plaintiff's PTM, however was silent on the issues
of negligence per se and the failure to charge the jury on negligence per se. See ¶¶ 21-
21. Plaintiff therefore waived the issues of negligence per se and the charge given to the
jury. "If an issue has not been raised in a post -trial motion, it is waived for appeal
purposes." Vautar v. First Nat. Bank of Pennsylvania, 2016 Pa. Super. 5, 133 A.3d 6,
10 (en bane), citing Chalkey v. Roush, 757 A.2d 972, 975 (Pa. Super. 2000) (en bane),
affirmed, 569 Pa. 462, 805 A.2d 491 (2002). "Only issues specifically raised in post -
verdict motions can be considered and will be preserved for appeal, and issues raised
only in briefs in support of those motions may not be considered." Cherry v. Wilier, 317
Pa. Super. 58, 63, 463 A.2d 1082, 1084 (1983). See Siculiento v. K & B Amusements
Corp., 2006 Pa. Super. 380, 915 A.2d 130, 132 n.2 (an issue not specifically set forth in
the post -trial motion is waived even though the party argues the issue in his brief
supporting the post-trial motion).
22
when it determined that Defendants were not negligent. Plaintiff is entitled
to judgment as a matter of law.
The Plaintiff asks for judgment n.o.v. to be entered in his favor,
pursuant to Pa.R.C.P. §227.1(a)(2) and direct the entry of judgment in favor
of Plaintiff.
Plaintiff is entitled to judgment n.o.v. since facts and evidence
demonstrate liability, damages and punitive damages.
Plaintiff is entitled to a judgment n.o.v. based on the law, in
conjunction with the evidence, and since the evidence was such that no two
reasonable minds could disagree that the outcome should have been rendered
in favor of the Plaintiff
[ff 5] The trial court erred and abused its discretion in failing to grant,
in their entirety, Plaintiff's Motions for Directed Verdict.
6] The trial court's dismissal of Plaintiffs punitive damage claim
was against the law and the evidence which now requires the entry of a
judgment n.o.v., in favor of the Plaintiff, as to these claims.
VERDICT SHOULD NOT STAND
The verdict was against the law.
The issues in ¶ 5 were not raised in Plaintiffs PTM and are waived. Vautar v.
First Nat. Bk. of Pa., 2016 PA Super 5, 133 A.3d 6, 10 (en bane) ("If an issue has not
been raised in a post -trial motion, it is waived for appeal purposes.").
The issues regarding punitive damages in ¶ 6 are irrelevant because the jury
decided that the defendant was not negligent and never reached the issues of causation
or damages.
The other issues are identical to those included in the PTM and were waived
because they were not argued in the Plaintiff's PTM brief. Jackson v. Kassab, 2002 PA
Super 370, 812 A.2d 1233, 1235 ("common sense mandates that any issue raised in a
motion for post -trial relief must be briefed and argued to the trial court. [F]ailure to set
23
forth an argument in briefs filed in the court in support of post -trial motions constitutes a
failure to preserve the issue or issues not argued." (Internal citations and quotes
omitted.)).
All of the issues were also waived because they were impermissible boilerplate
that did not specify the reasons supporting the claims for relief. Pa.R.C,P. 227.1(b)(2)
provides that post -trial relief may not be granted unless the grounds for relief, "are
specified in the motion. ... Grounds not specified are deemed waived."
"The result of this requirement is to deter and disapprove 'motions which set forth
mere 'boilerplate' language Frederick v. City of Pittsburgh, 132 Pa. Cmwlth. 302, 306,
572 A.2d 850, 852 (1990) (citation omitted). See Cauthorn v. Owens Corning Fiberglas
Corp., 2004 Pa. Super. 1, 840 A.2d 1028, 1033-1034 (very general assignments of error
in post-trial motions, such as "the verdict is against the law" or "against the evidence," do
not preserve any issues for review in the trial court or in the appellate court); Siculiento
v, K & B Amusements Corp., 2006 Pa. Super. 380, 915 A.2d 130, 133 (reserving the
"right" in a post -trial motion to raise "such other errors as may be disclosed by a transcript
of the trial," does not preserve any grounds for relief not specifically stated in the motion).
"In requiring the motion to state the specific grounds therefor, motions which set
forth mere 'boilerplate' language are specifically disapproved. A post -trial motion must set
forth the theories in support thereof 'so that the lower court will know what it is being asked
to decide." Hinkson v. Com., Dept of Transp., 871 A.2d 301, 303 (Pa. Cmwlth 2005),
quoting 1983 Explanatory Comment to Rule 227.1, quoting Frank v. Peckich, 257
Pa.Super. 561, 579, 391 A.2d 624, 632-633 (1978) (en banc, opinion in support of
affirmance).
24
The Superior Court "has consistently held that a post -verdict motion, stating merely
that the evidence was insufficient to support the verdict or that the verdict was against the
weight of the evidence, will preserve no issue for appellate review unless the motion goes
on to specify in what respect the evidence was insufficient, or why the verdict was against
the weight of the evidence." Commonwealth v. Hosey, 364 Pa. Super. 578, 581-82, 528
A.2d 659, 661 (1987) (emphasis in the original), quoting Commonwealth v. Tillie, 359
Pa.Super. 302, 318, 518 A.2d 1246, 1254 (1986).
The Plaintiffs post -trial motion did not conform to these mandatory requirements
resulting in the waiver of those issues in the trial court. Those same deficiencies also
result in the waiver of these issues on appeal.
Very general assignments of error in Pa.R.A.P. 1925(b) statements, such as "the
verdict is against the law" or "against the evidence," do not preserve any issues for review
in the trial court or in the appellate court. Cauthorn v. Owens Corning Fiberglas Corp.,
2004 Pa. Super. 1, 840 A.2d 1028, 1033-1034. See Commonwealth v. Lemon, 2002 PA
Super 234, 804 A.2d 34, 37 (a 1925(b) Statement is too vague to preserve issues for
appellate review when it merely states that the verdict was "against the evidence,"
"against the weight of the evidence," and "against the law"). Similarly, the claim that the
verdict was "against the weight of the credible evidence as to all of the charges" is so
vague that it is the functional equivalent of filing no 1925(b) Statement at all, and all issues
are deemed to be waived. Commonwealth v. Seibert, 2002 Pa. Super. 15, 799 A.2d 54,
62.
25
The Plaintiff's claims of error and requests for judgment n.o.v. challenge the
sufficiency of the evidence to support the verdicts.° "When challenging the sufficiency of
the evidence on appeal, the Appellant's 1925 statement must 'specify the element or
elements upon which the evidence was insufficient in order to preserve the issue for
appeal." Commonwealth v. Gibbs, 2009 Pa. Super. 181, 981 A.2d 274, 281, quoting
Commonwealth v. Williams, 2008 Pa. Super. 250, 959 A.2d 1252, 1257.
The Plaintiffs boilerplate and insufficient Rule 1925(b) statement fails to point out
to the trial court or to the appellate court how the trial court misinterpreted the facts or the
law. All of these issues are waived.
IV. CONCLUSION
For the foregoing reasons, the Superior Court should affirm the judgment entered
on the jury's verdict in favor of Defendant-Appellee Penn Hospice at Rittenhouse, and
against the Plaintiff-Appellant David Crew as the administrator of the Estate of Essie
Crew, and in his own right.
BY THE COURT:
chman, J.
6"The remedy of entry of judgment in a party's favor is proper only when a party
successfully challenges the sufficiency of the evidence." Morin v. Brassington, 2005
Pa. Super. 107, 871 A.2d 844, 851 (emphasis in the original).
"On appeal from the refusal of the lower court to enter judgment n.o.v., the sole
duty of the appellate court is to decide whether there was sufficient evidence to sustain
the verdict, granting the verdict winner the benefit of every favorable inference reasonably
to be drawn from the evidence and rejecting all unfavorable testimony and influences."
G.J.D. v. Johnson, 447 Pa.Super. 340, 342, 669 A.2d 378, 379 (1995).
26