Williams, C. v. Willow Terrace

J-A12007-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CAMAY E. WILLIAMS, : IN THE SUPERIOR COURT OF
ADMINISTRATRIX OF THE ESTATE OF : PENNSYLVANIA
:
:
v. :
:
WILLOW TERRACE AND ALBERT :
EINSTEIN MEDICAL CENTER; :
ALBERT EINSTEIN HEALTHCARE :
NETWORK; METHODIST HOSPITAL; :
THOMAS JEFFERSON UNIVERSITY :
HOSPITALS; ST. AGNES CONTINUING :
CARE CENTER; ST. AGNES LONG TERM :
CARE, LLP; MERCY HEALTH SYSTEM; :
HAHNEMANN UNIVERSITY HOSPITAL; :
TENET HEALTHSYSTEM HAHNEMANN, :
LLC :
:
APPEAL OF: WILLOW TERRACE AND :
ALBERT EINSTEIN HEALTHCARE :
NETWORK : No. 2856 EDA 2012
Appeal from the Judgment Entered August 27, 2012,
In the Court of Common Pleas of Philadelphia County,
Civil Division, at No. 03774, March Term, 2009.
BEFORE: SHOGAN, STABILE and PLATT*, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JULY 31, 2014
Appellants, Willow Terrace and Albert Einstein Healthcare Network,
appeal from the judgment entered on August 27, 2012, in the Philadelphia
County Court of Common Pleas. We affirm.
In its opinion, the trial court set forth the relevant facts and procedural
history of this matter as follows:
__________________
*Retired Senior Judge assigned to the Superior Court.
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This case is a wrongful death and survival action under 42
Pa.C.S.A. §§ 8301, 8302, brought by the Plaintiff, Camay
Williams, administratrix of the estate of Marcel Mackey (herein,
Appellee), who died after being cared for by the Defendants
Willow Terrace and Albert Einstein Health Network (herein,
Appellants). The procedural history of the case is as follows:
The suit was initiated by the Appellee in the Court of
Common Pleas, Philadelphia County, Civil Division, March, 2009
(No. 03774). While it is impossible to adequately summarize a
complaint of over 100 pages, in general, the Appellee alleged
that the various health care providers were negligent in their
care and treatment of the decedent, Marcel Mackey
there were 10 named Defendants: Willow Terrace; Albert
Einstein Medical Center; Albert Einstein Health Network;
Methodist Hospital; Thomas Jefferson University Hospitals; St.
Agnes Continuing Care Center; St. Agnes Long Term Care, LLP;
Mercy Health System; Hahnemann University Hospital; and
Tenet Health System Hahnemann, LCC.1
1
Following a jury verdict against Willow Terrace and
Albert Einstein Healthcare Network, the caption was
amended by the Court at the request of the parties
found not liable on June 20, 2012.
The testimony revealed that the decedent was born on
October 8, 1939. He had a medical history of bilateral above the
knee amputations, diabetes mellitus, multiple strokes, transient
ischemic attacks, Bells Palsy, dementia, depression,
hypertension, incontinence, anemia, peripheral vascular disease,
and malabsorption. On March 3, 2007, at the age of 67 the
decedent was admitted to Hahnemann University Hospital having
not felt well for four to five days. His immediate complaints
consisted of thirst and incontinence. Medical records indicate
that the decedent had decreased movement on the right side
resulting in a diagnosis of left middle cerebral artery stroke with
aphasia. Moreover, a Percutaneous Endoscopic Gastrostomy
(PEG) tube was placed as the decedent could not swallow or eat.
His chart reveals right pneumothorax, aspiration pneumonia, and
episodes of diabetic ketoacidosis. Lab work on March 20, 2007
indicated an albumin level of 1.8, indicating protein malnutrition.
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Hospital, he developed a stage II pressure ulcer on his sacrum.
On March 21, 2007, the decedent was transferred to St.
Agnes Long Term Acute Care Hospital. His medical charts show
total right hemiparesis as well an MRSA infection pseudomonas
on the stage II ulcer. Treatment for the ulcer consisted of
debridement and IV antibiotics. The decedent also received
occupational therapy, speech pathology, consultation from a
dietician, NPH insulin, antidepressants, and dietary supplements.
On April 23, 2007, the decedent was transferred to St. Agnes
Skilled Nursing Facility where he received a similar course of
treatment. During this time his prealbumin levels were on a
downward trend and his albumin levels were not within normal
limits.
On May 11, 2007, the decedent entered Methodist
Hospital. He had an elevated white blood cell count of more than
30,000, acute incident of sepsis, hypertension, dehydration,
protein malnutrition, a UTI, as well as right upper and middle
lobe aspiration pneumonia. Likewise, his sacral decubitus ulcer
continued to be a problem. The decedent was deemed stable for
discharge on June 4, 2007. While his family expressed an
interest in taking the decedent home, they did not appear for
training and directed the hospital to transfer the decedent to
Willow Terrace, a skilled nursing facility.
From June 4, 2007 to January 29, 2008, the decedent was
a resident of Willow Terrace, with several brief admissions to
Albert Einstein Medical Center.2 From January 29, 2008 to March
6, 2008, he remained at Albert Einstein Medical Center. While
under the care of the Albert Einstein Healthcare Network, the
recurrent aspiration with sequelae of aspiration pneumonia, the
worsening of the pressure ulcers to the sacrum, poor hygiene,
and infections.
2
Willow Terrace was under the control of Albert
Einstein Medical Center, a tertiary acute care
hospital. Both of these facilities are part of the Albert
Einstein Health Network.
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The decedent was transferred to Montgomery Hospital on
March 6, 2008 where he remained until his death on May 5,
2008. His death certificate lists the immediate cause of death as
a severe end stage decubitus ulcer, skin breakdown, sepsis,
failure to thrive, and metabolic encephalopathy. Other factors
listed were hypertension and ventilator dependant [sic]
respiratory failure.
The Appellee argued at trial that the originally 10 named
Defendants were substandard in: care, staffing, assessments,
oversight, and administration. Other than Methodist Hospital and
Thomas Jefferson University Hospital, the jury found that all
originally named Defendants were negligent in the care and
treatment of the decedent. On August 12, 2011, the jury found
that only Willow Terrace (80%) and Albert Einstein Healthcare
Network (20%) were the factual cause of harm. The jury
awarded $1,500,000 in wrongful death damages (as well as
$287,601 in stipulated past medical expenses under the
Wrongful Death Act) and $500,000 under the survival damages.
42 Pa.C.S.A. §§ 8301, 8302. Likewise, the jury found that the
conduct of Willow Terrace and Albert Einstein Healthcare
fference
On September 21, 2011, the jury awarded $400,000 in
punitive damages against Willow Terrace and $100,000 in
punitive damages against Albert Einstein Healthcare Network. On
or a New Trial or
Judgment Notwithstanding the Verdict were Denied by this
Motions were denied. By Order docketed on August 7, 2012, this
Court found that Delay Damages were warranted in the amount
of $114,000. As a result, the verdict was molded to $2,901,602
by the Honorable Sandra M. Moss on August 21, 2012 to reflect
the above amounts.3 Judgment on the molded verdict was
entered by the Appellee on August 27, 2012. Both parties
appealed that Entry of Judgment.
3
The Honorable Sandra M. Moss handled the matter
during a brief period in which this writer was not
certified as a Senior Judge.
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On September 19, 2012, the Appellants filed a notice of
appeal to the Superior Court under 2856 EDA 2012, while on
October 1, 2012 the Appellee filed a notice of appeal under 2857
EDA 2012.4 These Cross Appeals were consolidated by the
Superior Court.
4
s
Trial Court Opinion, 4/8/13, at 1-4.1
consideration:
1. Is not the factual record in this case, in the context of
, so devoid of
evidence of outrageousness as to justify granting a judgment
notwithstanding the verdict on the issue of Punitive Damages?
2. Is not the weight of the evidence of outrageousness, in light
s, such that
Defendants are entitled to a new trial limited to the issue of
punitive damages?
3. Did not the Trial Court commit reversible error warranting the
grant of a new trial when it precluded Defendants from informing
the jury that they are not-for-profit entities but permitted
4. Did not the Trial Court commit reversible error warranting the
qualified expert?
1
-appeal at 2857 EDA 2012 was voluntarily
discontinued on January 30, 2014.
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5. Did not the Trial Court commit reversible error warranting the
that certain conduct was reckless and outrageous?
6. Did not the Trial Court commit reversible error warranting the
Robert Perkel, from testifying as to the standard of care for the
treatment of pressure ulcers?
7. Did not the Trial Court commit reversible error warranting the
of suffering certain further medical injuries?
8. Did not the Trial Court commit reversible error warranting a
molded verdict when it included a stipulated figure for medical
specials on the Verdict Sheet along with a blank line for Wrongful
Death damages, then permitted a double recovery by adding the
stipulated figure to the amount awarded by the jury on the
Wrongful Death line to get the total Wrongful Death damages?
-8.
In the argument portion of their brief, Appellants present their first
and second issues as one issue, and likewise, we will address it as such.2
2
requirements for the argument section of appellate briefs and provides, in
relevant part, as follows:
Rule 2119. Argument
(a) General rule. The argument shall be divided into as many
parts as there are questions to be argued[.]
unequivocally
that each question an appellant raises is to be supported by discussion and
Estate of Haiko v. McGinley, 799 A.2d
Presented lists their i
at 6-8. However, in the argument portion of their brief, issues one and two
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alternatively that they are entitled to a new trial on punitive damages. Our
standard of review is as follows:
A JNOV can be entered upon two bases: (1) where the
movant is entitled to judgment as a matter of law; and/or, (2)
the evidence was such that no two reasonable minds could
disagree that the verdict should have been rendered for the
JNOV, we must consider all of the evidence admitted to decide if
there was sufficient competent evidence to sustain the verdict.
In so doing, we must also view this evidence in the light most
favorable to the verdict winner, giving the victorious party the
benefit of every reasonable inference arising from the evidence
and rejecting all unfavorable testimony and inference.
Concerning any questions of law, our scope of review is plenary.
Concerning questions of credibility and weight accorded the
evidence at trial, we will not substitute our judgment for that of
the finder of fact. If any basis exists upon which the jury could
have properly made its award, then we must affirm the trial
nial of the motion for JNOV. A JNOV should be entered
only in a clear case.
Buckley v. Exodus Transit & Storage Corp., 744 A.2d 298, 304-305 (Pa.
Super. 1999) (internal citations omitted).
Punitive damages are appropriate only in cases of outrageous
beha
from the Statement of Questions Presented are combined into argument
section A, and the remaining issues are set forth in argument sections B
-69. While inconsistent and in violation of
letters presents a confusing format but does not hamper appellate review,
and we shall proceed with our discussion.
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motive or reckless indifference to the rights of others. J.J. DeLuca Co.,
Inc. v. Toll Naval Associates, 56 A.3d 402, 415 (Pa. Super. 2012).
Punitive damages are appropriate when the defe
an outrageous nature as to demonstrate intentional, willful, wanton, or
reckless conduct. Id. at 415-416. The determination of whether actions
rise to outrageous conduct lies within the sound discretion of the fact-finder
and will not be disturbed by an appellate court as long as that discretion has
not been abused. Id. at 416. The state of mind of the tortfeasor is vital,
and the act, or the failure to act, must be intentional, reckless, or malicious.
Feld v. Merriam, 485 A.2d 742, 748 (Pa. 1984). A defendant acts
recklessly when his conduct creates an unreasonable risk of physical harm to
another and such risk is substantially greater than that which is necessary to
make his conduct negligent. Hall v. Episcopal Long Term Care, 54 A.3d
381, 395 (Pa. Super. 2012). Therefore, a showing of mere negligence, or
even gross negligence, will not suffice to establish that punitive damages
should be imposed. Id
goes beyond a showing of negligence, evidence sufficient to establish that
Id.
Additionally:
[a] new trial based on weight of the evidence issues will not be
granted unless the verdict is so contrary to the evidence as to
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suffice as grounds for a new trial. Upon review, the test is not
whether this Court would have reached the same result on the
evidence presented, but, rather, after due consideration of the
evidence found credible by the jury, and viewing the evidence in
the light most favorable to the verdict winner, whether the court
could reasonably have reached its conclusion. Our standard of
review in denying a motion for a new trial is to decide whether
the trial court committed an error of law which controlled the
outcome of the case or committed an abuse of discretion.
Keystone Dedicated Logistics, LLC v. JGB Enterprises, Inc., 77 A.3d 1,
8 (Pa. Super. 2013).
In their brief, Appellants set forth in detail the evidentiary record and
testimony in this matter. They claim that none of the evidence offered by
Appellee established outrageous conduct and that they are entitled to a new
trial on the issue of punitive damag -42.3 We
disagree.
employees were called to testify, and their testimony established a
3
the possible conclusion that Decedent may have been repositioned in his bed
but the repositioning was not placed in his medical chart. Appel
at 29. We reiterate that we do not review the record in the light most
favorable to Appellants, but rather to Appellee as verdict winner. Buckley,
744 A.2d at 304-305. As will be discussed below, there was ample evidence
that Appellants were more than merely negligent in their care of Decedent.
portion of the evidence presented.
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consistent theme and pattern revealing outrageous conduct. The trial court
noted as follows:
Here, the Appellee called numerous employees of Willow
Terrace and Albert Einstein Healthcare Network. Sharron Tull, [a
Willow Terrace testified that dependant [sic] patients such as the
decedent should be turned every two hours and that the
repositioning should be recorded. N.T. 7/21/11 at 127-138. Ms.
chart which were completely void of any notation of
repositioning. N.T. 7/21/11 at 143-146. Specifically, there were
33 eight hour shifts in August of 2007 in which there are no
notations of repositioning. N.T. 7/21/11 at 144-146. Ms. Tull
explained that she would complain of understaffing and that she
would be pulled off of her floor without replacement. N.T.
possible to reposition patients every two hours. N.T. 7/21/11 at
149. Finally, Ms. Tull testified that when State Inspectors visited
Willow Terrace the nurses were notified and there was always
more staff present. N.T. 7/21/11 at 151.
Next the Appellee called Gail Clark, [a Licensed Practical
[Clark] testified that the decedent appeared to be in a lot of pain
7/21/11 at 174.[4]
drainage. N.T. 7/21/11 at 177-180. Ms. Clark echoed that it was
known that the decedent had to be repositioned every two hours
or his wound worsen[ed]. N.T. 7/21/11 at 181. At Willow Terrace
she was responsible for 30 patients a shift and would receive
ilies that there
was not enough help. N.T. 7/21/11 at 185-188. Like Ms. Tull,
Ms. Clark testified that when the State Inspectors came to
Willow Terrace there would be more staff present. N.T. 7/21/11
4
Ms. Clark also testified that wounds are graded in terms of stages of
severity, i.e., Stage I, II, III, and IV. N.T., 7/21/11, at 174. Ms. Clark
aforementioned stages. Id.
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at 193. When it came to wound care, Ms. Clark testified that
evident the bandages were not be[ing] changed every shift as
ordered by the doctor. N.T. 7/21/11 at 196.
Director of Nursing at Willow Terrace also testified that
residents, families, and nurses complained of understaffing. N.T.
7/22/11 at 46. Ms. Teel testified that Range of Motion was
required twice a day for the decedent, but it only happened
three times total on the 3pm-11pm shift from July 1, 2007 to
July 23, 2007. N.T. 7/22/11 at 71. Moreover, during the month
of July, the decedent was documented as being repositioned only
six times during the 3pm-11pm shift. N.T. 7/22/11 at 73-74. The
ioned on
October 23, 2007 and October 24, 2007 though, at that time he
was at Albert Einstein Medical Center, not Willow Terrace. Ms.
Teel agreed that there were incomplete chart entries revealing a
lack of catheter care, showers, and skin assessments for the
decedent. N.T. 7/22/11 at 81-84. Finally Ms. Teel detailed
numerous deficiency citations Willow Terrace received from State
Inspectors. N.T. 7/22/11 at 90-105.
Miriam Medina, RN, another former employee of Willow
Terrance[,] echoed complaints concerning understaffing,
CNAs on the floor; at times one CNA would be pulled leaving
only three. N.T. 7/22/11 at 158-162. She also testified that
staff.
N.T. 7/22/11 at 162. Randy Crowder, a former Administrator of
Willow Terrace testified that Willow Terrace received a citation
from State Inspectors on May 17, 2007 for failing to follow
citation. N.T. 7/25/11 at 25-26.
The Appellee also called Marquella White, RN, a former
Restorative Manager at Willow Terrace as a hostile witness. N.T.
7/25/11 at 60. After cross-examination, she recalled testifying
during her deposition that nurses, residen
families complained of understaffing. Ms. White admitted that
she passed those complaints onto the Director of Nursing, Ms.
Teel. N.T. 7/25/11 at 72-74.
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Mobile Wound Consultants and visited Willow Terrace. N.T.
7/25/11 at 87-
Ms. Lopresti detailed how his ulcer got progressively worse from
June 20, 2007 to January 23, 2008. N.T. 7/25/11 at 108-158.
Specifically, the ulcer was 3.8 cm x 5.1 cm with a depth of 1 mm
on June 20, 2007. N.T. 7/25/11 at 108. At each assessment, the
wound was bigger, while more purple, black, and/or brown
tissue had developed; this included a foul odor, infection, and
yellow exude. N.T. 7/25/11 at 117-123. On November 28, 2007
she found a new wound at the base of his penis. N.T. 7/25/11 at
152. On December 12, 2007 the ulcer was 23cm x 21cm with a
copious drainage and foul odor. Wound continues to deteriorate
and increase in size. Debridement, large amount of loose, foul
-156.
At her last assessment, on January 23, 2008, the ulcer had
grown from 3.8 cm x 5.1 cm to 25cm x 28cm with a depth of
more than 4.5cm. N.T. 7/25/11 at 158.
The Appellee also called Dr. Loren Lipson who was
accepted by this Court as an expert in Geriatrics; Geriatric
Medicine; Diabetes; Internal Medicine; Long-Term and Nursing
Home Care; Nutrition; and Federal and State Regulations
Applicable to Nursing Homes. N.T. 7/26/11 at 17-19. Dr. Lipson
testified that in his opinion both Willow Terrace and Albert
he Death
to thrive, and delirium were the cause of death. Moreover, he
opined that Willow Terrace and Albert Einstein Medical Center
were the facilities which played a substantial role in the death of
the decedent. N.T. 7/27/11 at 54-56.
Finally, Suzanne Frederick, RN, testified as an expert in
nursing standards of care in hospitals, nursing homes, and home
administration. She testified that Willow Terrace failed to assess
and treat the
premedication. N.T. 8/01/2011 at 93-98. In her review of the
records she found that the real failure of Willow Terrace was the
lack of turning and repositioning as well as lack of Foley catheter
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maintenance and range of motion tests. N.T. 8/01/2011 at 111-
112. Ms. Frederick opined that repositioning is basic nursing care
which was simply being ignored along with auditing their records
and charts; not doing either was reckless and outrageous. N.T.
8/01/2011 at 22. Also outrageous was the fact that charts were
filled out for the decedent at Willow Terrace while he was at
Albert Einstein Medical Center. N.T. 8/01/2011 at 126. Likewise,
she testified that there appeared to be a lack of communication
and supervision in regards to the worsening wound. N.T.
8/01/2011 at 135-136. Finally Ms. Frederick clarified that the
various state and federal surveys (or deficiency notices) put
Willow Terrace on notice that they were not meeting the
standard of care. N.T. 8/02/2011 at 124.
Trial Court Opinion, 4/8/13, at 6-10 (footnote added).
Upon review, we conclude that the record reveals that Appellants were
facilities were chronically and continuously understaffed; however, when the
facilities had notice of governmental inspections, they instead provided
appropriate staff levels. Decedent was routinely not repositioned, and
repositioned at times when he was not even present at the facility. The
understaffing and failure to reposition Decedent, despite his increasingly
severe wounds, which were known to Appellants, caused his death. This is
not a scenario where there was an instance of negligence or even gross
negligence; rather, it was a definite and clear pattern of callous, wanton,
and reckless action and inaction. See Hall, 54 A.3d at 397 (stating that a
mit an
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award of punitive damages where the evidence showed the nursing home
was chronically understaffed, the nursing home was aware of the
understaffing which led to improper patient care, and the nursing home
deliberately increased staff during times of state inspections and then
reduced staff levels after the inspection was concluded). Therefore, we
discern no error in the presentment of punitive damages to the jury and no
for JNOV. Moreover, nothing in the award of punitive damages shocks our
sense of justice. As set forth above, there was ample evidence supporting
the award of punitive damages. We conclude that the trial court did not
abuse its discretion in upholding the
our judgment for that of the jury.
In each of the remaining issues, Appellants assert that the trial court
should have granted a new trial based on claims that it made erroneous
evidentiary rulings. As noted abo
motion for a new trial generally, our standard is narrow, and we will reverse
the decision of the trial court only if we find an abuse of discretion or an
error of law that controlled the outcome of the case. Keystone Dedicated
Logistics, LLC
evidence are left to the sound discretion of the trial court and will not be
overturned absent an abuse of discretion or misapplication of law.
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Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 984 (Pa. Super.
2005). Moreover, to constitute reversible error, the evidentiary ruling must
not only be erroneous, but also harmful or prejudicial to the complaining
party. McClain v. Welker, 761 A.2d 155, 156 (Pa. Super. 2000) (citation
omitted).
Appellants argue that the trial court erred in precluding them from
informing the jury that they are non-profit organizations while permitting
co
Here, Appellee presented the trial court with a motion in limine to
preclude Appellants from introducing their non-profit status during the
liability phase of trial. N.T., 7/20/11, at 21. The trial court granted the
-profit entity was
irrelevant and would only serve to confuse the jury. Id. The trial court
pointed out that at the liability stage of the trial, when determining
negligence, the issue as to whether a defendant is for-profit or non-profit is
irrelevant. Id. at 20. As noted above, the admissibility of evidence is left to
the discretion of the trial court, and upon review, we discern no abuse of
that discretion.
Moreover, with respect
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use of these terms in the record. It is well settled that in order to preserve a
claim of error for appellate review, a party must make a specific objection to
the alleged error before the trial court in a timely fashion and at the
appropriate stage of the proceedings. Law Office of Douglas T. Harris,
Esquire v. Philadelphia Waterfront Partners, LP, 957 A.2d 1223, 1229
Id. (citations omitted).
Accordingly, because Appellants failed to object, the issue is waived.
Next, Appellants claim that the trial court erred when it excluded
testimony. We disagree.
stration of
witnesses absent an abuse of discretion. Commonwealth v. Stevenson,
appellant must demonstrate that he or she was actually prejudiced by a trial
Id.
(citation omitted); see also In re Adoption of J.F., 572 A.2d 223, 225 (Pa.
Super. 1990) (concluding that the trial court did not err in refusing to
sequester a witness where there was no prejudice to the appellant).
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Here, the record reflects that Appellee, prior to presenting the
testimony of her expert witness, Suzanne Frederick, RN, asked the trial
sequestration order, and the trial cou
sequestered. N.T., 8/1/11, at 5-6. While Appellants now argue that they
are unable to locate a sequestration order in the record, they have not
objected
to their witness being sequestered.5 As noted above, when a party fails to
object at trial, the issue is waived on appeal.6 Law Office of Douglas T.
Harris, Esquire, 957 A.2d at 1229.
5
In their brief, A
whether the trial court had in fact previously ordered sequestration of all
g expert out of the courtroom
-6. The record
reflects that Appellants made no objection to this ruling. Id.
6
Assuming for the sake of argument that Appellants had lodged a timely
and specific objection preserving this issue for appellate review, no relief
would be due because Appellants failed to establish prejudice. Stevenson;
In re Adoption of J.F. In their brief, Appellants merely claim that, had
their expert not been sequestered, she could have assisted in preparing for
cross-
this bald assertion, but without any substance as to what testimony the
expert could have assisted regarding cross-examination or how Appellants
w
speculative and fails to establish prejudice.
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Next, Appellants claim that the trial court erred when it permitted
outrageous. We conclude that no relief is due.
Here, Appellants argue that reckless or outrageous conduct is not
outside the ken of laypersons, and therefore, expert testimony on the issues
review, we are constrained to point out that nowhere in their appellate brief
do Appellants cite to the record or otherwise set forth what testimony should
have been precluded. Appellants neither quoted from the transcript nor
directed this Court to the place in the record where the allegedly improper
testimony could be found. It is well settled that it is not the responsibility of
this Court to develop an argument for the appellant, and we shall not scour
the record to find evidence to support an argument. J.J. DeLuca Co., Inc.,
56 A.3d at 411. Accordingly, we conclude that this issue is waived. Id.
In their sixth issue, Appellants argue that the trial court erred in
the medical treatment of, and standard of care for the management of,
pressure ulcers. No relief is due.
The admission of expert testimony is left to the discretion of the trial
clear abuse of that discretion. Portside Investors, L.P. v. Northern Ins.
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Co. of New York, 41 A.3d 1, 12 (Pa. Super. 2011) (citation omitted).
Additionally:
it is well-settled in Pennsylvania that the standard for
qualification of an expert witness is a liberal one. When
determining whether a witness is qualified as an expert the court
is to examine whether the witness has any reasonable
pretension to specialized knowledge on the subject under
investigation. It is to ascertain whether the proposed witness has
sufficient skill, knowledge, or experience in the field at issue as
to make it appear that the opinion or inference offered will
probably aid the trier of fact in the search for truth.
Id. (citations omitted).
At the outset, the ruling the trial court made with respect to Dr.
(Sidebar conference)
THE COURT: To the defense, I am not quite certain why he is
here.
[Counsel for Appellants] MR. SABO: He is going to testify,
ulcer, as well as how his comorbidities affected the development
and the course of his pressure ulcers.
[Counsel for Appellee] MR. GIGLIONE: sked to
approach, Your Honor.
To the extent he is being called to offer any opinions of the
standard of care at Willow Terrace, or any of the practice done at
Willow Terrace as it related to [Decedent], I am going to object.
This witness is not qualified to give opinions as to a
nursing home whatsoever.
This man never worked in a nursing home, has never
overseen a nursing home.
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as Willow Terrace.
MR. SABO: He did testify earlier in his career he did work in a
nursing home.
He has treated patients in his practice who have come
from nursing homes and go back to nursing homes, and he is
familiar with accepted standards of medicine. And that is what
he is here to testify to.
Your Honor, I think it was pretty clear through his
recitation of his medical career, he is more than qualified to give
testimony concerning the medical issues in this case.
THE COURT: How is that going to relate to [Decedent]?
MR. SABO: dent] because we
are not just going to look at him in a vacuum, we are looking at
him with what risk factors he had prior to his major stroke in
2007 and the result of his stroke, and also how the risk factors
and the comorbidities all play out to the progression of this
wound.
MR. GIGLIONE: Your Honor, the regulations as they relate to
nursing homes were amended in 1987.
He testified outside of the report in this particular case.
He has no knowledge of the Federal regulations relating to
facts, such as Willow Terrace.
about what was or was not done in Willow Terrace. He has no
experience.
negligent in a case because I have no experience in that field.
MR. SABO:
Health Care Center, Albert Einstein Healthcare Network. And he
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offers an opinion on how the comorbidities of [Decedent] played
a role in his life expectancy.
MR. GIGLIONE: I agree he is qualified to testify about what
happens in the hospital. I have no problem with that.
My criticism
THE COURT: I am going to qualify him as an expert; however, I
will limit his testimony to his field of expertise, not his
understanding of w
home.
Is that clear?
MR. SABO: With regard to the medical setting, he does work at
a medical center.
THE COURT: His testimony as to how the operation of a nursing
sed to that, but
nursing home.
MR. SABO: Your Honor, he is not going to testify as to the
administrative responsibilities of the nursing home, but what he
is expected to testify to is that the care and treatment rendered
to [Decedent] in the nursing home was within the accepted
standard of care.
THE COURT: How does he know that?
Where does that come from, his expertise?
MR. SABO: Because of his lengthy career of practicing medicine,
treating these types of patients, and knowing the effects of the
comorbidities and the medical conditions on the human body,
and how -- looking at these records from Mr. Mackey, how the
progression of the wound correlates to his comorbidities and the
progression of the wound.
THE COURT: That much is fine; however, he is not qualified to
talk about the standard of care in a nursing home because he
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has no experience there, what happens in a nursing home,
specifically Willow Terrace.
He can say as to the hospital, but not as to the nursing
home.
MR. SABO: Your Honor, I would like to take an exception on the
record, because he does have experience treating these types of
patients.
He did
THE COURT: I will permit that. I will permit that, but I will not
permit the testimony as to his expertise as to nursing home care
MR. GIGLIONE: He also cites in his report studies about the life
expectancy when someone gets a feeding tube being a certain
percentage;
He cites to somebody with dementia has a certain period
of time.
MR. SABO: He
MR. GIGLIONE: In generating this report, he throws out
MR. SABO: Your Honor, what he has done is he has read the
evidence based on medical literature concerning tube feedings,
strokes, and other maladies.
THE COURT: I will permit that.
(End of Sidebar Conference)
---
MR. GIGLIONE: Your Honor, at this time
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THE COURT: I find that Dr. Perkel is an expert in the area in
which he presents himself.
N.T., 8/4/11, at 106-111. No further objections or discussion occurred on
qualifications and the issue debated at sidebar raised the question of
whether Dr. Perkel could testify as to the standard of care in a nursing
facility. During this inquiry, Appellants never mentioned the standard of
care for pressure ulcer care. Additionally, as evidenced in the quoted
material above, Dr. Perkel was not specifically precluded from testifying as
to the standard of care for pressure ulcers, but only as to standard of care
for a nursing home. N.T., 8/4/11, at 109.
respect to Dr. Pe
fact testify regarding pressure ulcers and their care more than twenty-five
times during direct and cross-examination. N.T., 8/4/11, at 120-180. Dr.
Perkel testified about staging pressure ulcers, surgical debridement of
pressure ulcers, prognosis, body positioning, body repositioning, and the
frequency with which a patient should be repositioned to avoid causing and
aggravating pressure ulcers. Id.
argument fails to illustrate what testimony was precluded by virtue of the
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Next, Appellants claim the trial court committed reversible error
59. We disagree.
Appellants cite to the notes of testi
claim that Nurse Frederick testified beyond her qualifications when she
discussed the interplay between the conduct of the nurses and Decedent
60 (citing the reproduced record at 669 and 672 (citing N.T., 8/1/11, at 87-
88, 97, 100-101)).7 Upon review, however, there is no objection to the
testimony Nurse Frederick provided on pages 87-88, 97, or 100-101.
Accordingly, these challenges were not preserved for appeal. Law Office
of Douglas T. Harris, Esquire, 957 A.2d at 1229.
7
reproduced record. Appellants argue that the allegedly improper testimony
was given by Nurse Frederick, and Appellants cite to the reproduced record
at pages 669 and 672, which are supposed to contain pages 87-88, and 97
However, pages 669 an
testimony from August 1, 2001, appear in the certified record, and this error
does not hamper our appellate review.
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nexus between inadequate Foley catheter care and various consequences,
including urinary tract infections, and about having contractures, even
though she never offered any testimony about specialized training or
ef at 61
(internal citations to the record omitted). However, once again, this issue
was not preserved for review.
Upon review of the portion of the record where Appellants claim the
error occurred, there is no objection made with respect to Nurse Frederi
testimony concerning Foley catheters. The only objections were in response
the testimony conc
preserved for appeal. Law Office of Douglas T. Harris, Esquire, 957
A.2d at 1229.
In their final issue on appeal, Appellants claim the trial court erred
when it included a stipulated figure for past medical expenses on the verdict
sheet along with an empty line for the entry of wrongful death damages,
permitting a double recovery by adding a stipulated figure to the amount
awarded by the jury for wrongful death damages. We disagree.
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The record reveals that the trial court instructed the jury relative to
awarding damages under the Wrongful Death Act and Survival Act damages
as follows:
claims damages under the Wrongful Death Act and the Survival
Act.
She is entitled to make a claim under both Acts, but the
damages must not be duplicative.
If your verdict is in favor of [Appellee], you must then find
the amount of money damages that you believe fairly and
adequately compensate [Appellee] as the administratrix of the
damages sustained as a result of the negligence you found.
The amount you award today must completely compensate
for all damages
sustained in the past, as well as all damages you find will also be
sustained in the future.
The verdict sheet you will receive when you begin your
deliberations contains a series of questions that will lead you to a
proper verdict.
There are places for you to record your verdict as to each
item of damages. I will now describe that for you.
Under the Wrongful Death Act, the damages recoverable
by [Appellee] are as follows:
Past medical expenses:
The Plaintiff is entitled to be compensated in the amount of
all past medical expenses reasonably incurred for the diagnosis
and treatment of his injuries in the past.
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These expenses, as alleged by [Appellee], are in the
amount of $287,601, as indicated on the Jury Interrogatory
Sheet. This verdict should be recorded as a single amount.
[Appellee] is entitled to be awarded a sum that would
fairly and adequately compensate his family for the monetary
value of the services, society, and comfort that he would have
given to his family had he lived, including such elements as work
around the home, provision of physical comfort and services,
and provision of society and comfort.
Under the Survival Act, the damages recoverable by
[Appellee] are as follows:
[Appellee] is entitled to be awarded an amount that you
believe will fairly and adequately compensate him for the mental
pleasures that the decedent endured from the moment of his
injury to the moment of his death as a result of this incident.
There are four items that make up a damage award for
non-economic losses.
One: Pain and suffering;
Two: Embarrassment and humiliation;
Three: Loss of ability to enjoy the pleasures of life, and;
Four: Disfigurement.
[Appellee], on behal
to be fairly and adequately compensated for all physical pain,
mental anguish, discomfort, inconvenience, and distress that you
find that the decedent endured from the time [of] the injury until
the time of his death.
to be fairly and adequately compensated for such
embarrassment and humiliation that you believe the decedent
had endured as a result of his injuries.
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tate, is entitled
to be for [sic] fairly and adequately compensated for the
as a result of the injuries from the time of those injuries until the
time of his death.
Finally, the Plaintif
entitled to be fairly and adequately compensated for the
disfigurement that the decedent suffered from the time of the
injury until the time of his death.
You are to add each of these sums of damages together in
their proper categories and return your verdict in two lump sum
amounts; one under the Wrongful Death Act, and the second
under the Survival Act.
N.T., 8/8/11, at 192-196.
The verdict sheet provided empty lines for the jury to enter the
amount of wrongful death and survival damages, but the line for past
medical expenses was filled in to reflect the stipulated amount of $287,601.
The verdict slip is reproduced in relevant part as follows:
Question #4. State the amount of damages sustained by
[Decedent] and/or the Estate of [Decedent], as a result of the
negligence of [Appellants].
Wrongful Death: ___________________
Past Medial Expenses Under Wrongful Death Act: $287,601
Survival damages: ___________________
Verdict Slip, 8/12/11, at unnumbered 4.
When the jury completed its deliberations, it filled out the verdict
sheet as illustrated below:
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Question #4. State the amount of damages sustained by
[Decedent] and/or the Estate of [Decedent], as a result of the
negligence of [Appellants].
Wrongful Death: $1,500,000.00[8]
Past Medical Expenses Under Wrongful Death Act: $287,601
Survival damages: $500,000.00[9]
Completed Verdict Slip, 8/12/11, at unnumbered 4 (footnotes added).
Appellants claim that there was error because the $1.5 million for
include the stipulated amount for past medical expenses of $287,601.00.
Appellants Brief at 68. Thus, Appellants argue that the verdict was actually
$2,000,000.00 and not $2,287,601.00. Id. We conclude that Appellants
are entitled to no relief.
Prior to the verdict being recorded and while the jury was still
empanelled, there was a discussion at side-bar as to how the verdict sheet
should be interpreted. N.T., 8/12/11, at 50-52. Counsel for Appellants
argued that the verdict should be a total award of $2,000,000.00, while
Appellee averred the total was $2,287,601.00. Nowhere in the record is
there a request for clarification despite the jury remaining empanelled.
8
Handwritten amount.
9
Handwritten amount.
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In Picca v. Kriner, 645 A.2d 868 (Pa. Super. 1994), in determining
whether the trial court was correct in granting the appellant a new trial, this
Court concluded that there was a question as to what the jury intended by
the way it completed its verdict slip. This Court concluded that an ambiguity
have been clarified prior to the jury being discharged was waived where the
appellant failed to pursue that option. Picca, 645 A.2d at 871.
Upon review, it appears that the jury sought to award $1,500,000.00
in wrongful death damages over and above the $287,601.00 in stipulated
past medical expenses. However, because Appellants failed to challenge or
clarify this interpretation in court before the verdict was entered and the jury
was dismissed, the issue is waived on appeal. Picca, 645 A.2d at 871.
For the reasons set forth above, we conclude that Appellants are
entitled to no relief on appeal. Accordingly, we affirm the judgment entered
on August 27, 2012.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2014
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