SUCHARSKI v. PATEL et al

Filing 101

MEMORANDUM OPINION. SIGNED BY MAGISTRATE JUDGE TIMOTHY R. RICE ON 1/8/2014. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) 1/9/2014 ENTERED AND COPIES E-MAILED.(amas)

Exhibit A

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IN THE SUPERIOR COURT OF

LUTHER E. WEAVER, III, ESQ. AS

GUARDIAN AD LITEM OF

PENNSYLVANIA

DARRYL BOSKET, A MINOR
JEAN HARRIS,
Appellant

v.
ST. CHRISTOPHER'S HOSPITAL FOR,
CHILDREN, STEPHEN P. DUNN, M.D.,
AND LOUIS MARMON, M.D.
JAMES GI.AUBER, CHARLE;S REED,

JANE M. LAVELLE, WILLIAM H.
WEINTRAUB AND CHARLES D.
VINOCUR,
No. 1759 EDA 1999

Appel lees

Appeal from the Order Pated June 2, 1999
In the Court of Common Plea~ of Philadelphia County
Civil Division ati No.3374.
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BEFORE: JOHNSON, STEVENS and BECK) JJ.

Flied: !December 29, 2000

MEMORANDUM

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Appellant, Luther c. Weaver, Esquire, as guardian ad /Item of Darryl
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Bosket, a minor, appeals from the June 2, 1999 Order which denied his
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motion for post-trial relief and entered jµdgment In favor of appellees, St.
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Christopher's Hospital for Children and ! Stephen P. Dunn, M.D.

weaver

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asserts he Is entltled to a new trial

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beca~se

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the trial court err~d In refusing

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to Instruct the jury on the doctrine of !Increased risk of harm.

For the

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reasons that follow, we reverse and remand for a new trial.
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The record in this medlcal malpradtlce action reveals that on July 2,

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1989, Darryl

sosket appeared at

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Christopher's Hospital with an

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incarcerated hernia. Dr. Louis Marmon,

a pediatric surgical resident, treated
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Darryl in the early morning hours of July 3, 1989. Darryl remained at the
hospital. It was not until July 5, 1989, that Dr. Marmon and Dr. Dunn, who

was an attending pediatric surgeon at St. Christopher's Hospital, performed
surgery, which revealed a perforated

bo~el.

Darryl underwent several bowel

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resection procedures. As a result of the loss of a portion of his bowel Darryl
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developed short bowel syndrome.

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A complaint was filed on September 29, 1993. The complaint alleged
that the appellees failed to treat Darryl in timely manner, which resulted in
the death of a majority of the bowel tissue In the chlld's body and short
bowel syndrome. Trial commenced on May 18, 1998. On May 26, 1998, the
jury returned a verdict in favor of the .appellees. The jury found that Dr.
Marmon was not negligent. With regard to Dr. Dunn, the jury found that he
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was negligent but that his negllgence was not a substantial factor In causing
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harm to Darryl. St. Christopher's Hospital was not on the verdict sheet
because the sole clalms agarnst It wer~ derivative In nature, as the trlal
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court found both Dr. Dunn and Dr. Marmon were ostenslble agents of the
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hospital. Weaver filed a motion for pos~-trial relJef on June 4, 1998, which
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was denied on June 2, 1999. This appeai followed. Weaver appeals only the
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entry of judgment as to Dr. Dunn and St. Christopher's Hospital based on

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respondeat superior.

On appeal, Weaver asserts the trla'I court erred in refusing to Instruct
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the jury on the doctrine of Increased risk. of harm. Based on the trial court's
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alleged error, Weaver maintains a new t:rral Is warranted. Inltlally, we note
our standard of review:

Where the motion for a new trlal Is based upon the
sufficiency of the jury charge, we must examine the
charge in Its entirety against the background of the
evidence to determine whether error was committed. If
an appellate court concludes that the charge was
erroneous, a new trial wlll be: granted only if the jury
charge might have prejudiced the appellant. A new trlal
wlll be granted even though :the extent to which the
appellant had been prejudiced is unascertalnable. An
alleged inadequacy in jury Instructions constitutes trial
error If the jury was probably· misled by what the trial
judge said or there ls an omission in the charge which
amounts to fundamental error.· As a general rule, refusal
to give a requested rnstructlon containing a correct
statement of law Is ground for a new trial unless the
substance thereof has otherw.lse been covered In the
court's general charge.

Ottavio v. Fibreboard corp., 617 A.i2d 1296, 1301-1302 (Pa. Super.
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1992)(cltatlons omitted).

Weaver argues the trial court erred Jn denying his request that the jury
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be Instructed on Increased risk of har~ as provided in the Pennsylvania
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Standard Jury Instructions, which states, !in part, that "[a] causal connection

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between the Injuries suffered and th~ defendant's failure to exercise
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reasonable care may be proved by evidehce that the risk of Incurring those

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Injuries was Increased by the defendant's negllgent conduct."

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(Clvi!) 10.03B(b}(1991).

Pa.S.S.J.1.

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In the context of actions for niedlcal malpractice, the plalntlff's
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evidence must establish that: (1) the physician owed a duty to the patient;
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(2) the physician breached t.hat dUtYi! (3) the breach of duty was the

proximate cause of,

or a

substantial

factor

In, bringing

about the

harm

suffered by the patient; and (4) the damages suffered by the patient were a
direct result of that harm.

Eaddy v. ·Hamaty, 694 A.2d 639, 642 (Pa.

Super. 1997). A plalntlff Is required to :Present an expert witness who will
testify, to a reasonable degree of medical certainty, that the acts of the
physician deviated from good and acceptable medical standards, and that

such deviation was the proximate cause: of the harm suffered. Brannan v.
Lankenau Hospital, 490 Pa. 588, 417 ~.2d 196 (1980).

In certain cases, however, the standard of proof regarding medical

expert testimony Is an Impossible standard.

Mitzelfelt v. Kamrin,

526 Pa. 54, 584 A.2d 888 (1990). :
An example of this type of cas~ Is a failure of a physician
to [make a timely diagnosis]. !Although timely detection

of a [disease or medical condition] may well reduce the
likelihood that a patient will haye a terminal [or adverse]
result, even with timely detection and optima! treatment,
a certain percentage of pa'tlents unfortunately wlll
succumb to the disease. This statistical factor, however,
does not preclude a plaintiff from prevailing in a lawsuit.
Rather, once there Is testimony that there was a failure
to detect the cancer In a timely fashion, and such fallure
Increased the risk that the [pla'lntiff] would have either a
shortened life expectancy or ~uffered harm, then It Is
question for the jury whether they believe, by a
preponderance of the evidence, that the acts or
omissions of the physician were a substantial factor In
bringing about the harm.
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Biiiman v. Saylor, 2000 PA Super. 3~0.

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The

expert In these cases has

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been permitted to testify under the relaxed degree of certainty enunciated In
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Section 323(a) of the Restatement (Secpnd) of Torts, 1 that the physician's
fallure to exercise reasonable care in the diagnosis and treatment Increased
the risk of harm.

Mltzetfelt, at 66-67, 584 A.2d at 894, once a patient

shows to a reasonable degree of medlca!'certalnty that a physician Increased
the risk of harm and that harm actually occurred, sufflcf ent evidence has

been offered to submit the case to a jury. Biiiman, supra. The jury then
must decide whether the increased risk constituted a substantial fac:tor
contributing to the injuries sustained.

The trial

court found

Mi~zelfelt,

supra.

that because Weaver presented evidence of direct

causation he was not entitled to a charge on Increased risk of harm. Our
Supreme Court rejected such an argument In :Janes v. Monteflore

Hospital, 494 Pa. 410, 431 A.2d 920 (1981), In Jones the plaintiff alleged

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Section 323 of the Restatement (Secorid) of Torts provides:
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One who undertakes, gratultou$1y or for consideration, to
render services to another which he should recognize as
the other's person or
necessary for the protection
things, Is subject to liability to the other for physical
harm resulting from his failure to exercise reasonable
c:are to perform his undertaking, If

of
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(a)hls failure to exercise such ¢are Increases the risk of
harm, or
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(b)the tiarm is suffered because of the other's reliance
upon the undertaking.
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Restatement (Second) of Torts Section 3i3.

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the negligent delay in the diagnosis and: treatment of her breast cancer. At

trial the trial court did not Instruct the jury on the doctrine of Increased risk
of harm. The Pennsylvania Supreme Court found the trial court's faih.1re to

charge the jury on the doctrine of Increased risk of harm was erroneous.
The Court stated:
The appellees Insisted, and the Superior Court agreed,
that because appellants sought to prove that appellees'
failure either to remove the mass In Mrs. Jones' breast or·
to properly diagnose and treat a later-discovered mass
caused the harm, they were ,not entitled to a Section
323(a) charge.
Thus, the jury was precluded from
deciding whether or not appellees' conduct Increased the
risk of harm which was In fact sustained, and, If so,
whether or not the Increased risk of harm was a
substantial factor rn producing the harm. We conclude
that the jury should have been Instructed to impose
llablllty if it decided that appellees' negligent conduct
Increased the risk of harm and that such increased risk
was a substantial factor in bringing about the harm
actually inflicted upon Mrs. Jones, whether or not the
medical testimony as to causation was expressed In
terms of certainty or probability.
Undoubtedly, an
unsuccessful effort to prove that appellees' conduct was
the direct and only cause of harm might well have
succeeded In persuading the jury that appellees' conduct
at least Increased the risk of the particular harm inflicted
and was a substantial factor In bringing It about.
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Id. at 417, 431 A.2d at 924. Because s~fficient evidence was presented by
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both parties to raise the Issue of incre~sed risk, the Court concluded that
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appellants were entitled to a charge on Increased risk.

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As Jones Illustrates, a plaintiff

i$ not disqualified from obtaining a

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charge on the doctrine of increased risl< of harm by attempting to proffer
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evidence of direct causation. The main issue at trial in the instant case was
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whether appellees were negligent In fal,llng to tlmely and adequately treat

Darryl's hernia and whether the neglig~nt failure to timely and adequately
treat the hernia caused Darryl's bowel tc:> die. Weaver claimed Darryl's dead
bowel developed during the three days that Darryl was at the hospltal and

was not operated on. Weaver's expert, Dr. Eli Wayne, testified the operation

to correct the hernia should have occurred at the latest on the morning of
July 3, 1989, the morning after Darryl arrived at the hospital to prevent a
piece of Intestine that has been entrapped In the hernia sac from loslng Its
blood supply, and that appellees breached the standard of care by waiting to
operate until July 5th. R.R., 506a·51la.
Appellees claimed that the dead bowel had already developed by the

time Darryl had arrived at the hospital on July 2, thus any alleged delay in
surgery was Immaterial. Appellees

pres~nted

expert testimony that Darryl

came In with a part of his bowel Irreversibly damaged, and there Is no

reason to believe Darryl would not have had the same complicatlons
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following an operation July

3rd

that he had following the actual operation on

July 5th, R.R., 692a·693a.
As the trfal court correctly notes, Weaver's expert, Dr. Wayne, testified
to a direct causal connection. 2

How~ver, Dr. Wayne's concluslon that
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The following exchange occurred be tween Weaver's counsel and Dr.
Wayne:
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appellees' failure to timely treat Darryl caused his bowel to die was
dependent on his belief that Darryl's bowel died during his hospital stay and

not beforehand. Dr. Wayne conceded the posslblllty that bowel Injury

occurred prior to Darryl's coming under appellees' care. R.R., 551a·SS2a.
Appellees' expert, or. Marchlldon, also acknowledged there was no way to
tell outside of performing an operation whether Darryl had a compromised
bowel by the time he arrived at the hospital on the night of July 2, 1989.
R.R., 724a-725a. Because both parties' experts conceded that it was
uncertain whether the harm to Darryl occurred by the time he arrived at the

hospital, this case presented a situation where It was difficult for the
physicians to testify to a reasonable degree of certainty that appellees'
actions directly caused Darryl harm.

Q:

Doctor, can you tell the jury If there Is a direct relatlonship
between Darryl's short gut syndrome and the failure to
adequately repair the hernia on July second and third?

A:

Yes, I think so. Because If his hernia had been fixed on a
timely basis, like either the night he came Jn or the next
morning, the bowel wouldn't have been dead; and he would
have gone home the same day.... So the failure to do the
operation here Is what caused him to have all these
problems.

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Q:

Is that an opinion that you ho.Id to a reasonable degree of
medical certainty?
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A:

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Yes, it is.

R.R., 52la-522a.
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As was stated in Jones, supra, an unsuccessful effort to prove that
appellees' conduct was the direct and only cause of harm might well have

succeeded In persuading the jury that appellees' conduct at least Increased
the risk of the particular harm Inflicted.

A review of the record reveals

Weaver presented evidence to raise the Issue of Increased risk, thus entltllng
him to a jury charge on the doctrine. Dr. Wayne testified as follows:

Q. By delaylng the surgery after the third of July, did that delay
increase the risk of Darryl having bowel die?
A. Yes.

Q. Is that an opinion that you hold to a reasonable degree of
medical certainty.

A. Yes.

R.R., 507.
When the facts are disputed a trlal court should Instruct the jury on
any theory or defense that has support In the evidence.

Clementi v.

Procacci, 2000 Pa Super. 297. Once there is testimony that there was a
failure to treat Darryl in a timely fashion, and such failure Increased the risk
that Darryl would have suffered harm, then It was a question for the jury

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whether they believed, by a preponderance of the evidence, that the acts or
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omissions of appellees were a substantial factor In bringing about the harm.
Dr. Wayne's testimony supports a chargr on Increased risk of harm, and the
trial court's exclusion of a charge on the: doctrine was erroneous.
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The trial court also found any error to instruct on the doctrine of
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Increased risk of harm was harmless In light of the fact that the jury found
the appeltees' negllgence did not directly cause Darryl's harm.

However,

"an inadequate jury Instruction may amount to reversible error if it has a
tendency to mislead the jury or If It :omits material, which is basic and
fundamental."

McC/lntock v. Works; 716 A.2d 1262, 1264 (Pa. Super.

1998). Here, the failure to Inform the jury that a causal connection between
the appellees' omissions In failing to perform surgery earlier and Darryl's
short gut syndrome could be establlshed If appellees' omissions Increased
the risk of the syndrome was fundamental to the jury's determination
regarding causation. Without a complete Instruction on the doctrine of
Increased risk of harm, it cannot be said the trial court's omission was
harmless.

As the jury might have reached its decision as a result of an

Incomplete instruction, we conclude that a new trlal Is warranted.

As a flnal matter Weaver asserts that remand for a new trial should be
limited to the issues of causation and damages. Weaver maintains because
the jury's verdict on negligence is supp~rted by the evidence, a new trial on
the issue of negllgence Is not warra0ted. In support of his argument
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Weaver relies on case law which provides for a new trial on remand limited
to the Issue of damages where llability has been fairly determined. See
Weaver's Brief at 37. In the cases up~n which Weaver relies the remand
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was required based on Inadequacy of the verdict. In those cases because
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llablllty had been fairly determined a

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trial was necessary only on the

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Issue of damages. Those cases are lnapposite because llability was not
determined In the present case.

While the jury found that Dr. Dunn was

negligent ft did not Impose liablllty b.ecause It found causation lacking.

Therefore, a new trial Is required on negligence, causation and damages.
Judgment

reversed,

Remanded

relinquished.

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for

a

new

trial.

Jurisdiction