KING, J.
Appeal from the Judgment Entered March 24, 2021 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 2015-07551
BEFORE: PANELLA, P.J., BOWES, J., OLSON, J., DUBOW, J., KUNSELMAN, J., MURRAY, J., McLAUGHLIN, J., KING, J., and McCAFFERY, J.
OPINION
KING, J.
Appellant, Lesley Corey, as administratrix of the estate of Joseph Corey, and Lesley Corey, in her own right, appeals from the judgment entered in the Luzerne County Court of Common Pleas, in favor of Appellee, Wilkes-Barre Hospital Company, LLC, d/b/a Wilkes-Barre General Hospital ("WBGH"). We affirm the judgment and grant the application to dismiss Appellant's second issue, which was filed by the additional defendant, Pennsylvania Physicians Services, LLC ("PPS").
Appellant and J. Charles Lentini, M.D., reached a settlement prior to trial, and Dr. Lentini is not a party on appeal. (See Appellant's Brief at 5). To the extent the caption also references "Wilkes-Barre General Hospital Emergency Department," the trial court noted that this entity "is neither a person nor a legal entity…." (Trial Court Opinion, filed 6/21/21, at 6; R.R. at 1120a). Consequently, WBGH's praecipe for the entry of judgment requested the entry of judgment in its favor only, making no mention of the "Wilkes-Barre General Hospital Emergency Department." (See Praecipe for Entry of Judgment, filed 3/24/21, at 1; R.R. at 1106a).
The relevant facts of this appeal are as follows. On August 8, 2013, Joseph Corey ("Decedent") experienced chest pain and difficulty breathing. During the early morning hours of August 9, 2013, Decedent called 911 and requested emergency medical assistance. Ambulances responded to Decedent's house and transported him to WBGH, where Decedent was treated in the emergency department. Approximately twelve (12) hours later, Decedent was transferred to Milton Hershey Medical Center ("MHMC"). On August 11, 2013, Decedent died at MHMC.
Appellant commenced this action by filing a praecipe for writ of summons on July 1, 2015. On November 25, 2015, Appellant filed a complaint against WBGH. The complaint included claims for wrongful death, a survival action, and corporate negligence. The complaint also advanced a theory of vicarious liability. (See Complaint, filed 11/25/15, at ¶140; R.R. at 27a).
On July 22, 2016, WBGH filed a joinder complaint against PPS. The joinder complaint stated that WBGH executed a contract for PPS to provide "the physicians, physician assistants and nurse practitioners" to staff WBGH's emergency department. (Joinder Complaint, filed 7/22/16 at ¶9; R.R. at 57a). Thus, WBGH asserted its "right to indemnification and/or contribution against [PPS] … for the amount of any judgment entered in favor of [Appellant]." (Id. at ¶22; R.R. at 61a).
The trial court opinion set forth the remaining procedural history of this appeal as follows:
A jury trial was conducted beginning on October [2], 2020. On October 7, 2020, after the testimony of all of [Appellant's] liability witnesses, including her only medical liability expert, Ronald A. Paynter, M.D. (hereinafter Dr. Paynter), PPS moved for a compulsory nonsuit on all claims against it and WBGH moved for a compulsory nonsuit with respect to [Appellant's] claim based on corporate negligence. [Appellant] did not oppose PPS's motion, however, WBGH did. [Appellant] did oppose WBGH's motion, however, PPS did not. Ultimately, the court denied PPS's motion for a compulsory nonsuit but granted WBGH's. As a result, [Appellant's] only claims remaining against WBGH were those based on vicarious liability. WBGH's claim against PPS seeking indemnification and/or contribution also remained.
Trial resumed and, on October 15, 2020, following the court's instructions to the jury regarding the applicable law involved in the case and the closing arguments of counsel for the parties, the court … presented a verdict slip to the jury in which "Question No. 1" appeared as follows:
Question No. 1
Do you find that the conduct of anyone listed below fell below the standard of care. In other words, was anyone listed below negligent?
Laura Bond, RN ___ Yes ___ No
[PPS] ___ Yes ___ No
If you answer Question No. 1 "No" as to everyone, you have reached a verdict. The foreperson should sign the verdict slip and notify the tipstaff.
If you answer Question No. 1 "Yes" as to anyone, go to Question No. 2.
The court specifically instructed the jury regarding "Question No. 1" as well [as] the other five jury verdict interrogatories that were included on the verdict slip. At the conclusion of the court's final instructions, the jury was left by themselves in the courtroom to deliberate (rather than retire to a separate room because of COVID restrictions in place at the time).
After approximately fourteen minutes of deliberation, the jury informed the court's tipstaff that they had reached a verdict. The parties who were present, counsel, and the undersigned returned to the courtroom. At no time prior to the jury announcing their verdict did counsel for any party raise an objection with respect to the length of time that the jury had deliberated. After the court reviewed the verdict slip and found it to be in order, the jury foreperson announced that the jury had answered "No" on "Question No. 1" as to both Laura Bond, RN and [PPS]. The request of [Appellant's] counsel to poll the jury was granted and it indicated that ten of the twelve jurors were in agreement with [the] verdict. The court directed that the verdict be entered of record and the jurors were dismissed.
On October 26, 2020, [Appellant] filed a motion for post-trial relief pursuant to Pa.R.C.P. No. 227.1 in which she requested a removal of the nonsuit with the respect to her corporate negligence claim, a "new trial on all issues of liability and damages" and the "scheduling of an evidentiary hearing with respect to issues of potential jury misconduct." Both WBGH and PPS filed responses to the motion. All parties filed briefs, and oral argument on the motion was held before the court on December 23, 2020. Prior to the court ruling on the motion …, WBGH, on March 24, 2021, entered judgment on the verdict pursuant to Pa.R.C.P. No. 227.4(1)(b).(Trial Court Opinion at 2-4; R.R. at 1116a-1118a) (some capitalization omitted).
As we will discuss in conjunction with Appellant's first issue, Nurse Bond, a WBGH employee, was the nurse who cared for Decedent following his admission to WBGH's emergency department. (See Trial Court Opinion at 5; R.R. at 1119a).
"Once a post-trial motion is timely filed, judgment cannot be entered until the trial court enters an order disposing of the motion or the motion is denied by operation of law one hundred and twenty days after the filing of the motion." Melani v. Northwest Engineering, Inc., 909 A.2d 404, 405 (Pa.Super. 2006) (citing Pa.R.C.P. 227.4). Here, the trial court had yet to rule on Appellant's post-trial motion prior to WBGH filing its praecipe for entry of judgment. Nevertheless, at the time when WBGH filed its praecipe, more than 120 days had passed since the filing of the post-trial motion.
Appellant timely filed a notice of appeal on April 22, 2021. The trial court did not order Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On January 20, 2023, a three-judge panel of this Court vacated the judgment in favor of WBGH and remanded the case for a new trial. WBGH timely filed an application for reargument on February 1, 2023. On March 31, 2023, this Court granted en banc review and withdrew the prior panel's decision.
Appellant now raises three issues for this Court's review:
Did [Appellant] present evidence of corporate liability sufficient to have required the trial court to deny a nonsuit motion by [WBGH] and submit this claim to the jury?
Did [Appellant] present evidence of [WBGH's] vicarious liability for the acts and omissions of attending physician, Dr. Perry, and its staff in general, sufficient to submit this claim to the jury as against the hospital itself on question 1 of the verdict slip?
Given the overall record of trial proceedings, should an evidentiary hearing have been conducted by the trial court to determine whether juror misconduct influenced the verdict?(Appellant's Brief at 4).
In her first issue, Appellant insists that hospital personnel must "recognize and report abnormalities in the treatment and condition of [their] patients." (Id. at 35). Appellant relies on the testimony from her liability expert, Dr. Paynter, to establish that hospital personnel recognized Decedent's deteriorating condition, but they failed to take appropriate actions under the circumstances. Appellant acknowledges WBGH's argument that the record is "devoid of evidence of [WBGH's] actual or constructive knowledge of the defects or procedures that caused harm" to Decedent. (Id. at 34). Appellant emphasizes, however, that emergency department personnel knew that Decedent was tachycardic, with falling blood pressure, and elevated respirations. Appellant claims these symptoms were "reported on monitors located in the patient's room and at the central nurses' station," and these monitors provided "actual, continuing notice" of Decedent's deteriorating condition. (Id. at 36) (emphasis omitted). Moreover, Appellant asserts that "constructive notice must be imposed when the failure to act to receive actual notice is caused by the absence of supervision." (Id. at 44) (quoting Brodowski v. Ryave, 885 A.2d 1045, 1057 (Pa.Super. 2005), appeal denied, 587 Pa. 680, 897 A.2d 449 (2006)). In light of the relevant case law, Appellant argues that Dr. Paynter's testimony established a deviation from the applicable standard of care. Appellant concludes that the trial court should have submitted her corporate negligence claim to the jury, and the court committed reversible error by granting WBGH's motion for nonsuit. We disagree.
The relevant standard of review is as follows:
In reviewing the entry of a nonsuit, our standard of review is well-established: we reverse only if, after giving appellant the benefit of all reasonable inferences of fact, we find that the factfinder could not reasonably conclude that the essential elements of the cause of action were established. Indeed, when a nonsuit is entered, the lack of evidence to sustain the action must be so clear that it admits no room for fair and reasonable disagreement. The fact-finder, however, cannot be permitted to reach a decision on the basis of speculation or conjecture.
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On appeal, entry of a compulsory nonsuit is affirmed only if no liability exists based on the relevant facts and circumstances, with appellant receiving the benefit of every reasonable inference and resolving all evidentiary conflicts in [appellant's] favor. The compulsory nonsuit is otherwise properly removed and the matter remanded for a new trial. … The appellate court must review the evidence to determine whether the trial court abused its discretion or made an error of law.Munoz v. Children's Hospital of Philadelphia, 265 A.3d 801, 805-06 (Pa.Super. 2021), appeal denied, ___ Pa. ___, 283 A.3d 1246 (2022) (internal citations and quotation marks omitted).
In Thompson v. Nason Hosp., 527 Pa. 330, 591 A.2d 703 (1991), our Supreme Court "first adopted the theory that a corporation, specifically a hospital, can be held directly liable for negligence." Welsh v. Bulger, 548 Pa. 504, 512, 698 A.2d 581, 585 (1997). "Corporate negligence is a doctrine under which a hospital owes a direct duty to its patients to ensure their safety and well-being while in the hospital." Ruff v. York Hospital, 257 A.3d 43, 49 (Pa.Super. 2021), appeal denied, ___ Pa. ___, 266 A.3d 1064 (2021).
Under Thompson, a hospital has the following duties:
(1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) a duty to select and retain only competent physicians; (3) a duty to oversee all persons who practice medicine within its walls as to patient care; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients.
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, supra at 512-13, 698 A.2d at 585 (internal citations and quotation marks omitted).
With the four duties and the nature of a corporate negligence claim in mind, we now examine the three elements necessary to establish a prima facie case of corporate negligence. The plaintiff must establish all of the following:
1. [the hospital] acted in deviation from the standard of care;
2. [the hospital] had actual or constructive notice of the defects or procedures which created the harm; and
3. that the conduct was a substantial factor in bringing about the harm.Brodowski, supra at 1057 (internal citation omitted). "[U]nless a hospital's negligence is obvious, a plaintiff must produce expert testimony to establish that the hospital deviated from an accepted standard of care and that the deviation was a substantial factor in causing the harm to the plaintiff." Welsh, supra at 514, 698 A.2d at 585.
"To establish a claim for corporate negligence against a hospital, a plaintiff must show that the hospital had actual or constructive knowledge of the defect or procedures that created the harm." Ruff, supra at 50 (quoting Welsh, supra at 513, 698 A.2d at 585).
It is well settled that a hospital staff member or employee has a duty to recognize and report abnormalities in the treatment and condition of its patients. If the attending physician fails to act in accordance with standard medical practice, it is incumbent upon the hospital staff to so advise hospital authorities in order that appropriate action might be taken. A hospital is properly charged with constructive notice when it "should have known" of the patient's condition. Furthermore, constructive
notice must be imposed when the failure to receive actual notice is caused by the absence of supervision. We interpret "failure to enforce adequate rules and policies" as an analog to "failure to provide adequate supervision."
[ Rauch v. Mike-Mayer, 783 A.2d 815, 828 (Pa.Super. 2001), appeal denied, 568 Pa. 634, 793 A.2d 909 (2002)] (citations omitted). For example, a hospital will be charged with constructive notice when its nurses should have known about a patient's adverse condition, but failed to act. See, e.g., Whittington v. Episcopal Hosp., 768 A.2d 1144, 1154 (Pa.Super.2001). In such cases, we have said that "constructive notice must be imposed when the failure to receive actual notice is caused by the absence of supervision." Id.Brodowski, supra at 1057. "In a corporate negligence action against a hospital, the element of actual or constructive notice is critical because the corporate negligence doctrine contemplates a kind of systemic negligence in the actions and procedures of the hospital itself rather than in the individual acts of its employees." Ruff, supra at 50 (internal citation and quotation marks omitted).
This Court has elaborated on these concepts as follows:
[A] hospital is not directly liable under Thompson just because one of its employees or agents makes a mistake which constitutes malpractice. Just as regular negligence is measured by a reasonable person standard, a hospital's corporate negligence will be measured against what a reasonable hospital under similar circumstances should have done. Thompson contemplates a kind of systemic negligence, such as where a hospital knows that one of its staff physicians is incompetent but lets that physician practice medicine anyway; or where a hospital should realize that its patients are routinely getting infected because the nursing staff is leaving catheters in the same spot for too long, yet the hospital fails to formulate, adopt
or enforce any rule about moving catheters. Thompson does not propound a theory of strict liability…. Though broadly defined, Thompson liability is still fault based.Edwards v. Brandywine Hosp., 652 A.2d 1382, 1386-87 (Pa.Super. 1995).
Instantly, Appellant relies on Dr. Paynter's testimony to establish WBGH's knowledge of the defects and procedures that resulted in harm to Decedent. (See Appellant's Brief at 25-31). At trial, Dr. Paynter testified as an expert "in the medical fields of emergency medicine and corporate responsibility." (N.T. Trial Part 2 at 34; R.R. at 165a). At the start of his direct examination, Dr. Paynter opined that WBGH's emergency department "did not meet the standard of care." (Id. at 35; R.R. at 166a). Dr. Paynter explained that the paramedics who responded to the 911 call discovered that Decedent "was very short of breath," and they gave Decedent "breathing treatments and then they put him on a CPAP machine." (Id. at 36, 37, R.R. at 167a, 168a). According to Dr. Paynter, these circumstances should have prompted the emergency department to test Decedent's arterial blood gas:
Anybody who arrives in a hospital with either CPAP or BiPAP right off the ambulance is required to have a test called an arterial blood gas. Now, what is an arterial blood gas? … It's taken from usually the radial artery in your wrist and it goes into your pulsing artery … and it takes blood that has just gone through your lungs and heart into the artery and it's a much better measure. It's the only real standard measure for the person's respiratory status….( Id. at 38; R.R. at 169a).
Dr. Paynter posited that the arterial blood gas test "is a guide to how to manage this person's respiratory condition." (Id. at 39; R.R. at 170a). If the test reveals that a patient is in so much respiratory distress that they might stop breathing, then "you want to intubate the patient before they have respiratory arrest." (Id.) Dr. Paynter criticized the emergency department for not following these protocols with Decedent:
They didn't do any of that. They just placed [Decedent] in a room and he got progressively worse to the point where he reached the point of in extremis, is the term we use in medicine, and that's the time before you die. And he ripped his mask off and he stopped breathing and his blood pressure, his pulse all stopped.( Id. at 40-41; R.R. at 171a-172a).
Dr. Paynter reviewed Decedent's autopsy report, which "indicated the factual cause of death was lack of oxygen to the brain." (Id. at 46; R.R. at 177a). Appellant's counsel questioned whether Decedent's brain would have had sufficient oxygen if WBGH's emergency department had placed him on a ventilator. Dr. Paynter responded:
Well in order to answer that question I need to bring up this period of time in which [Decedent] was unobserved for 12 minutes before he coded.
He was getting oxygenated, but he was becoming more acidotic to the point that he lost consciousness and stopped breathing and it was unnoticed apparently for a period of time. That's a serious situation. It only takes six minutes for the brain not receiving oxygen to die. And anything over that time can lead to permanent brain damage.( Id. at 46-47; R.R. at 177a-178a). Ultimately, Dr. Paynter testified: "If [Decedent] had been intubated prior to that [twelve-minute period], he would have been protected." ( Id. at 47; R.R. at 178a).
Earlier, Dr. Paynter asserted: "If you're not breathing adequately, your blood becomes acid, acidotic is the term we use." (N.T. Trial Part 2 at 38; R.R. at 169a).
Thereafter, Appellant's counsel shifted his focus to the medical monitoring equipment in the emergency department. Counsel asked whether Decedent "was hooked up to certain monitors" that have alarms. (Id.) Dr. Paynter responded:
Absolutely. Let me explain a little bit about them. You put a high/low on the heart rate. You put a high/low alarm on the respiratory rate. So if the respiratory rate goes down say below 10, it would beep, beep, beep and then somebody would run in and see within seconds. There was testimony that there were no alarms on.( Id.) Later, Appellant's counsel revisited the issue of the alarms:
[COUNSEL]: Did you hear Ms. Bond testify that she
did not hear any alarms come from the monitoring equipment that was attached to [Decedent]?
[DR. PAYNTER]: I did; yes.
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[COUNSEL]: Whose responsibility is it to have working equipment in the hospital?
[DR. PAYNTER]: It's the hospital's responsibility.( Id. at 53; R.R. at 184a).
Significantly, this exchange regarding the alarms on the monitoring equipment was based on a mischaracterization of Nurse Bond's testimony. Nurse Bond did not testify that the alarms were off or that they somehow malfunctioned. Rather, Nurse Bond did not remember hearing the alarms:
[COUNSEL]: Thank you. When you returned to the room to find [Decedent] in arrest there were no alarms sounding were there?
[NURSE BOND]: To my knowledge I cannot recall. That was in 2013.
[COUNSEL]: Ma'am, you seem to recall today a great deal about 2013. You just told the jury you remember that. Do you have any specific recollection of alarms sounding when you went back to the room in 2013 at 5:54?
[NURSE BOND]: I'm telling you I do not recall. I have been doing this for a long time. I hear them all the time. I cannot on oath tell you, yes, I specifically recall.(N.T. Trial Part 1 at 337-38; R.R. at 116a).
Further, Nurse Bond explained the circumstances that led her to step away from Decedent's bedside for the twelve-minute period referenced by Dr. Paynter:
The only time that I had to run was to grab meds quickly. He got multiple antibiotics and steroids. And then I had explained his systolic blood pressure had dropped into the 70s and we were giving him antibiotics and such and I felt it was a need that needed to be addressed by Dr. Perry because this man was sick. I went out and spoke to Dr. Perry about it because we have been working together so long and I said what's our next plan of action for this man.( Id. at 310-11; R.R. at 88a). Nurse Bond emphasized that she needed to notify Dr. Perry of the drop in blood pressure "[b]ecause he's the team lead. He's the doctor who I report to." ( Id. at 314; R.R. 91a-92a).
Nurse Bond also testified that she did not believe she was endangering Decedent by leaving his bedside:
I was giving him IV fluids, medications. I inserted an IV and drew labs off of it. I was taking vital signs and there is clear documentation that [Decedent] was on his cell phone and … I said a silly comment to him about that and he was completely awake, alert, and oriented. And I had no reason to feel leaving him to get IV fluids or speak to Dr. Perry would be any danger to the patient.( Id. at 321; R.R. at 99a).
The court analyzed this testimony and determined that the entry of a nonsuit on Appellant's corporate negligence claim was warranted:
During his testimony, Dr. Paynter was specifically critical of Nurse Bond and the "Wilkes-Barre General Hospital Emergency Department" but mentioned no other individual, including [Dr. Perry], who was the attending emergency room physician when [Decedent] arrived at WBGH on August 9, 2013. Much of Dr. Paynter's testimony was given in generalized, non-specific terms of what he believed "they" should have done differently without identifying who "they" were. Since the "Wilkes-Barre General Hospital
Emergency Department" is neither a person nor a legal entity and this was not a case of res ipsa loquitur, the only fair inference regarding who "they" were in the context of [the] testimony was Nurse Bond and Dr. Perry. In his own words, Dr. Paynter's criticism of their care was essentially limited to two issues: "One, they didn't get ahead of it [Decedent's worsening condition] by doing the [arterial] blood gas and doing an elective intubation. And two, when he did finally peter out and stopped breathing on his own, they were not there to help him."
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Even assuming, arguendo, that the jury had concluded that Nurse Bond and/or Dr. Perry were negligent (which they obviously did not given their answer to "Question No. 1" on the verdict slip), [Appellant] provided no evidence to establish that WBGH as an institution had actual or constructive notice of such negligence during the approximately twelve hours that [Decedent] was treated there. … Finally, while Dr. Paynter did speculate that there
may have been some issues regarding the alarms on some of the monitoring equipment in the emergency room, his testimony fell well short of what would be required to make out a case under the first prong of Thompson.(Trial Court Opinion at 5-7; R.R. at 1119a-1121a) (some capitalization omitted).
Here, the court correctly entered a nonsuit on Appellant's corporate negligence claim. This case did not involve "a kind of systemic negligence" on the part of WBGH. See Ruff, supra; Edwards, supra. The trial evidence centered on the individual decisions and actions of a doctor and nurse in conjunction with their care of a critically ill patient. Our review of the record reveals that Appellant did not provide any expert testimony that Nurse Bond's medical care of the patient fell below acceptable medical standards to warrant the imposition of constructive notice onto WBGH. See Brodowski, supra. Nurse Bond was providing the medical care that the doctor had ordered for Decedent, and this care led her to observe that Decedent's systolic blood pressure had dropped. Rather than sitting back and watching Decedent deteriorate, Nurse Bond proactively sought advice from the attending physician on the next steps for treatment. Compare Welsh, supra (holding plaintiff established prima facie case of corporate negligence against hospital based on its failure to oversee all persons practicing medicine within its walls; expert testified that hospital nurses breached applicable standard of care in connection with delivery of infant, in that they must have been aware of problem with delivery but failed to act on that knowledge). Likewise, when viewed in the context of Nurse Bond's testimony about the night at issue, and her testimony that she did not remember if any alarms went off, the court properly determined that Dr. Paynter's statements about the purported failures of the alarms on the monitoring equipment amounted to speculation. Based upon the foregoing, the court did not abuse its discretion or make an error of law by entering the nonsuit on Appellant's corporate negligence claim. See Munoz, supra. Accordingly, Appellant is not entitled to relief on her first claim.
In her second issue, Appellant asserts that she "made a deliberate decision in 2015 to bring suit against the hospital and not to file claims against Dr. Perry, Nurse Bond or any other individual hospital employee." (Appellant's Brief at 45-46) (emphasis in original). As such, Appellant contends that the "trial court's decision to substitute PPS and Laura Bond on the verdict slip, in place of [WBGH], was inconsistent with the pleadings, [Appellant's] theory of the case and the evidence presented at trial." (Id. at 45). To the extent the verdict slip asked the jury to determine whether the conduct of Nurse Bond or PPS violated the standard of care, Appellant maintains that she did not "offer a theory of liability, an expert report or expert opinion testimony contending that either Nurse Bond or … PPS violated a specific standard of care[.]" (Id. at 46). Instead, Appellant's "standard of care evidence was directed at the hospital." (Id.)
Further, Appellant argues that her complaint included "general negligence allegations against WBGH separate from its corporate negligence theory of liability." (Id.) Appellant insists that she proved WBGH's negligence by presenting "sufficient evidence of the vicarious liability of [WBGH] for the acts and omissions of Dr. Perry[.]" (Id. at 48). Appellant concludes that "it was the hospital and not PPS that should have been named on the verdict slip." (Id.)
As a prefatory matter, on October 11, 2021, PPS filed an application to dismiss this issue, pursuant to Pa.R.A.P. 1972(a)(5). PPS argued that Appellant "failed to object to placing PPS on the verdict slip during trial," and Appellant could not salvage this claim by raising it for the first time at the post-trial stage. (Application to Dismiss, filed 10/11/21, at ¶15). By order entered October 25, 2021, this Court deferred PPS's application to the merits panel. We also provided time for Appellant to respond to PPS's application. Appellant timely filed her response on November 2, 2021. In it, Appellant argued that she preserved this claim during the court's charging conference on October 15, 2020. We now consider the parties' various arguments regarding this issue of waiver.
Generally, a party may move "[t]o dismiss for failure to preserve the question below, or because the right to an appeal has been otherwise waived." Pa.R.A.P. 1972(a)(5).
"Issues not raised in the trial court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). "A party 'may not, at the post-trial motion stage, raise a new theory which was not raised during trial.'" E.S. Management v. Yingkai Gao, 176 A.3d 859, 864 (Pa.Super. 2017) (quoting Keffer v. Bob Nolan's Auto Service, Inc., 59 A.3d 621, 630 (Pa.Super. 2012)).
On appeal the Superior Court will not consider a claim which was not called to the trial court's attention at a time when any error committed could have been corrected. In this jurisdiction … one must object to errors, improprieties or irregularities at the earliest possible stage of the adjudicatory process to afford the jurist hearing the case the first occasion to remedy the wrong and possibly avoid an unnecessary appeal to complain of the matter.McManamon v. Washko, 906 A.2d 1259, 1274 (Pa.Super. 2006), appeal denied, 591 Pa. 736, 921 A.2d 497 (2007) (quoting Hong v. Pelagatti, 765 A.2d 1117, 1123 (Pa.Super. 2000)). More specifically, an appellant's failure to object to the verdict slip at trial waives a subsequent challenge to the verdict slip on appeal. See Kimble v. Laser Spine Institute, LLC, 264 A.3d 782, 794 (Pa.Super. 2021) ( en banc), appeal denied, ___ Pa. ___, 274 A.3d 722 (2022).
Instantly, the court conducted a charging conference on October 15, 2020. At that time, the parties extensively discussed how the court should instruct the jury regarding the legal relationships between WBGH and Dr. Perry and Nurse Bond. Initially, counsel for PPS stated, "I think the only relevant inquiry is whether the physician provided by [PPS], Dr. Perry, was an ostensible agent of [WBGH]." (N.T. Trial Part 2 at 848; R.R. at 1050a). Ultimately, PPS's counsel agreed to a stipulation "to the effect that it is undisputed that Dr. Adam Perry was the emergency room physician provided to [WBGH] during the relevant time period." (Id. at 850; R.R. at 1052a).
Thereafter, the parties continued to address the use of the term "ostensible agent" during their review of the defendant's proposed verdict slip. The court asked Appellant's counsel:
[W]ell, let's talk about question four on the defendant's [proposed verdict slip]. Do you find that the emergency room physician supplied to the emergency department by [PPS] was an ostensible agent of [WBGH]. Now, … is [Appellant] okay with that?( Id. at 858; R.R. at 1060a). Appellant's counsel replied, "I believe that in order for them to answer [questions] one and two, they will have already considered the court's instructions and it is unnecessary." ( Id.) Appellant's counsel expressed his preference for the term "apparent agent," as opposed to "ostensible agent." ( Id. at 859, 861; R.R. at 1061a, 1063a). The court agreed to use the term "apparent." ( Id. at 862; R.R. at 1064a). At that point, Appellant's counsel immediately shifted the focus of the discussion from PPS and Dr. Perry to the proposed verdict slip's "substitution of Laura Bond for [WBGH]." ( See id. at 862-65; R.R. at 1064a-1067a).
We detail these discussions because Appellant now relies upon this portion of the transcript to support her claim that she raised a timely objection to PPS's placement on the verdict slip. (See Appellant's Response to Application to Dismiss, filed 11/2/21, at ¶7). We cannot agree, however, that counsel's questioning of the terminology in the defendant's proposed verdict slip equates to the issue Appellant now raises on appeal, which is a specific objection to the substitution of PPS for WBGH. Moreover, the court gave the parties one more opportunity to object to the verdict slip, immediately before it provided the verdict slip to the jurors:
THE COURT: I want to confirm that the court has furnished all counsel with a copy of the revised verdict slip, and except for objections, which were previously memorialized on the record, such as [the] defendant's objection to the lack of comparative negligence, are counsel now satisfied with the verdict slip?
[APPELLANT'S COUNSEL]: Yes.(N.T. Trial Part 2 at 955-56).
This portion of the transcript was omitted from the reproduced record.
Based upon our review of the record, we agree with PPS that Appellant failed to make a timely and specific objection to the naming of PPS on the verdict slip. See Kimble, supra; E.S. Management, supra; McManamon, supra. Consequently, Appellant's second issue is waived, and we grant PPS's application for relief.
In her third issue, Appellant complains that "the jury returned a verdict within 14 minutes after the case was given to it for decision." (Appellant's Brief at 49). Appellant "does not believe that the 'conference' resulting in a verdict should be considered 'deliberations' within the meaning of our civil justice system." (Id.) "[G]iven the complex nature of the case, the extensive proofs and the unusually brief period of time in which the verdict was secured," Appellant concludes that this Court must remand the matter for "an evidentiary hearing to examine whether an improper outside influence, or other misconduct, influenced the jury's final hour of service to the [c]ourt." (Id. at 51). We disagree.
"[I]n instances of post-verdict allegations of extraneous information and/or outside influence affecting jury deliberations, we adopt the objective test for prejudice as well as the associated guidelines that are set forth in the lead opinion in [Carter by Carter v. U.S. Steel Corp., 529 Pa. 409, 421-22, 604 A.2d 1010, 1016-17 (1992), cert. denied, 506 U.S. 864, 113 S.Ct. 186, 121 L.Ed.2d 130 (1992)]." Pratt v. St. Christopher's Hosp., 581 Pa. 524, 541, 866 A.2d 313, 324 (2005). "The procedure for development of such claims and their ultimate disposition remain vested, in the first instance, within the sound discretion of the trial courts." Id. In post-trial proceedings alleging that a jury was influenced by extraneous information or outside influence, the burden of proof is allocated to the party contesting the verdict. See id. at 541, 866 A.2d at 323.
In Carter, a plurality opinion, Justice Larsen wrote the opinion announcing the judgment of the Court. Significantly, Carter provided a framework for determining whether an outside influence on a jury created "a reasonable likelihood of prejudice" warranting a new trial:
In determining the reasonable likelihood of prejudice, the trial judge should consider 1) whether the extraneous influence relates to a central issue in the case or merely involves a collateral issue; 2) whether the extraneous influence provided the jury with information they did not have before them at trial; and 3) whether the extraneous influence was emotional or inflammatory in nature.Carter, supra at 421-22, 604 A.2d at 1016-17 (footnote omitted).
Instantly, the court recognized that the only basis for Appellant's "outside influence" claim was the amount of time spent in deliberations:
In the present case, unlike those relied upon in [Appellant's post-trial] brief, there has been no indication to the court or counsel, by a juror or anyone else, that extraneous prejudicial information was brought to the jury's attention or that an outside influence was improperly brought to bear on any juror. Instead, [Appellant] urges this court to take "judicial notice" that the length of the jury's deliberations, standing alone, is per se evidence of jury misconduct and requests an evidentiary hearing in which all sixteen jurors (12 members and 4 alternates) can be questioned regarding the nature of their deliberations.(Trial Court Opinion at 10; R.R. at 1124a) (some capitalization omitted).
Although Appellant correctly cites Pa.R.E. 606(b) for the proposition that a juror may testify about whether prejudicial information or outside influence was improperly brought to bear on the jury, the trial court correctly determined that Appellant failed to offer any good reason to justify further inquiry into the validity of the verdict. Appellant does not cite any relevant authority to establish that quick deliberations are evidence of outside influence. Absent more, we agree with WBGH's assertion that Appellant's request constitutes "a wholesale fishing expedition by her counsel in the face of a defense verdict." (See WBGH's Brief at 41). See also Pratt, supra at 543, 866 A.2d at 324-25 (Justice Newman dissenting) (explaining that general rule that jurors may not impeach verdict was formulated to, inter alia, discourage harassment of jurors by losing parties). On this record, the court did not err in finding that Appellant failed to satisfy her burden and cannot demonstrate the need for further evidentiary proceedings. See Pratt, supra. Accordingly, we affirm the judgment entered in favor of WBGH.
Judgment affirmed. Application to dismiss Appellant's second issue is granted.
Judge Bowes, Judge Olson, Judge Dubow, Judge Murray joined this Opinion.
Judge Olson files a Concurring Opinion in which Judge Bowes and Judge Dubow joined.
Judge Kunselman files a Dissenting Opinion in which President Judge Panella, Judge McLaughlin and Judge McCaffery joined.
Judgment Entered.
CONCURRING OPINION
OLSON, J.
I agree that the judgment entered in favor of Appellee, Wilkes-Barre Hospital Company, LLC, d/b/a Wilkes-Barre General Hospital ("WBGH") should be affirmed for the reasons set forth in the learned Majority's Opinion. I write separately, however, as I believe that prior case law addressing the corporate negligence doctrine as it applies to hospitals has created some confusion. Nonetheless, when carefully analyzed, I conclude that prior precedent regarding the corporate negligence doctrine, particularly as it pertains to a hospital's duty to oversee its medical personnel, reaffirms that the trial court's decision to enter a nonsuit on Appellant's corporate negligence claim against WBGH was correct.
As noted by the Majority, our Supreme Court in Thompson v. Nason, 591 A.2d 703 (Pa. 1991) "first adopted the theory that a corporation, specifically a hospital, can be held directly liable for corporate negligence." Welsh v. Bulger, 698 A.2d 581, 585 (Pa. 1997). At the outset, the
Thompson Court explained the doctrine of corporate negligence as follows:
Corporate negligence is a doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient's safety and well-being while at the hospital. This theory of liability creates a nondelegable duty which the hospital owes directly to a patient. Therefore, an injured party does not have to rely on and establish the negligence of a third party.Thompson, 591 A.2d at 707. In defining the contours of this theory, the Supreme Court channeled a hospital's duties into the following "four general areas:"
(1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) a duty to select and retain only competent physicians; (3) a duty to oversee all persons who practice medicine within its walls as to patient care; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients.Id. (citations omitted). The Thompson Court further instructed that, to hold a hospital directly liable under the newly-adopted theory of corporate negligence, a plaintiff must demonstrate that the "hospital had actual or constructive knowledge of the defect or procedures which created the harm" and that "the hospital's negligence [was] a substantial factor in bringing about the harm to the injured party." Id. at 708. See Kennedy v. Butler Mem. Hosp., 901 A.2d 1042, 1045 (Pa. Super. 2006) (element of actual or constructive notice is critical because "the corporate negligence doctrine contemplates a kind of systemic negligence in the actions and procedures of the hospital rather than in the individual acts of its employees"). Hence, the Thompson Court, for the first time, held that a hospital had a responsibility to "ensure [a] patient's safety and well-being while at a hospital" and imposed liability directly upon a hospital if it "fail[ed] to uphold any of the . . . four [expressly enumerated] duties." Whittington v. Episcopal Hosp., 768 A.2d 1144, 1149 (Pa. Super. 2001), citing Thompson, 591 A.2d at 707-708.
Since its inception, the "new concept of liability, i.e., 'corporate liability', [as applied to hospitals] was recognized to be in tension with other theories of liability, namely, vicarious liability, including ostensible agency." Thompson, 591 A.2d at 709 (J. Flaherty) (Dissenting Opinion). In fact, in Thompson, then-Justice, later Chief Justice Flaherty criticized the High Court's decision to "adopt[] an entirely new concept of liability" and apply it to hospitals "in order to hold them liable as guarantors of the quality of care afforded by independent staff members." Id. Chief Justice Flaherty's main criticism was his belief that corporate liability, as outlined in Thompson, was "in every sense of the term an anomaly to established concepts of liability under respondeat superior." Welsh, 698 A.2d at 589 (C.J. Flaherty) (Dissenting Opinion).
In light of this inherent tension, appellate courts subsequently endeavored to "better discern the[] outlines" of Thompson by contrasting its "enumerated duties . . . with the well-established theories of vicarious liability." Edwards v. Brandywine Hosp., 652 A.2d 1382, 1386 (Pa. Super. 1995). In so doing, this Court explained when a hospital will be held directly liable under the doctrine of corporate liability as enunciated in Thompson. As the Majority acknowledges, we previously stated:
The Thompson theory of corporate liability will not be triggered every time something goes wrong in a hospital which harms a patient. Acts of malpractice occur at the finest hospitals, and these hospitals are subject to liability under theories of respondeat superior or ostensible agency. To establish corporate negligence, a plaintiff must show more than an act of negligence by an individual for whom the hospital is responsible. Rather, Thompson requires a plaintiff to show that the hospital itself is breaching a duty and is somehow substandard. This requires evidence that the hospital knew or should have known about the breach of duty that is harming its patients.
Thus, a hospital is not directly liable under Thompson just because one of its employees or agents makes a mistake which constitutes malpractice. Just as regular negligence is measured by a reasonable person standard, a hospital's corporate negligence will be measured against what a reasonable hospital under similar circumstances should have done. Thompson contemplates a kind of systemic negligence, such as where a hospital knows that one of its staff physicians is incompetent but lets that physician practice medicine anyway; or where a
hospital should realize that its patients are routinely getting infected because the nursing staff is leaving catheters in the same spot for too long, yet the hospital fails to formulate, adopt or enforce any rule about moving catheters. Thompson does not propound a theory of strict liability, a theory that [the appellant's] brief argues and the trial court found so disturbing. Though broadly defined, Thompson liability is still fault based.Edwards, 652 A.2d at 1386-1387 (internal citations omitted, emphasis added). Pennsylvania courts, in recognition of the foregoing, have limited recovery for corporate negligence to instances in which a plaintiff demonstrates "systemic negligence" on the part of a hospital. Id.; see also Welsh, 698 A.2d at 585 ("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"); Boring v. Conemaugh Memorial Hosp., 760 A.2d 860, 861 (Pa. Super. 2000) (holding that the plaintiff simply established "that the nurses failed to act appropriately in this case" and failed to show "'systemic' negligence" on the part of the hospital and, as such, the trial court correctly declined to charge the jury on corporate negligence).
Four years after our Supreme Court decided Thompson, this Court decided Edwards, supra. Our decision in Edwards serves as an example of how this Court differentiates systemic hospital corporate negligence as required by Thompson from ordinary negligence. In Edwards, the plaintiff, Charles Edwards, a 69-year-old man with an artificial hip, arrived at the Brandywine Hospital emergency room complaining of hip pain. Edwards was admitted to the hospital, "and the nursing staff installed a heparin lock on his left hand" which "allow[ed] multiple intravenous fluids to be introduced at a common point." Edwards 652 A.2d at 1383. Edwards stayed at Brandywine Hospital for five days and, during his stay, the heparin lock was left in place on his hand for three or four days. After his discharge, Edwards noticed a red spot on the back of his hand where the heparin lock had been located. Edwards returned to the hospital emergency room, wherein a doctor examined his hand, obtained a sample of pus for analysis, and sent Edwards home with a prescription for oral antibiotics. It was later revealed through lab tests that Edwards had a staphylococcus aureus ("staph") infection. The physician that treated Edwards in the emergency room "placed the lab results in diagnosis in [his] chart, as required by hospital rules." Id.
A few days later, Edwards returned to the hospital complaining of leg pains. He stayed at the hospital for a week because the attending physician "did not notice the recent diagnosis of staph infection in his chart." Id. Ultimately, additional lab testing was ordered, which again showed the presence of a staph infection. This time, the doctor ordered the administration of intravenous antibiotics to Edwards. Edwards was then discharged as the doctor believed that the infection had been eradicated. A week later, Edwards returned to the hospital with pain and a fever. At this time, the doctors believed that the staph infection was not fully treated and had spread to Edwards' artificial hip. After a month-long stay at the hospital, Edwards was discharged but, over the course of the next two years, he endured more treatment and hospitalizations. Eventually, to treat the infection, the doctors removed Edwards's artificial hip and administered massive doses of antibiotics. As a result, Edwards required crutches or a walker to ambulate. Thereafter, Edwards brought suit against Brandywine Hospital seeking recovery for, inter alia, corporate negligence. The case proceeded to trial but, at the close of Edwards' case-in-chief, the trial court granted Brandywine Hospital's motion for directed verdict. In so doing, the court held that the hospital could not be found liable under the theory of corporate negligence adopted by Thompson. Edwards appealed.
In reviewing Edwards' claim of error, this Court initially recognized that, to recover under Thompson a plaintiff must demonstrate "a kind of systemic negligence." Id. at 1387. We then noted that Edwards' "specific claims," for the most part, "amount[ed] to no more than individual acts of negligence for which the hospital, as a corporate entity, could not be held directly liable." Id. Importantly, Edwards set forth the following five claims: (1) "the [emergency room] doctor who examined his hand should have immediately put him on intravenous antibiotics;" (2) "the hospital's laboratory notification procedure was deficient" because his treating physicians failed to notice the lab report for at least a week which indicated that he had a staph infection; (3) "the hospital was deficient for adopting a rule allowing its physicians complete discretion in deciding when to consult experts;" (4) the hospital discharged him prematurely; and (5) the hospital's rule "allowing catheters to be left in place for as long as 72 hours ["72-hour rule"]" was inappropriate. Id. at 1387-1388.
Ultimately, this Court held that, based upon the evidence presented, the trial court correctly granted Brandywine Hospital's motion for directed verdict with respect to Edwards' first four claims of corporate negligence. In particular, the Court held that Edwards' first, second, and third theories of liability failed because he did not introduce any evidence that the hospital "knew or should have known" of its providers' alleged negligence or "that a reasonable hospital would have intercepted and corrected [said errors]." Id. at 1387. Without this proof, the Court concluded that Edwards failed to demonstrate the type of "systemic negligence" contemplated by Thompson. Id. Importantly, and as relevant herein, this Court reached a similar conclusion regarding Edwards' fourth claim of error, i.e., that the hospital discharged him prematurely. We stated:
The discharge claim is similar. [] Edwards may have been able to prove that his physicians discharged him prematurely. He may have been able to convince a jury that he was discharged because his Medicare hospitalization coverage was exhausted. But the decision to discharge [] Edwards was made by a single physician, not the hospital as a corporate entity. Thus, the hospital cannot be held liable for a discharge error absent proof that it knew that [] Edwards' discharge was premature, or that its physicians were regularly making bad discharge decisions.Id. at 1387-1388. This Court, however, held that Edwards' fifth theory of liability was the "only properly developed Thompson claim" because it "concerned the hospital's rule for moving intravenous catheters." Id. at 1388. It explained:
This situation implicates not just an individual mistake, but the hospital's duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for its patients. If [] Edwards could prove that the 72-hour rule was inadequate, that the hospital should have known better, and that following this rule caused him harm, then he has made out a proper Thompson claim.Id. (parallel citations, internal quotations and quotation marks omitted). The Edwards Court, therefore, held that the trial court erred in directing a verdict with regard to Edwards' final claim. Id.
Importantly, this determination related to the hospital's duty to formulate rules and policies to ensure a patient's quality care, not a hospital's duty to oversee its' medical personnel as relevant herein. See Thompson, 591 A.2d at 707.
In a pair of cases issued after Edwards, this Court appears to have endorsed an alternate path toward recovery under the theory of corporate hospital negligence, one which recognized repeated - but perhaps not systemic - violations of Thompson's oversight duty. I believe that, at this time, this Court was confronted with factual scenarios that, if not properly interpreted and confined, could result in the convergence of the doctrines of corporate negligence and vicarious liability as Chief Justice Flaherty feared.
In Whittington, supra, the estate of decedent, Claudette E. Milton, brought a wrongful death and survivorship action against Episcopal Hospital based upon the care it provided to Milton during her pregnancy and childbirth. During her pregnancy, Milton was treated by Dr. Carol Allen. On December 15, 1993, Milton was evaluated by Dr. Allen and, during her visit, complained of lightheadedness, abdominal swelling, heartburn and leg pain. Ultimately, Milton was diagnosed with pregnancy induced hypertension ("PIH"). "Notwithstanding the PIH diagnosis and the need to have labor induction initiated immediately," Milton was "sent home with only a prescription for iron supplements, which did not relate to the treatment for PIH." Whittington, 768 A.2d at 1146. Moreover, "[n]o one at Episcopal [Hospital] advised [her] of the risk of PIH, even in light of a documented family history of PIH." Id.
Seven days later (December 22, 1993), Milton again visited Dr. Allen. This time, Milton lodged complaints of irregular contractions. Subsequent testing revealed a "clearly elevated blood pressure" as well as +2 proteinuria. Id. Again, "[n]otwithstanding the [aforementioned results], which should have mandated immediate initiation of labor induction, Episcopal [Hospital's] staff neither admitted [] Milton, nor even questioned Dr. Allen's instructions that [Milton] go home and wait until December 23, 1993 for labor induction." Id. at 1146-1147.
Proteinuria is a condition in which abnormally high quantities of protein are detected in the urine. The condition may indicate damage to the kidneys. HTTPS://my.clevelandclinic.org/health/diseases/16428-proteinuria (last visited 10/12/23).
On December 23, 1993, Milton arrived at Episcopal Hospital for labor induction and was admitted at 7:30 a.m. A review of her prior records would have shown her diagnosis of PIH, which necessitated she be sent immediately to labor and delivery ("L&D") for induction. However, Milton's records were ignored and she was sent to the waiting room where, in violation of the hospital's own policy, she "was essentially ignored for close to 14 hours." Id. at 1147. At 9:00 p.m., Milton, still in the waiting room, complained of headaches and her blood pressure was elevated to 181/100. As such, Milton was finally transferred to L&D for induction. While in L&D, Milton showed "consistently elevated blood pressure throughout the night but blood pressure lowering drugs, essential for her condition, were not ordered until 7:00 a.m. the next morning" and "were not administered to her until 8:40 a.m." Id. At this time, Milton's condition deteriorated further.
At 11:30 a.m., December 24, 1993, Milton was rushed to the operating room for an emergency cesarean section. The procedure, however, was delayed at least an hour and was ultimately performed "under clearly unfavorable conditions" as Episcopal Hospital's staff "did not order the necessary [deep vein thrombosis ("DVT")] prophylaxis . . . or even put antithrombin hoses on [her]." Id. This resulted in blood clots forming in Milton's lungs. Following her cesarean section, Milton briefly regained consciousness, but her condition continued to deteriorate, resulting in a transfer to the intensive care unit ("ICU"). Milton's time in the ICU was met with continued incompetent care, causing her to develop Adult Respiratory Distress Syndrome. Milton died on January 4, 1994. Her estate brought an action against Episcopal Hospital, asserting various claims, including corporate liability. The matter proceeded to a jury trial, wherein the jury concluded that Episcopal Hospital was corporately liable for Milton's death. Episcopal Hospital appealed to this Court.
On appeal, Episcopal Hospital argued that Milton's estate failed to establish a prima facie case of corporate negligence and, as such, it was entitled to judgment notwithstanding the verdict ("JNOV"). This Court disagreed, concluding that Milton's estate established that "Episcopal [Hospital] failed in its duty to oversee all persons who practice medicine within its walls as to patient care, the third duty enumerated in Thompson." Id.
In reaching this conclusion, the Whittington Court noted that Milton's estate established, through expert testimony, that Episcopal Hospital "deviated from the standard of care on the [15th, 22nd, 23rd, and 24th] of December [] 1993, as well as in rendering post[-]delivery medical care to [Milton]." Id. at 1150. In particular, the estate's expert opined that, on December 15th and 22nd, the conduct of the health care providers at Episcopal Hospital fell below the standard of care because, despite recognizing that Milton was at term, was diagnosed with PIH and showing "classic symptomology of toxemia or preeclampsia," Milton was allowed to go home without a complete evaluation and told to return for induction eight or nine days later. Id. The expert claimed that this failure substantially caused Milton's death because Milton "needed to be delivered." Id. at 1150. If Milton were delivered at this time, the expert believed that "the fulminate aspect of the toxemia would not have occurred so rapidly," and that Milton "would have had a successful delivery[] and would be alive today." Id. at 1150-1151.
In addition, the expert opined that, at the time Milton presented for induction of labor on December 23rd through the delivery of the baby on December 24th, "the standard of care did not improve." Id. at 1151. Chiefly, the expert criticized the fact that Episcopal Hospital ignored Milton's prognosis of PIH as set forth in her records and sent her to the waiting room for approximately 14 hours.
All of the information [showing the need for immediate induction] was readily available and mandatory to be reviewed in a patient who presents at 350 pounds at 42 weeks for an induction. None of that was done. And that is a deviation, number one, by anyone and everyone that had to do with the patient from the time of 7:30 [a.m.] on.Id. (emphasis omitted). As a result of the aforementioned failures, the expert opined that Episcopal Hospital performed Milton's cesarean section "under the worst conditions." Id. at 1152 (emphasis omitted).
And by the time they finally delivered this patient, [her preeclampsia] was not only fulminate, it was life threatening, because that patient was so sick. She now had her lungs filled with fluid, called pulmonary edema; she [is] having a major operation in the worse possible circumstances, with blood pressures out of control, pulmonary edema, fluid in the lungs, a baby that [is] in trouble. This is the worst[-]case scenario that you can put yourself into. And it did not have to happen.Id. (emphasis omitted). Finally, the expert criticized Episcopal Hospital's post-operative care, noting that they failed to "provide the minimum prophylaxis to prevent [DVT]." Id. The expert concluded that Milton's death was caused by all of the failures set forth above.
Ultimately, the Whittington Court determined that, based upon Episcopal Hospital's "numerous and recurring deviations from the standard of care," Milton's estate did, in fact, establish that Episcopal Hospital violated Thompson's oversight duty, which caused Milton's untimely death. Id. at 1153; see also id. ("While some of Episcopal [Hospital's] numerous negligent acts acts/omissions would help support a finding of corporate negligence under more than one of the four enumerated duties, our review concerns the cumulative nature of the conduct used to establish corporate negligence under the third duty in Thompson.") (emphasis added). This Court also held that Milton's estate established that Episcopal Hospital had constructive notice of the defects or procedures creating Milton's injury. Specifically, the Whittington Court concluded that Episcopal Hospital could "properly be charged with constructive notice since it should have known of [Milton's] condition." Id. It stated:
Had Episcopal [Hospital] undertaken adequate monitoring, it would have discovered that [Milton] had received and was continuing to receive medical treatment that was clearly deficient before and after her delivery. We are compelled to find constructive notice under these circumstances.Id.
This Court's ruling in Whittington aligns with another decision of this Court, also issued subsequent to Edwards. In Shannon v. McNulty, 718 A.2d 828, 836 (Pa. Super. 1998), Sheena Evans Shannon was a subscriber of the HealthAmerica Health Maintenance Organization ("HealthAmerica HMO"), when she became pregnant. Through HealthAmerica HMO, Shannon chose Larry P. McNulty, M.D. to serve as her OB/GYN. Importantly, HealthAmerica HMO instructed her to either contact her physician or HealthAmerica HMO in the event of medical questions or medical emergencies.
On October 2, 1992, when Shannon was approximately five months pregnant, Shannon called Dr. McNulty complaining of abdominal pain. On October 5, 1992, Shannon had an appointment with Dr. McNulty, wherein he briefly examined her and concluded Shannon's pain was due to a fibroid uterus. He did not conduct any additional testing to confirm this diagnosis. Thereafter, Shannon proceeded to call Dr. McNulty's office on October 7th, October 8th, and October 9th, 1992, because of continuing abdominal pain, back pain, constipation and the inability to sleep. During her call on October 8, 1992, Shannon informed Dr. McNulty that her pains were irregular and about ten minutes apart. As such, Shannon asked Dr. McNulty if she could be in pre-term labor. Dr. McNulty stated she was not in pre-term labor, basing this statement on his examination on October 5, 1992. On October 10, 1992, Shannon called HealthAmerica HMO's emergency line, informing them of her "severe irregular abdominal pain, back pain, that her pain was worse at night, that she thought she may be in pre-term labor, and about her previous calls to Dr. McNulty." Id. at 832. The triage nurse on the emergency line directed Shannon to call Dr. McNulty.
On October 11, 1992, Shannon called HealthAmerica HMO's emergency line again, stating her symptoms continued to worsen, and Dr. McNulty was not responding. Again, the triage nurse directed Shannon to call Dr. McNulty. Shannon did so, informed Dr. McNulty of her symptoms, and, for the second time, relayed her fear that she was in pre-term labor. Dr. McNulty "was again short with her" and angrily insisted that she was not in pre-term labor. Id. Finally, on October 12, 1992, Shannon called HealthAmerica HMO's emergency line, "told the nurse about her symptoms, severe back pain and back spasms, legs going [numb], more regular abdominal pain, and [that] Dr. McNulty was not responding to her complaints." Id. A HealthAmerica HMO orthopedic physician ultimately spoke with Shannon and directed her to go to West Penn Hospital, which was approximately an hour away from her home. Shannon obliged, passing three other hospitals on her way to West Penn Hospital. At West Penn Hospital, Shannon delivered a one and one-half pound baby boy who survived for two days.
Shannon and her husband, in their own right and on behalf of their son's estate, brought suit against, inter alia, HealthAmerica HMO. Of relevance, the Shannons alleged that HealthAmerica HMO was liable under the theory of corporate negligence for its "negligent supervision of Dr. McNulty's care." Id. at 829. The matter proceeded to a jury trial, but the trial court ultimately nonsuited the Shannons' claims. They appealed to this Court.
This Court reversed the trial court's grant of nonsuit, concluding that the Shannons set forth sufficient evidence to sustain a claim of corporate negligence. Initially, the Court reviewed the testimony of the Shannons' expert, Stanley M. Warner, M.D. When asked whether HealthAmerica HMO deviated from the standard of care, Dr. Warner stated:
I believe they did deviate from the standard of care. I believe on each occasion of the calls on October 10th, 11th, and October 12th, that [] Shannon should have been referred to the hospital, and the hospital notified that this woman was probably in pre[-]term labor and needed to be handled immediately. They did have the alternative of calling for a physician, if they wanted to, for him to agree with it, but basically she needed to be evaluated in a plac[e] where there was a fetal monitor and somebody to do a pelvic examination to see what was happening to her.Id. at 834. Dr. Warner further opined that this deviation "increase[d] the risk of harm to the baby, and definitely decreased the chance of [the baby] being born healthy." Id. Based upon the foregoing testimony, the Shannon Court concluded that the Shannons did, in fact, present sufficient evidence to establish a prima facie case that HealthAmerica HMO breached Thompson's third duty and, in so doing, caused the Shannons' child's untimely death.
This Court's holdings in Whittington and Shannon, at first blush, may appear a bit inconsistent with the holding in Edwards. Upon a thorough review, however, it is apparent that, unlike in Edwards, this Court in both Whittington and Shannon confronted medical personnel who provided inadequate care over extended periods of time and who "regularly ma[de] bad discharge decisions." Edwards, 652 A.2d at 1288. Hence, as we indicated in Edwards, this Court in Whittington and Shannon recognized that the medical providers' "numerous and repeated deviations from the standard of care" amounted to systemic negligence that can and, ultimately, did give rise to corporate negligence liability on the part of the hospital. Whittington, 76 A.2d at 1153; see also Shannon, supra. Taken together, therefore, it appears that Edwards, Whittington and Shannon consistently hold that a plaintiff sets forth sufficient evidence to sustain a cause of action of corporate negligence based upon a violation of Thompson's oversight duty if he or she demonstrates systemic shortcomings in diagnostic or treatment practices, such as where patient care and safety are negligently overlooked and/or ignored despite repeated presentations over extended periods of time until it is too late to act.
Importantly, this Court's recent decision in Ruff v. York Hospital, 257 A.3d 43 (Pa. Super. 2021) serves as a prime example of the application of corporate negligence within the confines outlined above. In Ruff, Linda J. Shifflet, presented to Hanover Hospital on May 24, 2014, complaining of shortness of breath. A Hanover Hospital emergency department physician, Dr. Micheal Denney, determined that Shifflet had a small heart attack with some fluid in her chest, which caused congestive heart failure. Due to concerns that Shifflet might require a heart catheterization, Dr. Denney requested she be transferred to York Hospital. Once admitted to York
Hospital, Shifflet was examined by Dr. Lyle Siddoway, who later determined that Shifflet's congestive heart failure and respiratory weakness contra-indicated that she was stable enough to undergo a catheterization procedure that day. Dr. Siddoway, as well as Dr. Gregory Fazio, monitored Shifflet during the following week but continued to conclude that the risks of catheterization outweighed the benefit of performing the procedure. On June 1, 2014, Shifflett went into cardiogenic shock. A catheterization was performed revealing coronary artery blockage, and bypass surgery was performed. On June 7, 2014, Shifflet died.
Shifflet's estate instituted a wrongful death and survival action against York Hospital alleging, inter alia, corporate negligence on the part of York Hospital. The matter proceeded to a jury trial. Ultimately, the jury returned a verdict in favor of the hospital. The estate filed a post-trial motion, requesting a new trial and JNOV, which the trial court denied. The estate then lodged an appeal in this Court.
On appeal, the estate claimed it was entitled to a new trial and/or JNOV on the corporate negligence claim because York Hospital breached Thompson's oversight duty by failing to supervise the physicians responsible for Shifflet's care. In particular, the estate argued that it demonstrated that "York [Hospital's] failure to 'monitor and oversee the medical care of . . . Shifflet at the point of care so as to obtain and require a timely, definitive diagnosis of her obstructive coronary artery disease' constituted a diagnostic error causing Shifflet's death." Id. at 53. This Court disagreed.
First, the Ruff Court noted that the estate's theory that Thompson's oversight duty encompassed point-of-care supervision was unsupported. In particular, this Court stated:
[The estate] offered no authority, nor has our independent research discovered, any decision interpreting Thompson's
oversight duty to mandate that a hospital direct or override a physician's clinical judgment.Id. at 54. Second, the Ruff Court noted that the estate's theory of point of care supervision was rejected by the jury. It stated:
Clearly, the jury accepted the testimony of York [Hospital's] witnesses that it fulfilled its oversight duty and rejected [the estate's] position that the hospital was charged with mandating or superseding physicians' clinical judgment.Id. Shifflet's presentation and weeklong hospital stay established a sufficient factual basis to submit the estate's corporate negligence claim to a jury and allowed the jury to consider whether the facts demonstrated systemic or recurring departures from the standard of care pertaining to personnel oversight for which the provider hospital could be held directly liable. Despite this, we squarely rejected the estate's contention that a defendant hospital must be held directly liable where it simply fails to supersede or override the clinical and/or diagnostic judgments of its medical personnel. In other words, Shifflet's estate presented sufficient evidence to support the submission of the oversight claim to the jury, but the hospital's mere failure to countermand the clinical and diagnostic decisions of Shifflet's individual treatment providers was not sufficient to compel us to set aside the findings of the jury.
It is therefore apparent that, based upon all the foregoing, the viability of a claim of corporate negligence based upon a violation of Thompson's oversight duty is factually specific. It is, however, important to recognize that, since its inception, corporate negligence has always been considered to be fault based. Edwards, 652 A.2d at 1387 ("Thompson does not propound a theory of strict liability . … Though broadly defined, Thompson liability is still fault based."). In other words, "a plaintiff [must] show that the hospital itself is breaching a duty and is somehow substandard." Id. at 1386. Vicarious liability, on the other hand, is not based upon a violation by the hospital but, instead, is imposed upon a hospital based upon a showing that a medical provider which it employs acted negligently or otherwise departed from the standard of care. Thus, to distinguish a claim of corporate negligence based upon a violation of Thompson's oversight duty from that of vicarious liability, the law must insist that there be evidence that implicates or triggers the hospital's duty as a corporation to take corrective action to address the behavior or conduct of its personnel. See Edwards, 652 A.2d at 1387 (explaining that Edwards failed to introduce evidence "that a reasonable hospital would have intercepted and corrected" the medical provider's errors). To me, this requires a showing of "numerous and repeated deviations from the standard of care" by hospital personnel. Whittington, 76 A.2d at 1153; see also Shannon, supra. Such conduct over a period of time would allow health care providers, namely, nurses, sufficient time to observe and "go to their supervisor[s] and inform [them of the] problem[s] that [] developed" and, in turn, an opportunity for hospital supervisors to implement corrective action. Whittington, 768 A.2d at 1150. I believe our prior cases require such a showing and forbid holding a hospital corporately liable for the individual negligent acts of its medical personnel, a basis for compensation which already exists under the doctrine of vicarious liability.
There may be some instances where the repetition or duration required may be diminished, such as where a departure from the standard of care involves a treatment or clinical assessment about which there can be little or no difference of opinion. Our Supreme Court's decision in Welsh, supra, serves as an example of this. In Welsh, the appellant, Bobbi Jo Welsh, received prenatal care from Donald W. Bulger, M.D. At that time, Dr. Bulger "had obstetrical privileges at Nason Hospital but these privileges did not permit him to perform surgery at the hospital." Welsh, 698 A.2d at 583. On January 1, 1990, at around 4:00 a.m., Welsh went into labor. She arrived at Nason Hospital at 12:00 p.m., but wasn't examined by Dr. Bulger until 7:55 p.m. when he "placed an internal monitoring device on the fetus to monitor the fetal heart rate." Id. By 8:15 p.m., Welsh's cervix became fully dilated and "Dr. Bulger instructed her to begin pushing out the baby." Id. "By 9:13 p.m., the fetal monitoring device indicated that the fetal heart rate had experienced consecutive nonassuring variable deceleration patterns, suggesting possible interference of umbilical blood flow to the fetus." Id. This continued until monitoring was discontinued around 9:38 p.m. Eventually, "Dr. Bulger vaginally delivered the child with forceps at approximately 10:35 p.m." at which time "the child was dusky in color, was lacking in muscle tone, was without spontaneous respiration, and had a low heart rate." Id. The child then underwent multiple hospitalizations and suffered numerous complications. The child died 11 months later. Welsh later brought suit against, inter alia, Nason Hospital, raising claims of vicarious and corporate liability. Of relevance, Welsh claimed that Nason Hospital was corporately liable because "it granted non-surgical obstetrical privileges to Dr. Bulger without requiring a qualified surgeon to be available in case surgery was necessary and because its staff failed to notify the hospital that Welsh's child needed a surgical delivery." Id. Welsh presented various experts in support of her claims. Her final expert, Stanley M. Warner, M.D. stated that, based upon the fetal monitoring read out, a need for a surgical delivery was apparent. In particular, he opined:
I have reviewed the materials you sent me regarding the care of Bobbi Jo Welsh. I find that her care was below the standard of care.
At about 20:30 hours on January 1, 1990, recurrent late decelerations or variable decelerations with late components appear consistently on the fetal monitor record. Bobbi Jo Welsh did not deliver [the child] until 22:35 hours on January 1, 1990. There was no reason to believe at 20:30 hours that there would be rapid delivery of Kyle. Bobbi Jo Welsh was a [16-year-old] prima gravida [(first-time pregnancy)] and her labor was progressing approximately normally for a prima gravida. By that estimate, it would have been at least two more hours before one would have expected delivery from the 20:30 hour time, which, of course, is what did happen. In fact, that is rather on the rapid side. The nurses must have known what was going on. An internal scalp led [sic] was placed on 7:55 a.m. There was oxygen from 9:30 p.m. or 21:30 hours.
It is apparent from Dr. Bulger's deposition that he was not qualified to perform cesarean sections and failed to have anyone in that could perform cesarean sections. He also did no consultation for cesarean section. If Dr. Bulger had arranged for an appropriate cesarean section or the hospital had arranged for an appropriate cesarean section with the nurses' input on this, there is every reason to believe that [the child] would be an absolutely normal child today. There also should have been a pediatrician available for the resuscitation and there was not.Id. at 584. Ultimately, Nason Hospital moved for summary judgment, "arguing that there was no issue to be tried concerning its liability because Welsh's expert reports failed to support her claims." Id. The trial court granted summary judgment and dismissed Nason Hospital from the action. Welsh appealed. Ultimately, our Supreme Court reversed the trial court's order granting summary judgment. In particular, the High Court determined that, based upon Dr. Warner's expert testimony, Welsh sufficiently supported her claims of corporate negligence against Nason Hospital. Id. at 586. Importantly, the Court held that, because Dr. Warner "opined that the nurses breached the standard of care because they must have known that there was a problem with the delivery but failed to act on that knowledge," his report was "sufficient to support a prime facie case of corporate negligence against Nason Hospital for violation of its duty to "oversee all persons who practice medicine within its walls as to patient care." Id. Welsh, therefore, is an example of a set of circumstances where a reduced margin of judgment or difference in opinion allows us to impute corporate liability to a hospital despite a diminished duration or reduced incidence of deviation from the standard of care. Indeed, the Welsh Court readily agreed with Dr. Warner's expert opinion that the nurses "must have known that there was a problem with the delivery" because, in this particular scenario, the signs of fetal distress, coupled with Dr. Bulger's lack of license status, compelled one conclusion: Welsh needed the assistance of a medical provider able to perform cesarian sections. Id. at 584. Hence, in a similar situation, i.e., in circumstances where the room for difference of opinion is narrow, the duration or frequency of medical error before a hospital's corporate duty is triggered could be limited.
In the case sub judice, when considering the facts and contentions presented by Appellant in light of the teachings of Edwards, Whittington, Shannon, and Ruff, I am compelled to conclude that the trial court correctly entered a nonsuit on Appellant's claims of negligent corporate oversight. Appellant's allegations of corporate negligence in this case are based exclusively upon a single admission to WBGH and the conduct of its medical personnel on one day: August 9, 2013. Indeed, Appellant did not present any evidence that, over the course of days, weeks, or months, WBGH overlooked or ignored numerous or repeated departures from the standard of care by its health care providers who treated Joseph Corey. In other words, Appellant failed to prove that WBGH had corporate knowledge of numerous or recurring departures from the standard of care sufficient to establish "systemic negligence." I therefore concur with the Majority that Appellant did not present sufficient evidence to submit her claim of corporate negligence to the jury.
Before I conclude, however, I must briefly address the Dissent's suggestion that we reverse the trial court's order granting nonsuit in favor of WBGH and remand for a new trial. Initially, the Dissent argues that
Appellant's expert, Robert Paynter, M.D., provided "detailed testimony . . . regarding what should have been done at [WBGH]," namely, that WBGH erred in failing to conduct an arterial blood test and intubating Decedent and that such testimony "was sufficient to establish . . . that [WBGH] breached the standard of care" and played a substantial role in Decedent's death. Dissenting Opinion at 14; see also id. at 9 and 11. Then, the Dissent asserts that, because Appellant "proceeded on an absence of supervision theory," i.e., she claimed that Decedent was "placed in a room and deteriorated under the care of [WBGH]" because he was left "alone for at least [12] minutes before he coded," constructive notice "should be imposed upon [WBGH] at the nonsuit juncture of the case." Id. at 12. Hence, in light of two alleged lapses in clinical judgment by Corey's providers and a 12-minute stay in a treatment room, the Dissent contends that Appellant "established sufficient evidence of all three prongs of corporate negligence under the third duty of Thompson (failure to oversee patient care)" and, as such, the trial court should have submitted Appellant's corporate negligence claim against WBGH to the jury. Id.
The Dissent, in my view, adopts the position that a corporate negligence claim must be submitted to the jury if a plaintiff offers even a bare minimum of proof tending to show that a hospital failed to override an isolated clinical assessment or onetime treatment determination made by a member of its medical staff. This position is flawed for several reasons. First, it is undermined by the cited appellate case law. Indeed, my learned colleagues rely on Thompson as well as Whittington, both of which involve plaintiffs that presented to the respective hospitals several times over the course of approximately one week (Thompson) or longer (Whittington), but were either ignored by hospital personnel or met with repeated negligent care. No such evidence was presented in this instance. Second, the Dissent renders as obsolete the "critical role" a trial judge must play during a jury trial, which is to "act as a gatekeeper to ensure that each theory presented to the jury . . . [is] warranted by the evidence at trial." Timmonds v. AGCO Corporation, 2021 WL 1351868 *1, *34 (Pa. Super. 2021). Lastly, the disposition proposed by the Dissent perpetuates the confusion surrounding the doctrine of corporate negligence and nullifies the doctrine's fault-based underpinnings, just as Chief Justice Flaherty feared. The crux of Appellant's case-in-chief was that WBGH personnel failed to preform one test, an arterial blood test, and later, at some point, left the Decedent's bedside for a mere 12 minutes. These facts are simply insufficient to sustain an action for systemic corporate negligence. Thus, the trial court correctly entered a nonsuit on Appellant's corporate negligence claim against WBGH.
Judges Bowes and Dubow join this Concurring Opinion.
DISSENTING OPINION
KUNSELMAN, J.
I believe the trial court should have submitted Mrs. Corey's corporate-negligence claim against Wilkes Barre General Hospital to the jury. Its failure to do so was reversible error. Thus, I respectfully dissent.
This Commonwealth has allowed claims of corporate negligence against hospitals for over 30 years. In Thompson v. Nason Hosp., 591 A.2d 703 (Pa. 1991), the Supreme Court of Pennsylvania recognized four specific duties of care that a hospital owes to its patients, independent of the duties owed by the doctors and staff. Those duties are:
(1) To use reasonable care in the maintenance of safe and adequate facilities and equipment;
(2) To select and retain only competent physicians;
(3) To oversee all persons who practice medicine within its walls as to patient care; and
(4) To formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients.See id. at 707 (citing Chandler Gen. Hosp. Inc. v. Purvis, 181 S.E.2d 77 (Ga.App. 1971); Johnson v. Misericordia Community Hosp., 301 N.W.2d 156 (Wis. 1981); Darling v. Charleston Community Hosp., 211 N.E.2d 253 (Ill. 1965); and Wood v. Samaritan Institution, 161 P.2d 556 (Cal.Ct.App. 1945)).
"A cause of action for corporate negligence arises from the policies, actions or inactions of the institution itself rather than the specific acts of individual hospital employees." Welsh v. Burger, 698 A.2d 581, 585 (Pa. Super. 1997) (emphasis added). Analysis of corporate negligence should begin by identifying which of the above duties the hospital allegedly breached.
In her Complaint, Mrs. Corey alleged the hospital breached the third and fourth duties from Thompson. See Complaint at ¶ 109. She claims the hospital itself failed to oversee her husband's care and to ensure that he was appropriately evaluated and treated in the emergency department. In her brief, she argues the hospital failed to oversee her husband's care, because it did not ensure its staff performed certain tests and treatments, which any reasonable hospital would have ensured. Corey's Brief at 32-45. The
Although the Complaint listed breach of the third and fourth duties found in Thompson v. Nason Hosp., 591 A.2d 703 (Pa. 1991), Mrs. Corey's brief fails to identify which theories she is pursuing on appeal. However, the arguments and cases she cites all relate to the third duty. Accordingly, I limit my analysis to the third duty of corporate negligence.
Thompson case involved similar allegations and illustrates a hospital's duties under this third duty.
There, the Thompsons claimed Nason Hospital breached the third duty of care, because it failed to monitor the quality of Mrs. Thompson's care in its emergency room. Following a car accident, she arrived at the Hospital in an ambulance with head and leg injuries. Her husband advised the staff that she was taking anticoagulants and that she had a pacemaker. The next day, Mrs. Thompson was unable to move her left foot and toes. Two days later, she was completely paralyzed on her left side and never regained motor function.
The Thompsons sued the hospital for corporate negligence because it negligently failed to monitor her condition. The hospital asserted that it had no duty to observe, to supervise, or to control the "independent-contractor" doctors and nurses who treated Mrs. Thompson. Finding no duty, the trial court dismissed the corporate-negligence claim. This Court and the Supreme Court of Pennsylvania disagreed and reversed. Both appellate courts held that corporate-negligence claims are compatible with Pennsylvania tort law and that a question of material fact existed as to whether the hospital negligently supervised the independent contractors who treated Mrs. Thompson.
Whether the hospital misclassified its staff as independent contractors under The Restatement Second of Agency was not at issue in the appeal.
Similarly, in Whittington v. Episcopal Hospital, 768 A.2d 1144 (Pa. Super. 2001), this Court further elaborated on the third theory of hospital liability. There, we explained what a plaintiff who proceeds under this theory must establish to allow a claim of corporate negligence to go to the jury. A detailed summary of that case is essential to my analysis.
In Whittington, the administratrix of the estate of Claudette Milton filed a wrongful death and survivor action against Episcopal Hospital and others, after Ms. Milton died following complications while giving birth. Id. at 1147. Very late in her pregnancy, Ms. Milton went to see her treating obstetrician, who sent her to Episcopal Hospital for tests. Despite having high blood pressure, leg pain, and other symptoms of pregnancy induced hypertension ("PIH"), indicating the need to have labor induction initiated immediately, the hospital sent her home with only a prescription for an iron supplement.
A week later, Ms. Milton again visited her obstetrician, who again ordered tests at Episcopal Hospital, after which Ms. Milton was to be released. That same day, the hospital's nurses and physicians performed the ordered tests. Notwithstanding Ms. Milton's clearly elevated blood pressure and test results, which again should have mandated immediate labor induction, the hospital's staff neither admitted her, nor even questioned her obstetrician's instructions that she should go home and wait until the following day for labor induction.
The following day, Ms. Milton was admitted to the hospital for induced labor at 7:30 a.m. Instead of being admitted to the labor and delivery room promptly upon arrival, she was kept in a waiting room for nearly 14 hours, until 9:00 p.m. She had a family history of PIH and was complaining of a headache, but the hospital ordered no lab work. She should have been evaluated every three to four hours, but essentially was ignored for the entire day. At 9:00 p.m., with elevated blood pressure, she was transferred to labor and delivery for induction. She showed consistently high blood pressure but drugs to correct this condition were not ordered until approximately 7:00 a.m. the next morning. She did not receive the drugs until 8:40 a.m., by which point her condition had greatly deteriorated.
A few hours later, Ms. Milton was rushed to an emergency C-section, but the procedure was delayed, and the hospital performed it under clearly unfavorable conditions. After delivery, the doctors and nurses did not order the necessary deep vein thrombosis ("DVT") prophylaxis. This resulted in blood clots in Ms. Milton's lungs and pulmonary edema (a complication of severe preeclampsia), accompanied by the lungs filling with fluid. Ms. Milton regained consciousness briefly, but she soon needed a ventilator. The hospital transferred her to intensive care, but the doctors again failed to order appropriate measures to save her. Ms. Milton developed Adult Respiratory Distress Syndrome and died. She was 26 years old.
The administratrix of Ms. Milton's estate sued numerous persons and alleged corporate negligence against the hospital. Prior to trial, all defendants settled except the hospital. At trial, the court admitted evidence relating to Ms. Milton's entire course of care, so the jury could apportion liability among the hospital and other defendants. The jury found the hospital 15% directly liable for its corporate negligence and 10% vicariously liable; it awarded $2,200,000 in damages.
The hospital moved for judgment notwithstanding the verdict ("JNOV"). It argued the estate failed to make a prima facie case for corporate negligence. The trial court denied the motion, and the hospital appealed.
To establish corporate negligence under this theory, this Court explained that plaintiffs must introduce evidence of the following:
1. The hospital acted in deviation of the standard of care;
2. The hospital had actual or constructive notice of the defects of procedures which caused the harm; and
3. The conduct was a substantial factor in bringing about the harm.Id. at 1149 (citing Welsh, 698 A.2d at 585) (emphasis added). Further, unless the hospital's negligence was obvious, we held expert testimony was required to establish the first and third prongs of the above test. Id.
We then concluded that the estate of Ms. Milton met each of these three prongs. First, the estate's expert opined that the hospital deviated from the standard of care at the time Ms. Milton was admitted, because the appropriate course of action was not taken:
At the time she was admitted on 12/22/93, she was again with fulminate toxemia. She needed to be admitted, stabilized, immediately induced or a C-section, if induction was not possible, to get the baby out and to stop the process of preeclampsia. And that was not done.Id. at 1151 (emphasis in original).
The expert further opined that this deviation was a substantial factor in bringing about the decedent's death:
Again, had they started the induction at that time and had they seen there was a failure in progress, in all probability, the fulminate aspect of the toxemia would not have occurred so rapidly.Id. (emphasis added).
Additionally, the expert testified about another deviation from the standard of care when the hospital ignored Ms. Milton's prior records and sent her to a waiting area.
All of the information [showing she needed induction immediately] was readily available and mandatory to be reviewed in a patient who presents at 350 pounds at 42 weeks for an induction. None of that was done. And that is a deviation, number one, by anyone and everyone that had to do with the patient from the time of 7:30 on.Id. (emphasis in original). The failure to check on her every three to four hours also deviated from the standard of care. Id.
Finally, the expert opined that the hospital failed in its post-operative care by not providing the minimum prophylaxis to prevent DVT. "And that is putting on the antithrombin and the doctors to initiate Heparin therapy. And this was not done." Id. at 1152. The failure to use these safeguards was a cause of death.
A second expert, independently and in conjunction with the first expert, confirmed the opinion that the hospital deviated from the standard of care and that these deviations were a substantial cause of Ms. Milton's death.
Having found that the estate met the first and third prongs of the prima facie case of corporate negligence through expert testimony, we proceeded to the final prong under the test announced in Welsh - i.e., whether the hospital had actual or constructive notice of the defects or procedures creating the injury. We concluded the hospital may properly be charged with constructive notice, because it should have known about the decedent's condition. As we discussed, "in Welsh, our supreme court found that a prima facie case of corporate negligence had been established where the plaintiff's expert opined that the hospital nurses should have known there was a problem but failed to act on that knowledge." Id. (citing Welsh, 698 A.2d at 584). As in Welsh, we found the hospital was also liable, because it must have known what was occurring but failed to act. Further, we found constructive notice must be imposed when the failure to receive actual notice is caused by the absence of supervision.
Had [the hospital] undertaken adequate monitoring, it would have discovered that [Ms. Milton] had received and was continuing to receive medical treatment that was clearly deficient before and
after her delivery. We are compelled to find constructive notice under these circumstances.Id.
Because the plaintiff made a prima facie case of corporate negligence under the third Thompson duty, we held that the trial court correctly allowed the matter to go to the jury. Id.
Here, like the plaintiffs in Thompson and Whittington, Mrs. Corey claims Wilkes Barre General Hospital breached the third duty of care required of hospitals: the duty to oversee all persons who practice medicine within its walls as to patient care. To prove her claims, she offered the testimony of Dr. Robert Paynter, an expert in the fields of emergency medicine and corporate responsibility. She claims his testimony followed the template set forth in Whittington to establish the first and third prongs of the prima facie case.
Regarding the first prong, Dr. Paynter opined that the hospital's emergency department "did not meet the standard of care" a hospital owes to a patient who presents in respiratory distress. N.T., 10/7/20, Trial part 2 at 35. He explained how and why the hospital should have done an arterial blood test and intubated Mr. Corey. Dr. Paynter testified as follows:
So, you do the blood test. If they are in respiratory distress, you sedate them and you put them on a ventilator. That's what should have happened here. Instead, they waited. They waited. They tried to do other modalities. His respiratory rate this whole time was in the 40s [while the normal respiratory rate is 15 to 20].Id.
This was a concern because Mr. Corey was breathing twice the rate of a normal person, which meant his respiratory muscles were getting exhausted. He could simply stop breathing from exhaustion. Id. at 39-40. The work of breathing can overcome the person; "that's why you do an elected intubation." Id. at 40.
The expert also informed the jury that:
The other problem is that if the CO2 level is high and creating an acid situation, it's very dangerous for the body. In addition, [Mr. Corey] had infection which also adds to the acid level as well….
But you want to correct the respiratory acid by putting the tube in and ventilating the patient. Now, you can try and do it on the BiPAP, but you have to do a blood gas test to see that it's at 65 or 70, and it's supposed to be 40. And you can repeat the test in an hour or even a half an hour and see if it is getting better. If it's not getting better, then you have [to] electively intubate.Id.
As Dr. Paynter opined, the hospital failed to monitor Mr. Corey's condition, to perform the necessary tests, and to intubate Mr. Corey in a timely fashion:
They didn't do any of that. They just placed [Mr. Corey] in a room, and he got progressively worse to the point where he reached the point of in extremis, is the term we use in medicine, and that's the time before you die. And he ripped his mask off, and he stopped breathing. And his blood pressure, his pulse, all stopped.Id. at 40-41.
Dr. Paynter maintained that the standard of care was breached, because the hospital failed to take standard approaches in the industry to help Mr. Corey who was in respiratory distress. "He was at the hospital for almost two hours before he stopped breathing. They needed to intervene. The simple way to intervene is an arterial blood gas, measure the abnormality, make a decision to intubate. That should have been done in this case." Id. at 50.
Dr. Paynter further opined that the hospital was not monitoring Mr. Corey closely and that "when he did finally peter out and stopped breathing on his own, they were not there to help him." N.T., 10/7/20, Trial part 2 at 51. He noted that Mr. Corey was unobserved for a period of 12 minutes after he took off his BiPAP mask before he coded. Id. at 46-47. More than likely that was the time that the significant amount of anoxic brain injury occurred. If he had been intubated prior to that, he would have been protected. He would have been on a ventilator [with alarms]. But none of that was in place. Id. at 47. This is a second reason why the hospital deviated from the standard of care.
Dr. Paynter also testified about the third prong of the corporate negligence test, that the hospital's conduct was a substantial factor in bringing about the harm. Dr. Paynter reviewed Mr. Corey's autopsy report, which indicated the factual cause of death was "lack of oxygen to the brain." Id. at 35. He opined that if Mr. Corey had been timely tested and intubated, he would have had a substantially greater chance at living:
He should have survived this episode of bad pneumonia and he would have - you know, the ventilator would have gotten him through it. And he would have been - his respiratory acidosis would have been corrected. He would have received antibiotics. He would have probably had to stay on the ventilator for a day or two. And then he should have come off it, and he should have been okay.Id. at 45. This testimony establishes causation.
Finally, Mrs. Corey maintains that under this theory of corporate negligence, (failure to oversee patient care - the third duty set forth in Thompson), as in Whittington, the second prong of actual or constructive notice should be imposed upon the hospital at the nonsuit juncture of the case. Corey's Brief at 44; Corey's Reply Brief at 22-25. She relies on our precedent where we have held that "constructive notice must be imposed when the failure to receive actual notice is caused by the absence of supervision." Id. (citing Brodowski v. Ryave, 885 A.2d 1045, 1057, 1059 (Pa. Super. 2005)). Mrs. Corey's case proceeded on an absence of supervision theory; she claims Mr. Corey was placed in a room and deteriorated under the care of the hospital, who should have been aware of his condition, but did nothing about it. He was left alone for at least twelve minutes before he coded. Under these circumstances, constructive notice should have been inferred for purposes of deciding whether she met her prima facie case.
Based on our precedents involving constructive notice, whether the failure to monitor Mr. Corey throughout his hospitalization was reasonable is a question of fact for the jury. See e.g., Whittington, 768 A.2d at 1154; Welsh, 698 A.2d at 586; and Brodowski, 885 A.2d at 1057, 1059. Actual notice asks what the hospital knew; constructive notice asks what the hospital should have known if they were properly monitoring the care of the patient.
Giving her the benefit of all reasonable inferences, I believe Mrs. Corey established sufficient evidence of all three prongs of corporate negligence under the third duty of Thompson (failure to oversee patient care). Because she met her prima facie case, I would reverse and remand for a new trial.
In my opinion, the trial court and the Majority erred in their analysis regarding the first and second prongs of the test for corporate negligence. With respect to the first prong, I believe the trial court did not give Mrs. Corey the benefit of all reasonable inferences when interpreting the expert testimony. The rules of civil procedure and our standard of review are critical:
A trial court may enter a compulsory nonsuit on any and all causes of action if, at the close of the plaintiff's case against all defendants on liability, the court finds that the plaintiff has failed to establish a right to relief. Pa.R.C.P. No. 230.1(a), (c); see Commonwealth v. Janssen Pharmaceutica, Inc., 8 A.3d 267, 269 n. 2 (Pa. 2010). Absent such finding, the trial court shall deny the application for a nonsuit. On appeal, entry of a compulsory nonsuit is affirmed only if no liability exists based on the relevant facts and circumstances, with appellant receiving "the benefit of every reasonable inference and resolving all evidentiary conflicts in [appellant's] favor." Agnew v. Dupler, 717 A.2d 519, 523 (Pa. 1998). The compulsory nonsuit is otherwise properly removed[,] and the matter remanded for a new trial.Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582, 595-96 (Pa. 2012) (internal citations modified) (emphasis added).
Here, Mrs. Corey argues that the hospital and the trial court did not give her the benefit of every reasonable inference or resolve evidentiary conflicts in her favor. Corey's Reply Brief at 13-14. Mrs. Corey states that the evidence conflicts about whether Mr. Corey was improving or deteriorating during his stay at the hospital. The timing of events created a genuine issue of fact about the nature of his treatment and specifically, how long he was left alone and unattended. Id. at 15-18.
Additionally, the court found the expert's general criticism of the hospital and reference to "they" in his testimony was insufficient. As the court stated:
Much of Dr. Paynter's testimony was given in generalized, non-specific terms of what he believed "they" should have done differently without identifying who "they" were. Since the "Wilkes-Barre General Hospital Emergency Department" is neither a person nor a legal entity and this was not a case of res ipsa loquitor, the only fair inference regarding who "they" were in the context of [the] testimony was Nurse Bond and Dr. Perry.Trial Court Opinion, 6/21/21, at 6.
As Mrs. Corey argues, however, expert testimony critical of unnamed nurses and resident physicians is sufficient to support a corporate negligence claim. Corey's Brief at 44 (relying on Whittington, 728 A.2d at 1151). Thus, the detailed testimony of Dr. Paynter regarding what should have been done at the hospital was sufficient to establish the first prong of corporate negligence, that the hospital breached the standard of care. As noted above, a cause of action for corporate negligence arises from the policies, actions, or inactions of the institution itself rather than the specific acts of individual hospital employees. Welsh, 698 A.2d at 585.
Giving Mrs. Corey the benefit of every reasonable inference from Dr. Paynter's testimony, "they" should be interpreted to mean the hospital itself, in other words, its entire staff. Nevertheless, the trial court erred by resolving this inference against Mrs. Corey at the non-suit stage of the litigation. The court made a factual finding that Dr. Paynter meant only the nurse and doctor who directly treated her. In my view, the trial court thereby invaded the fact-finding province of the jury.
The Majority also evaluates only the actions of Nurse Bond but not the inactions of the hospital itself with respect to Mr. Corey's care. See Majority, supra, at 16-17. It repeats the error of the trial court. The chain of responsibility does not stop at the nurse and the doctor under a corporate-negligence theory. As in Whittington, the expert testified about what the hospital should have done but did not. Thus, the actions of Nurse Bond are only part of the equation. The jury should have been allowed to determine, as a matter of fact, whether the hospital itself was at fault for the quality of care it provided to Mr. Corey.
The trial court and Majority also erred in analyzing the second prong of the corporate-negligence test: namely, whether the hospital had actual or constructive notice of the defects or procedures which harmed Mr. Corey. The trial court found Mrs. Corey "provided no evidence that [the hospital] as an institution had actual or constructive notice of such negligence during the approximately twelve hours that Mr. Corey was treated there." Trial Court Opinion, 6/21/21, at 6. Based on lack of notice, the court concluded that Mrs. Corey did not establish the third duty under Thompson. However, because constructive notice may be imposed on a hospital in situations like this, where it is alleged that the lack of supervision caused the harm, proof of actual notice is not necessary. Granting a non-suit on this basis was an error.
The Majority believes constructive notice does not apply here. Like the trial court, it focuses only on evidence of "the individual decisions and actions of a doctor and nurse in conjunction with the care of a critically ill patient." Majority at 16. Again, it essentially discredits Dr. Paynter's testimony on the omissions of the hospital in overseeing Mr. Corey's treatment. Ultimately, the Majority concludes Nurse Bond's conduct did not amount to an absence of supervision warranting the imposition of constructive notice. It distinguishes this case from Welsh, because Nurse Bond sought advice from the supervising doctor. Id. However, whether Nurse Bond's actions were appropriate and timely, whether other actions should have been taken by the hospital staff, or whether Mr. Corey was left unattended for too long under the circumstances, are all questions of fact for the jury. On a motion for a non-suit, the trial court must give the plaintiff the benefit of all reasonable inferences and conflicts in testimony. It did not do so here, and the Majority makes the same mistake.
As our caselaw has held, corporate negligence is distinct from the actions of the individual doctors and nurses. If there are steps that should be taken in a hospital and no one takes them, if a patient is unreasonably left to deteriorate, and the patient does deteriorate, then liability may attach; our law provides that a hospital itself has "a duty to oversee all persons who practice medicine within its walls as to patient care." Thompson, supra.
Just as regular negligence is measured by the reasonable person standard, a hospital's negligence is measured against what a reasonable hospital under similar circumstances should have done. See Edwards v. Brandywine Hosp., 652 A.2d 1382, 1386 (Pa. Super. 1995). Here, Dr. Paynter testified that a reasonable hospital would have acted differently. As a matter of law, this was enough to create a prima facie case of corporate negligence. It then became a factual question for the jury to decide whether the hospital breached its duty of care for Mr. Corey.
The Majority cites Ruff v. York Hosp., 257 A.3d 43 (Pa. Super. 2021), reargument denied (May 19, 2021), appeal denied, 266 A.3d 1064 (Pa. 2021), for its conclusion that this case did not involve "a kind of systemic negligence" on the part of the hospital. Majority at 16. In Ruff, however, the claim of corporate negligence was submitted to the jury. There, much like the facts here, the plaintiff alleged that the hospital was negligent for failing to perform a timely cardiac catheterization. Ruff, 257 A.3d at 48. The corporate negligence claim against York Hospital was based upon its purported failure to properly supervise the cardiologists, which contributed to a negligently timed cardiac catheterization. Id. Ultimately, the jury did not find the hospital negligent. As the trial court observed:
Clearly, in this case the jury heard not only from the [appellant's] expert but also from the defense. The jury heard the defense view of what [York] did in order to oversee patient safety, and the jury was free to draw its own conclusions, which are fully supported by the evidence in the case, that [York] was not negligent.
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With regard to the duty to oversee all persons who practice medicine, again, the jury was free to accept or reject the defense testimony that the policies that were in effect were designed to do that, and the jury obviously rejected [appellant's] theory or accepted the defense expert testimony on that issue.Id. at 50-51. Because there was sufficient competent evidence to support the verdict and the verdict did not shock its conscience, the trial court denied the plaintiff's JNOV motion, and we affirmed.
Notably, that case also involved allegations that York breached the second and fourth duties owed under Thompson, supra. The jury similarly rejected the corporate-negligence claim under those theories.
Here, Mrs. Corey was denied the opportunity to have a jury evaluate the actions and inactions of the hospital, to determine whether it breached the duty it owed to her husband. Moreover, we have held that "systemic negligence" need not be proven to establish a prima facie case of corporate negligence. Whittington, supra at 1154. Proving systemic negligence is certainly one way of establishing notice to the hospital, but it is not required. Id. Where, as here, the hospital could have discovered that the patient was receiving deficient medical treatment, if it had been properly monitoring the patient's care, it may be properly charged with constructive notice for purposes of determining whether the plaintiff presented a prima facie case. Id; see Edwards, 652 A.2d at 1387 (to make out a viable Thompson claim, a plaintiff must prove that a hospital knew or should have known of the mistake or deficiency.) In other words, when a plaintiff claims that the hospital failed to supervise the patient's treatment, what the hospital should have known under the circumstances becomes a jury question.
In sum, Mrs. Corey offered legally sufficient evidence to make a prima facie case for corporate negligence: i.e., that the hospital breached its duty to oversee all persons practicing medicine within its walls by failing to ensure appropriate testing and intubating of her husband as his condition continually deteriorated over several hours. The trial court's imposition of a compulsory nonsuit on that cause of action was error. Hence, I would reverse the order denying Mrs. Corey a new trial on her corporate-negligence claim and would remand for that purpose. I therefore respectfully dissent.
Because I would grant Mrs. Corey relief on her first appellate issue, I express no opinion on her remaining claims of error.
President Judge Panella and Judges McLaughlin and McCaffery join this dissenting opinion.
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