Seels v. Tenet Health System Hahnemann, LLC

J-A06045-17

2017 PA Super 227

RAYMOND SEELS, ADMINISTRATOR OF IN THE SUPERIOR COURT OF
THE ESTATE OF TERRI SEELS-DAVILA, PENNSYLVANIA
DECEASED, AND RAYMOND SEELS, IN
HIS OWN RIGHT,

Appellant

v.

TENET HEALTH SYSTEM HAHNEMANN,
LLC, D/B/A HAHNEMANN UNIVERSITY
HOSPITAL AND PHILADELPHIA HEALTH &
EDUCATION CORPORATION AND DREXEL
UNIVERSITY COLLEGE OF MEDICINE,

Appellees No. 1838 EDA 2015

Appeal from the Judgment Entered July 22, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 00560 September Term, 2012

BEFORE: PANELLA, SHOGAN, and SOLANO, JJ.

OPINION BY SHOGAN, J.: FILED JULY 18, 2017

Appellant, Raymond Seels, administrator of the estate of Terri Seels-

Davila (“Seels-Davila”), deceased, and Raymond Seels,1 in his own right,

appeal from the judgment entered on July 22, 2015, in favor of Tenet Health

System Hahnemann, LLC, d/b/a Hahnemann University Hospital and

Philadelphia Health & Education Corporation and Drexel University College of

____________________________________________

1
Appellant is Seels-Davila’s father.
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Medicine (collectively “Appellees”) in this medical malpractice action. We

affirm.

The trial court provided a thorough recitation of the relevant facts of

this case, which is set forth below:

In early 2010, 38-year-old Terri Seels-Davila (“Seels-
Davila”) and her husband Levi Davila were working in Managua,
Nicaragua as Jehovah’s Witnesses missionaries. During this time,
Seels-Davila became pregnant and received prenatal care in
Nicaragua for the first seven months of her pregnancy. N.T.
4/24/15 at 11. In early September 2010 she returned to her
hometown of Philadelphia to ensure that “she was seen by the
best health care in a first world country.” Id. at 11, 16, 39-40,
61-63; N.T. 4/21/15 at 33. Adherents of the Jehovah’s Witness
faith refuse to accept blood transfusions and so, with the help of
Appellant, who was her father and a retired licensed nurse and
also a devout Jehovah’s Witness, Seels-Davila chose Hahnemann
University Hospital as the hospital where she would deliver her
baby. N.T. 4/24/15 at 12-16.

Hahnemann was one of the few regional medical facilities
that engage in outreach to “Bloodless Medicine” patients, the
term used for patients who, for various reasons, refuse blood
transfusions. In order to assist these patients, Hahnemann had a
“Bloodless Medicine Program” with three clerical staff who were
Jehovah’s Witnesses. See N.T. 4/23/15 at 154. These clerks
were responsible for explaining the risks inherent in not
receiving blood transfusions and alternative treatment methods
if transfusions are refused, ensuring the bloodless patients’
wishes were memorialized on blood transfusion refusal consent
forms, and that this information was transmitted to and
prominently displayed on the patient’s medical chart and hospital
wristbands upon admission.

On November 19, 2010, Seels-Davila and her father met
with Iris Jiminez, one of the clerks at Hahnemann’s Center for
Bloodless Medicine. N.T. 4/24/15 at 12-13, 41. After talking with
Ms. Jiminez, Seels-Davila signed a form entitled “Hahnemann
University Hospital Center for Bloodless Medicine and Surgery
Medical Directive/Release” where she indicated the following:

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I, Terri Elaine Seels-Davila ... request that no blood (whole
blood, red cells, white cells, platelets and plasma) be
administered to me during this hospitalization. I will accept
the use of nonblood [sic] volume expanders (such as
dextran, saline, or Ringer’s solution or hetastarch) and
other nonblood management.

Appellant’s Motion in Limine to Preclude Appellees from Offering
Testimony and/or Evidence of Informed Consent and/or Any
Medical Release, Ex. A at 1 (“Consent MIL”). In addition to these
restrictions, Seels-Davila further stated that she did not consent
to the use of hemodilution (i.e. blood storage, even of her own
blood). Id. This administrative process took approximately
fifteen minutes and did not involve any of Hahnemann’s doctors,
nurses, or other employees besides Ms. Jiminez. N.T. 4/24/15 at
13-14.

On Wednesday November 24, 2010, Seels-Davila went into
labor and was admitted to Hahnemann at approximately 4:30
PM. Id. at 16, 44. She arrived with her cervix dilated to
“approximately four centimeters,” but quickly began to
experience difficulties with her labor. N.T. 4/23/15 at 13. Dr.
Minda Green, who was the attending obstetrician/gynecologist at
the time of Seels-Davila’s admission, insisted that Seels-Davila
talk with the Center’s staff to again review her treatment
choices. N.T. 4/21/15 at 65-66, 69-72. After a conversation with
these advocates and Dr. Brandi Musselman, another Hahnemann
obstetrician, Seels-Davila signed a form at 6:25 PM entitled
“Consent for Refusal for Transfusion of Blood and/or Human
Source Products,” (“Consent for Refusal”) in which she again
expressly indicated that she refused to accept blood transfusions
as part of her treatment at Hahnemann, stating that:

I [Seels-Davila] understand from Dr. Musselman that it
may be advisable for me to receive a transfusion of blood,
blood components or other human source products. I
understand the circumstances that might make a
transfusion necessary and the benefits of such a
transfusion to my health. I have been given the attached
information sheet, which describes the risks, benefits, and
alternatives to the transfusion of blood and/or human
source products ... I refuse all blood components and
human source products.[]

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Consent MIL, Ex. D at 1; N.T. 4/21/15 at 69-70; N.T. 4/24/15 at
44; see N.T. 4/27/15 at 93-97 (Dr. Musselman testifying
regarding her pre-cesarean section discussions with Seels-
Davila, as well as Seels-Davila signing the Consent for Refusal).
Seels-Davila also indicated on this form that she consented to
the use of a cell saver machine, if necessary, for intra-operative
blood salvage and, below the signature line, handwrote “I am
one of Jehovah’s Witnesses. No blood.”

Consent MIL, Ex.Eat 1. According to Dr. Musselman, Seels-Davila
specifically told her that she “would rather die than receive blood
products.” N.T. 4/27/15 at 97. At 6:31 PM, Seels-Davila also
signed a form entitled “Consent for Delivery,” checking off boxes
indicating that she consented to giving birth via “vaginal
delivery” or “cesarean section.” Consent MIL, Ex. C at 1.

After over 12 hours of labor, Seels-Davila developed a
fever and her unborn child’s heart rate spiked. N.T. 4/21/15 at
83-84; N.T. 4/23/15 at 13-14. Accordingly, Dr. Green decided to
perform a cesarean section at approximately 7:00 AM on
Thursday, November 25, 2010. N.T. 4/21/15 at 84-85; N.T.
4/23/15 at 13-14. Seels-Davila’s child was successfully delivered
at 7:16 AM, and her uterus was then exteriorized. N.T. 4/21/15
at 103. Dr. Green and Dr. Asata Mehta, a third-year resident,
“tagged” the corners of Seels-Davila’s uterine incision, cleaned
the sides of her abdomen and pelvis with sponges to remove
excess blood, and inspected the incision multiple times to ensure
that it was not bleeding. Id. at 104-106. Drs. Green and Mehta
then cut these “tags,” and proceeded to suture close each of the
abdominal wall layers that had been cut during the cesarean
section, checking for bleeding throughout the whole process. Id.
at 105-106.

Following surgery, Seels-Davila was transferred to the
Post-Anesthesia Care Unit (“PACU”) at approximately 8:20 AM.
N.T. 4/23/15 at 16. Her vital signs were checked, including her
blood pressure which was recorded as 100/48. Id. At 8:30 AM,
Seels-Davila’s blood pressure was taken again, this time
registering as 97/50. Id.; N.T. 4/21/15 at 136. Additional
readings were taken at 8:40 AM and 8:45 AM, at which points
Seels-Davila’s blood pressure was respectively 102/55 and
108/53. N.T. 4/21/15 at 136. At 9:00 AM, her blood pressure
was measured as being 89/62. N.T. 4/21/15 at 136-37; N.T.
4/23/15 at 16-18. At 9:15 AM, Seels-Davila’s blood pressure fell

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significantly to 67/32, at which point the anesthesia unit was
notified. N.T. 4/23/15 at 18-19. At 9:20 AM, PACU staffers and
Dr. Saninuj Malayaman, an anesthesiologist, arrived at her
bedside. N.T. 4/22/15 at 6; N.T. 4/23/15 at 29.

At 9:30 AM, Dr. Yusef Morant-Wade, a third-year resident,
called Dr. Kelli Daniels, who had taken over for Dr. Green as
attending obstetrician at around 8:30 AM that morning. N.T.
4/21/15 at 129-131; N.T. 4/23/15 at 95. Dr. Morant-Wade
advised Dr. Daniels that Seels-Davila’s blood pressure had
precipitously dropped, but that she was not exhibiting any other
telltale signs of internal bleeding such as shortness of breath,
palpitations, pain, or a distended stomach. N.T. 4/22/15 at 18,
21; N.T. 4/23/15 at 31-32. Dr. Daniels responded by ordering a
complete blood count (“CBC”) test, in order to see if Seels-
Davila’s hemoglobin levels were dropping, and to determine
whether she was anemic or had low levels of oxygen-carrying
red blood cells. N.T. 4/21/15 at 131, 158-59. Based on the
information provided by Dr. Morant-Wade, Dr. Daniels surmised
that the likely cause of Seels-Davila’s abnormally low blood
pressure was either blood loss during the C-section, the
anesthesia given during her cesarean section, or by Pitocin, a
medication that was given to Seels-Davila to help her uterus
contract after her cesarean section. N.T. 4/21/15 at 138; N.T.
4/22/15 at 12, 22. At 9:35 AM, Dr. Malayaman administered 10
milligrams of Ephedrine to Seels-Davila, and confirmed that
Seels-Davila was a Jehovah’s Witness who would not consent to
the use of blood products as part of her treatment. N.T. 4/23/15
at 29. Within minutes, the Ephedrine boosted Seels-Davila’s
blood pressure, which registered 91/48 at 9:40 AM. Id. Despite
this improvement, PACU staffers began to suspect that Seels-
Davila was suffering from internal bleeding, documenting their
collective concerns at 9:42 AM through a note on her medical
records. N.T. 4/23/15 at 35. At 10:00 AM, Seels-Davila’s blood
pressure had fallen to a “dangerously low” level of 64/39, with a
subsequent reading five minutes later that showed her blood
pressure as 67/25. N.T. 4/23/15 at 31, 32. At 10:05 AM, a nurse
attempted to draw blood from Seels-Davila for use in the CBC
test, but was unable to do so and had to call for assistance. Id.
at 96-97; see Appellant’s Trial Exhibit P-7 at 5 (“1005 Unable to
obtain blood for CBC-CL Robbin RN called for assist.”). Seels-
Davila was still alert and oriented at 10:10 AM, and asked for ice
chips, but shortly thereafter she began to slur her speech. N.T.
4/23/15 at 33; Appellant’s Trial Exhibit P-7 at 5. At 10:15 AM, a

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nurse successfully took Seels-Davila’s blood for the CBC test.
N.T. 4/23/15 at 96; see Appellant’s Exhibit P-7 at 5 (“1015 ... CL
Robbins drawing CBC.”).

Dr. Daniels was then called to Seels-Davila’s bedside and,
along with PACU staffers, began to administer large volumes of
intravenous fluids to Seels-Davila. N.T. 4/23/15 at 34-35;
Appellant’s Trial Exhibit P-7 at 5. This seemed to improve Seels-
Davila’s condition, as her speech pattern returned to normal, and
her blood-oxygen saturation levels reached 100%. N.T. 4/23/15
at 35. Dr. Daniels performed a “head to toe” bedside
examination of Seels-Davila, determining that there were still no
obvious signs of internal bleeding. N.T. 4/22/15 at 22-24. By
10:46 AM, Dr. Daniels was joined at Seels-Davila’s bedside by
Dr. Asemato (the chief resident) and Dr. Malayaman, to observe
and monitor their patient. N.T. 4/23/15 at 36. At 10:59 AM, the
results of the CBC test came back and showed that Seels-
Davila’s condition was deteriorating, as her hemoglobin count
had dropped precipitously from 14.1 at admission, to 7.8 at the
time that the test had been administered. N.T. 4/21/15 at 146-
47; N.T. 4/23/15 at 36. In addition, during this time frame (i.e.
between 10:00 AM and 11:00 AM), Dr. Daniels performed a
bedside sonogram that revealed the presence of extraneous fluid
in Seels-Davila’s abdomen, which Dr. Daniels suspected was
blood. N.T. 4/21/15 at 140; N.T. 4/22/15 at 23; N.T. 4/23/15 at
37. Accordingly, Dr. Daniels made the decision to bring Seels-
Davila back to the operating room for an exploratory
laparotomy, in order to determine the exact cause of Seels-
Davila’s distress. N.T. 4/23/15 at 38.

Dr. Daniels reviewed Seels-Davila’s admission paperwork
prior to surgery, noting that, as mentioned supra, Seels-Davila
had authorized the use of a cell saver machine. Dr. Daniels
discussed this with her patient while trying, unsuccessfully, to
convince Seels-Davila that she should consent to a blood
transfusion. However, according to Dr. Daniels, Seels-Davila
“was adamant about not receiving blood and was instead given
one liter of albumin” before her transfer to surgery. N.T. 4/21/15
at 159-61; see also N.T. 4/22/15 at 30 (Dr. Daniels testified that
Seels-Davila “said that she was a minister in the faith i.e.
Jehovah’s Witnesses and that she was okay with whatever
happened.”); N.T. 4/27/15 at 7-10 (Nurse Flanagan testifying
that, while enroute to the operating room, she unsuccessfully
attempted to get Seels-Davila to authorize the use of blood

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transfusions if such treatment was deemed necessary). At
approximately 11:00 AM, Dr. Daniels called the operating room
and informed the staff that she would need a cell saver machine
for use during the laparotomy. N.T. 4/21/15 at 159-60. This was
an essential step, as cell savers are normally not used in
emergency surgical procedures and require additional time to
set-up. Id. at 73-75. These machines can only be fully operated
by a perfusionist, who is called in from offsite and usually takes
around 30 minutes to arrive at the hospital. Id.; cf. Amron
Deposition at 66 (stating that Hahnemann contracts with “an
outside service that just about every hospital in the city uses as
their source for perfusionists ... Probably 80 percent of the
hospitals in the city are using the same company so--it may be
70 percent but it’s largely one company.”)

Nurse Wayne Rivers brought the cell saver to the operating
room, connected a suction catheter to the machine, put in
anticoagulants, “and did whatever else was necessary to set the
cell saver up.” N.T. 4/21/15 at 148-49. The emergency
laparotomy procedure began at 11:33 AM and the cell saver
machine was switched on and began collecting Seels-Davila’s
blood. At approximately 12:00 PM, the perfusionist joined Dr.
Daniels in the operating room and began essentially cleaning the
blood for re-infusion into the patient. N.T. 4/21/15 at 148-51,
156-57, 161.

During the exploratory laparotomy surgery, Dr. Daniels
discovered that Seels-Davila was bleeding internally, and used
the cell saver in an attempt to salvage the approximately 2,500
to 3,000 CCs of blood [that] had pooled in her abdomen. This
effort was complicated by the fact that a good portion had
already become clotted. N.T. 4/21/15 at 145; N.T. 4/22/15 at
36-37; N.T. 4/23/15 at 38. According to Dr. Daniels, Dr. Morant-
Wade was “continuously trying to break up the clots to suction
the blood to put it into the cell saver filtration canister,” which
was “a difficult thing to do because it’s almost like suctioning
Jell-0 through ... a suction tube.” N.T. 4/22/15 at 36. As a result
of these efforts, the cell-saver machine was able to process
approximately 1800 CCs of this pooled blood and, after being
filtered and processed, 626 CCs were ultimately transfused to
Seels-Davila in the form of packed red blood cells. N.T. 4/23/15
at 118, 126-27.

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While it was clear that Seels-Davila was bleeding
internally, the source of the bleeding was not readily apparent.
Dr. Daniels had no choice but to extend the incision by cutting
upward, in an “upside-down T fashion,” to get a better visual of
the uterus. N.T. 4/21/15 at 144. After properly doing so, Dr.
Daniels discovered that Seels-Davila had an extremely rare
uterine anomaly, in which her uterus had a small extra horn or
“nub” on its side, outside of where her child had been gestating.
Id. This additional horn exhibited a two centimeter-long cut,
which was apparently the source of Seels-Davila’s internal
bleeding. Id. at 144-45, 161. The manner in which this cut had
occurred was never fully resolved by the physicians or the
evidence offered at trial. Whether Dr. Green was negligent in the
performance of the C-section by cutting this uterine horn was
one of the key issues before the jury.

Dr. Daniels repaired the cut of Seels-Davila’s anomalous
horn, put a compression stitch on the right uterine artery (i.e.
the artery which provides the bulk of the uterine blood supply),
and tied off the uterine ovarian ligament (the other major source
of blood for the uterus) to slow down the bleeding. N.T. 4/21/15
at 144-45. Dr. Daniels also used a B-lynch compression suture,
wrapping it around Seels-Davila’s uterus in an effort “to kind of
shrink the uterus down because it wasn’t contracting on its
own.” N.T. 4/21/15 at 145; see N.T. 4/22/15 at 40-41 (Dr.
Daniels: “Because her uterus wasn’t contracting down, we gave
her medications. We gave her Hemabate and Methergine, which
both, again, make the muscles contract, and that didn’t work, so
we did a compression suture called a B-lynch suture.”). During
this surgery, Dr. Daniels also installed a “JP drain” in Seels-
Davila’s abdominal cavity, in order to permit blood and other
fluids to evacuate, and to allow for monitoring of activity within
the cavity without additional exploratory surgery. N.T. 4/21/15
at 165.

After the surgery, Seels-Davila was taken down to the
surgical intensive care unit. N.T. 4/21/15 at 165; N.T. 4/27/15
at 54. At some point between 2:00 p.m. and 4:00 p.m., Dr.
Daniels noticed that more blood was emptying from Seels-
Davila’s JP drain, and decided to take her back into the operating
room for the purpose of removing her uterus. N.T. 4/21/15 at
165. Dr. Daniels believed that the loss of so much blood had, in
effect, caused Seels-Davila’s remaining blood to be depleted of
its clotting factors, and that this additional surgery was

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necessary under the circumstances, given that Dr. Daniels was
prohibited from halting the internal bleeding through the
transfusion of fresh blood. N.T. 4/22/15 at 43-44, 49-50.
Accordingly, Dr. Daniels performed a supracervical
hysterectomy, a procedure through which the uterus is removed
while the cervix is left intact and in place within the patient’s
body. N.T. 4/21/15 at 166. Seels-Davila lost roughly 300 CCs of
blood during this surgery and, all told, lost an estimated five
liters of blood during the three surgeries. Id. at 167-68. The
blood that was processed through the cell saver and returned to
her did not help with her clotting issues, however, as the
filtration process strips away any platelets or other components
that would assist with coagulation. See N.T. 4/23/15 at 127.

Certain that Seels-Davila’s very survival hinged on the
ability to give her blood transfusions, Hahnemann doctors then
sought in vain to get authorization from her family members to
do such a procedure, despite Seels-Davila’s firm and repeated
opposition to blood transfusions because of her faith. Dr. Daniels
repeatedly asked Seels-Davila’s parents over the following two
days to override their daughter’s advance directive but, each
time the topic was broached, they rebuffed Dr. Daniels’
entreaties. N.T. 4/22/15 at 43-49; N.T. 4/28/15 at 26. Out of
desperation, Dr. Owen Montgomery, chairman of Hahnemann’s
OB/GYN department, called [Seels] at 4:00 AM on Saturday,
November 27, 2010, telling him that: “I know and I respect your
daughter’s wishes. And I understand the family’s wishes. And
I’m calling you not as her doctor, but as a father. I have three
daughters ... I’m calling you father to father. And ... I respect
your wishes. But. .. if there is ever going to be a time that your
family changes their minds, it has to be now.” N.T. 4/28/15 at
25. Though Dr. Montgomery “wasn’t even sure at that point
whether just giving the ... transfusion would actually reverse the
damage ... he was pretty sure it would still save Seels-Davila’s
life ... and very sure that if Hahnemann doctors didn’t give her
blood, that she would die.” Id. at 25-26. This plea did not
change the resolve of Seels-Davila’s parents, who, according to
Dr. Daniels, told her “that it was God’s will, they stood strong in
their faith i.e. that of the Jehovah’s Witnesses, and on behalf of
their daughter declined any blood products.” N.T. 4/22/15 at 48.
Later that day, Dr. Daniels and Dr. Montgomery contacted Levi
Davila-Rios, Seels-Davila’s husband, who was still involved in
missionary work in Nicaragua, to see if he would authorize a
blood transfusion for his wife. Id. at 52. In addition they

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attempted to secure an emergency visa for him, so that he could
be with Seels-Davila. Id. at 53. Despite these efforts, Mr. Davila-
Rios also declined to assent to the transfusion, saying that he did
not want to go against his wife’s wishes or submit her to medical
treatment that violated her religious beliefs. Id.; N.T. 4/24/15 at
73, 77-78.

Seels-Davila’s condition continued to deteriorate and, on
the morning of November 28, 2010, she passed away, in spite of
her doctors’ uniform belief that a blood transfusion would have
almost certainly saved her life. Id. at 45, 53-56 (testimony from
Dr. Daniels; N.T. 4/24/15 at 21-24 (Appellant stating that
Hahnemann personnel told him that Seels-Davila needed a blood
transfusion); id. at 30-31 (noting date of death); N.T. 4/28/15 at
26 (testimony from Dr. Montgomery). Critically important in
this case is that even Appellant’s own expert, Dr. Prince
testified that that a blood transfusion would have likely
saved Seels-Davila from her ultimate fate. See N.T. 4/23/15
at 117 (Drexel’s Attorney: “If Ms. Seels-Davila received a blood
transfusion, do you believe she would have survived?” Dr.
Prince: “More likely than not, yes, she probably would have
survived.”).

Trial Court Opinion, 6/14/16, at 2-14 (footnotes and internal brackets

omitted) (emphases in original).

On September 6, 2012, Appellant filed a medical malpractice suit

against Appellees and included claims of vicarious liability, corporate

negligence, negligent infliction of emotional distress, wrongful death, and

survival. Appellant filed an Amended Complaint on October 19, 2012, and

Appellees responded by filing preliminary objections. On December 20,

2012, the trial court sustained in part and overruled in part Appellees’

Preliminary objections. The trial court struck, without prejudice, Appellant’s

claims of negligence against unnamed agents, servants, employees,

contractors, workmen, and apparent or ostensible agents and other

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language deemed overly broad in Appellant’s Amended Complaint at

paragraphs 8, 24, 34, 62, 63, 66, 75, 79, 80, 82, 93, and 95. Order

(Drexel), 12/20/12; Order (Hahnemann), 12/20/12. Despite the trial court

striking these claims without prejudice, Appellant did not file a second

amended complaint.

A jury trial began on April 21, 2015, and on April 30, 2015, the jury

returned a verdict in favor of Appellees. The jury found that the conduct of

Dr. Green and Dr. Daniels did not fall below the applicable standard of care.

N.T. 4/30/15 at 5-6. Thus, there was no negligence which could stand as

the basis for Appellant’s ancillary claims, including vicarious liability.

Accordingly, the trial court entered a verdict in favor of Appellees. Appellant

filed post-trial motions, and the trial court denied the motions on May 13,

2015. Appellant filed a notice of appeal on June 5, 2015.

On June 26, 2015, Appellant filed a twenty-two-page Pa.R.A.P.

1925(b) statement containing nineteen issues with subparts. 2 Appellees

____________________________________________

2
On July 20, 2015, this Court informed Appellant that he had improperly
appealed from the order denying his post-trial motions, and that an appeal
lies only from judgment entered subsequent to the trial court’s disposition of
post-trial motions. Order, 7/20/15 (citing Pa.R.A.P. 301; Vance v. 46 And
2, Inc., 920 A.2d 202 (Pa. Super. 2006); and Melani v. Northwest
Engineering, Inc., 909 A.2d 404 (Pa. Super. 2006)). This Court directed
Appellant to praecipe the trial court Prothonotary to enter judgment on the
verdict in favor Appellees and file with the Prothonotary of this Court a
certified copy of the trial court docket reflecting the entry of the judgment.
Id. On July 28, 2015, Appellant complied with this Court’s directive and
certified that on July 22, 2015, judgment was entered on the verdict.
(Footnote Continued Next Page)

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filed a motion to dismiss this appeal due to the length, format, bad faith,

and the sheer number of issues Appellant purported to raise in his Pa.R.A.P.

1925(b) statement. Motion, 7/12/16. This Court denied that motion on

August 16, 2016. Despite Appellant’s verbose and repetitive Pa.R.A.P.

1925(b) statement, we conclude that each of the questions presented in

Appellant’s brief was preserved in the issues set forth in the Pa.R.A.P.

1925(b) statement or were fairly suggested thereby. Thus, we also decline

the trial court’s suggestion that this Court quash the appeal due to the

Pa.R.A.P. 1925(b) statement being “incomprehensible.” Trial Court Opinion,

6/14/16, at 22.3

In his brief on appeal, Appellant reduced the number of issues as

follows:

I. Whether the trial court wrongfully precluded an expert witness
from testifying?

II. Whether the trial court erred as a matter of law and abused
its discretion and committed reversible error in excluding
Appellant’s claims of corporate negligence against Appellees.

III. Whether the trial court erred in permitting the admission of
the consents for treatment into evidence in a medical
malpractice trial at the time of trial which was an error of law.

_______________________
(Footnote Continued)

Response to Order, 7/28/15. Thus, this appeal is now properly before this
Court.
3
We note also that the trial court diligently analyzed Appellant’s garrulous
Pa.R.A.P. 1925(b) statement in an effort to address the myriad issues
presented.

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IV. Whether the trial court erred and abused its discretion and
committed reversible error in the jury slip?

Appellant’s Brief at 6 (full capitalization omitted).4

In Appellant’s first issue on appeal, he alleges that the trial court erred

in precluding the testimony of a proffered expert witness. “Whether a

witness has been properly qualified to give expert witness testimony is

vested in the discretion of the trial court.” Kovalev v. Sowell, 839 A.2d

359, 362-363 (Pa. Super. 2003) (citation omitted). “It is well settled in

Pennsylvania that the standard for qualification of an expert witness is a

liberal one. When determining whether a witness is qualified as an expert

the court is to examine whether the witness has any reasonable pretension

to specialized knowledge on the subject under investigation.” Id. (citations

omitted).

The determination of whether a witness is a qualified expert
involves two inquiries:

When a witness is offered as an expert, the first
question the trial court should ask is whether the
subject on which the witness will express an opinion
is so distinctly related to some science, profession,
business or occupation as to be beyond the ken of
the average layman. ... If the subject is of this sort,
the next question the court should ask is whether
the witness has sufficient skill, knowledge, or
experience in that field or calling as to make it
appear that his opinion or inference will probably aid
the trier in his search for truth.

____________________________________________

4
For purposes of our discussion, we have renumbered Appellant’s issues.

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J-A06045-17

Sowell, 839 A.2d at 363 (citations and quotation marks omitted).

The trial court denied Appellant’s attempt to have Dr. Ronald Paynter,

M.D., testify as an expert to support the claim that Hahnemann had

committed corporate negligence by failing to properly operate, staff, and

maintain its bloodless medicine program. N.T., 4/20/15, at 68-90. The trial

court concluded that Dr. Paynter’s expert report was misleading because the

bloodless medicine program was an administrative program, and there was

no evidence that Dr. Paynter was an expert or had any experience in

bloodless medicine. Trial Court Opinion, 6/14/16, at 15. Thus, there was no

evidence that Dr. Paynter had any specialized knowledge on the subject of

this type of administrative program, and his testimony would only confuse

the jury. Id. The trial court stated:

this [c]ourt disqualified Dr. Paynter because his report
mischaracterized the nature of bloodless medicine, as well as the
role of the bloodless medicine program itself in handling
Hahnemann patients, and because Dr. Paynter had provided
nothing whatsoever to show that he had any experience or
specific knowledge as to how such “programs” are supposed to
be run. As was borne out throughout the trial, from physician
witnesses, and experts on both sides, there is no specialized
medical training that doctors ever receive in “bloodless
medicine.” Dr. Paynter completely mischaracterized the
function of the clerks who staffed the Bloodless Medicine
Program at Hahnemann.

Id.

The trial court further explained its decision as follows:

In the instant matter, it was abundantly clear that Dr.
Paynter had no specialized knowledge regarding bloodless
medicine programs, or even an accurate grasp of what

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J-A06045-17

“bloodless medicine” actually entailed. Consequently, allowing
him to testify would have misled the jury and had an unfairly
prejudicial impact on Hahnemann’s defense. In his report, Dr.
Paynter identified himself as “an expert in the administrative
standards applicable to hospitals in the United States, including
Hahnemann,” and stated that it was his opinion that Hahnemann
had not “provided a bloodless medicine program despite holding
itself out as a hospital that offered such a program” by failing to
provide “specific training in the methods required to deal with
bloodless medicine patients.” Paynter Expert Report at 1, 3. He
then followed this by listing twenty-one separate “hospital
accreditation standards,” each of which were accompanied by a
vague, single-sentence description, opining “that Hahnemann
failed to comply with the above standards,” without ever
explaining specifically how they were violated. Id. at 5. Dr.
Paynter then closed with a general, catchall paragraph in which
he stated that he believed, “with a reasonable degree of medical
certainty,” that Hahnemann

willfully and negligently failed to provide executive
and management oversight, supervision, education,
competency-based training, planning sufficient staff,
resources, policies and an effective performance
improvement/quality assurance program to its
patients and staff. The hospital administration and/or
governing boards knew or should have known that
failure to ensure the provision of executive and
management oversight, supervision, education,
competency based training, sufficient staff,
resources, policies, and ·an effective quality
assurance program to the Center would endanger
patients and likely result in injuries and death to
patients such as Ms. Seels-Davila. These deviations
did result in her injuries and death.

Id. at 6-12. Distinctly absent from these materials was anything
suggesting that Dr. Paytner had any specific experience in
creating, operating, or supervising a bloodless medicine program
at an administrative level, that he had specific knowledge
about cell saver machines or autologous blood transfusions, or
that he knew or understood what specific types of bloodless
medicine “training” would have satisfied the applicable standard
of care under the circumstances. Id. at 1-12; see N.T. 4/20/15
at 70,52 80-92 (discussing this [c]ourt’s reasoning).

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J-A06045-17

52
This [c]ourt: “Dr. Paynter basically just recites
the history as he reads the records, and just says,
‘this is clear that they violated all kinds of standards.’
But he doesn’t ever say specifically what standards
should be in this practice, this discreet and
specialized practice, of bloodless medicine, whether
it’s transfusion or cell savers or perfusionists. He
never says that. He just said Seels-Davila died and
therefore, the Hahnemann staff ... did everything
wrong.”

Moreover, Dr. Paynter’s depiction of “bloodless medicine”
grossly mischaracterized the nature of the concept itself, and
would have given the jury a starkly inaccurate understanding of
what it actually entails. As described by Dr. Paynter in his report,
“bloodless medicine” is purportedly a distinct field, for which
medical personnel need to receive specialized training in order to
provide competent, effective care. See Paynter Expert Report at
2-3. In reality, however, “bloodless medicine” requires nothing
of the sort. Rather, as the testimony at trial clearly revealed,
even by [Appellant’s] own expert, all doctors always try to
minimize surgical blood loss and can, and do, capably treat
patients who refuse, for one reason or another, to allow the use
of various blood products during the course of their treatment,
without needing to have some sort of formalized expertise.
There are no specific medical courses or training in “bloodless
medicine” as such knowledge in this area is part and parcel to,
and integrated, into the overall general medical training. See
N.T. 4/21/15 at 66, 94-95 (testimony from Dr. Green);54 N.T.
4/22/15 at 8-9 (testimony from Dr. Daniels);55 Appellant’s
Motion in Limine to Exclude in Part the Appellees’ Expert
Testimony of Arnold W. Cohen, M.D., Ex.Cat 4-6 (“Cohen MIL”)
(Frank expert report). 56 Indeed, even Dr. Prince, Appellant’s
own expert, admitted that not only had he himself never been
specially trained in bloodless medicine, and that such training did
not actually exist. N.T. 4/23/15 at 56-57.
54
Appellant’s Attorney: “Is it fair to say, ma’am,
that during your medical education, you had no
specific education in bloodless medicine?” Dr.
Green: “The education is on the job education, as
[with] many aspects of our training.” ... Appellant’s
Attorney: “Now, the bloodless medicine program as

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J-A06045-17

you understood it, is it fair to say that if you knew a
patient was in the bloodless program, that the
doctors and the medical team had to be careful to
prevent the loss of blood?” Dr. Green: “We are
careful with the prevention of loss of blood with
every patient.” Appellant’s Attorney: “And that’s
fair to say.” Dr. Green: “With every patient, yes.”
Appellant’s Attorney: “But for a person who has
sought out bloodless medicine, would there have
been a heightened recognition of blood loss by you?”
Dr. Green: “I treat every surgery as a heightened.
Blood loss is important and I’m a surgeon, so every
case I treat the same. Blood loss is at the top of the
list particularly for delivery, for any form of delivery.”
Appellant’s Attorney: “Is it also fair to say that
you would have been warned or notified of her blood
loss status because of a band that she would have
worn?” Dr. Green: “That’s one of the identifiers. It’s
very similar to an allergy band for other staff
members. But again, we were already taken care of
her, so this is something we already knew about.”
Appellant’s Attorney: “Is it also fair to say that on
a patient who has a bloodless medicine designation,
that it should be the most skilled person in the
surgical practice who performs the surgery on her?”
Dr. Green: “What is that based on?” Appellant’s
Attorney: “I’m asking you is that your
understanding or was that your understanding
then?” Dr. Green: “The surgery is performed the
same way. There is no different way to do a C-
section for a bloodless patient, for a Jehovah’s
Witness, than someone that does accept blood. We
have techniques. We are meticulous with every
surgery. There is no different technique because she
is Jehovah’s Witness. There is no special way to do a
C-section on a Jehovah’s Witness.”
55
Dr. Daniels: “So while I was at Drexel, I was a
clinical assistant-your first year at Drexel, you’re a
clinical assistant. You pass your boards. I passed my
boards my first year. You then become an assistant
professor. I was also in charge of the medical
students for 2007 until January of 2010. I was also-I
ran the fourth-year clerkship pathway. So medical

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J-A06045-17

students who were interested in OB/GYN, went into
this OB/GYN pathway which I also ran. And I was
also in charge of what we call the physician refresher
programs. The physicians who were in the field of
obstetrics and gynecology, who had been out of
practice for a while, who were trying to get back into
practice, had a way to learn-to make sure their skills
were up-to-date and to learn new evidence and to
work on their skills.” Appellees’ Attorney: “Do you
know of any specialized training for the care of
bloodless medicine patients?” Dr. Daniels: “No.”
Appellees’ Attorney: “Did Appellant’s Attorney ever
bring to your attention during her examination of
you here or in the deposition, any training or
specialized training which exists anywhere for care of
bloodless medicine patients?” Dr. Daniels: “No.”
56
“The standard of care for treating obstetric
patients who do not accept allogenic blood
transfusions is the same as the population at large.
Entry into a bloodless program does not change the
standard of care ... Dr. Paynter opines that the
physicians and nurses in this case did not have any
formal training in the care of Bloodless Medicine
patients. The primary reason for this “lack” of
training is that no such formal training exists. I am
unaware of such a training program even in the most
comprehensive academic medical centers.”

Dr. Paynter’s obviously confused and mischaracterized an
administrative function staffed by individuals without medical
training, who are tasked with assisting patients in understanding
the ramifications and risks of refusing blood transfusions,
offering them alternatives to blood transfusions, and ensuring
that medical staff are made aware that a particular patient is a
“bloodless patient” - one who does not accept blood
transfusions. See Cohen MIL, Ex. C at 4 (Frank expert report);58
see also N.T. 4/20/15 at 84-85.59
58
“The focus of a Bloodless Medicine program is to
help Jehovah’s Witness patients with their advanced
directives form, which can be confusing since the
patient is given choices of which blood products and
blood derivatives they are willing to accept. The

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J-A06045-17

advanced directive form is usually filled out by the
patient, with guidance from a program coordinator,
who is often a Jehovah’s Witness themselves, with
no formal medical training, but rather on the job
training attained by working in the hospital. Most
Bloodless Medicine programs operate in this fashion,
as did Hahnemann’s ... program.”
59
This [c]ourt: “I have determined in this case is
when they say bloodless medicine, it is [sic] truly
refers to an administrative program ... The bloodless
medicine program is a group of people who work
with individuals to explain their options and what
they can and can’t do ... I don’t believe Dr. Paynter
has presented any ... specialized knowledge on the
subject of this type of administrative program. So I
think that you can see that when he does it in his
report. He is referring to medical issues, not
administrative issues. So I do believe it would
confuse the jury.”

The issues in this case were whether Appellees’ doctors
were negligent in the performance of the C-section and in their
care and treatment of Seels-Davila afterwards, not whether a
clerk at the bloodless medicine program deviated from a
standard of care. Accordingly, as Dr. Paynter neither established
that he had any level of specialized experience regarding
bloodless medicine related administrative programs, nor had an
accurate grasp of what constitutes “bloodless medicine,” this
[c]ourt properly refused to qualify him as an expert in that
subject, and correctly prevented him from testifying in support
of Appellant’s corporate negligence claim against Hahnemann.

Trial Court Opinion, 6/14/16, at 26-29 (some footnotes omitted) (sic erat

scriptum notation omitted) (emphases in original).

After review, we discern no abuse of discretion by the trial court in

refusing to qualify Dr. Paynter to testify as an expert. Dr. Paynter appears

to conflate the medical objective of minimizing blood loss during surgery

with a “bloodless medicine” program, which, as presented is primarily

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J-A06045-17

administrative. Dr. Paynter failed to establish that he had any specialized

skill, knowledge, or experience in the area of bloodless medicine that would

have aided the jury in the search for truth. Sowell, 839 A.2d at 363.

Rather, we agree with the trial court that Dr. Paynter’s proposed testimony

would have only served to confuse the jury. Therefore, we conclude that

Appellant is entitled to no relief on this claim of error.

Second, Appellant argues that the trial court erred in excluding

Appellant’s claims of corporate negligence and granting Appellees’ motion for

nonsuit. Our standard of review of an order granting compulsory nonsuit is

as follows:

A motion for compulsory non-suit allows a defendant to test the
sufficiency of a plaintiff’s evidence and may be entered only in
cases where it is clear that the plaintiff has not established a
cause of action; in making this determination, the plaintiff must
be given the benefit of all reasonable inferences arising from the
evidence. When so viewed, a non-suit is properly entered if the
plaintiff has not introduced sufficient evidence to establish the
necessary elements to maintain a cause of action; it is the duty
of the trial court to make this determination prior to the
submission of the case to the jury.

Reading Radio, Inc. v. Fink, 833 A.2d 199, 209-210 (Pa. Super. 2003)

(citation omitted).

“Pennsylvania recognizes the doctrine of corporate negligence as a

basis for hospital liability separate from the liability of the practitioners who

actually have rendered medical care to a patient.” Rauch v. Mike-Mayer,

783 A.2d 815, 826 (Pa. Super. 2001) (citation omitted). The doctrine of

corporate negligence imposes a non-delegable duty on the hospital to uphold

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J-A06045-17

a proper standard of care to patients. Id. A hospital is directly liable under

the doctrine of corporate negligence if it fails to uphold any one of the

following four 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.

Id. at 826-827 (quoting Thompson v. Nason Hospital, 591 A.2d 703,

707-708 (Pa. 1991)). In order to establish a prima facie case of corporate

negligence, a plaintiff must demonstrate:

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.

Id. at 827 (citation omitted). “Unless a hospital’s negligence is obvious, an

expert witness is required to establish two of the three prongs: that the

hospital deviated from the standard of care and that the deviation was a

substantial factor in bringing about the harm.” Id. (citation omitted).

As discussed above, Appellant failed to produce an expert competent

to testify regarding Appellees’ bloodless medicine policies or the applicable

standard of care. As such, we agree with the trial court’s conclusion to grant

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J-A06045-17

Appellees’ motion for nonsuit as Appellant failed to provide the required

support for a claim of corporate negligence. Reading Radio, Inc., 833

A.2d at 209-210; Rauch, 783 A.2d at 827. Accordingly, no relief is due.

Next, Appellant avers that the trial court erred in denying his motion in

limine in which he sought to preclude the admission of the consent-for-

treatment evidence. We disagree.

A motion in limine is a pretrial mechanism to obtain a ruling on the

admissibility of evidence, and it gives the trial judge the opportunity to

weigh potentially prejudicial and harmful evidence before the trial occurs,

preventing the evidence from ever reaching the jury. Parr v. Ford Motor

Co., 109 A.3d 682, 690 (Pa. Super. 2014) (citation omitted). “A trial court’s

decision to grant or deny a motion in limine is subject to an evidentiary

abuse of discretion standard of review.” Id. at 690-691 (citation and

quotation marks omitted).

Questions concerning the admissibility of evidence lie within the
sound discretion of the trial court, and we will not reverse the
court’s decision absent a clear abuse of discretion. An abuse of
discretion may not be found merely because an appellate court
might have reached a different conclusion, but requires a
manifest unreasonableness, or partiality, prejudice, bias, or ill-
will, or such lack of support so as to be clearly erroneous.

Id. (internal citations omitted). “In addition, to constitute reversible error,

an evidentiary ruling must not only be erroneous, but also harmful or

prejudicial to the complaining party.” Id. (internal citations and quotation

marks omitted). Evidence is relevant if it has “any tendency to make a fact

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J-A06045-17

of consequence more or less probable than it would be without the

evidence.” Brady v. Urbas, 111 A.3d 1155, 1161 (Pa. 2015) (quoting

Pa.R.E. 401). “Evidence about the risks of surgical procedures, in the form

of either testimony or a list of such risks as they appear on an informed-

consent sheet, may also be relevant in establishing the standard of care.”

Brady, 111 A.3d at 1161-1162 (Pa. 2015) (citation omitted). In this regard,

we note that the threshold for relevance is low due to the liberal “any

tendency” prerequisite. Id. at 1162.

The trial court thoroughly addressed this issue:

Generally, with regard to medical consent and release
forms, in situations where a plaintiff “only asserts negligence,
and not lack of informed consent, evidence that a patient agreed
to go forward with the operation in spite of the risks of which she
was informed is irrelevant and should be excluded.” Brady v.
Urbas, 111 A.3d 1155, 1162-63 (Pa. 2015). This is because
“there is no assumption-of-the-risk defense available to a
defendant physician which would vitiate his duty to provide
treatment according to the ordinary standard of care and, thus,
a patient’s actual, affirmative consent ... is irrelevant to the
question of negligence.” Id. at 1162. However, this legal
precedent has never established a per se blanket prohibition
against the admission of consent and release forms at trial.
Indeed, the Pennsylvania Supreme Court has noted that such
“information may be relevant to the question of negligence if, for
example, the standard of care requires that the doctor discuss
certain risks with the patient. Evidence about the risks of
surgical procedures, in the form of either testimony or a list of
such risks as they appear on an informed-consent sheet, may
also be relevant in establishing the standard of care.” Id. at
1161-62.61 As such, “not all aspects of informed-consent
information are always irrelevant in a medical malpractice case.”
Id. at 1162 (citation and quotation marks omitted).
61
In dicta, the Pennsylvania Supreme Court noted
that other courts have found that proof of consent

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J-A06045-17

could be relevant and admissible where a patient has
agreed to submit “to ‘an experimental medical
procedure where the standards of care have not yet
been fully developed or consents to treatment
modalities known to be outside of the medical
mainstream,’” or where the patient has “expressly
consented to any particular risks associated with the
unconventional or experimental treatment.” Brady,
111 A.3d at 1162 n. 7 (citing and quoting Storm v.
NSL Rockland Place. LLC, 898 A.2d 874, 884 (Del.
Super. Ct. 2005) and Schneider v. Revici, 817 F.2d
987, 995-96 (2d Cir. 1987)).

This [c]ourt determined that the unique circumstances of
this matter rendered Seels-Davila’s consent and release forms
absolutely relevant and essential to the truth seeking function of
a jury trial. It would have been manifestly unjust and improper
to not allow them into evidence. Indeed, rather than allowing for
misconceptions to arise about Seels-Davila “consenting” to
substandard medical care at Hahnemann, the consents and
releases made clear that Seels-Davila, of her own free will,
consistently refused to accept safe, effective, routine, and life-
saving medical treatment when she barred her doctors from
administering blood transfusions, and even refused to collect and
store her own blood in the event an emergency arose. There was
not a shred of doubt that Seels-Davila fully understood the life-
threatening ramifications of her decision to be a “bloodless”
patient, and that she specifically agreed to hold the doctors
harmless for any negative outcomes of her decision. See
Consent MIL, Exs. A-E; see also N.T. 4/21/15 at 69-72
(testimony from Dr. Green); N.T. 4/22/15 at 45-46 (testimony
from Dr. Daniels); N.T. 4/23/15 at 114-17 (testimony from Dr.
Prince); N.T. 4/27/15 at 93-97 (testimony from Dr. Musselman);
N.T. 4/28/15 at 35-36 (testimony from Dr. Montgomery). For
these reasons, this Court properly allowed into evidence Seels-
Davila’s signed consent and release forms and testimony
regarding the circumstances surrounding these executed forms.

Trial Court Opinion, 6/14/16, at 33-34.

We agree with the trial court’s analysis, and we discern no abuse of

discretion in its ruling on the admissibility of the consent forms. The consent

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J-A06045-17

forms were not admitted merely to show that Seels-Davila understood the

risks of treatment yet elected to proceed; rather, the consents were

admitted to prove that Seels-Davila knowingly refused treatments that

would have saved her life. Accordingly, Appellant is due no relief on this

issue.

Finally, Appellant argues that the trial court erred in the language

utilized on the jury verdict slip because it did not permit the jury to consider

whether “other” unnamed hospital staff members or agents were negligent.

Appellant’s Brief at 37. This argument is meritless, and it fails to

acknowledge or address a pretrial ruling striking allegations in Appellant’s

complaint.

At the outset, we note that when we examine a trial court’s

instructions to the jury, we review the instructions to determine whether the

trial court committed an abuse of discretion or error of law controlling the

outcome of the case. Bannar v. Miller, 701 A.2d 232, 240 (Pa. Super.

1997) (citation omitted).5

Error in a charge is sufficient ground for a new trial, if the charge
as a whole is inadequate or not clear or has a tendency to
mislead of confuse rather than clarify a material issue. A charge
will be found adequate unless the issues are not made clear to
the jury or the jury was palpably misled by what the trial judge
said or unless there is an omission in the charge which amounts
____________________________________________

5
While Appellant in the case at bar presents a challenge to the verdict sheet
as opposed to the oral instructions to the jury, in Bannar, this Court
addressed those issues together and under the same standard.

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J-A06045-17

to fundamental error. When reviewing a charge to the jury, we
will not take the challenged words or passage out of context of
the whole of the charge, but must look to the charge in its
entirety.

Id. (internal citations and quotation marks omitted).

The trial court addressed this issue as follows:

Appellant next asserts that this [c]ourt erred:

[w]hen it included the names of Dr. Minda Green and
Dr. Kelli Daniels on the verdict sheet, who were not
named as Defendants to this action ... and erred ...
and abused its discretion in failing to also include the
names and positions of other staff and agents of
Appellees caring for Seels-Davila on the specific
verdict sheet other than Dr. Minda Green and Dr.
Kelli Daniels and failing to instruct on the correct
parties ... The named parties on the verdict sheet
were not the parties named to the lawsuit and other
named and unnamed individuals were not included
on the verdict sheet ... The jury verdict form was
defective in that it did not include other staff and
agents working at Hahnemann Hospital caring for
Seels-Davila during the relevant time such as
nursing staff, other professionals, and residents who
committed negligence.[6]

Appellant’s line of argument is absurd on its face, given
that he asserted in his own Amended Complaint that Appellees
were vicariously liable for Drs. Daniels’ and Green’s allegedly
negligent acts, and Appellant’s counsel used Dr. Prince’s
testimony to suggest that these two doctors gave Seels-Davila
substandard treatment. See Amended Complaint at 7, 14; N.T.
4/23/15 at 34-55, 57-144 (testimony from Dr. Prince regarding
treat[ment] provided by Drs. Daniels and Green to Seels-Davila).
Furthermore, the verdict sheet’s plain language that Drs. Daniels
and Green were being referred to therein as Appellees’ agents
or employees, rather than as direct defendants. See id.62
____________________________________________

6
Appellant’s Pa.R.A.P. 1925(b) statement, 6/26/16, at 9-10.

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J-A06045-17

62
“Question 1 Do you find that the conduct of either
Dr. Minda Green or Dr. Kelli Daniels acting as agents
of the Appellees ... fell below the applicable standard
of care? ... Question 3 If you answered “YES” to
Question 1, was the negligence of Dr. Minda Green
and/or Dr. Kelli Daniels, as agents or employees of
Appellees ... the factual cause of Appellant’s
damages?”

Additionally, Appellant’s counsel fails to identify, in
anything more than vague terms, any other agents or employees
for whom Appellees were vicariously liable who should have been
named on the verdict sheet. See Statement of Errors at 9-10.
The only evidence of possible negligence presented by Appellant
pertained to the actions of Doctors Green and Daniels. Assuming
arguendo that this allegation of error referred to the Hahnemann
PACU staff, see N.T. 4/28/15 at 47, 111-12, this argument is still
without merit. First, as noted supra, Judge Panepinto struck “all
of Appellant’s allegations of negligence against unnamed agents,
servants, workmen, employees, contractors and/or apparent of
ostensible agents of Hahnemann,” without prejudice on
December 20, 2012. See Panepinto Order, 12/20/12 #1 at 1. At
no point thereafter did Appellant’s counsel address this ruling by
filing a more specific Second Amended Complaint on behalf of
her client. Therefore, with regard to Hahnemann, the only
employees or agents for which that entity could have been
deemed vicariously liable were those specifically named in
Appellant’s Amended Complaint, a group which obviously did not
include the unidentified members of the PACU staff.63 Moreover,
despite Appellant’s counsel claim that her client was prejudiced
by the “error”, counsel has failed to offer a scintilla of evidence,
or explanation, as to the nature of the prejudice.
63
It would have been erroneous for Judge Panepinto
to strike these allegations with prejudice, as
vicarious liability can attach even where “employees
are unnamed within a complaint or referred to as a
unit, i.e., the staff.” Sokolsky v. Eidelman, 93 A.3d
858, 866 (Pa. Super. Ct. 2014). However, by
dismissing said allegations without prejudice, Judge
Panepinto offered Appellant’s counsel a chance to
revise the allegations contained in her client’s
Amended Complaint, in order to more specifically

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J-A06045-17

link these unnamed agents and employees to
allegedly tortious acts. She, of course, did not avail
herself of this opportunity.

Trial Court Opinion, 6/14/16, at 35-36 (emphases in original) (sic erat

scriptum notations omitted). We agree with the trial court’s conclusions,

and we conclude that Appellant is entitled to no relief on this issue.

After review, we discern no errors of law or abuses of discretion

committed by the trial court. Accordingly, we affirm the July 22, 2015

judgment entered in favor of Appellees.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/18/2017

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