Freed v. Geisinger Medical Center

Chief Justice CASTILLE,

concurring.

I join Madame Justice Todd’s Opinion on Reargument. I write separately largely to address certain cogent points raised by Mr. Justice Saylor in his dissent, concerning the propriety of revisiting precedent sua sponte, propositions that the Majority does not address.

Preliminarily, I note that I voted to grant reargument here because I believed that the parties should have an opportunity to provide directed advocacy on the controlling question of the continued viability of Flanagan v. Labe, 547 Pa. 254, 690 A.2d 183 (1997), a question not specifically raised by appellee or briefed by the parties in the initial discretionary appeal. See Pridgen v. Parker Hannifin Corp., 591 Pa. 305, 916 A.2d 619, 621 (2007) (explaining grant of reargument where original decision encompassed matters not initially accepted for review: “it is best for the parties to an appeal to be afforded the opportunity to make a direct presentation to an appellate court concerning issues that will be addressed in the appeal proceedings”); Coady v. Vaughn, 564 Pa. 604, 770 A.2d 287, *235294 (2001) (Castille, J., concurring) (we should “not indulge the conceit that, -without adversarial presentations, it is possible to discern any and all arguments that may be made” on a given issue). Our per curiam order granting reargument directed that “[t]he parties shall file supplemental briefs ... addressing the issue of the continued viability of [Flanagan ] as well as the question of any waiver of this issue.” Freed v. Geisinger Med. Center, 602 Pa. 207, 979 A.2d 846 (2009).

I joined the initial Majority Opinion without reservation. In approaching the distinct jurisprudential question of sua sponte consideration of precedent posed on reargument,1 and with briefing and argument directed to the relevant question, I remain of the view that the vitality of the Flanagan case — the precedent at the heart of this controversy — was fairly implicated, for the reasons that Madame Justice Todd has identified in her Opinion on Reargument. See Majority opinion, at 229-30, 5 A.3d at 215-16.2 I also concur in the Majority’s view that, on the merits, appellants have not provided persuasive reasons to alter our initial decision.

On the question of sua sponte reconsideration of precedent, I recognize that reasonable minds might disagree on the point, and Justice Saylor has well articulated the countervailing considerations. Indeed, I have expressed similar concerns myself. See Castellani v. Scranton Times, L.P., 598 Pa. 283, 956 A.2d 937, 954 (2008) (“No party has asked us to overrule our precedent, and we have no briefing on the considerations affecting stare decisis.”). Furthermore, the distinctions Justice Saylor identifies between this case and the cases cited by *236the Majority to support sua sponte adjustment of precedent are Ifegitimate distinctions. At the same time, I believe that all Justices recognize that the question of what issues are properly reachable in an appeal is a prudential matter, not an absolute, and it is not surprising that the members of the Court, reasonably and in good faith, may reach different conclusions when presented with a particular factual and legal matrix. I would hope that one salutary benefit of the full articulation of competing views in this case will be to make the Court more attuned to the governing considerations, and to the necessity of a coherent jurisprudence on the question of whether and when to raise issues and revisit precedent on our own.

I also recognize that the question of reconsideration of precedent may not be as close for me as for some other members of the Court because I have suggested a broader approach to our power to police our precedent in the past.3 See, e.g., Commonwealth v. Mitchell, 588 Pa. 19, 902 A.2d 430, 475 (2006) (Castille, J., dissenting) (collecting cases) (“There are a myriad of other circumstances where individual Justices have taken it upon themselves to suggest a need for a closer look at precedent, and particularly in capital case jurisprudence. The indisputable point, as I see it, is that there is no absolute jurisprudential bar against what I propose; indeed, there is ample precedent in favor of it. Moreover, as I have noted in another context, since the affected party is unlikely to be so bold as to squarely ask for reconsideration of apparently-controlling precedent, it oftentimes falls upon this Court, or individual Justices, to notice the issue.”); Commonwealth v. Rogers, 578 Pa. 127, 849 A.2d 1185, 1193 n. 2 (2004) (Castille, J., concurring, joined by Eakin and Baer, JJ.) (“The Majority suggests that we wait for a case where a party challenges the Johnston/Martin construct [governing canine searches] before we reconsider it. I have no objection. I write to outline the *237problem because, faced with the precedent and the effect of stare decisis, the Commonwealth is unlikely to forward such a challenge before the Court, or some of its members, acknowledge the difficulty. Indeed, in the recent past, this pragmatic consideration has led this Court to correct problematic precedents even in the absence of a request from the parties.”). Indeed, this is the reason I was convinced to join Justice Saylor’s scholarly and persuasive call for reexamination of this Court’s foundational strict liability case precedent in his dissenting opinion in Bugosh v. I. U. North America, Inc., 601 Pa. 277, 971 A.2d 1228, 1229-49 (2009) (per curiam) (Saylor, J., dissenting). Justice Saylor is correct to note the incongruity and tension between the unexplained majority determination in Bugosh and the sua sponte action here. See Saylor, J., Dissenting opinion, at 245 n. 11, 5 A.3d at 224-25 n. 11. For my part, I remain of the view that the dissent in Bugosh outlined the better course.

I also agree with Justice Saylor that the Flanagan question here is of less import than the foundational question presented in Bugosh. Although there may be cases that cry out for correction more blatantly than Flanagan (a decision I joined), I concur in our decision to overrule Flanagan because I am convinced that it was wrongly decided and has worked sufficient mischief to warrant correction by the only tribunal that can recalibrate the law in this area.

Here, we affirm the Superior Court’s holding that nurse opinion testimony regarding the cause of appellee Freed’s pressure wounds should have been admitted by the trial court. The Superior Court panel, faced with Flanagan’s prohibition against such nurse opinion testimony, articulated a distinction between the medical conditions at issue in each case. In Flanagan, the panel opined, a medical diagnosis was required (the underlying cause of complications from a collapsed lung), but in this case, “no medical diagnosis was at issue.” Freed v. Geisinger Med. Center, 910 A.2d 68, 74 n. 5 (Pa.Super.2006). The panel further concluded that, because the parties agreed on the medical diagnosis — wounds caused by unrelieved pressure on a part of the body of an immobilized patient — the nurse witness had only to testify that “breaches in the stan*238dard of nursing care were the cause of the development and/or worsening” of the wounds. Id. at 75. However, as this Court noted in our initial opinion, and contrary to the Superior Court panel’s holding, the “medical” cause of the pressure wounds was not undisputed by the parties; medical causation was at issue here just as it was in Flanagan. Freed v. Geisinger Med. Center, 601 Pa. 233, 971 A.2d 1202, 1207 n. 5 (2009). More importantly, and despite the panel’s nomenclature, it is apparent that the nurse’s testimony here was proffered to show what caused appellee’s wounds, and to provide the causal link between that injury and the nursing care provided by Geisinger. Under our common law standards for expert witness qualification, a nurse with appropriate experience could be qualified to provide “expert opinion testimony in a court of law regarding medical causation” in such circumstances. Id. at 1208. But that common law principle is in tension with Flanagan.

Resolution of the tension in this case necessarily called for a close reading of Flanagan and, in my judgment, Flanagan’s complete bar against such nurse opinion testimony, premised upon the Professional Nursing Law, was unnecessary to the decision and erroneous. In Flanagan, expert testimony was required to show the underlying cause of the plaintiffs medical condition, “progressively worsening subcutaneous emphysema,” arising from allegedly inadequate nursing care for a patient with a collapsed lung. Flanagan planned to present the testimony of a nurse as his only expert, on both the standard of nursing care and the “ultimate effect of that care.” The trial court ruled that the nurse was precluded by the Professional Nursing Law from rendering the causation testimony, and this Court ultimately agreed. 690 A.2d at 184-86.

The difficulty with Flanagan was in its reliance on the Professional Nursing Law, a statute which defines “the practice of nursing,” but does not purport to govern the admissibility of evidence in civil negligence cases. Instead, common law principles (and now also the MCARE Act, 40 P.S. §§ 1303.101-1303.910) govern admissibility of opinion testimony. See Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 664 *239A.2d 525, 528 (1995) (to be qualified to testify in given field, proffered expert witness need only possess more expertise than is within ordinary range of training, knowledge, intelligence or experience; test is whether witness has reasonable pretension to specialized knowledge on subject matter in question). The trial court has discretion to permit a witness to testify as an expert. Id. The question of whether Flanagan’s nurse witness was qualified to testify as an expert on causation should have been determined under this well-established standard; but, instead, the Court determined there that “the normal test of competency is constrained by a statutory provision limiting the deemed competency of nurses.” 690 A.2d at 185. In my view, the case sub judice has made clear that engrafting the definitions included in the Professional Nursing Law — a statute first enacted in 1951 — onto our rules of evidence concerning expert testimony was ill-advised. Thus, notwithstanding that I joined Flanagan, I am convinced that we properly overrule that decision in this case.

. In our original Freed decision, the dissenting Justices objected to the determination to overrule Flanagan on its merits, but not on the basis that we improperly did so sua sponte. 601 Pa. 233, 971 A.2d 1202, 1214-15 (2009) (Eakin, J., joined by Saylor, J., dissenting).

. I emphasize that my view of the power and propriety of a Pennsylvania appellate court revisiting precedent on its own accord is a view peculiar to this institution, the highest court in the Commonwealth, which sets judicial policy, and holds the power of superintendency over the lower courts. The concern with the "broader picture” articulated by Justice Todd is particularly acute in cases arising on discretionary review, where we generally accept a case only because of the importance of the issue presented, and the potential statewide effect of our decision.

. The question of revisiting fairly implicated precedent sua sponte is, of course, distinct from the question of whether the parties should be offered an opportunity to be heard on the question; the grant of reargument reflects the Court's appreciation of the distinction in this case.