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2023 PA Super 262
LESLEY COREY, AS ADMINISTRATRIX : IN THE SUPERIOR COURT OF
OF THE ESTATE OF JOSEPH COREY, : PENNSYLVANIA
AND LESLEY COREY, IN HER OWN :
RIGHT :
:
Appellant :
:
:
v. :
:
:
WILKES-BARRE HOSPITAL COMPANY, :
LLC, D/B/A WILKES-BARRE GENERAL :
HOSPITAL, WILKES-BARRE GENERAL :
HOSPITAL EMERGENCY DEPARTMENT :
AND J. CHARLES LENTINI, M.D. :
:
v. :
:
PENNSYLVANIA PHYSICIANS :
SERVICES, LLC :
:
Additional Defendant : No. 507 MDA 2021
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 BY KING, J.: FILED: DECEMBER 11, 2023
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
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Hospital Company, LLC, d/b/a Wilkes-Barre General Hospital (“WBGH”).1 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”).
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
____________________________________________
1 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).
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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
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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[2] ___ 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.
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2 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).
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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).[3]
(Trial Court Opinion at 2-4; R.R. at 1116a-1118a) (some capitalization
omitted).
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:
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3 “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.
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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
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“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.
* * *
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
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(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).
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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
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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
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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
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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[4] 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.
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4 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).
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(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).
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.
* * *
[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
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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:
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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.”
* * *
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
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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
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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.)
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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). 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.
“Issues not raised in the trial court are waived and cannot be raised for
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5 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).
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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).
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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
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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).6
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
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6 This portion of the transcript was omitted from the reproduced record.
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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)].”7 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
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7 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).
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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.
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
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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.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/11/2023
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