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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DAVID WARD AND WENDIE WARD : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellants :
:
v. :
:
WEST GROVE HOSPITAL COMPANY, :
LLC, D/B/A JENNERSVILLE :
REGIONAL HOSPITAL AND WEST :
GROVE CLINIC COMPANY, LLC, :
D/B/A CARDIOLOGY ASSOCIATES OF :
JENNERSVILLE, WEST GROVE :
HOSPITAL CORPORATION AND :
PAULINE COUSINEAU :
:
Appellees : No. 1756 EDA 2021
Appeal from the Judgment Entered July 23, 2021
In the Court of Common Pleas of Chester County
Civil Division at No(s): 2017-05212
BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED JUNE 3, 2022
Appellants, David and Wendie Ward, appeal from the judgment entered
in the Chester County Court of Common Pleas, in favor of Appellees, West
Grove Hospital Company, LLC, d/b/a/ Jennersville Regional Hospital and West
Grove Clinic Company, LLC, d/b/a/ Cardiology Associates of Jennersville, West
Grove Hospital Corporation and Pauline Cousineau,1 in this negligence action.
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1 “At the start of trial, the parties had removed Nurse Cousineau as an
individual defendant and agreed that she was the agent of the corporate
defendants and was acting in the course and scope of such agency.” (Trial
Court Opinion, filed September 1, 2021, at 2 n.1).
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We affirm.
The trial court opinion set forth the relevant facts of this case as follows.
[Appellants] brought this action for professional liability by
filing a complaint on May 16, 2017. The operative
complaint, which is the third amended complaint, was filed
January 8, 2018 and alleges that [Appellants] suffered
injuries and damages due to the negligence of [Appellees].
The events leading to [Appellants’] cause of action began on
June 8, 2015, when Mr. Ward presented to the Emergency
Department at Jennersville Regional Hospital with
complaints of chest pains. It was determined that Mr. Ward
had not suffered an acute coronary event, but he was
admitted for observation. Testing was administered, which
included a treadmill stress test conducted by … Pauline
Cousineau, a nurse practitioner (“Nurse Cousineau”). Mr.
Ward wore hospital socks at the start of the test that came
off while he was on the treadmill. Nurse Cousineau
nonetheless proceeded and at the conclusion of the
treadmill portion of the test, Mr. Ward’s feet were blistered.
Mr. Ward received treatment for his wounds and in time he
was discharged from the hospital.
Mr. Ward alleged that over the ensuing days and weeks, he
began to develop severe, burning pain in his feet and that
over time the pain worsened and migrated to his upper
extremities. Mr. Ward received medical treatment from a
variety of practitioners, including family practice, neurology,
pain management, and specialists in the diagnosis and
treatment of chronic regional pain syndrome/reflex
sympathetic dystrophy (“CRPS”). Mr. Ward contended at
trial that he had suffered various injuries as a result of
[Appellees’] negligence in performing the stress test in
hospital socks and then bare feet, including blistering of the
feet, the development of CRPS and psychological injury.
(Trial Court Opinion at 1-2).
Trial commenced on April 9, 2021. Beginning with their opening
statements, both parties made light of Mr. Ward’s preexisting medical
conditions. Appellants’ attorney’s opening statement addressed these
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conditions as follows:
What I will tell you about [Mr. Ward] is he was not in perfect
health. Like many gentlemen in their 50s, he had diabetes.
You already heard about that in jury selection. He had
diabetes. No doubt about it. He had high blood pressure.
He had a couple hernia surgeries. He had, what I’m going
to tell you, was a bad back.
In the early 90s, he had surgery because his back was bad,
and he had what they call radiculopathy, radiating pain
down his large [extremities]. In [1993], he had surgery.
From [1993] up until present, he hadn’t had radiculopathy.
Surgery took care of that, but he still had a bad back. No
doubt about it. He took Vicodin for years, not a lot of it, but
he took it when he needed it, no doubt about it, for his bad
back.
(N.T. Trial, 4/9/21, at 8).
During trial, both parties’ experts opined about the relationship between
Mr. Ward’s preexisting conditions and the injuries he suffered during the
treadmill stress test. Appellants’ experts posited that Mr. Ward’s preexisting
conditions caused him to suffer injuries during the stress test that were worse
than could be expected. Appellees’ experts testified that Mr. Ward’s
preexisting conditions, rather than the stress test, predisposed him to
developing CRPS.
On April 19, 2021, Appellees rested their case, and the court
immediately proceeded with a charging conference. Appellants’ attorney
requested that the court provide the jury with Pennsylvania Suggested
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Standard Civil Jury Instruction 7.702 pertaining to preexisting conditions.
Appellees’ attorney argued that such an instruction was unnecessary, and the
court agreed.
Following the conference, the court charged the jury. At the conclusion
of the charge, Appellants’ attorney made a formal, on-the-record objection to
the court’s omission of a Section 7.70 instruction. (See N.T. Trial, 4/19/21,
at 165). During deliberations, the jury submitted the following question: “Is
the harm in Question Number 2 limited to CRPS?”3 (N.T. Trial, 4/20/21, at
2). The court discussed the question with counsel. Appellants’ attorney
responded, “I think the simple and concise answer to that question would be
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2 Section 7.70 provides:
A plaintiff who has a preexisting [physical] [psychological]
condition can recover damages if the defendant’s
negligence:
* * *
[(1) made worse a preexisting condition. In this regard,
[name of defendant] can be held responsible only for the
harm or the aggravation of a preexisting … condition that
you find was factually caused by [name of defendant]’s
negligence[; and]
(2) factually caused harm worse than expected because of
the plaintiff's preexisting condition.]
Pa.SSJI (Civ) § 7.70.
3 On the verdict slip, the second question stated: “Was the negligence of
[Nurse] Cousineau … a factual cause of any harm to the plaintiff?” (Verdict
Slip, filed 4/20/21, at 1).
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no.” (Id.) The court accepted this suggestion and indicated, “I’m going to
answer it no.” (Id. at 3).
On April 20, 2021, the jury returned its verdict. The jury specifically
found that Nurse Cousineau was negligent. (See Verdict Slip at 1). The jury
also found that Nurse Cousineau’s negligence was a factual cause of harm to
Appellants. On the verdict slip, however, the jury included a handwritten
notation explaining its conclusion that Nurse Cousineau’s negligence: “Was a
factual cause of harm in the form of blisters to [Mr. Ward’s] feet. Was not a
factual cause of harm in the form of CRPS.” (Id.) Consequently, the jury
awarded $20,000.00 to Mr. Ward and $0.00 to Mrs. Ward for her related claim
of loss of consortium.
On April 29, 2021, Appellants timely filed a post-trial motion claiming
that the court erred by failing to provide a Section 7.70 instruction. The court
denied Appellants’ post-trial motion on July 13, 2021, and Appellants filed a
praecipe to enter judgment on July 23, 2021. On July 26, 2021, Appellants
timely filed a notice of appeal. The court ordered Appellants to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal, and Appellants
timely complied.
Appellants now raise three issues for our review.
Did the trial court abuse its discretion or commit an error of
law in refusing to instruct the jury as to preexisting
conditions in accordance with SSJI 7.70, which controlled
the outcome of the case?
Did the trial court abuse its discretion or commit an error of
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law in denying [Appellants’] post-trial motion for a new trial
on damages due to its failure to instruct the jury as to
preexisting conditions as set forth in SSJI 7.70, which
controlled the outcome of the case?
In the alternative, did the trial court abuse its discretion or
commit an error of law in denying [Appellants’] post-trial
motion for a new trial on causation and damages due to its
failure to instruct the jury as to preexisting conditions as set
forth in SSJI 7.70, which controlled the outcome of the case?
(Appellants’ Brief at 2-3).
Appellants’ claims are related, and we address them together.
Appellants emphasize the experts’ testimony that Mr. Ward’s “preexisting
medical conditions predisposed him to develop CRPS, and his injuries would
not have been so severe but for his preexisting conditions.” (Id. at 23). Given
this testimony, Appellants contend that a Section 7.70 instruction was
“relevant and necessary to explain to the jury that [Appellants were] entitled
to recover damages if [Appellees’] negligence ‘factually caused harm worse
than expected because of the plaintiff’s preexisting condition.’” (Id.) (quoting
Pa.SSJI (Civ) § 7.70). Relying on Gorman v. Costello, 929 A.2d 1208
(Pa.Super. 2007), Appellants assert that the trial court’s failure to provide the
requested instruction constituted a fundamental error that controlled the
outcome of this case. Appellants conclude that the court should have granted
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their post-trial motion, and they are entitled to a new trial as to damages.4
We disagree.
The following scope and standard of review apply to our review of
challenges to jury instructions:
[O]ur scope of review is to determine whether the trial court
committed clear abuse of discretion or error of law
controlling the outcome of the case. 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 or
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 to fundamental error. A reviewing court will not
grant a new trial on the ground of inadequacy of the charge
unless there is a prejudicial omission of something basic or
fundamental. In reviewing a trial court’s charge to the jury,
we must 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.
Frisch v. James River Insurance Company, 265 A.3d 765, 773 (Pa.Super.
2021) (emphasis omitted) (quoting McManamon v. Washko, 906 A.2d
1259, 1271 (Pa.Super. 2006), appeal denied, 591 Pa. 736, 921 A.2d 497
(2007)). Additionally, our Supreme Court “has never adopted the
Pennsylvania Suggested Standard Jury Instructions, which exist only as a
reference material available to assist the trial judge and trial counsel in
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4In the alternative, Appellants suggest that they are entitled to a new trial on
causation and damages “because those issues are intertwined and the issue
of liability has neither been fairly determined nor is free from doubt.”
(Appellant’s Brief at 31) (internal quotation marks omitted).
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preparing a proper charge.” Jeter v. Owens-Corning Fiberglas Corp., 716
A.2d 633, 636 (Pa.Super. 1998) (quoting Commonwealth v. Smith, 548 Pa.
65, n.11, 694 A.2d 1086, 1094 n.11 (1997)).
In negligence cases, “[t]he tortfeasor must take his victim as he finds
him.” Fretts v. Pavetti, 422 A.2d 881, 885 (Pa.Super. 1980).
[B]ecause a tortfeasor must take the victim as he finds him,
the tortfeasor is liable for the full extent of the victim’s
injuries. Thus, a tortfeasor remains responsible for the
victim’s injuries, even if the victim’s particular sensibility
resulted in more harm than the tortfeasor could have
foreseen.
Lebesco v. Southeastern Pennsylvania Transp. Authority, 380 A.2d 848,
852 n.2 (Pa.Super. 1977).
In Gorman, supra, this Court addressed a similar issue regarding the
propriety of jury instructions in a negligence case. Specifically, the appellant
was injured after her vehicle was struck by the appellee’s vehicle. The
appellant brought a negligence action against the appellee, and the matter
proceeded to trial. Following the jury charge, the parties requested that the
court provide an additional instruction on “the point of factual cause.”
Gorman, supra at 1211. In response, the court read a portion of
Pennsylvania Suggested Standard Civil Jury Instruction 3.15. The jury later
returned a verdict finding that the appellee was negligent, but the negligence
was not a factual cause of the appellant’s injuries. The jury did not reach the
question of damages.
On appeal, the appellant argued that the court committed reversible
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error by reading only a portion of the suggested instruction on factual
causation. This Court agreed:
Our review of the transcript indicates that the trial court
read the instruction as far as the first phrase of the
bracketed portion of the third paragraph, i.e., “Use the
following if you have not already used Instruction 3.00,”
and, without reviewing the definition that followed,
concluded that there was no need to continue with reading
SSJI 3.15 to the jury because it had already provided the
jury with SSJI 3.00. Thus, according to the SSJI itself, the
jury was not fully instructed as to the definition of “factual
cause.”
This Court has previously ruled that when juries are given
incomplete instructions, a new trial is required. Jury
instructions must contain correct definitions of legal terms.
While we recognize that the SSJI are not binding on trial
courts, the SSJI are nonetheless instructive. In the case
sub judice, a complete definition of factual cause was
available to the trial court both from SSJI Civ 3.15 as well
as from the proposed jury instructions submitted to the
court prior to the commencement of the trial. The trial court
simply omitted the definition from its instruction. We
determine that without a complete definition of factual
cause, the jury was lacking an essential tool needed to make
an informed decision based on correct and complete legal
principles relevant to its verdict on the issue of damages.
Id. at 1213 (internal citations omitted).
Instantly, the court denied Appellants’ request for a Section 7.70
instruction. The court subsequently charged the jury as follows:
Now, you must decide whether Nurse Cousineau was
negligent. If you decide that she was, then you must decide
whether her negligence was a factual cause of the plaintiff’s
injuries. If you so decide, you must then decide the amount
of damages the plaintiff sustained as a result of her
negligence.
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Now, in order for the plaintiff to recover in this case, Nurse
Cousineau’s negligent conduct must have been a factual
cause in bringing about harm. The conduct is a factual
cause of harm when the harm would not have occurred [but
for] the conduct.
To be a factual cause, the conduct must have been an
actual, real factor in causing the harm, even if the
result is unusual or unexpected. A factual cause cannot
be an imaginary or fanciful factor having no connection, or
only a[n] insignificant connection, with the harm.
To be a factual cause, Nurse Cousineau’s conduct
need not be the only factual cause. The fact that some
other causes concur with the negligence of Nurse
Cousineau in producing an injury does not relieve her
from liability, as long as her or her own negligence is a
factual cause of the injury.
(N.T. Trial, 4/19/21, at 145-46) (emphasis added).
Although the court’s charge did not include a verbatim recitation of
Section 7.70, the court addressed the principles underpinning the suggested
instruction. Specifically, the court instructed that Nurse Cousineau’s conduct
could be a factual cause of Mr. Ward’s harm, even if the result was unusual or
unexpected. See Fretts, supra; Lebesco, supra. Within the context of this
particular trial, “unusual or unexpected” results necessarily referred to the
interplay between Mr. Ward’s preexisting conditions and his injuries from the
stress test. Thereafter, the court further embraced the principles of Section
7.70 in its response to the jury’s question about whether the harm in this case
was limited to CRPS. (See N.T. Trial, 4/20/21, at 2-3). By accepting
Appellants’ attorney’s recommendation and answering this question in the
negative, the court reinforced the notion that Appellees were liable for the full
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extent of damages that they inflicted. See Lebesco, supra.
Regarding Appellants’ argument that the omission of a Section 7.70
instruction is akin to the fundamental error at issue Gorman, the instant case
is distinguishable. Gorman addressed a situation where the court provided
an incomplete definition for a relevant legal principle. Here, we cannot say
that the instruction provided a similarly incomplete description of the relevant
legal principles. Further, the instant case differs from Gorman because it
does not involve a situation where the jury did not award damages. Here, the
jury determined that Nurse Cousineau’s negligence was a factual cause of
some compensable harm. Thus, to the extent that Section 7.70 serves the
function of informing a jury about a particular circumstance where it can award
damages, the absence of a verbatim recitation of Section 7.70 did not deny
Appellants the recovery of some damages.
Based upon the foregoing, we conclude that there was no omission in
the jury charge that amounted to a fundamental error. See Frisch, supra.
Accordingly, the court did not abuse its discretion or commit an error of law
that controlled the outcome of this case, and we affirm. Id.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2022
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