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argued: February 11, 1988.


Appeal from the Order Entered on August 7, 1987, in the Court of Common Pleas of Lancaster County, Civil Division, at No. 122 October Term 1980.


Wiley P. Parker, Lebanon, for appellant.

William A. Atlee, Jr., Lancaster, for Kuchak, appellee.

Tamilia, Hoffman and Hester, JJ.

Author: Hester

[ 377 Pa. Super. Page 290]

This is an appeal from an August 7, 1987 order wherein delay damages were awarded to appellee, administrator of the estate of Susanne A. Kuchak, deceased. Pursuant to the reasoning in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), the trial court determined that appellee was responsible for eight of the forty-eight month delay between the filing of the complaint and the verdict in favor of appellee. It awarded delay damages accordingly. We affirm the imposition of delay damages as set forth in the order.

Appellee instituted this medical malpractice action against Lancaster General Hospital, appellant, and three physicians for allegedly negligently causing the death of fifteen-year-old Susanne Kuchak. Susanne sustained leg fractures in a motor-vehicle-bicycle accident on October 12, 1978, and died a week later in Lancaster General Hospital, where she was being treated. She died as a result of fat emboli syndrome wherein fat emboli entered her lungs, heart and brain. The

[ 377 Pa. Super. Page 291]

    fat emboli entered the vital organs from bone marrow exposed as a result of the fractures.

The action was instituted on October 10, 1980, by writ of summons, with the complaint being filed one and one-half months later, on December 2, 1980. The parties conducted discovery over a three and one-half year period. Appellee took twenty-two depositions and filed numerous interrogatories and requests for production of documents. Appellant made no settlement offer prior to trial; appellee made a settlement demand of $300,000, which was the exact amount the jury awarded December 12, 1984.

The trial court awarded delay damages in the amount of $120,821.91 on February 4, 1985. An appeal followed the January 16, 1986 denial of appellant's post-trial motions. The issue was whether delay damages had been properly awarded, and we remanded for proceedings consistent with the recent decision in Craig v. Magee Memorial Rehabilitation Center, supra.

On August 7, 1987, the trial court entered an order wherein it attributed eight months of the delay to appellee*fn1 and awarded delay damages accordingly. It stated:

It is the considered opinion of this Court that Plaintiff proceeded expeditiously in preparing a very complex medical malpractice action for trial but that not providing the initial expert medical report diminished the possibility of an offer of settlement. Therefore, the Court ascribes the period between the dates of both parties' initial expert medical reports to a time span for which Plaintiff should not benefit and Defendant Hospital should not be penalized. This result is not only fair and reasonable but also equitable.

This case involved complicated medical evidence in explanation of an untoward result to a simple occurrence: death caused by fat embolism syndrome following a long bone fracture of the leg as a result of an automobile striking Plaintiff's decedent while on her bicycle. All of the Defendants originally sued were health care providers,

[ 377 Pa. Super. Page 292]

    necessitating expert as well as factual discovery. Concomitant with such extensive discovery were many delays in scheduling.

Trial court order, 8/7/87, at 1-2. This appeal followed.

Initially, we discuss the Craig opinion, where the supreme court reconsidered its opinion in Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981). Laudenberger had upheld the constitutionality of Pa.R.C.P. 238, which called for the automatic imposition of delay damages if the jury verdict was 125 percent more than the defendant's settlement offer. The court noted that this experimental and automatic rule was both reasonable, as it had been adopted to clear dockets overcrowded by unreasonable refusals to offer what was due, and salutary, in that it provided a penalty for profiting from denials of money due. The Craig court noted the rationale for the rule: there was deliberate and profitable delay by tortfeasors in failing to settle cases since they retained the use of the money during delay caused by overcrowded dockets.

The Craig court rejected the Laudenberger court's reasoning that a refusal to settle is always prompted by these motives. It suspended Rule 238's incontestable presumption that all fault for delay is attributable to the defendant, and announced the following rule:

In making a decision on a plaintiff's entitlement to delay damages the mere length of time between the starting date and the verdict is not to be the sole criterion. The fact finder shall consider: the parties' respective responsibilities in requesting continuances, the parties' compliance with rules of discovery; the respective responsibilities for delay necessitated by the joinder of additional parties; and other pertinent factors.

Craig v. Magee Memorial Rehabilitation Center, supra, 512 Pa. at 66, 515 A.2d at 1353 (emphasis added) (footnote omitted).

In this case, the trial court determined that the delay was not the fault of appellee, who had proceeded expeditiously in preparing a complex medical malpractice action. Appellant

[ 377 Pa. Super. Page 293]

    argues that the trial court was incorrect in three respects.

First, appellant argues that all delays must be attributed to appellee since all requests for continuances were made by him. This allegation states the obvious and misses the point. As appellant aptly notes in his brief, in a medical malpractice action, it is a plaintiff's burden to present expert medical testimony to establish the standard of care to be applied and to demonstrate that the standard has not been achieved. Brannan v. Lankenau Hospital, 490 Pa. 588, 417 A.2d 196 (1980).

Accordingly, appellee had to depose each medical provider who participated in the care of the decedent. He took twenty-two depositions. He then had to have the care providers' actions analyzed and compared to standard medical procedure. There were three physicians involved. Many of the delays in discovery resulted from their unavailability or from their scheduling conflicts with the attorneys. These normal delays are always present and naturally affect the length of discovery. We refuse to categorically impute natural delays in discovery to plaintiffs unless it is demonstrated that the plaintiff failed to take reasonable and normal steps to prepare his case and proceed to trial. The trial court in this case specifically found that appellee had expeditiously prepared his case. The continuances were necessary as discovery was incomplete, and the trial court determined that the state of discovery did not result from appellee's failure to proceed diligently. Accordingly, appellee is not responsible for the continuances as the Craig court intended responsibility to be placed.

Next, appellant argues that appellee failed to comply with the rules of discovery by failing to identify his expert and his expert's testimony as requested in its interrogatories filed on December 10, 1980. We disagree. Initially, appellee could not know of the substance of his expert's trial testimony until he had completed his depositions of the health care providers and knew what actions they had taken. He provided the initial report, but his expert's trial

[ 377 Pa. Super. Page 294]

    testimony would be wholly dependent on a full knowledge of all the defendants' actions with respect to Susanne's care. Furthermore, the trial court specifically ruled that appellee could provide his experts' opinions at anytime prior to the first pretrial conference. Reproduced Record at 61a. Appellee complied with this order, which was entered because one of the defendants had tried to compel appellee to reveal the substance of his expert's testimony in January, 1983. The trial court reasonably ruled then that appellee had until the conclusion of his discovery to comply with this request. Thus, appellee did not violate the rules of discovery.

Finally, appellant argues that the purpose of Rule 238 is not being served with the imposition of delay damages since appellee withheld the expert report until trial. Appellant argues that this was material it needed to engage in meaningful negotiations. Appellant at no time submitted an offer, even after it received the report of appellee's expert. Meanwhile, it had the initial report. Again, we must repeat that this trial report could not have been prepared until completion of discovery. Also significant is that appellant, as defendant, already had knowledge of its actions and did not require the benefit of discovery to analyze its culpability in Susanne's death. Thus, it always had the information it characterizes as so meaningful to settlement negotiations. It refused to negotiate and now attempts to shift the responsibility to appellee's failure to provide a report appellee could not have and was not required to provide until the pretrial conference.

Since neither party is responsible for the continuances and both parties complied with the rules of discovery, we must look to other "pertinent factors" in deciding whether to uphold the imposition of delay damages in this case. In so doing, we apply the rationale for the rule, and look to whether appellant was unreasonable in failing to settle. If so, it is more appropriate to require appellant to pay to appellee the interest that it has earned from the $300,000

[ 377 Pa. Super. Page 295]

    that it thus would have owed to appellee since October 19, ...

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