Appeal from the Judgment entered January 3, 2008, Court of Common Pleas, Allegheny County, Civil Division at No. GD-03-010989.
The opinion of the court was delivered by: Donohue, J.
Petition for Reargument Filed July 15, 2009
BEFORE: FORD ELLIOTT, P.J., DONOHUE and COLVILLE*fn1, JJ.
¶ 1 Yvette C. Ross Hebron, M.D. ("Dr. Hebron") and ChoiceCare Physicians, P.C. ("ChoiceCare") (collectively, "Appellants") appeal from the January 3, 2008 order entering a judgment in the amount of approximately $8.6 million on a jury verdict in favor of Carol Hyrcza ("Hyrcza"), executrix of the estate of Margaret Mahunik ("the Decedent"), and against Appellants.*fn2
For the reasons that follow, we affirm.
¶ 2 The relevant facts and procedural history of this case were summarized by the trial court, the Honorable Kim D. Eaton presiding, as follows:
This wrongful death and survival action was brought on behalf of the [e]state of [Decedent], a 60-year-old woman with multiple sclerosis who died at Suburban General Hospital ["Suburban General"] on July 10, 2001. After undergoing successful hip surgery at Allegheny General Hospital ["Allegheny General"] on June 22, 2001, Decedent was admitted to the Rehabilitation Unit of [Suburban General] on June 27, 2001. [Suburban General] had an agreement with ChoiceCare to provide medical care for patients admitted to its Rehabilitation Unit. ChoiceCare assigned Dr. Hebron, [a] board certified physiatrist,*fn3 as Decedent's attending physician. On admission, Dr. Hebron entered an order to continue Decedent on Ecotrin, a form of aspirin, and Solumedrol, a form of steroid. She consulted with neurologist, Jonathan E. Artz, M.D. ["Dr. Artz"] and Dr. Morris, an internist with Decedent's general family group. Dr. Artz and Dr. Morris each saw Decedent one time on June 28, 2001. Dr. Hebron was the only physician who saw Decedent after June 28, 2001.
Decedent showed signs of gastrointestinal bleeding on July 4, 2004 [sic] which went unnoticed by Dr. Hebron. Dr. Hebron's last day of employment with ChoiceCare was July 6, 2001. ChoiceCare did not assign another physician to care for Decedent. On July 8, 2001, Decedent experienced shortness of breath and was transferred to the Intensive Care Unit where she died two days later from massive gastrointestinal bleeding.
A [c]omplaint was filed in August of 2003 against numerous defendants, including Drs. Hebron, Artz, Stroud, Conaway and Hassari, their respective practice groups, [Allegheny General] and [Suburban General]. No cross-claims were filed by any of the defendants against any other defendant. Shortly before trial, [Hyrcza] settled with Suburban, Drs. Stroud, Conaway and Artz and their practices ("Settling Defendants["]). The court denied motions by Dr. Hebron and ChoiceCare to amend their answers to assert cross-claims against Settling Defendants. The court granted Settling Defendants' motion to be dismissed from trial. [Hyrcza] proceeded to trial against Dr. Hebron and ChoiceCare ("Defendants"). [Hyrcza's] theory of liability against Dr. Hebron was that she breached the standard of care by prescribing and continuing Decedent on two medications which, in combination, are known to cause stomach bleeding, without taking appropriate precautions or monitoring her. [Hyrcza's] theory against ChoiceCare was that it was vicariously liable for the negligence of Dr. Hebron and directly liable for its own negligence. On March 30, 2007, the jury returned a verdict against Defendants, awarding $5,383,200 on the wrongful death claim and a $1,830,000 on the survival claim.*fn4 Motions for Post-Trial relief were denied. ChoiceCare filed a Notice of Appeal on January 8, 2008.
Trial Court Opinion, 5/8/08, at 1-4 (footnotes added).
¶ 3 On appeal, Dr. Hebron alleges that the trial court erred and/or abused its discretion by:
1. Dismissing the settling defendants from the courtroom and refusing to place their names on the verdict slip;
2. Overruling defense objections to the testimony of [Hyrcza's] expert on the ground that his qualifications were insufficient to render standard-of-care opinions against [Dr. Hebron];
3. Overruling defense objections to the jury charge on irrelevant considerations, where such charge [was] plainly inaccurate and misleading to the jury;
4. Overruling defense objections and therefore permitting improper use of a learned treatise on the direct examination of [Hyrcza's] expert;
5. Denying defense counsel's request for cautionary instructions where comments by [Hyrcza's] counsel during final argument were inflammatory, scurrilous, and prejudicial and not based on any evidence adduced at trial; and
6. Failing to grant [Dr. Hebron's] request for remittur, as the verdict was so excessive as to shock the conscience.
¶ 4 ChoiceCare raises the first, second, fourth, fifth and sixth issues on appeal (but not the third), and raises the additional claim that the trial court committed reversible error by charging the jury on its alleged corporate negligence. ChoiceCare's Brief at 4.
Exclusion of Settling Defendants from Verdict Slip
¶ 5 For their first issue on appeal, Appellants claim the trial court committed reversible error by dismissing Suburban General, Doctors Stroud, Conaway and Artz, and their respective practices ("Settling Defendants") from trial and excluding them from the jury verdict sheet, despite clear evidence of their negligence. As a result, they contend that they were denied their right to have liability apportioned among themselves and the Settling Defendants as joint tortfeasors. The Settling Defendants signed releases in accordance with the Uniform Contribution Among Tort-feasors Act ("UCATA"), 42 Pa.C.S.A. § 8321, et seq.*fn5
¶ 6 A trial court's refusal to include a settling co-defendant on a verdict slip is reviewed for an abuse of discretion or an error of law. Rose v. Annabi, 934 A.2d 743, 745 (Pa. Super. 2007). An abuse of discretion occurs when the course pursued by the trial court represents "not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias, or ill will." Id. at 746.
¶ 7 In its written opinion submitted pursuant to Pa.R.A.P. 1925(a), the trial court stated that it excused the Settling Defendants from trial and excluded their names from the verdict slip because Appellants had failed to establish a prima facie case of medical malpractice against these defendants. Trial Court Opinion, 5/8/08, at 4. We find the trial court's decision supported by Herbert v. Parkview Hosp., 854 A.2d 1285 (Pa. Super. 2004), appeal denied, 872 A.2d 173 (2005), in which this Court held that a profound lack of evidence against settling co-defendants could preclude the inclusion of those defendants on a jury verdict sheet.
¶ 8 In Herbert, the administratrix of the estate of a deceased patient brought suit against a number of defendants for medical malpractice. Prior to trial, one physician was dismissed from the case and the plaintiff settled with the hospital and another physician. These parties signed joint tortfeasor releases, leaving only one physician in the case. The sole issue at trial was the liability of this non-settling physician, although the names of the settling defendants were placed on the verdict slip. The jury apportioned 60% of the liability to the hospital, 30% to the settling physician, and 10% to the non-settling physician. Afterwards, the plaintiff filed a post-trial motion challenging the trial court's inclusion of the settling defendants on the verdict slip, thus allowing the jury to apportion liability to the settling defendants. The motion was denied.
¶ 9 This Court affirmed the trial court's decision to leave the settling defendants on the verdict sheet, stating that the relevant inquiry was whether the evidence adduced was sufficient to warrant the jury apportioning any liability to the settling defendants. Since the trial court included the settling defendants on the verdict slip, we stated that the issue was "whether the trial court abused its discretion in implicitly finding sufficient evidence to justify a jury finding that [the settling defendants] were partially liable for [the decedent's] harm." Id. at 1290.
¶ 10 In Herbert, this Court considered the applicability of Davis v. Miller, 385 Pa. 348, 123 A.2d 422 (1956), in which our Supreme Court held that a defendant had the right to keep a settling additional defendant at trial for purposes of apportioning liability. In Davis, the passengers of a car, following a car accident, sought damages against the driver of the other automobile involved, alleging that the accident was caused by his negligence. This driver filed a complaint to join as an additional defendant the driver of the first car, alleging that the accident was due to her negligence and that the jury might find her solely or jointly liable. Prior to trial, the additional defendant settled with the plaintiff, entered into a joint tortfeasor release, and was dismissed from the case. The defendant appealed, and this Court held that he had the right to keep the additional defendant at trial for purposes of apportionment under the UCATA. Davis, 385 Pa. at 352, 123 A.2d at 424 ("[additional defendant's] continuance in the case is . necessary, even though no recovery can be had against her either by plaintiffs or by defendant, in order to determine the amount of damages that defendant may be obliged to pay plaintiffs."). Therefore, implicit in Davis was a finding that there was at least some evidence of liability on the part of the additional defendant to justify her inclusion on the jury verdict slip.
¶ 11 Wealso recognized Ball v. Johns-Manville Corp., 625 A.2d 650 (Pa. Super. 1993), abrogated on other grounds, Baker v. AC and S, 562 Pa. 290, 755 A.2d 664 (2000), in which we held that settling co-defendants as to whom no evidence had been submitted at trial were properly excluded from the jury's consideration of liability. The Herbert court, after considering the aforementioned cases, indicated that it agreed with the plaintiff that "under certain circumstances, a profound lack of evidence regarding settling defendants may preclude the inclusion of those defendants on the jury verdict sheet." Herbert, 854 A.2d at 1289 (emphasis added).
¶ 12 After reviewing all of the evidence presented at trial and resolving all conflicts in favor of the non-settling defendant, however, the Herbert court found that there was evidence of medical malpractice against the settling defendants, noting that the plaintiff's expert witness "cast an equally damning light on the performance of every physician who had a hand in treating Decedent..." Id. at 1290(emphasis added).
¶ 13 Herbert, Davis and Ball allmake clear a trial court must determine whether any evidence of a settling co-defendant's liability exists before deciding whether to put that co-defendant on a jury verdict slip. If the evidence is insufficient to support a prima facie case against a settling co-defendant, they make clear that such co-defendant may be left off the jury verdict slip. Therefore, we conclude that there is no absolute right to have settling co-defendants placed on a verdict slip, as Appellants appear to suggest. Accordingly, we proceed to an analysis as to whether the evidence in the instant case was sufficient to establish the elements of a prima facie case of medical malpractice against the Settling Defendants.
¶ 14 Appellants contend that they succeeded in bringing such a prima facie case against the Settling Defendants through cross-examination of the plaintiff's expert, Dr. John Corboy ("Dr. Corboy"). Specifically, they argue that Dr. Corboy, in his expert report and under cross-examination, attributed fault to "all physicians" involved in the Decedent's care for failing to recognize that a combination of aspirin and steroids would cause gastric bleeding. After review of the record, however, we conclude that these statements were made in the context of other statements which clearly singled out Dr. Hebron, as the Decedent's attending physician, as ultimately responsible for her death.
¶ 15 In its 1925(a) opinion, the trial court stated that:
In accordance with [Herbert]and [Davis], the court reviewed the evidence against Settling Defendants at close of trial for the following elements of a medical malpractice claim: (1) that the medical practitioner owed a duty to the patient; (2) that the practitioner breached that duty; (3) that the breach was a proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient; and (4) that the damages suffered by the patient were a direct result of the harm.
Dr. Corboy testified that Dr. Hebron breached the standard of care by prescribing aspirin and steroids together without taking precautions or monitoring Decedent for gastrointestinal bleeding. Dr. Corboy testified that Dr. Hebron, as the attending physician, bore ultimate responsibility for the care of Decedent. She was medically, legally and ethically responsible for coordinating medical treatment for Decedent, including coordination of care, managing medications, calling consultations and making the ultimate decisions.
The breach of the standard of care in this case was not prescribing aspirin and steroids together. Nor was ignorance of the risk for gastrointestinal bleeding. The evidence established that Dr. Artz, Dr. Morris and Dr. Hebron all understood the risk. Rather, it was the failure to protect or monitor Decedent from that risk and the failure to recognize and address early signs of intestinal bleeding that was the proximate cause of the harm. There was no evidence that any physician other than Dr. Hebron was under a duty to protect, monitor, recognize or treat Decedent for intestinal bleeding.
Dr. Artz and Dr. Morris were each consulted one time upon her admission to the Rehabilitation Unit. At that time, she was recovering well from surgery and her MS was under control. According to the nurses' notes, in the days following the consultations, the Decedent grew paler each day, a recognized sign of intestinal bleeding. Dr. Hebron did not read the nurses notes and did not notice the pallor when she saw Decedent on July 4 or 5th. No one from ChoiceCare saw Decedent at all on the 6th, 7th, or 8th. Dr. Corboy did not 'cast an equally damning light on the performance' of any of Settling Defendants. He testified that there are certain tests that Dr. Hebron as attending physician should have ordered to check for intestinal bleeding which she did not. He testified that she breached the standard of care by not providing Decedent with medication to protect her stomach. He testified that Dr. Artz set Decedent on a tapering dose of steroids which was appropriate.*fn6 Dr. Artz knew that patients on aspirin and steroids were at a higher risk of GI problems. He did not take into conjunction the interplay between these two medications on an ongoing basis for Decedent because he was called in for a single visit to manage her MS, her MS was under ...