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Kyra Hatwood and David Jacobs, Individually and As Co v. Hospital of the University of Pennsylvania and Peter Chen

October 5, 2012

KYRA HATWOOD AND DAVID JACOBS, INDIVIDUALLY AND AS CO- ADMINISTRATORS OF THE ESTATE OF HYSEEM JACOBS A/K/A HYSEEM QYRAH JACOBS, A MINOR, DECEASED APPELLEE
v.
HOSPITAL OF THE UNIVERSITY OF PENNSYLVANIA AND PETER CHEN, M.D. APPELLANTS



Appeal from the Judgment Entered October 18, 2011 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): March Term, 2008, No. 003759

The opinion of the court was delivered by: Panella, J.

J-A17033-12

BEFORE: STEVENS, P.J., GANTMAN, J., and PANELLA, J.

OPINION BY PANELLA, J.

This appeal arises from a medical malpractice action concerning the delivery and subsequent death of Hyseem Jacobs. Baby Hyseem's mother, Kyra Hatwood, presented at HUP just after midnight on March 22, 2006. After evaluation and monitoring, Baby Hyseem was born via caesarean section at 3:42 a.m. He required resuscitation immediately subsequent to birth due to a hypoxic ischemic brain injury. This injury caused cerebral palsy and associated respiratory and neurological conditions. Baby Hyseem died at the age of 17 months from complications associated with cerebral palsy.

Hatwood, David Jacobs, Hyseem's father, and Hyseem's estate filed suit against HUP, Dr. Chen, and Myriam Fernandez, M.D., alleging professional negligence. At the close of plaintiffs' case, the trial court granted a non-suit on plaintiffs' claims against Dr. Fernandez. On February 14, 2011, after a two week trial, a jury awarded plaintiffs an aggregate amount of $2,154,583.00 against HUP and Dr. Chen. HUP and Dr. Chen filed post-trial motions, which were ultimately denied by order dated October 18, 2011. This timely appeal followed.

On appeal, HUP and Dr. Chen raise the following issues for our review:

1. Whether the trial court erred as a matter of law or abused its discretion in charging the jury that it could award damages under the Wrongful Death Act for plaintiffs' loss of the society and companionship of their child?

2. Whether the trial court erred as a matter of law or abused its discretion in denying defendants' motion for judgment n.o.v., and in failing to strike the jury's award for "loss of society and companionship" under the Wrongful Death Act, where plaintiffs failed to offer any evidence to meet their burden of proving the pecuniary loss of decedent's services?

3. Whether the trial court erred as a matter of law or abused its discretion in failing to grant a new trial where the jury's verdict was against the great weight of evidence presented at trial?

4. Whether the trial court erred as a matter of law or abused its discretion in failing to grant judgment n.o.v. or a new trial where plaintiffs offered no evidence upon which the jury could conclude that any allegedly negligent conduct by HUP's nurses or by Dr. Chavkin caused any injury for which recovery was permitted in this matter?

5. Whether the trial court erred as a matter of law or abused its discretion in permitting the jury to consider HUP's liability based on the acts or omissions of the nurses and/or Dr. Chavkin and against Dr. Chen only? 6. Whether the trial court erred as a matter of law or abused its discretion in failing to grant judgment n.o.v. or a new trial where plaintiffs' expert, Dr. Mollick did not express opinions based upon facts established by the evidence, and testified to ultimate fact, as opposed to permissible expert opinion?

7. Whether the trial court abused its discretion by refusing to remit the jury's award of $1.5 million to the plaintiffs for loss of society and companionship of Hyseem Jacobs because that award is shocking and unconscionable based upon the evidence provided to the jury on this issue?

8. Whether the trial court erred as a matter of law or abused its discretion in charging the jury on the increased risk of harm standard?

Appellant's Brief, at 4-5.

In their first two issues on appeal, HUP and Dr. Chen argue that the trial court erred in allowing the jury to award damages to Hatwood and Jacobs for the monetary value of Baby Hyseem's companionship, society and comfort had he lived. Specifically, HUP and Dr. Chen first argue that the trial court's instruction to the jury regarding damages recoverable under the Wrongful Death Act was in error.

Our standard of review is as follows:

Under Pennsylvania law, our standard of review when considering the adequacy of jury instructions in a civil case is to determine whether the trial court committed a clear abuse of discretion or error of law controlling the outcome of the case. It is only when the charge as a whole is inadequate or not clear or has a tendency to mislead or confuse rather than clarify a material issue that error in a charge will be found to be a sufficient basis for the award of a new trial.

Patton v. Worthington Associates, Inc., 43 A.3d 479, 490 (Pa. Super. 2012) (citation omitted). "Further, a trial judge has wide latitude in his or her choice of language when charging a jury, provided always that the court fully and adequately conveys the applicable law." Id. (citation omitted). Pennsylvania's Wrongful Death Act, 42 Pa.Cons.Stat.Ann. § 8301, allows a spouse, children or parents of a deceased to sue another for a wrongful or neglectful act that led to the death of the deceased. This Court has previously explained the damages available under the Wrongful Death Act:

Damages for wrongful death are the value of the decedent's life to the family, as well as expenses caused to the family by reason of the death." Slaseman v. Myers, 309 Pa.Super. 537, 455 A.2d 1213, 1218 (1983). Thus, members of the decedent's family enumerated in the Wrongful Death Act, see 42 Pa.C.S. § 8301(b), may recover not only for medical, funeral, and estate administration expenses they incur, but also for the value of his services, including society and comfort. See id. See also Machado v. Kunkel, 804 A.2d 1238, 1245 (Pa.Super.2002) ("[T]he definition of compensable services for the purpose of the [wrongful] death statute is similar to the definition of consortium as that term is applied in other negligence cases.").

Rettger v. UPMC Shadyside, 991 A.2d 915, 932 -933 (Pa.Super. 2010), appeal denied, 609 Pa. 698, 15 A.3d 491 (2011). Our Court has unequivocally stated that:

The purpose of the Wrongful Death Statute, 42 Pa.C.S. § 8301, is to compensate "the decedent's survivors for the pecuniary losses they have sustained as a result of the decedent's death.... This includes the value of the services the victim would have rendered to his family if he had lived." . . . A wrongful death action does not compensate the decedent; it compensates the survivors for damages which they have sustained as a result of the decedent's death.

Under the wrongful death act the widow or family is entitled, in addition to costs, to compensation for the loss of the contributions decedent would have made for such items as shelter, food, clothing, medical care, education, entertainment, gifts and recreation.

Machado v. Kunkel, 804 A.2d 1238, 1245 -1246 (Pa.Super. 2002), appeal denied, 572 Pa. 766, 819 A.2d 547 (2003)(citations omitted), quoting Linebaugh v. Lehr, 505 A.2d 303, 304-305, (Pa.Super. 1986).

The trial court instructed the jury on this issue in the following manner:

In addition to the monetary contributions that the decedent would have contributed to the family support, the plaintiffs are entitled to be [] awarded a sum that will fairly and adequately compensate the family for the monetary value of the companionship, society, and comfort that Hyseem Jacobs would have given to his family had he lived; including such elements as work ...


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