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[U] Sutch v. Roxborough Memorial Hospital

Superior Court of Pennsylvania

November 4, 2013

ROSALIND W. SUTCH, as Executrix of the Estate of Rosalind Wilson, Deceased,
v.
ROXBOROUGH MEMORIAL HOSPITAL, SOLIS HEALTHCARE, LP, ANDORRA RADIOLOGY ASSOCIATION, TENET HEALTHSYSTEM ROXBOROUGH, LLC, TENET, INC., TENET GROUP, LLC, ROXBOROUGH EMERGENCY PHYSICIAN ASSOCIATES, LLC, BARBARA ROBINS, M.D., JEFFREY GELLER, M.D., AND MELANIO AGUIRRE, M.D. APPEAL OF: JEFFREY GELLER, M.D., AND ROXBOROUGH EMERGENCY PHYSICIAN ASSOCIATES, LLC, Appellants ROSALIND W. SUTCH, as Executrix of the Estate of Rosalind Wilson, Deceased,
v.
ROXBOROUGH MEMORIAL HOSPITAL, SOLIS HEALTHCARE, LP, ANDORRA RADIOLOGY ASSOCIATION, TENET HEALTHSYSTEM ROXBOROUGH, LLC, TENET, INC., TENET GROUP, LLC, ROXBOROUGH EMERGENCY PHYSICIAN ASSOCIATES, LLC, JEFFREY BRUCE GELLER, M.D., BARBARA GOLDMAN ROBINS, M.D., MICHAEL DeANGELIS, M.D., ERIN O'MALLEY, M.D., MELANIO DOMINGO AGUIRRE, M.D., RITI PATEL, M.D., SULTANA J. AFROOZ, D.O., AND ROBERT E. DOMANSKI, M.D. APPEAL OF: BARBARA GOLDMAN ROBINS, M.D., Appellant ROSALIND W. SUTCH, as Executrix of the Estate of Rosalind Wilson, Deceased,
v.
ROXBOROUGH MEMORIAL HOSPITAL, SOLIS HEALTHCARE, LP, ANDORRA RADIOLOGY ASSOCIATION, TENET HEALTHSYSTEM ROXBOROUGH, LLC, TENET, INC., TENET GROUP, LLC, ROXBOROUGH EMERGENCY PHYSICIAN ASSOCIATES, LLC, BARBARA GOLDMAN ROBINS, M.D., ROBERT E. DOMANSKI, M.D., MICHAEL DeANGELIS, M.D., ERIN O'MALLEY, M.D., JEFFREY BRUCE GELLER, M.D., MELANIO DOMINGO AGUIRRE, M.D., RITI PATEL, M.D., AND SULTANA J. AFROOZ, D.O. APPEAL OF: MELANIO DOMINGO AGUIRRE, M.D., Appellant ROSALIND W. SUTCH, as Executrix of the Estate of Rosalind Wilson, Deceased,
v.
TENET HEALTHSYSTEM ROXBOROUGH, LLC, d/b/a ROXBOROUGH MEMORIAL HOSPITAL, ROXBOROUGH EMERGENCY PHYSICIAN ASSOCIATES, LLC, BARBARA GOLDMAN ROBINS, M.D., JEFFREY BRUCE GELLER, M.D., MELANIO DOMINGO AGUIRRE, M.D., AND SULTANA J. AFROOZ, D.O. APPEAL OF: TENET HEALTHSYSTEM ROXBOROUGH, LLC, d/b/a ROXBOROUGH MEMORIAL HOSPITAL AND SULTANA J. AFROOZ, D.O. Appellants

NON-PRECEDENTIAL DECISION

Appeal from the Order entered on October 22, 2012 in the Court of Common Pleas of Philadelphia County, Civil Division, No. 0907-0901

BEFORE: BENDER, P.J., DONOHUE and MUSMANNO, JJ.

MEMORANDUM

MUSMANNO, J.

In these consolidated appeals, Jeffrey Geller, M.D. ("Dr. Geller"), Roxborough Emergency Physician Associates, LLC ("REPA"), Barbara Goldman Robins, M.D. ("Dr. Robins"), Melanio Domingo Aguirre, M.D. ("Dr. Aguirre"), Tenet Healthsystem Roxborough, LLC, d/b/a Roxborough Memorial Hospital, and Sultana J. Afrooz, D.O. ("Dr. Afrooz") (collectively "Defendants"), appeal from the Order granting the post-trial Motion for a new trial filed by Rosalind W. Sutch ("Plaintiff"), as Executrix of the Estate of Rosalind Wilson ("decedent"). We affirm.

The trial court set forth the pertinent history of this appeal as follows:

This medical malpractice action arises from Plaintiff's allegations that Defendants failed to inform Plaintiff's mother (decedent[]) that a chest x-ray performed at [] Roxborough Memorial Hospital on May 3, 2007, showed a suspicious nodule, which would have required further examination, including a follow-up CT scan. During [decedent's] overnight hospitalization, none of the physicians who cared for her advised her of this 2.3 [centimeter] nodule in her left lung[, ] nor did they advise her to seek follow-up care regarding this finding. [Decedent] left the hospital the next day unaware of the existence of the nodule and did not discover its existence until twenty [] months later[, ] when it was discovered that she had an 8 [centimeter] malignant nodule in her left lung[, ] which had metastasized to other areas of her body. At that time, she was diagnosed with Stage IV lung cancer. [Decedent] died on July 21, 2009, [approximately] six [] months after she was diagnosed. Thereafter, [Plaintiff], as [E]xecutrix of [decedent's] estate[, ] brought suit pursuant to the Wrongful Death and Survival Acts.
Prior to jury selection[, the trial c]ourt heard extensive argument on numerous Pre-Trial matters and [M]otions. Most germane to this appeal was Plaintiff's Motion in Limine to preclude any mention of decedent's smoking history. After argument, the parties requested that [the trial c]ourt enter an Order by Agreement of all the parties that [g]ranted Plaintiff's Motion In Limine and thereby precluded [] Defendants from "presenting any evidence, testimony, and/or argument regarding decedent's smoking history." [Order, 5/16/12]. This [] Order [(hereinafter "Preclusion Order")] was entered as such on May 16, 2012. Thereafter, on May 18, 2012, a panel of twelve [] jurors and two [] alternates was selected and sworn in to hear the case.
When trial commenced on May 21, 2012, the remaining named [D]efendants were the hospital (Roxborough Memorial [Hospital]), [REPA, ] the emergency room physician (Dr. [] Geller), admitting physician (Dr. [] Aguirre), house physician (Dr. [] Afrooz), and radiologist (Dr. []Rob[]ins). Trial continued for the next eight [] days[, ] until May 31, 3012[, ] when counsel for [] Dr. Geller[] called [John] Kelly[, D.O. ("Dr. Kelly")], an expert in the field of emergency medicine, to testify on behalf of Dr. Geller. During direct examination, Dr. Kelly was asked whether [] decedent had any cardiac risk factors, to which Dr. Kelly responded by informing the jury that decedent was a smoker.[1] Dr. Kelly completed his testimony, at which time [Plaintiff's counsel requested a sidebar, [2] and the trial c]ourt dismissed the jury and inquired of Dr. Kelly as to whether he was made aware by [] Dr. Geller's counsel[] of [the trial c]ourt's [P]reclusion Order. Dr. Kelly responded that he could not remember having had a discussion with counsel about the [c]ourt's [Preclusion] Order banning the mentioning of decedent's smoking.[3]
The next day, Friday June 1, 2012[, ] and the following Monday, June 4, 2012, [the trial c]ourt heard argument as to what should be done in regard to Dr. Kelly's testimony regarding decedent being a smoker. During this time, Plaintiff's counsel made [a M]otion to declare a mistrial.[4] However, it was [the trial c]ourt's decision that a curative instruction would be given, and thus, [the trial c]ourt denied Plaintiff's request for a mistrial.

Accordingly, prior to any testimony commencing on June 4, 2012, [the trial c]ourt read the following to the jury as a curative instruction:

I do have something that's very important to read to you. … Ladies [and] gentlemen of the jury, I need to address you at this point. Lung cancer can be caused by many things. This case is not about its causes. The cause of [decedent's] specific type of lung cancer is not known. Further, smoking should not be considered in this case. Whatever may have caused the lung cancer has nothing to do with the issues of whether [D]efendant[]s breached their standard of care and caused the harm suffered by [decedent]. It has nothing to do with the issues you are considering in this case.
For that reason[, ] before I started this trial[, ] I [O]rdered[, ] and the parties agreed[, ] that no party was allowed to discuss any potential reason for the cause of [decedent's] lung cancer. I instructed all counsel to advise their witnesses of the [c]ourt's [O]rder before taking the stand. Last Thursday afternoon[, ] Dr. Geller and REPA violated the [c]ourt's Order through testimony introduced from Dr. Kelly. You are instructed to disregard that portion of Dr. Kelly's testimony because it is irrelevant and misleading.
I am instructing you that you are to consider in your deliberations only[:] one, whether [D]efendants breached the standard of care by failing to advise [decedent], her family, or her family physician about the nodule on her lung[; t]wo, whether any such failure increased the harm to [decedent], or decreased her chance of survival[; a]nd three, the amount of damages caused by any such failure.
And I am asking you to follow these instructions as I am giving them to you, and that's your sworn duty as jurors in this case.

[]N.T., [6/4/12, ] at pp. 29-31[.]

Trial Court Opinion, 5/28/13, at 1-3, 9-10 (footnotes added, emphasis in original).

Following the trial court's curative instruction, the defense resumed its case-in-chief. Four days later, the jury returned a verdict in favor of Plaintiff and against only Dr. Aguirre and Roxborough Memorial Hospital, each being found to be 50% causally negligent. The jury assessed damages in the amount of $100, 000 under the Survival Act, and $90, 000 under the Wrongful Death Act. The jury exonerated the remaining Defendants of any liability.

Plaintiff timely filed post-trial Motions, arguing that she was entitled to a new trial, against all of the Defendants and on all issues, based upon the trial court's error in denying Plaintiff's Motion for a mistrial. By an Order entered on October 22, 2012, the trial court granted Plaintiff's Motion and ordered a new trial. In response, Defendants timely filed Notices of appeal.

On appeal, Defendants Dr. Geller and REPA raise the following issues for our review:

I. Must the trial court's granting of a new trial be reversed where the basis upon which the new trial was granted was a violation of an Order on a Motion in limine where said Order was an abuse of discretion?
II. Must the trial court's granting of a new trial be reversed, as an abuse of discretion, where Plaintiff's "request" for a mistrial (following an inadvertent, isolated and unsolicited reference to smoking[, ] which was precluded by way of a pretrial Motion) was untimely, equivocal, and non-specific and, thus, ineffective as a matter of Pennsylvania law?
III. Even assuming, arguendo, that Plaintiff's "request" for a mistrial was legally sufficient, should the trial court's granting of a new trial nevertheless be reversed, as an abuse of discretion, where the inadvertent, isolated and unsolicited smoking reference was not so inflammatory and prejudicial as to prevent Plaintiff from receiving a fair trial – especially where, as here, a "strongly worded" curative instruction cured any prejudice and the record is devoid of any evidence that said smoking reference had any ...

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