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Passarello v. Grumbine

Supreme Court of Pennsylvania

February 7, 2014

STEVEN P. PASSARELLO, ADMINISTRATOR OF THE ESTATE OF ANTHONY J. PASSARELLO, DECEASED, AND STEVEN P. PASSARELLO AND NICOLE M. PASSARELLO, HUSBAND AND WIFE,
v.
ROWENA T. GRUMBINE, M.D. AND BLAIR MEDICAL ASSOCIATES, INC., APPEAL OF: BLAIR MEDICAL ASSOCIATES, INC. STEVEN P. PASSARELLO, ADMINISTRATOR OF THE ESTATE OF ANTHONY J. PASSARELLO, DECEASED, AND STEVEN P. PASSARELLO AND NICOLE M. PASSARELLO, HUSBAND AND WIFE
v.
ROWENA T. GRUMBINE, M.D. AND BLAIR MEDICAL ASSOCIATES, INC., APPEAL OF: ROWENA T. GRUMBINE, M.D

Argued: November 28, 2012.

Resubmitted: December 27, 2013.

Page 286

15 WAP 2012

Appeal from the Order of the Superior Court entered September 9, 2011, at No. 1399 WDA 2010, vacating the Judgment of the Court of Common Pleas of Blair County entered September 7, 2010 at No. 2003 GN 3088, and remanding. Appeal allowed May 23, 2012 at 645 WAL 2011. Trial Court Judge: William H. White, Jr., Senior Judge. Intermediate Court Kate Ford Elliott, President Judge Emeritus, John T. Bender, Gene Strassburger, JJ.

16 WAP 2012

Appeal from the Order of the Superior Court entered September 9, 2011, at No. 1399 WDA 2010, vacating the Judgment of the Court of Common Pleas of Blair County entered September 7, 2010 at No. 2003 GN 3088, and remanding. Appeal allowed May 23, 2012 at 653 WAL 2011. Trial Court Judge: William H. White, Jr., Senior Judge. Intermediate Court Kate Ford Elliott, President Judge Emeritus, John T. Bender, Gene Strassburger, JJ.

For Blair Medical Associates, Inc., APPELLANT: John Wesley Jordan, IV, Matis Baum O'Connor.

For Pennsylvania Medical Society, APPELLANT AMICUS CURIAE: Robert B. Hoffman, Esq., Eckert Seamans Cherin & Mellott, LLC.

For Rowena T. Grumbine, APPELLEE: Lynn Ellen Bell, Davies, McFarland & Carroll, P.C.; Michael Christopher Hamilton, Esq.; Maureen Murphy McBride, Esq., Lamb McErlane, PC; James C. Sargent Jr., Esq., Lamb McErlane, PC.

For Steven P. Passarello, Estate of Anthony J. Passarello, Steven P. and Nicole M. Passarello, APPELLES: Donald Joseph Feinberg, Esq., Feinberg & Silva.

For Steven P. and Nicole M. Passarello, APPELLEE: Clifford Alan Rieders, Esq., Reiders, Travis, Humphrey, Harris, Weters & Waffenschmidt; Pamela L. Shipman, Esq., Reiders, Travis, Humphrey, Harris, Waters & Waffenschmidt.

For Pennsylvania Association for Justice, APPELLEE AMICUS CURIAE: Rosalind T. Kaplan, Esq., Jarve Kaplan Granato, LLC.

For Rowena T. Grumbine, APPELLANT: Lynn Ellen Bell, Davies, McFarland & Carroll, P.C.; Michael Christopher Hamilton, Esq.; Maureen Murphy McBride, Esq., Lamb McErlane, PC; James C. Sargent Jr., Esq., Lamb McErlane, PC.

For Steven P. and Nicole M. Passarello, APPELLEE: Donald Joseph Feinberg, Esq.; Clifford Alan Rieders, Esq., Reiders, Travis, Humphrey, Harris, Waters & Waffenschmidt; Pamela L. Shipman, Esq., Reiders, Travis, Humphrey, Harris, Weters & Waffenschmidt.

For Blair Medical Associates, Inc., APPELLEE: John Wesley Jordan, IV, Matis Baum O'Connor.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. MR. JUSTICE McCAFFERY. Mr. Justice Baer, Madame Justice Todd, and Mr. Justice Stevens join the opinion. Mr. Chief Justice Castille files a dissenting opinion. Mr. Justice Saylor files a concurring and dissenting opinion. Mr. Justice Eakin files a dissenting opinion in which Mr. Chief Justice Castille joins.

OPINION

Page 287

MR. JUSTICE McCAFFERY

We granted review in this medical malpractice case to consider whether the trial court properly gave an " error in judgment" jury instruction, i.e., an instruction that physicians are not liable for their " errors in judgment" when making medical decisions.

I

The Superior Court's opinion sets forth the factual background, as follows:

This matter arose out of the death of two-month-old Anthony Passarello, who died while under the care of defendant pediatrician Rowena T. Grumbine, M.D., and members of her staff at Blair Medical Associates, Inc. [" Blair Medical," Dr. Grumbine's employer]. Anthony's parents, Stephen and Nicole Passarello [Appellees], brought Anthony to Dr. Grumbine for multiple visits following his birth on May 31, 2001, and contacted Dr. Grumbine's office seven times during the week preceding his death on August 4, 2001. The relevant chronology of that final week appears in the record as follows.

Page 288

On July 27, [Appellees] brought Anthony to Dr. Grumbine's office concerned about the state of his health, reporting that he would take only 4 ounces of formula rather than the customary 6 or 7, that he was crying after feedings, and that he had a slight cough.
On July 29, [Appellees] called Blair Medical Associates' " tele-a-nurse" phone service and reported that Anthony had experienced projectile vomiting, had been fussy for the previous five days, and was tired after feeding. They reported those same symptoms later that day when they spoke with Dr. Grumbine by telephone. Dr. Grumbine suggested that time that Anthony might suffer from pyloric stenosis and noted that a barium swallow test might be indicated. However, subsequent developments discounted that potential diagnosis and Dr. Grumbine did not order the test.
On July 30, [Appellees] took Anthony for an office visit with Dr. Grumbine and reported that Anthony continued to have a slight cough and had vomited two to three times daily for the preceding four to five days.
Two days later, on August 1, during a follow-up office visit with Dr. Grumbine, [Appellees] reported that Anthony was fussy, vomiting at times, was not sleeping, exhibited pain while feeding, and was wheezy afterward. Dr. Grumbine found Anthony's symptoms consistent with gastroesophogeal reflux and prescribed medications to treat that condition. She also immunized him for DPT, Polio, Haemophilus Influenza Type B, Hepatitis B, and Pneumococcus.
Thereafter, on August 2, [Appellees] called the tele-a-nurse service and reported that Anthony's formula consumption had dropped to three ounces that day, that he was fussy and not sleeping, and was screaming as if in pain. They also reported that he had wet only two diapers that day and had a fever of 101° F despite administration of Tylenol every four hours. Dr. Grumbine found Anthony's symptoms consistent with reactions to his immunizations of the previous day and concluded that he might also be in pain from acid reflux.
Anthony's symptoms remained unabated and on the following day, August 3, [Appellees] took him to the emergency room at Altoona Hospital, where the attending physician, Dr. Holly Thompson, found him to be in severe respiratory distress and confirmed that his heart rate had fallen dangerously low. Despite intubation and the use of a ventilator as well as other supportive measures, Anthony died during the early morning hours of August 4. Post-mortem examination established the cause of death to be diffuse acute viral myocarditis, a viral infection of the heart muscle.

Passarello v. Grumbine, 2011 PA Super 199, 29 A.3d 1158, 1160-61 (Pa.Super. 2011).

Appellees commenced an action against Dr. Grumbine, a second doctor, and Blair Medical on July 28, 2003, and the case remained in litigation until entry of a defense verdict on April 29, 2009[1] (collectively, Dr. Grumbine and Blair Medical shall be referred to hereafter as " Appellants" ). At trial, Appellees presented expert testimony that Dr. Grumbine had deviated from the standard of care by failing to refer Anthony for further testing on August 2.[2] Appellants responded with expert

Page 289

testimony that Dr. Grumbine had complied with the standard of care because she had chosen an alternate diagnosis " that fit the symptoms and made sense." Notes of Testimony (N.T.) Trial, 4/24/09, at 36; R.R. 431a. As the trial neared its close, Dr. Grumbine and Blair Medical each submitted proposed points for charge, including differing versions of the " error in judgment" charge. Blair Medical's proposed version of the charge read: " Under the law, physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless it is proven that an error of judgment was the result of negligence." Points for Charge of Blair Medical Associates at 3, ¶ 7. Dr. Grumbine's proposed version of the charge stated, " If a physician employs the required judgment and care in reaching his or her diagnosis, the mere fact that he or she erred in the diagnosis will not render them liable, even though their treatment was not proper for the condition that actually existed." Points for Charge of Rowena Grumbine, M.D. at 7, ¶ 17.

The trial judge held a charging conference and stated that all of Blair Medical's proposed points for charge would " either be read or covered." N.T. Trial, 4/24/09, at 57; R.R. at 452a. However, the judge did not say exactly which, if any, of Blair Medical's proposed charges it would actually read to the jury, and counsel for Appellees did not raise any objection at that time. The judge then proceeded to discuss Dr. Grumbine's points for charge in detail, and when the judge addressed her proposed " error in judgment" charge, counsel for Appellees objected that the instruction would not be proper in this case. See id. at 85-86; R.R. at 480a-81a. However, the judge did not rule on the objection at that time. Because the conference was taking place on a Friday, the judge adjourned the conference and reconvened it on the following Monday morning, at which time Appellees' counsel again objected to an " error in judgment" charge.

Following the charging conference, the trial judge instructed the jury. It first instructed the jury on the objective standard of professional negligence, explaining that " a physician [whose] conduct falls below the standard of care is negligent." N.T. Jury Charge, 4/27/09, at 13; R.R. at 529a. The judge told the jury that it was not to " rely on hindsight" and consider a " disastrous result" to be " proof of negligence," but should rather " determine whether [Dr. Grumbine] failed to have and exercise ordinary skill, care, and knowledge of a specialist, in this case a pediatrician, in the circumstances which were present at the time." Id. at 35; R.R. at 551a. The judge then read Blair Medical's version of the " error in judgment" charge, and instructed the jury, " Under the law[,] physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless it's proven that an error of judgment was the result of negligence." Id. at 35-36; R.R. at 551a-52a.

Immediately following the jury charge, the judge called counsel to sidebar to entertain objections to the charge. Appellees' counsel said he was renewing the objections he had made during the Friday charging conference as well as the objection he had raised during the charging conference that morning to the " error in judgment" instruction. Counsel then asked the judge, " [D]o I have those objections preserved, Your Honor?" The judge replied, " It's my understanding you do." Id. at 37; R.R. at 553a. The judge denied the objections, and the jury retired to deliberate; it later returned a verdict in Appellants' favor.

Page 290

Appellees filed timely post-trial motions arguing, among other things, that the trial court had improperly given an " error in judgment" charge. Approximately one month after Appellees had filed their post-trial motions - and before the trial court ruled on post-trial motions - the Superior Court filed its decision in Pringle v. Rapaport, 2009 PA Super 171, 980 A.2d 159 (Pa.Super. 2009) (en banc). In that case, the trial court had given an " error in judgment" charge very similar to the one given here, instructing the jury that, " Under the law, physicians are permitted a broad range of judgment in their professional duties, and they are not liable for errors of judgments [sic] unless it is proven that an error of judgment was the result of negligence." Id. at 164. The Superior Court in Pringle held that such an instruction should never be given because it " wrongly suggests to the jury that a physician is not culpable for one type of negligence, namely the negligent exercise of his or her judgment." Id. at 173. The court also stated that the instruction incorrectly " injects a subjective element into the jury's deliberations" because it " improperly refocuses the jury's attention on the physician's state of mind at the time of treatment," rather than on the standard of care, which is objective. Id. at 174. The court also pointed out that the Committee on Proposed Standard Civil Jury Instructions had, since 1981, rejected the charge as confusing, and that this Court had never decided whether the charge was appropriate.[3]

Approximately one year after the Superior Court decided Pringle, the trial court denied Appellees' post-trial motions and entered judgment in Appellants' favor. Appellees appealed to the Superior Court, which vacated and remanded. Passarello, supra. The Superior Court first concluded that Appellees had properly preserved their challenge to the " error in judgment" charge, stating that the trial court had had " an opportunity to assess its use of the instruction." Id. at 1163 n.1. The court then applied Pringle, rejecting Appellants' argument that it should not " retroactively" do so because Pringle had been decided after Appellees had filed their post-trial motions.

Appellants then each filed individual Petitions for Allowance of Appeal, which we granted to review the following issues:

(1) Is it ever within the discretion of a trial judge to instruct the jury in a medical malpractice case that a doctor is not liable for a nonnegligent error of judgment?
(2) Was the Supreme Court's retroactive application to the present case of the rule it announced in Pringle v. Rapaport[,] 2009 PA Super 171, 980 A.2d 159 (Pa.Super. 2009) (en banc), contrary to the Supreme Court's decision in Cleveland v. Johns-Manville Corp.[,] 547 Pa. 402, 690 A.2d 1146 (1997)?

Passarello v. Grumbine, 615 Pa. 585, 44 A.3d 654 (Pa. 2012) (Blair Medical's appeal); and

(1) Whether the Superior Court violated longstanding precedent and deviated from existing law by granting [Appellees] a new trial based on a purportedly faulty " error in judgment" jury instruction in circumstances where [Appellees] failed to object to the instruction at trial, and, accordingly, failed to preserve the issue for appeal.

Page 291

(2) Whether the Superior Court contravened controlling precedent by not considering a trial court's jury charge in its entirety to determine whether a trial court's reference to the error-in-judgment concept was harmless and the charge in its entirety was a correct statement of law.
(3) Whether the Superior Court contravened controlling precedent by relying on its decision in Pringle v. Rapaport, [ ] 2009 PA Super 171, 980 A.2d 159 (Pa.Super. 2009) to vacate a verdict in circumstances where the instruction given by the trial court was a proper statement of the law even assuming Pringle applied.

Passarello v. Grumbine, 615 Pa. 588, 44 A.3d 656 (Pa. 2012) (Dr. Grumbine's appeal).

Appellees correctly note that these five issues, as developed by Dr. Grumbine and Blair Medical, have areas of significant overlap, although the issues are stated differently by those parties. Specifically, Dr. Grumbine's argument for her Issue 3 overlaps and parallels Blair Medical's development of both of its two issues. Part of Dr. Grumbine's argument in her issue 2 also has echoes in Blair Medical's arguments. Thus, we shall address the issues accepted for appeal in a logical fashion, starting with Dr. Grumbine's argument that Appellees waived their objection to the " error in judgment" charge.

II

Dr. Grumbine, but not Blair Medical, argues that Appellees waived their challenge to the error in judgment charge by only objecting during the charging conference to Dr. Grumbine's version of the charge, in light of the fact that the trial court gave Blair Medical's version of the " error in judgment" charge, not Dr. Grumbine's. Dr. Grumbine further contends that Appellees waived their argument on appeal that the error in judgment charge should never be given by making only the narrower argument at trial that the instruction was not proper in this case.[4]

Dr. Grumbine's first argument, that Appellees had failed to object to Blair Medical's point for charge as well as her own point for charge on " error in judgment," rings hollow for several reasons. First, Appellees here alleged essentially a series of acts of negligence -- those of Dr. Grumbine -- while co-defendant Blair Medical was sued only in an agency capacity. Thus, any error in judgment charge pertained to the singular behavior of Dr. Grumbine, and, accordingly, only one objection was necessary for the trial court to be placed on notice as to possible defects in an error in judgment charge pertaining to that party's behavior. The requirement for a timely and specific objection at trial is to " ensure that the trial judge has a chance to correct alleged trial errors." Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114, 116 (Pa. 1974). Here, the trial judge was given just such an opportunity (indeed several opportunities) by Appellees' objections on the record.

Further, we cannot agree with Dr. Grumbine's argument that her error in judgment point for charge and that of Blair Medical were different creatures, " entirely distinct," [5] requiring that an objection be lodged as to each. Dr. Grumbine asserts that her point for charge " made no reference to a physician being

Page 292

liable for negligence ," whereas Blair Medical's point for charge stated " that a physician is liable for an error in judgment if that error in judgment is caused by negligence ." Dr. Grumbine's Reply Brief at 3 n.3 (emphasis in original). Setting aside the fact that the essential question in a medical malpractice action is whether a health care provider was negligent, as to which question the jury would necessarily be instructed by the court, our view of Dr. Grumbine's proposed point for charge is that it actually incorporated the concept of negligence by using other language. Dr. Grumbine's proposed charge states: " If a physician employs the required judgment and care in reaching his or her diagnosis, the mere fact that he or she erred in the diagnosis will not render them liable, even though their treatment was not proper for the condition that actually existed." Points for Charge of Rowena Grumbine, M.D. at 7, ¶ 17 (emphasis added).

There is no substantive difference between Dr. Grumbine's error in judgment point for charge and that of Blair Medical. Indeed, the trial court considered the two instructions to be " equivalent." See Trial Court Opinion, disposing of Appellees' request for post-trial relief, dated September 7, 2010, at 2. Thus, we see no merit to Dr. Grumbine's contentions regarding waiver.

Objections to jury instructions must be made before the jury retires to deliberate, unless the trial court specifically allows otherwise. Pa.R.C.P. 227(b). The record here makes it clear that Appellees lodged their objections before the jury began its deliberations. As noted above, Appellees' counsel told the court before the jury commenced deliberating that he wanted to preserve both the objections he had made during the charging conference on the previous Friday, and the objection to the " error in judgment" charge he had raised that morning. Appellees' timely objection satisfied Rule 227(b)'s requirements. Indeed, the trial court told Appellees' counsel that it was its understanding that the objection was preserved.

Accordingly, we conclude that there is no basis for Dr. Grumbine's argument that the import, nature, and language of her proposed point for charge and those of Blair Medical's proposed point for charge required Appellees to object to both proposed points for charge.

Dr. Grumbine's second argument is that Appellees preserved an objection only to the application of the error in judgment to the facts of the instant case, and not to an error in judgment charge generally. In their post-trial motions, Appellees asserted that they had objected at trial to an error of judgment charge for two reasons. The first reason was that the instant case involved a failure to test for a diagnosis, rendering the charge inapplicable. The second reason was that the trial court should have given the charge relating to medical malpractice cases found in the Pennsylvania Suggested Standard Jury Instructions, which had specifically rejected the error in judgment instruction. Plaintiffs' Motion for Post-Trial Relief, filed May 5, 2009, at 2-3. The trial transcript, however, suggests that when Appellees first made their objection during the pre-charge conference, they were relying only on the first reason. See N.T. Trial, 4/24/09, at 86; R.R. at 481a, comments of Appellees' attorney (" There is specific law in medical malpractice cases dealing [with] when the error of judgment charge needs to be given and when it [does not]." ). Unfortunately, there apparently was no transcription of the continuation of the pre-charge conference that occurred three days later, when the issue of the appropriateness of the error in judgment charge was purportedly also discussed among

Page 293

counsel and the trial judge. See Appellees' Brief at 23 n.7.

It is clear that Appellees objected to the error in judgment charge at least as it applied to the instant case. Additionally, after such objection -- and prior to the entry of the judgment in the instant case -- the Superior Court rejected error of judgment charges as inappropriate in all medical malpractice cases. As we determine infra, Appellees were entitled to present argument based on Pringle's alteration and clarification of then-existing law. Accordingly, we conclude that Appellees did not waive their objection and were entitled to argue on appeal that Pringle supported the grant of a new trial.

III

A

On the merits, Dr. Grumbine and Blair Medical argue several points challenging the Superior Court's (1) blanket prohibition of error in judgment instructions in medical malpractice cases; and (2) determination that a new trial was required in this case as a consequence of the error in judgment instruction given here by the trial judge.

Blair Medical contends that we should abrogate the relevant holding of Pringle because " error in judgment" instructions properly instruct the jury on the principle that " if a physician employs the required judgment and care in arriving at his diagnosis, the mere fact that [the physician] erred in his diagnosis will not render him [or her] liable, even though his treatment is not proper for the condition that exists ... ." Blair Medical's Brief at 10, quoting Smith v. Yohe, 412 Pa. 94, 194 A.2d 167, 170-71 (Pa. 1963). Blair Medical observes that this Court has never considered the concept of a physician's error in judgment in the context of a jury charge, but that several Superior Court cases have upheld error in judgment charges. In one case, the court determined that a " mistake of judgment" instruction was appropriate in a case involving a difficult diagnosis because such instruction " properly directed the jury to base its verdict on whether a physician had failed to follow proper medical procedure and not infer a breach of the standard of care merely from [the patient's] unfortunate result." Havasy v. Resnick, 415 Pa.Super. 480, 609 A.2d 1326, 1336 (Pa.Super. 1992). In another case, the appellant had argued that the trial judge's " mere error of judgment" charge was improper because the evidence showed that the defendant physician had not exercised any medical judgments. The Superior Court determined that the appellant's argument was " puzzling, at best," in that the evidence apparently demonstrated that the physician had made a series of decisions (" medical judgments" ) in rendering care to the patient, which the Superior Court detailed. That court then asserted that after its review of the record, it had come to the conclusion that the jury charge was " clear, accurate, and more than adequate." Blicha v. Jacks, 2004 PA Super 448, 864 A.2d 1214, 1219-20 (Pa.Super. 2004).[6]

Blair Medical next asserts that in Pringle, the Superior Court had a valid reason for determining that the trial court's particular jury instruction in that case would have been confusing for a jury, thus providing a basis for rejecting - in that case - the propriety of an error in judgment instruction. By contrast, Blair Medical asserts, the relevant charge in the present case is distinguishable, was accurate as a

Page 294

matter of law, and was not of a nature that the jury would find confusing. Specifically, Blair Medical notes that in Pringle, the jury was relevantly charged: " The rule requiring a physician to use his best judgment does not make a physician liable for a mere error in judgment provided he does what he thinks best after careful examination ." Blair Medical's Brief at 12-13, quoting Pringle, supra at 164 (emphasis by the Superior Court). However, in the present case, Blair Medical notes that the jury was relevantly charged: " Under the law[,] physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless it's proven that an error of judgment was the result of negligence." Blair Medical's Brief at 13, quoting N.T. Jury Charge, 4/27/09, at 35-36; R.R. at 551a-52a. Based on the statements it highlights from the jury charges in the two cases, Blair Medical asserts that the jury in the instant case was directly informed that a physician would be liable for a negligent exercise of judgment, but that the jury in Pringle was not so instructed.[7] Further, Blair Medical asserts that the jury instruction in the present case did not in any fashion invite the jury to consider Dr. Grumbine's motivations or subjective thoughts in connection with evaluating the doctor's exercise of her judgment; rather, the jury was firmly instructed on the objective elements of the negligence that Appellees were required to prove.

Finally, Blair Medical asserts that a " blanket proscription" of error in judgment instructions in all medical malpractice jury instructions is error, because such instructions may address important aspects of certain medical malpractice cases. Blair Medical argues that a properly crafted error in judgment charge (which Blair Medical asserts was made in the instant case) serves to inform the jury that a doctor may make reasonable decisions that, in hindsight, might be proved to be " wrong." Blair Medical's Brief at 14.

Dr. Grumbine echoes Blair Medical's argument with the contention that " Pringle's [relevant] holding is wrong-headed as a matter of law and should be overturned." Dr. Grumbine's Brief at 27. In support, Dr. Grumbine posits that this Court had " listed the 'error in judgment' concept as one of the eight 'well settled principles in [the medical malpractice] area of the law.'" Id. at 28, quoting Yohe, supra at 170-71. Dr. Grumbine also agrees with Blair Medical that the reasons supporting the grant of a new trial in Pringle ...


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