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James v. Albert Einstein Medical Center

Superior Court of Pennsylvania

September 12, 2017

FLORENCE JAMES, INDIVIDUALLY AND AS THE EXECUTRIX OF THE ESTATE OF LAFAYETTE JAMES (DECEASED), Appellant
v.
ALBERT EINSTEIN MEDICAL CENTER, RONALD WALOFF, M.D., ARIA HEALTH, THE FRANKFORD HOSPITAL OF THE CITY OF PHILADELPHIA, A/K/A AND OR D/B/A FRANKFORD HOSPITAL - TORRESDALE CAMPUS, ARIA HEALTH SYSTEM, ARIA HEALTH PHYSICIANS SERVICES, GLENN MEREWITZ, M.D., JEFFREY GREENSPAN, D.O., OXFORD CIRCLE FAMILY MEDICINE, ADAM S. PASTERNACK, D.O., THEODORE BURDEN, M.D., M.B.A. AND BURDEN-NEWTON MEDICAL ASSOCIATES, Appellees

         Appeal from the Judgment Entered May 13, 2016 in the Court of Common Pleas of Philadelphia County Civil Division at No.: 00276 June Term, 2012

          BEFORE: DUBOW, J., RANSOM, J., and PLATT, J. [*]

          OPINION

          PLATT, J.

         Appellant, Florence James, individually and as the executrix of the estate of her deceased brother, Lafayette James, appeals from the jury verdict of no negligence in this medical malpractice claim. We affirm.

         We note at the outset that at seventy-eight pages, Appellant's brief is more than two and a half times the "safe harbor" maximum of thirty pages (2.6 times, to be precise). Counsel for Appellant certifies that the brief consists of 13, 971 words, twenty-nine words less than the specified limit of 14, 000 words prescribed in our rules of appellate procedure. (See Certification of Compliance with Word Count Limit, 3/24/17); see also Pa.R.A.P. 2135(a)(1).

         However, on independent examination, we confirm a count of 18, 519 words, making the brief about a third longer than the maximum permissible length, without permission. It appears that counsel, or his word processor, misstated the count by over 4500 words (4548, to be precise), failing to comply with the requirements of Pa.R.A.P. 2135.

         We could issue a rule to show cause order, with the possible sanction of quashal unless counsel provides an adequate explanation for the discrepancy. See Commonwealth v. Spuck, 86 A.3d 870, 877 (Pa. Super. 2014), appeal denied, 99 A.3d 77 (Pa. 2014).

         However, we decline to do so for reasons of judicial economy. While the brief is excessively rambling and could have benefited from more careful editing, nothing in the available record suggests that reworking the existing materials would furnish any proper basis to disturb the jury's verdict. To allow (or require) another round of briefs would place an additional burden on the Appellees, and their counsel, and merely delay the inevitable. Accordingly, to the extent possible, we will review Appellant's non-compliant brief on the merits, despite the obvious procedural defects.

         This is a complicated and convoluted case, but the basic themes of the trial and the appeal may be simply stated. Appellant alleges that the defendants/Appellees, five physicians and the institutional medical providers for which they practiced, failed, for a period of over six years, from December of 2004 until March of 2011, to diagnose the cause of her brother's various recurring abdominal problems. In 2011, after a CT scan, liver biopsy, colonoscopy, and other tests, Lafayette was determined to have a neuroendocrine carcinoid tumor.[1] He died three years later, in February of 2014.[2]

         At trial, Appellant argued, in effect, that defendants/Appellees failed to order the proper follow-up diagnostic tests, or to make appropriate referrals to specialists. As a result of this delay in diagnosis, Appellant maintains, decedent/Lafayette's tumor grew until it metastasized and became incurable.

         Appellees defended on the ground that the physicians met the appropriate standard of care in all respects. They also contended that Lafayette was a noncompliant patient, who over the years failed to follow through on various referrals to specialists, failed to return for scheduled follow-up visits, and failed to present himself (in one instance, even failed to stay in the emergency room) for additional test procedures. The available record confirms that for the most part, decedent Lafayette only presented every year or two, when his abdominal symptoms were acute.[3]

         Pertinent to issues raised on appeal, at trial, counsel for Appellant objected to the trial court's acceptance of Dr. Steven Peikin as an expert defense witness on oncology.[4] Appellant also tried to introduce evidence supporting a loss of consortium by testimony from the decedent's mother. Counsel also objected to certain jury instructions. After a ten-day trial, the jury rendered a defense verdict, finding no negligence by any of the named defendants.

         This timely appeal followed the denial by operation of law of Appellant's motion for a judgment notwithstanding the verdict (JNOV).[5]

         Appellant raises six questions on appeal.

(1) Whether the [t]rial [j]udge erred in qualifying Appellee Dr. Jeffrey Greenspan's gastrointestinal expert as an expert in oncology, thereby essentially denying in part Appellant's Motion In Limine, and allowing a gastroenterologist to offer causation and damages testimony outside the scope of his field of practice, thereby warranting JNOV in Appellant's favor, or, in the alternative, a new trial[?]
(2) Whether the [t]rial [j]udge erred in sustaining Appellees' objection to the testimony of Appellant's Decedent's mother on the impact of the death of her son on her life, based on erroneous Appellees' argument at the time of her testimony that she was not a beneficiary to the action, whereas Decedent's mother clearly is in fact a recognized beneficiary under the Wrongful Death Act, thereby warranting JNOV in Appellant's favor, or, in the alternative, a new trial[?]
(3) Whether the [t]rial [j]udge erred in its instruction to the jury on the definition of "injuries, " when the jury inquired during deliberations as to the definition of injuries of the Appellant's Decedent allegedly caused by the negligence of the Appellees, for the [t]rial [j]udge's explanation of "injuries, " was inconsistent with injuries as set forth in the Wrongful Death and Survival Acts, and the Suggested Standard Jury charges on injuries under the Wrongful Death and Survival Acts, thereby warranting JNOV in Appellant's favor, or, in the alternative, a new trial[?]
(4)Whether the [t]rial [j]udge erred by charging the jury a second time on the issue of physician negligence (which was Question Number 1 on the verdict sheet), where the nature of the jury's question during jury deliberation indicated that the jury had decided the issue of physician negligence adverse to the Appellees, and was focused on the impact of comparative negligence of the Appellant's Decedent (which was Question Number 3 on the verdict sheet) on the overall verdict, particularly where the jury requested clarification on Question Number 5 relating to appointment of percentage of liability on Appellees whose conduct were found to be a factual cause of injury to the Appellant's Decedent, thereby warranting JNOV in Appellant's favor, or, in the alternative, a new trial[?]
(5) Whether the [t]rial [j]udge erred by instructing the jury multiple times, at the insistence of Appellees' counsel, that Appellant's medical oncology expert Dr. Andrew Schneider was being presented as a witness on causation only, and not standard of care, where no such duplicative instructions were ever provided by the [t]rial [j]udge as to any other witness, thereby tainting the jury's prior instruction when the witness was qualified as an expert at the conclusion of voir dire, thereby warranting JNOV in Appellant's favor, or, in the alternative, a new trial[?]
(6) Whether, based on the overwhelming evidence presented at trial by the Appellant, through the testimony of the Appellee physicians and through expert witnesses, including Appellees' own expert witnesses, makes it not possible for two reasonable minds to disagree that the verdict should have been rendered in favor of the Appellant and against the Appellees[?]

(Appellant's Brief, at 6-7).

         We observe that despite the narrative emphasis in Appellant's brief on foregone diagnostic opportunities, (see id. at 8-27), the principal focus of the appeal is on procedural claims of trial court error, chiefly involving the scope of admissible expert testimony, and various instructions the trial court gave the jury. We also observe that Appellant's issues tend to overlap somewhat, particularly as to jury instructions and the scope of certain expert testimony. Finally, in a protracted catchall argument, (the sixth claim), counsel for Appellant claims that she is ...


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