Mitchell, A. v. Highland Park Care ( 2016 )

J-A13006-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ARTIS MITCHELL, AS THE IN THE SUPERIOR COURT OF
ADMINISTRATOR OF THE ESTATE OF PENNSYLVANIA
CAROLYN MITCHELL, DECEASED,
Appellant
v.
HIGHLAND PARK CARE CENTER, LLC,
OPERATING UNDER THE FICTITIOUS
NAME HIGHLAND PARK CARE CENTER
AND LUTHERAN SENIORLIFE,
OPERATING UNDER THE FICTITIOUS
NAME ST. JOHN SPECIALTY CARE
CENTER,
Appellee No. 1057 WDA 2015
Appeal from the Judgment Entered August 11, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-12-000832
BEFORE: OLSON, STABILE AND MUSMANNO, JJ.:
MEMORANDUM BY OLSON, J.: FILED AUGUST 24, 2016
Appellant, Artis Mitchell, as the administrator of the estate of Carolyn
Mitchell, deceased, appeals from the judgment entered on August 11, 2015.
We affirm.
The trial court succinctly explained the relevant, underlying facts and
procedural posture of this case:
[Appellant] brought a survival action alleging that Highland
Park Care Center [(“HPCC”)] failed to create and implement
a proper treatment care plan for [Carolyn Mitchell (“Ms.
Mitchell”)], and failed to promptly notify a physician of a
significant change in [Ms. Mitchell’s] condition.
J-A13006-16
In 1992, [Ms.] Mitchell experienced cardiac arrest, resulting
in a severe anoxic brain injury, which required her to need
skilled nursing care on a full-time basis for the rest of her
life. [Shorty thereafter, Ms. Mitchell became a resident of
HPCC, which is a skilled nursing facility in Pittsburgh.] . . .
[Appellant] claims specifically that in the weeks leading up
to February 15, 2010, [Ms.] Mitchell experienced repeated
episodes of emesis, which is vomiting, that went unreported
to her physician. [Appellant] further claims that said
episodes of emesis led to substances entering the lungs of
Ms. Mitchell causing her to suffer aspiration pneumonia.
[Appellant] further alleges that said negligence resulted in a
downward spiral in the health of Ms. Mitchell, eventually
resulting in her death on February 7, 2011.
...
This matter was initiated by the filing of a praecipe for writ
of summons on January 12, 2012. Said praecipe was
followed by a complaint in civil action filed [on] September
17, 2012. . . .
Prior to trial, [Appellant] settled his claims with defendant
Lutheran Seniorlife, operating under the fictitious name of
St. John Specialty Care Center.
A trial commenced on March 18, 2015, lasting until March
25, 2015, at which time the jury empaneled returned a
verdict for [HPCC] and against [Appellant], finding an
absence of negligence on the part of [HPCC. The trial court
denied Appellant’s post-trial motion and judgment on the
verdict was entered on August 11, 2015].
Trial Court Opinion, 10/1/15, at 1-3 (some internal capitalization omitted).
Appellant filed a timely notice of appeal and, on appeal, Appellant
raises the following claims:
[1.] Did the trial court err in denying [Appellant’s] motion
for judgment notwithstanding the verdict (“JNOV”) on the
issue of negligence when the verdict was such that no two
reasonable minds could disagree that the verdict should
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J-A13006-16
have been rendered in favor of [Appellant]? Specifically,
based upon the evidence that was offered at trial, along
with the fact that the Commonwealth of Pennsylvania
Department of Health (the “DOH”) specifically found that
[HPCC] failed to promptly notify a physician of a significant
change, which ultimately caused Ms. Mitchell to suffer
aspiration pneumonia, the jury’s finding of “no negligence”
is indeed such that it shocks one’s “sense of justice,” as the
jury was charged on the issue of negligence per se.
Further, the court committed an error by denying
[Appellant’s] motion for JNOV on the issue of negligence,
despite the fact that [HPCC’s] own experts admitted that
[HPCC] violated applicable standards of care. The [trial]
court committed an error by dismissing [Appellant’s] claim
for punitive damages at the close of [Appellant’s] case,
upon [HPCC’s] motion for a directed verdict. [Appellant]
preserved this issue in his motion for post-trial relief. Based
upon the evidence adduced at trial, it is clear that the issue
of punitive damages should have been one presented to the
jury.
[2.] Did the trial court err in denying [Appellant’s] motion
for a new trial on the issue of negligence when the verdict
was against the clear and substantial weight of the
evidence, particularly in light of the fact that based on the
evidence that was offered at trial, along with the fact that
the DOH specifically found that [HPCC] failed to promptly
notify a physician of a significant change, which ultimately
caused Ms. Mitchell to suffer aspiration pneumonia, the
jury’s finding of “no negligence” is indeed such that it
shocks one’s “sense of justice,” especially in light of the fact
that the jury was charged on negligence per se. Further,
the [trial] court committed an error by denying [Appellant’s]
motion for a new trial on the issue of negligence, despite
the fact that [HPCC’s] own experts admitted that [HPCC]
violated applicable standards of care. The [trial] court
committed an error by dismissing [Appellant’s] claim for
punitive damages at the close of [Appellant’s] case, upon
[HPCC’s] motion for a directed verdict. [Appellant]
preserved this issue in his motion for post-trial relief. Based
upon the evidence adduced at trial, it is clear that the issue
of punitive damages should have been one presented to the
jury.
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J-A13006-16
Appellant’s Brief at 5-6 (some internal capitalization omitted).
We reviewed the briefs of the parties, the relevant law, the certified
record, the notes of testimony, and the opinion of the able trial court judge,
the Honorable Michael A. Della Vecchia. We conclude that there has been no
error in this case and that Judge Della Vecchia’s opinion, entered on October
1, 2015, meticulously and accurately disposes of Appellant’s issues on
appeal. Therefore, we affirm on the basis of Judge Della Vecchia’s opinion
and adopt it as our own. In any future filings with this or any other court
addressing this ruling, the filing party shall attach a copy of the trial court
opinion.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2016
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Circulated 08/05/2016 03:29 PM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
CIVIL DIVISION
ARTIS MITCHELL, as Administrator No. GD 12-000832
of the Estate of CAROLYN MITCHELL,
Deceased,
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OPINION
Honorable Michael A Della Vecchia
710 City-County Building
414 Grant Street
Pittsburgh, PA 15219
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rjU954 A.2d 1199, 1206 (Pa.Super. 2008), citing
Northeast Fence & Iron Works v. Murphy Quigley Co .. Inc., 933 A.2d 664, 668
(Pa.Super. 2007).
The Plaintiff believes he provided the jury with a 'smoking gun' pointing to a
finding by the Commonwealth of Pennsylvania Department of Health ("DOH")
specifically holding that Highland Park failed to promptly notify a physician of a
significant change, which ultimately caused Ms. Mitchell to suffer aspiration pneumonia.
The Plaintiff requested and the trial court incorporated Plaintiff's proposed charge of
negligence per se into the court's instructions to the jury. The jury obviously rejected
Plaintiff's argument as to this point.
This writer accepts that the jury was not convinced by the Plaintiff's argument as
to causation. specifically. the fact that both the Plaintiff and the Defendant's experts
opined that Ms. Mitchell's aspiration pneumonia developed from events in the hospital,
or immediately prior to her admission, not from any negligence noted in the DOH report.
The DOH finding concerns failures following events reported January 24, 2010,
February 3, 2010, and February 8, 201 O.
The defense expert, Dr. Adam Sohnen stated that. "there was absolutely no
relationship between any of the emesis events, at least until the most recently
documented one on the (February) 111h and her pneumonia" (Trial Transcript ("Tr.") at
574). Dr. Sohnen explained convincingly to the jury that the initial chest x-rays
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examined following the events of emesis failed to show any signs of pneumonia and
were in fact "clear", "if she had pneumonia that was brewing or developing over those
several days, you would have seen a very abnormal appearing chest x-ray" (See, Tr. at
574).
It was consistently the Plaintiff's position that the emesis was caused by the
negligence in the defendant's choice to feed and medicate Ms. Mitchell through a G-port
rather than a J-port. When specifically asked whether a change in ports would have
alleviated Ms. Mitchell's instances of vomiting, Dr. Sohnen answer was "no, absolutely
not" (Tr. at 578}.
The Plaintiff's expert, Dr. Bruce Kinosian opined that "l'rn pretty sure that she
aspirated on the (February) 131h I which is when she developed the wheezing. Whether
that developed into something or whether she had new events) l don't know. My guess
is that she probably had a new event" (Tr. at 244).
The Plaintiff's own expert failed to advance the theory proffered by the Plaintiff,
that being; that the DOH finding that Highland Park failed to promptly notify a physician
of Ms. Mitchell's change of condition caused the aspiration pneumonia, leading, if not
contributing to her eventual death. Further, the DOH itself later made a finding of "no
harm" with regard to its earlier report of the deficiency at Highland Park Care Center
concerning the lack of notification.
Ms. Mitchell enjoyed additional care provided by private duty nurses. These
private duty nurses were not affiliated or employed by Highland Park Care Center. The
jury could have plausibly concluded that negligence on the part of said private care
nurses was not attributable to Highland Park Care Center.
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The Plaintiff raises additional error with this Court's decision to deny a request
made by the Plaintiff for a charge on punitive damages. As the Superior Court is well
aware, "punitive damages are awarded only for outrageous conduct, that isl for acts
done with a bad motive or with a reckless Indifference to the interests of others. Thus,
the Pennsylvania rule allows the awarding of punitive damages when the act is done
with reckless indifference as well as with bad motive (Focht v. Rabada, 268 A.2d 157,
159 (Pa. Super. 1970), citing, Chambers v. Montgomery, 192 A.2d 355 (Pa. 1963)).
This writer finds this case completely devoid of bad motive or reckless
indifference. Only 'false charting' assertions made by the Plaintiff could possibly be
construed as a basis for punitive damages. Presumably, the jury found that any
discrepancies were merely mistakes or inaccuracies within the medical charting. In light
of the fact that the jury found that the Defendant was not negligent, any charge on
punitive damages was not warranted.
IV. CONCLUSION
This Court found the jury's Verdict in the above captioned case to be in accord
with the evidence presented at trial. For the aforesaid reasons, this writer respectfully
requests the Superior Court of Pennsylvania to affirm this Court's Order dated June 24,
2015, and the judgment entered on the Verdict rendered.
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