Kersey, P. v. Pisano, M. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PEARL KERSEY, INDIVIDUALLY AND : IN THE SUPERIOR COURT OF
AS ADMINISTRATRIX OF THE ESTATE : PENNSYLVANIA
OF LONNIE KERSEY, DECEASED :
:
:
v. :
:
:
MICHAEL J. PISANO, III, D.O., AND : No. 798 EDA 2022
PASSYUNK MEDICAL ASSOCIATES, :
P.C. :
:
Appellants :
:
Appeal from the Judgment Entered March 2, 2022
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 1804-04705
BEFORE: PANELLA, P.J., BENDER, P.J.E., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED MARCH 7, 2023
Michael J. Pisano, III, D.O. (“Dr. Pisano”), and Passyunk Medical
Associates, P.C. (collectively “Appellants”), appeal from the entry of judgment
in favor of Pearl Kersey, individually and as Administratrix of the Estate of
Lonnie Kersey, deceased (“Appellee”). We vacate the order entering
judgment, affirm in part and vacate in part the jury’s verdict, and remand with
instructions.
The relevant factual and procedural history is as follows. In 2010,
Lonnie Kersey (“Decedent”) sought medical care from Dr. Pisano, a board-
certified specialist in internal medicine practicing as a primary care physician.
At the inception of their patient-physician relationship, Decedent informed Dr.
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Pisano that Decedent’s father died from prostate cancer. Decedent also
informed Dr. Pisano that Decedent suffered from benign prostate hyperplasia
(enlarged prostate) which he treated with dutasteride, a medication that
increases the risk of high-grade prostate cancer and artificially suppresses
prostate specific antigen (“PSA”) levels by fifty percent.1 Decedent
additionally informed Dr. Pisano that he was the victim of a gunshot wound
prior to 1992 and, in connection therewith, underwent a blood transfusion.2
Finally, Decedent informed Dr. Pisano that his lab tests showed elevated liver
enzymes.
In 2012, Dr. Pisano ordered bloodwork for Decedent which revealed that
his PSA level was 1.0 ng/ml. In March of 2014, Dr. Pisano ordered further
testing which revealed that Decedent’s PSA level was 1.2 ng/ml. In May 2014,
while Decedent was receiving in-patient treatment at Thomas Jefferson
University Hospital,3 a blood test revealed that Decedent had hepatitis C.
There is no evidence that Decedent informed Dr. Pisano of this diagnosis, nor
any evidence that Dr. Pisano reviewed the hospital records.
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1 PSA is a protein in blood that is used to screen for prostate cancer.
2 Appellee maintains that the fact that Decedent had a blood transfusion prior
to 1992 is significant because, before 1992, there was no procedure in place
to test donated blood for diseases, such as hepatitis C. See Appellee’s Brief
at 5.
3Decedent underwent an amputation of his distal left leg due to peripheral
vascular disease.
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Testing performed in September of 2015 revealed that Decedent’s PSA
level had increased to 3.0 ng/ml, which should have been regarded as in the
abnormal range due to the fact that Decedent was taking dutasteride. There
is no documentation that Dr. Pisano understood the clinical significance of the
abnormal PSA test result or that he discussed it with Decedent. Over the
course of the next two years, Dr. Pisano did not order any follow-up PSA
testing for Decedent. On February 8, 2017, another blood test indicated that
Decedent had hepatitis C. On September 6, 2017, testing revealed that
Decedent’s PSA level had increased to 203.3 ng/ml. Decedent’s last
appointment with Dr. Pisano was on September 11, 2017. At that
appointment, Dr. Pisano referred Decedent to a specialist for treatment of
suspected prostate cancer.4 On September 27, 2017, Decedent was
diagnosed with metastatic stage IV prostate cancer.
Decedent and Appellee commenced the instant litigation in April 2018
by filing a writ of summons. They filed a complaint on June 2018 asserting
claims sounding in medical malpractice based on Appellants’ care and
treatment of Decedent between 2015 and 2017. On July 5, 2018, Decedent
was diagnosed with liver cancer caused by chronic untreated hepatitis C and
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4Between 2010 and 2017, Decedent had over seventy medical appointments
with Dr. Pisano.
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cirrhosis. Decedent died on July 31, 2018 due to liver failure.5 His death
certificate, which was issued one week later, listed liver cancer as the sole
cause of death. See Certificate of Death, 8/6/18, at 1.
In August 2018, the trial court entered a case management order which
established, inter alia, a deadline for expert reports on December 2, 2019. By
stipulation, the parties extended the expert report deadline to January 16,
2020.
On January 28, 2019, Appellee filed a first amended complaint. Therein,
Appellee averred that Dr. Pisano deviated from the accepted standard of care
when he failed to refer Decedent to a urologist for assessment of possible
prostate cancer following the abnormal September 2015 PSA test, and failed
to order any further PSA testing between 2015 and 2017. See First Amended
Complaint, 1/28/19, at ¶¶ 40-44. Appellee claimed that, as a result of
Appellants’ negligence, “[Decedent’s] prostate cancer was allowed to
progress, undiagnosed and untreated to advanced, metastatic [s]tage IV
disease with a corresponding diminution of his life expectancy.” Id. at ¶ 52.
Further, the first amended complaint averred that “[t]he negligence of
Defendants, by their acts and/or omissions resulted in an unreasonable delay
in the diagnosis of [Decedent’s] prostate cancer” and that he “passed away as
a result of his advanced stage cancer.” Id. at ¶¶ 53, 57. The first amended
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5 Following Decedent’s death, Appellee was substituted as plaintiff in her
individual capacity and as the administratrix of his estate.
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complaint asserted a wrongful death claim pursuant to 42 Pa.C.S.A. § 8301,
and a survival act claim pursuant to 42 Pa.C.S.A. § 8301, and attached a copy
of Decedent’s death certificate. The first amended complaint made no
mention of Decedent’s liver cancer; nor did it contain any allegations of
medical negligence specifically related to the care and treatment of Decedent’s
liver, the failure to test for hepatitis C, or the failure to refer Decedent to a
hepatologist. The first amended complaint also did not contain any assertions
of medical negligence by Dr. Pisano prior to 2015. Appellants did not file
preliminary objections to the first amended complaint.
In August 2020, Appellee produced the expert reports of David L. Fried,
M.D., and Guarionex Joel DeCastro, M.D. In his August 15, 2020 report, Dr.
Fried, a board-certified specialist in internal medicine and adult primary care,
opined that Dr. Pisano deviated from the standard of care for internists when
he failed to recognize the clinical significance of Decedent’s abnormal PSA
level in September 2015 and refer him to a specialist for treatment at that
time, and in the two years thereafter, resulting in the development of
metastatic stage IV prostate cancer. See Fried Expert Report, 8/15/20, at 6.
In his August 27, 2020 report, Dr. DeCastro, a board-certified urologist
with an area of focus in prostate cancer, opined that Dr. Pisano deviated from
the applicable standard of care when he failed to recognize the clinical
significance of Decedent’s abnormal PSA level in September 2015 and refer
him to a urologist for biopsy and treatment. See DeCastro Expert Report,
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8/27/20, at 3. Dr. DeCastro further opined that, had Dr. Pisano referred
Decedent to a specialist in September 2015 after the initial tripling of his PSA
levels, his prostate cancer would not have spread beyond the prostate and he
would have had a ninety percent chance of cure. Id.
On January 5, 2021, Appellee produced the supplemental expert report
of Dr. DeCastro in which he opined that, although Decedent died of liver failure
caused by liver cancer, “the underlying widespread metastatic prostate cancer
was a substantial contributing factor to his death.” DeCastro Expert Report,
1/5/21, at 1. In Dr. DeCastro’s opinion, Dr. Pisano’s failure to refer Decedent
to a specialist in September 2015 resulted in the delay of the diagnosis and
treatment of Decedent’s prostate cancer, which meant that his hepatitis C
could not be treated due to the need for systemic chemotherapy for the
prostate cancer, thereby increasing the risk that he would develop liver cancer
from hepatitis C. Id.
The case was originally scheduled to be ready for trial in May 2020.
However, due to the Covid-19 pandemic and the resultant court closures, trials
were suspended until March 4, 2021. As a result, the case was rescheduled
for trial in October 2021.
On July 6, 2021, Appellee produced the expert report of George Y. Wu,
M.D., a board-certified internist with specialties in gastroenterology and
hepatology. In his July 6, 2021 report, Dr. Wu opined that Dr. Pisano was
negligent in his care and treatment of Decedent’s liver between 2010 and
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2014. Specifically, Dr. Wu opined that Dr. Pisano deviated from the standard
of care when he failed to order hepatitis C screenings for Decedent beginning
in 2010, given Decedent’s numerous risk factors (i.e., a blood transfusion prior
to 1992, elevated liver enzymes, and advanced age). See Wu Expert Report,
7/6/21, at 2. Dr. Wu further opined that Dr. Pisano’s delay until 2017 in
referring Decedent to a specialist meant that treatment for Decedent’s
hepatitis C was delayed. Id. at 3. The parties scheduled Dr. Wu’s trial
deposition for September 15, 2021. The day before Dr. Wu’s trial deposition,
Appellee submitted two supplemental expert reports prepared by Dr. Wu. In
one report, Dr. Wu clarified his opinion that Dr. Pisano was negligent in the
care and treatment of Decedent’s liver commencing in 2010 when he failed to
regularly screen Decedent for hepatitis C. See Wu Expert Report, 9/14/21,
at 1. In another report, Dr. Wu noted that, on May 15, 2014, Decedent was
diagnosed with hepatitis C while hospitalized at Thomas Jefferson University
Hospital. See Wu Expert Report, 9/14/21, at 1. Dr. Wu further concluded
that, although there is no evidence that Decedent communicated to Dr. Pisano
that he had been diagnosed with hepatitis C, Dr. Pisano deviated from the
standard of care by failing to review the hospital records to learn of the
hepatitis C diagnosis, inform Decedent of the significance of that diagnosis,
and insist that Decedent see a hepatologist in 2014. Id. at 2.
Appellants filed motions in limine to preclude: (1) any cause of action
for liability related to Decedent’s liver cancer as barred by the statute of
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limitations; (2) Dr. Wu’s expert reports and testimony as untimely; and (3)
the testimony of Drs. Wu and DeCastro as unqualified to provide testimony on
the standard of care applicable to an internist or primary care physician.
Appellee sought to prevent the admission of any evidence regarding
Decedent’s non-compliance with two referrals provided to him in 2008 to see
a urologist due to his benign prostate hyperplasia (enlarged prostate). The
trial court granted Appellee’s motion in limine and denied Appellants’ motions
in limine.
The matter proceeded to jury trial in October 2021. Appellee presented
the expert testimony of Drs. DeCastro and Fried, and the trial deposition
testimony of Dr. Wu. Dr. DeCastro testified that Dr. Pisano deviated from the
standard of care when he inappropriately managed Decedent’s abnormal PSA
test result in September 2015, an almost tripling of his prior PSA test, and
failed to discuss the test results with Decedent. See N.T., 10/19/21, at 93-
94, 95. Dr. DeCastro pointed out that Decedent had several risk factors for
developing prostate cancer, including being an African American male (and
thus a member of a demographic that tend to get worse prostate cancer at an
earlier age and fare worse) with a family history of prostate cancer, all of
which drastically heightened his risk of harboring prostate cancer. Id. at 95,
119. Dr. DeCastro also testified that, because Decedent was taking
dutasteride for his benign prostate hyperplasia (enlarged prostate), Dr. Pisano
should have interpreted Decedent’s September 2015 PSA test result of 3.0
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ng/ml as 6.0 ng/ml because “it is a very well-established and known fact” that
dutasteride artificially shrinks the prostate and the PSA levels. Id. at 103;
see also id. at 118 (wherein Dr. DeCastro opined that “anybody who
prescribes [dutasteride] must know that [the PSA is not 3, it’s 6]. And if they
don’t, they shouldn’t be prescribing [dutasteride]”). Dr. DeCastro further
explained that, if an individual taking dutasteride develops prostate cancer, it
tends to be a more aggressive prostate cancer. Id. at 104. Dr. DeCastro
opined that, in September 2015 Decedent had likely developed localized
prostate cancer which, if treated, would not have spread beyond the prostate
would have had a ninety percent chance of cure. Id. at 122-27.
Dr. Fried testified that Dr. Pisano deviated from the standard of care
when he failed to perform a digital rectal exam of Decedent’s prostate at any
medical appointment after Decedent’s initial visit in 2010. See N.T.,
10/20/21, at 22-23. Like Dr. DeCastro, Dr. Fried explained that it is well-
documented that dutasteride artificially shrinks the prostate and lowers the
PSA levels by fifty percent. Id. at 19. Dr. Fried testified that there is no
indication in the medical records that Dr. Pisano recognized the clinical
significance of Decedent’s September 2015 PSA test results, or that they were
abnormal. Id. at 23. Dr. Fried explained that Dr. Pisano should have
interpreted Decedent’s March 2014 PSA test result of 1.2 ng/ml as 2.4 ng/ml,
and his September 2015 PSA test result of 3.0 ng/ml as 6.0 ng/ml, which was
above the normal range of 0 ng/ml to 4.0 ng/ml. Id. at 24. Dr. Fried further
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explained that Decedent had several risk factors for prostate cancer, including
an enlarged prostate, his age over fifty, being of African American descent,
and having a first-degree family member (father) who had prostate cancer.
Id. Dr. Fried opined that these risk factors, coupled with the short timeframe
in which Decedent’s PSA levels nearly tripled between 2014 and 2015, should
have been very suspicious, concerning, and regarded as a “red flag [that] this
is cancer until proven otherwise.” Id. at 24-25. Dr. Fried explained that,
when a primary care physician sees a lab value like Decedent’s September
2015 PSA level, the physician is obligated to discuss the test result with the
patient and refer the patient to a urologist. Id. at 25. Dr. Fried concluded
that Dr. Pisano deviated from the standard of care of a primary care physician
by failing to recognize that Decedent’s September 2015 PSA test result was
“very abnormal,” failing to have a discussion with him regarding his abnormal
test result, and failing to refer him to a urologist for diagnostic testing and
treatment. Id. at 25-26, 34-35. Dr. Fried further concluded that Dr. Pisano
deviated from the standard of care by failing to order any further screening or
diagnostic testing of Decedent’s PSA level at any subsequent medical
appointment until September 2017, when his prostate cancer had already
metastasized. Id. at 25-26, 86.
In his trial deposition, Dr. Wu testified that Dr. Pisano deviated from the
standard of care when he failed to screen Decedent for hepatitis C between
2010 and 2014, given Decedent’s age, the fact that he had a blood transfusion
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prior to 1992, and that fact that his test results indicated elevated liver
enzymes. See N.T., 9/15/21, at 98-99. Dr. Wu explained that, because there
was no commercially available screening test for hepatitis C until 1992,
individuals who received blood transfusions before 1992 are at the highest
risk for that disease. Id. at 47. Dr. Wu further testified that Dr. Pisano should
have reviewed Decedent’s May 2014 hospital records which indicated that he
tested positive for hepatitis C. Id. at 119-27. Dr Wu indicated that if
Decedent’s hepatitis C had been treated, it would have prevented Decedent
from developing cirrhosis and liver cancer as a result of his hepatitis C. Id.
at 177.
The trial court instructed the jury to make separate findings of fact as
to liability, causation, and damages for both Decedent’s prostate cancer and
his liver cancer. At the conclusion of trial, the jury returned a verdict in favor
of Appellee. Pursuant to a special verdict form, the jury determined that Dr.
Pisano was negligent in his treatment of Decedent’s prostate health and in his
treatment of Decedent’s liver health, and awarded compensatory damages in
the amount of $1,500,000 for the prostate cancer and $1,200,000 for the liver
cancer.6 Appellants filed a post-verdict motion asserting that the liver cancer
cause of action was barred by the statute of limitations and seeking a new
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6 The jury determined that Decedent was twenty percent liable for his liver
cancer because he failed to get bloodwork the first time Dr. Pisano instructed
him to do so.
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trial solely on the prostate cancer cause of action. Appellee filed a motion to
award delay damages. In orders entered on February 25, 2022, the trial court
denied Appellants’ post-trial motion and granted Appellee’s motion for delay
damages. On March 2, 2022, the trial court entered judgment for Appellee in
the amount of $3,058,099.76. Appellants filed a timely notice of appeal and
both Appellants and the trial court complied with Pa.R.A.P. 1925.
Appellants raise the following issues for our review:
1. Should questions about screening for liver disease and its
treatment have been submitted to the jury, and evidence in
support of this cause of action admitted at trial, when no
references to liver screening, treatment, or diseases appear in
any of [Appellee’s] complaints or other pleadings, and when
this cause of action was first advanced by the production of the
report of expert witness Dr. . . . Wu on July 6, 2021, a year
after the statute of limitations ran on July 31, 2020?
2. Should [Appellee] have been allowed to offer into evidence the
opinions, by written reports and sworn testimony, of [Dr. Wu],
when [he] was first identified as a witness and his opinions
were first advanced by [Appellee] on July 6, 2021, nineteen
months after the applicable deadline under the case
management order, and [Appellee] advanced further new
theories of liability by way of new reports by Dr. Wu produced
on September 14, 2021?
3. Should [Appellee] have been allowed to offer into evidence the
opinions of expert witness [Dr.] Wu, who does not practice
internal medicine and has never been a primary care physician,
as to the standard of care applicable to Dr. Pisano, a primary
care physician board certified in internal medicine?
4. Should [Appellee] have been allowed to offer into evidence the
opinions of expert witness [Dr.] DeCastro, who does not
practice internal medicine and has never been a primary care
physician, as to the standard of care applicable to Dr. Pisano,
a primary care physician board certified in internal medicine,
despite the provisions of 40 P.S. § 1303.512?
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5. Should [Appellants] have been barred from presenting at trial
evidence that [Decedent] was causally noncompliant with
referrals to urology specialists for prostate treatment, when
such evidence was relevant and thus admissible under Pa.R.E.
402, it was nonprejudicial as a matter of law, and [Appellee]
presented no cognizable argument for its preclusion?
Appellants’ Brief at 3-5 (unnecessary capitalization omitted).
In their first issue, Appellants claim that the trial court should not have
permitted the case to proceed on the liver cancer cause of action because it
was not raised in the complaint, the first amended complaint, or at any time
in the case until after the statutes of limitation expired. We begin with a
review of the applicable law. Absent issues pertaining to the discovery rule,
the determination of which statute of limitations applies and whether it has
run on a particular claim are generally questions of law for the trial judge.
See Wilson v. Transp. Ins. Co., 889 A.2d 563, 570 (Pa. Super. 2005).
These questions of law compel this Court’s plenary review to determine
whether the trial court committed an error of law. Id.In Pennsylvania, the statute of limitations applicable to medical
negligence, wrongful death, and survival actions appears at 42 Pa.C.S.A. §
5524 (2), which provides that “an action to recover damages for injuries to
the person or for the death of an individual caused by the wrongful act or
neglect or unlawful violence or negligence of another” must be commenced
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within two years.7 The two-year period begins to run “from the time the cause
of action accrued . . .” 42 Pa.C.S.A. § 5502 (a).
The causes of action for these various claims accrue at different times.
The statute of limitations for a medical negligence cause of action typically
begins to run from the time of injury. See Ayers v. Morgan, 289-90, 154
A.2d 788, 792 (Pa. 1959) (explaining that a right of action accrues only when
injury is sustained by the plaintiff, not when the causes are set in motion which
ultimately produce injury as a consequence); see also Ingenito v. AC & S,
Inc., 633 A.2d 1172, 1174 (Pa. Super. 1993) (explaining that, in creeping
diseases cases, the statute of limitations begins to run when the injured
person knows, or reasonably should know: (1) that he has been injured; and
(2) that his injury has been caused by another party’s conduct). Similarly,
the statute of limitations for a survival action begins to run on the date of the
decedent’s injury, as if the decedent were bringing his or her own lawsuit.
See Moyer v. Rubright, 651 A.2d 1139, 1141-42 (Pa. Super. 1994) (holding
that the statute of limitations on a cause of action under the survival act for
medical negligence for failure to detect cancer began to run on the date
plaintiff was diagnosed with cancer); see also Salvadia v. Ashbrook, 923
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7 The Medical Care Availability and Reduction of Error Act (“MCARE”) provides
a statute of limitations that requires a claimant to commence a wrongful death
or a survival action asserting a medical professional liability claim within two
years after the date of death in the absence of affirmative misrepresentation
or fraudulent concealment of the cause of death. See 40 P.S. § 1303.513(d).
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A.2d 436, 440, (Pa. Super. 2007) (explaining that, unlike a wrongful death
action, a survival action is not a new cause of action, but merely continues in
the decedent’s personal representative the right of action which accrued to
the deceased at common law). On the other hand, the statute of limitations
for a wrongful death claim begins to run when a pecuniary loss is sustained
by the beneficiaries of the person whose death has been caused by the tort of
another, but no later than the date of the decedent’s death. Moyer, 651 A.2d
at 1142. The purpose of a statute of limitations period is to expedite litigation
and discourage delay and the presentation of stale claims which may greatly
prejudice the defense of such claims. See Wachovia Bank, N.A. v. Ferretti,
935 A.2d 565, 575 (Pa. Super. 2007) (holding that statutes of limitation are
to be strictly construed).
The purpose of pleadings is to place the defendants on notice of the
claims upon which they will have to defend. See Carlson v. Cmty.
Ambulance Servs., 824 A.2d 1228, 1232 (Pa. Super. 2003). Accordingly, a
complaint must give the defendants fair notice of the plaintiff’s claims and a
summary of the material facts that support those claims. Id. The
Pennsylvania Rules of Civil Procedure provide that a plaintiff may state in the
complaint more than one cause of action against the same defendant;
however, “[e]ach cause of action and any special damage related thereto shall
be stated in a separate count containing a demand for relief.” Pa.R.C.P.
1020(a).
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Pursuant to Rule 1033, a party may at any time, either with consent of
the adverse party or with leave of court, amend his or her pleading to aver
transactions or occurrences which happened before or after the filing of the
original pleading, even though they give rise to a new cause of action. See
Pa.R.C.P. 1033(a). A party may also seek such an amendment to conform
the pleading to the evidence offered or admitted. Id. Such amendments are
to be liberally permitted except where surprise or prejudice to the other party
will result, or where the amendment is against a positive rule of law. See
Berman v. Herrick, 227 A.2d 840, 841 (Pa. 1967). Amendments that would
introduce a new cause of action are not permitted after the applicable statute
of limitations has run. See Olson v. Grutza, 631 A.2d 191, 198 (Pa. Super.
1993).
A claim or cause of action in negligence has been defined as the
negligent act or acts which occasioned the injury for which relief is sought.
See Reynolds v. Thomas Jefferson Univ. Hosp., 676 A.2d 1205, 1210 (Pa.
Super. 1996). A new cause of action does not exist if a plaintiff’s amendment
merely adds to or amplifies the original complaint or if the original complaint
states a cause of action showing that the plaintiff has a legal right to recover
what is claimed in the subsequent complaint. Id. at 1210; see also Connor
v. Allegheny Gen. Hosp., 461 A.2d 600 (Pa. 1983) (holding that, where
plaintiffs in their original complaint made specific allegations of negligence as
well as a general allegation that defendant hospital was negligent “[i]n
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otherwise failing to use due care and caution under the circumstances,” the
trial court erred in denying plaintiffs’ motion to amend the complaint to specify
other ways in which the hospital was negligent). For purposes of determining
whether a claimed or apparent discrepancy between pleadings and proof
constitutes a variance, the entire pleadings and evidence should be
considered. See Reynolds, 676 A.2d at 1209. Pennsylvania courts have held
that a variance is not material if the alleged discrepancy causes no prejudice
to the adverse party. Id.However, a new cause of action arises if the plaintiff proposes a different
theory or a different kind of negligence than the one previously raised or if the
operative facts supporting the claim are changed. Id. at 1213. Stated
differently, a variance occurs where the proof at trial establishes a cause of
action that was not alleged in the parties’ pleadings. Id. at 1209. Where an
expert report sets forth a new cause of action, the trial court may not permit
the plaintiff to introduce the report after the applicable statute of limitations
has run. Id. at 1210.
Appellants contend that the complaint and first amended complaint
pertain solely to Dr. Pisano’s clinical judgment in monitoring Decedent’s
prostate health and risk for prostate cancer between 2015 and 2017.
According to Appellants, the first amended complaint contains one-hundred
and forty-six references to the prostate or to urological symptoms or
treatment, but contains no reference to Decedent’s liver, liver health, liver
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diseases, or liver cancer. Appellants contend that the first amended complaint
also failed to give notice of any claim pertaining to Dr. Pisano’s treatment of
Decedent between 2010 and 2014. Appellants maintain that Dr. Wu’s expert
reports presented a new and distinct cause of action for Dr. Pisano’s treatment
of Decedent’s liver between 2010 and 2014, to which different courses of
treatment would be prescribed, different defenses would apply, different
evidence would be required for proof, and different damages would attach
upon a finding of liability. As further support for their argument that the
causes of action were distinct, Appellants point to the fact that the trial court
instructed the jury to make separate findings on liability and damages arising
from a cause of action related to Decedent’s prostate cancer diagnosis in 2017
and a cause of action related to Decedent’s liver cancer diagnosis in 2018.
Appellants point out that the two-year statute of limitations for injuries
and death suffered by Decedent due to medical negligence expired, at the
latest, on July 31, 2020, which is two years after Decedent’s death. Appellants
assert that Appellee did not raise any theory of liability regarding Dr. Pisano’s
treatment of Decedent’s liver until nearly one year after the statute of
limitations expired, when Appellee produced the July 6, 2021 expert report of
Dr. Wu. Appellee thereafter produced supplemental expert reports prepared
by Dr. Wu in which he rendered opinions regarding Dr. Pisano’s management
of Decedent’s liver health between 2010 and 2014. Appellants assert that Dr.
Wu’s deposition testimony was the only evidence presented to the jury
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regarding Dr. Pisano’s liability for managing Decedent’s liver health.
Appellants claim that Appellee’s liver-related claims are barred by the statute
of limitations as a matter of law, and that the trial court erred by permitting
plaintiffs to proceed on that cause of action.
The trial court considered Appellants’ first issue and summarily
concluded that there was no material variance between the pleadings and the
evidence Appellee sought to admit at trial. See Trial Court Opinion, 6/13/22,
at 6-7. We cannot agree with the trial court’s unsupported conclusion.
As explained above, the operative complaint must give the defendants
fair notice of the plaintiff’s claims and a summary of the material facts that
support those claims. See Carlson, 824 A.2d at 1232. Further, if a plaintiff
alleges more than one cause of action against the same defendant, each cause
of action and any special damage related thereto must be stated in a separate
count containing a demand for relief. See Pa.R.C.P. 1020(a).
In the instant matter, the first amended complaint contained only one
cause of action (Count I) against Dr. Pisano which pertained solely to his
failure to apprehend the clinical significance of Decedent’s abnormal PSA test
result in September of 2015, and his failure to conduct further PSA testing
between September of 2015 and September 2017. See First Amended
Complaint, 1/28/19, at ¶¶ 62-65. The first amended complaint asserted a
prayer for relief for Count I in excess of $50,000. Id. at 16. Appellee asserted
a separate cause of action (Count II) against Passyunk Medical Associates,
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P.C., and the “Jefferson Defendants,” which included Thomas Jefferson
University Hospital and its related entities.8 See id. at 16-17, ¶¶ 66-69. As
in Count I, Count II consisted of averments regarding the failure by the various
defendant entities and their agents to appreciate the clinical significance of
Decedent’s September 2015 abnormal PSA test result, conduct follow-up
testing, and refer Decedent to a urologist. See id. The first amended
complaint asserted a prayer for relief for Count II in excess of $50,000. Id.
at 18. The first amended complaint did not include any averments or prayer
for relief against either Dr. Pisano or Passyunk Medical Associates, P.C.,
pertaining to Dr. Pisano’s failures to test Decedent for hepatitis C between
2010 and 2014, obtain Decedent’s hospital records from May 2014, discuss
the hepatitis C diagnosis with Decedent, or refer Decedent to a hepatologist
in 2014.
As Decedent was diagnosed with liver cancer on July 5, 2018, the statute
of limitations applicable to a survival claim based on Decedent’s liver cancer
would have expired on July 5, 2020. Similarly, because Decedent died on July
31, 2018, the statute of limitations applicable to a wrongful death claim based
on Decedent’s liver cancer would have expired, at the latest, on July 31, 2020.
At no point prior to those statutory expiration dates did Appellee seek to
____________________________________________
8The Jefferson Defendants filed a motion for summary judgment which was
uncontested by Appellee. The trial court granted the motion, and the Jefferson
Defendants were dismissed from the action in January 2021.
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amend her first amended complaint to add: a new cause of action based on
Dr. Pisano’s negligence with respect to Decedent’s liver health between 2010
and 2014; a summary of the material facts supporting such a claim; or a
prayer for relief pertaining to Decedent’s diagnosis of and death from liver
cancer.
Instead, after the statutes of limitation pertaining to Decedent’s liver
cancer had expired, Appellee produced the expert reports of Dr. Wu. In his
July 6, 2021 and September 14, 2021 reports, Dr. Wu opined that Dr. Pisano
was negligent in the care and treatment of Decedent’s liver and liver health.
Specifically, Dr. Wu concluded that, given Decedent’s various risk factors,
including a blood transfusion from a gunshot wound prior to 1992, elevated
liver enzymes, and his age, Dr. Pisano should have been screening Decedent
for hepatitis C from the inception of their patient-physician relationship in
2010. See Wu Expert Report, 7/6/21, at 3. Dr. Wu further concluded that,
after Decedent was diagnosed with hepatitis C in May 2014 while he was
admitted at Thomas Jefferson University Hospital, Dr. Pisano was careless in
failing to review Decedent’s hospital records and learn of the test results,
inform Decedent of his hepatitis C diagnosis and its significance, and insist
that Decedent see a hepatologist in 2014. See Wu Expert Report, 9/14/21,
at 2.
Even the most generous reading of the rule permitting liberal allowance
of amendments would not countenance the introduction of a new theory of
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liability sought so late by Appellee. These new claims of medical negligence,
as set forth in Dr. Wu’s expert reports, did not merely add to or amplify the
negligence claims set for in the first amended complaint which focused
exclusively on Dr. Pisano’s failure to appreciate the clinical significance of
Decedent’s abnormal September 2015 PSA test, to refer him to a urologist at
that time, and to order further prostate testing between 2015 and 2017. See
Amended Complaint, 1/28/19, at ¶¶ 40-44, 63-65. The proof needed to
establish the theory of negligence espoused by Dr. Wu involved a different
time frame and required different proof than the theory of liability alleged in
the first amended complaint. Indeed, the cause of action set forth in the first
amended complaint pertaining to Dr. Pisano’s treatment of Decedent’s
prostate following his elevated and abnormal PSA test levels in 2015, required
medical records and testing from 2015 through 2017, and the expert reports
and opinion testimony of a urologist. On the other hand, Dr. Wu’s theory
pertaining to Dr. Pisano’s treatment of Decedent’s liver required medical
records and testing from 2010 through 2014 and the expert reports and
opinion testimony of a hepatologist. Given these differences, we conclude
that a material variance occurred because the proof presented at trial,
consisting of Dr. Wu’s reports and testimony, established a cause of action
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regarding Dr. Pisano’s treatment of Decedent’s liver that was not alleged in
the first amended complaint.9
Because this material variance occurred after the applicable statutes of
limitation expired, the trial court erred as a matter of law by permitting
Appellee to present the expert reports and testimony of Dr. Wu, which raised
a new cause of action that was time-barred. We must therefore vacate the
portion of the jury’s verdict which finds in favor of Appellee on the liver cancer
cause of action and awards compensatory damages on that cause of action.
Given our disposition of Appellants’ first issue, we conclude that their
second and third issues, regarding the trial court’s failure to preclude the
____________________________________________
9 We are mindful that “general allegations of a pleading, which are not
objected to because of their generality, may have the effect of extending the
available scope of a party’s proof, such that the proof would not constitute a
variance, beyond that which a party might have been permitted to give under
a more specific statement.” Reynolds, 676 A.2d at 1209-10 (citing Standard
Pennsylvania Practice 2d, §§ 33:1, 33:6, 33:8 (1994)); see also Connor,
461 A.2d at 602 (holding that a motion to amend the complaint should have
been permitted where the original complaint included a general allegation that
defendant hospital was negligent “[i]n otherwise failing to use due care and
caution under the circumstances”). In the instant matter, unlike in Connor,
Appellee never sought to file a second amended complaint to include a cause
of action regarding Dr. Pisano’s negligence in reference to Decedent’s liver
cancer. Moreover, in Connor, the plaintiff’s proposed amendments were part
of a causally related chain of events which occurred on the same day and at
the same place. In the instant matter, any amendment that Appellee might
have sought would pertain to not only different days, but different years.
Thus, Connor is wholly inapposite.
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admission of Dr. Wu’s expert reports as untimely,10 and the trial court’s failure
to preclude Dr. Wu’s expert testimony as unqualified, are moot.
In their fourth issue, Appellants contend that the trial court erred in
permitting the trial testimony of Dr. DeCastro regarding Dr. Pisano’s
deviations from the standard of care applicable to primary care physicians.
When we review a ruling on the admission or exclusion of evidence, including
the testimony of an expert witness, our standard is well-established and very
narrow. See Freed v. Geisinger Med. Ctr., 910 A.2d 68, 72 (Pa. Super.
2006). The admission or exclusion of expert testimony is a matter falling
within the sound discretion of the trial court, and we may reverse only upon
a showing of abuse of discretion or error of law. Id. An abuse of discretion
may not be found merely because an appellate court might have reached a
different conclusion, but requires a result of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous. Id. In addition, to constitute reversible error, an evidentiary
ruling must not only be erroneous, but also harmful or prejudicial to the
complaining party. Id.____________________________________________
10 We are mindful that the expert reports of Drs. DeCastro, Fried, and Wu
were all produced by Appellee after the court-imposed and stipulated expert
report deadlines had passed and the statutes of limitation had expired. Yet,
Appellants lodged no objection to the tardiness of the expert reports of Drs.
DeCastro and Fried. Nevertheless, unlike Dr. Wu’s expert reports, the expert
reports of Drs. DeCastro and Fried did not purport to raise a new cause of
action that was not set forth in the first amended complaint.
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Pursuant to P.R.E. 702:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average layperson;
(b) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in the relevant
field.
Pa.R.E. 702.
The Medical Care Availability and Reduction of Error Act, 40 P.S. §
1303.101 et seq. (“MCARE”), sets forth additional requirements for expert
testimony in medical professional liability actions. Specifically, MCARE
provides:
No person shall be competent to offer an expert medical
opinion in a medical professional liability action against a physician
unless that person possesses sufficient education, training,
knowledge and experience to provide credible, competent
testimony and fulfills the additional qualifications set forth in this
section as applicable.
40 P.S. § 1303.512(a). Additionally, MCARE requires that, an expert testifying
on the standard of care in a medical matter must either: (1) possess an
unrestricted physician’s license to practice medicine in any state or the District
of Columbia; or (2) be engaged in or retired within the previous five years
from active clinical practice or teaching. Id. § 1303.512(b).
MCARE further provides:
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(c) STANDARD OF CARE.— In addition to the requirements set
forth in subsections (a) and (b), an expert testifying as to a
physician’s standard of care also must meet the following
qualifications:
(1) Be substantially familiar with the applicable standard of
care for the specific care at issue as of the time of the
alleged breach of the standard of care.
(2) Practice in the same subspecialty as the defendant
physician or in a subspecialty which has a substantially
similar standard of care for the specific care at issue, except
as provided in subsection (d) or (e).
(3) In the event the defendant physician is certified by an
approved board, be board certified by the same or a similar
approved board, except as provided in subsection (e).
(d) CARE OUTSIDE SPECIALTY.— A court may waive the same
subspecialty requirement for an expert testifying on the standard
of care for the diagnosis or treatment of a condition if the court
determines that:
(1) the expert is trained in the diagnosis or treatment of the
condition, as applicable; and
(2) the defendant physician provided care for that condition
and such care was not within the physician’s specialty or
competence.
(e) OTHERWISE ADEQUATE TRAINING, EXPERIENCE AND
KNOWLEDGE.— A court may waive the same specialty and board
certification requirements for an expert testifying as to a standard
of care if the court determines that the expert possesses sufficient
training, experience and knowledge to provide the testimony as a
result of active involvement in or full-time teaching of medicine in
the applicable subspecialty or a related field of medicine within the
previous five-year time period.
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Id. at § 1303.512(c)-(e). Because an issue regarding an expert’s
qualifications under MCARE involves statutory interpretation, our review is
plenary. See Jacobs v. Chatwani, 922 A.2d 950, 956 (Pa. Super. 2007).
Although it is preferable that the medical expert be in the same specialty
as the defendant physician, that is not what the law requires in every case.
See Vicari v. Spiegel, 936 A.2d 503, 514 (Pa. Super. 2007) (concluding that
a board-certified oncologist was qualified under MCARE to offer testimony
regarding when a patient should be referred to him even though he did not
treat patients until after their cancer diagnosis). Rather, the “same
subspecialty” ideal contained in section 1303.512(c)(2) “includes an express
caveat, reflecting the Legislature’s decision to afford the trial court discretion
to admit testimony from a doctor with expertise in another specialty that ‘has
a similar standard of care for the specific care at issue.’” Smith v. Paoli
Mem’l Hosp., 885 A.2d 1012, 1020 (Pa. Super. 2005) (quoting Herbert v.
Parkview Hosp., 854 A.2d 1285, 1294 (Pa. Super. 2004) (emphasis in
original)).
Appellants claim that the trial court abused its discretion in permitting
Dr. DeCastro, a urologist, to provide expert testimony regarding the standard
of care applicable to Dr. Pisano, a board-certified internist practicing as a
primary care physician. Appellants point out that Dr. DeCastro is not board
certified in internal medicine and has no training in any other specialty
relevant to the practice of primary care. Appellants maintain that screening
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and referrals to specialists are the specific role of a primary care physician,
not a urologist. Appellants contend that Dr. DeCastro was not competent to
provide any testimony regarding the pertinent issue of screening for prostate
cancer. Appellants claim that the admission of Dr. DeCastro’s standard of care
testimony was prejudicial because it was determinative of the jury’s verdict
on the prostate cause of action.
The trial court considered Appellants’ challenge to the admission of Dr.
DeCastro’s testimony on the standard of care for screening and referrals and
concluded that it lacked merit. The court stated: “the experts offered were
trained in the use of medical screening tools to diagnose and treat patients
based on medical history, examination, and symptoms presented.” Trial Court
Opinion, 6/13/22, at 8.
We discern no abuse of discretion by the trial court in permitting Dr.
DeCastro to testify regarding the standard of care applicable to internists and
primary care physicians when screening for prostate cancer and interpreting
PSA test results. At trial, Dr. DeCastro was examined and cross-examined
regarding his qualifications as an expert witness. Dr. DeCastro testified that
he is a board-certified urologist and a urologic oncologist. See N.T., 10/19/21,
at 78, 82. He explained that he graduated from Columbia University Medical
School in 2004, and thereafter completed a five-year residency in urology at
Columbia University. Id. Dr. DeCastro then completed a two-year fellowship
in urologic oncology at the University of Chicago. Id. Since 2011, Dr.
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DeCastro has been an attending physician at Columbia University Medical
Center, Presbyterian Hospital, in New York. Id. at 79. Dr. DeCastro explained
that, although he spends most of his time treating patients, he holds an
academic position for which he teaches medical students and residents about
urology and performs research. Id. at 79, 82. Dr. DeCastro stated that he
spends three days per week seeing patients in clinic, and two days per week
performing surgeries. Id. at 84-85. Dr. DeCastro testified that approximately
forty percent of his clinical practice involves treating patients with prostate
issues similar to those experienced by Decedent including inter alia, PSA
issues, benign prostate hyperplasia (enlarged prostate), and prostate cancer.
See 78-79, 82, 86. Dr. DeCastro testified that he is familiar with the standard
of care applicable to evaluating adult patients with a history of benign prostate
hyperplasia, following-up on lab work for patients, recognizing signs and
symptoms of prostate cancer, and facilitating referrals to specialists such as
himself. Id. at 87-88. Dr. DeCastro testified that the standard of care is
“universal” for any physician who orders a lab, and that regardless of your
specialty, “you are taking responsibility for that lab value and that you know
its significance and the nuances of any value.” Id. at 97. Dr. DeCastro
explained, “if you take that lab, you have to interpret it and communicate with
the patient and document such communication.” Id.
Based on Dr. DeCastro’s qualifications, we discern no abuse of discretion
by the trial court in determining that he was competent to provide expert
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testimony on the standard of care at issue – the interpretation and response
to an abnormal PSA test ordered by a physician for his or her patient. The
record reflects that a significant portion of Dr. DeCastro’s practice was devoted
to such care. Accordingly, we decline to disturb the trial court’s determination.
See, e.g., Hyrcza v. W. Penn Allegheny Health Sys., 978 A.2d 961, 973-
74 (Pa. Super. 2009) (holding that an expert witness who was board certified
as a psychiatrist and neurologist was competent to provide testimony as to
the standard of care in relation to the defendant psychiatrist’s treatment of a
multiple sclerosis patient undergoing rehabilitation because a significant
portion of the expert’s practice was devoted to the specific care at issue); see
also Smith, 885 A.2d 1012, 1016 (holding that a general surgeon, an
oncologist, and an internist were permitted to testify against
gastroenterologists as to failure to order a CT scan for patient with obscure
gastrointestinal bleeding where each testified that they were actively involved
with treating patients suffering from gastrointestinal bleeding and cancers);
Campbell v. Attanasio, 862 A.2d 1282 (Pa. Super. 2004) (holding that a
psychiatrist was permitted to testify as to the negligent use of an oral sedative
by a third-year resident in internal medicine upon a patient with severe
anxiety where the witness had prescribed the particular sedative on multiple
occasions to individuals who suffered from anxiety); Gartland v. Rosenthal,
850 A.2d 671 (Pa. Super. 2004) (holding that a neurologist was qualified to
testify as to the standard of care for a radiologist reading a CT scan of the
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brain where the specific treatment at issue was the failure to report on the
possibility of a tumor and recommend an MRI).11
In their final issue, Appellants contend that the trial court abused its
discretion by granting Appellee’s motion in limine to preclude, inter alia, the
admission of evidence that in 2008, Decedent had been referred to a urologist
on two occasions for his benign prostate hyperplasia (enlarged prostate) and
refused to see a urologist. Our standard of review of a ruling on a motion in
limine is well-settled:
A motion in limine is used before trial to obtain a ruling on
the admissibility of evidence. It gives the trial judge the
opportunity to weigh potentially prejudicial and harmful evidence
before the trial occurs, thus preventing the evidence from ever
reaching the jury. A trial court’s decision to grant or deny a
motion in limine is subject to an evidentiary abuse of discretion
standard of review.
Questions concerning the admissibility of evidence lie within
the sound discretion of the trial court, and we will not reverse the
court’s decision absent a clear abuse of discretion. An abuse of
____________________________________________
11 Even if the admission of Dr. DeCastro’s testimony regarding the applicable
standard of care was error, such error was harmless, as the same standard of
care testimony was provided by Dr. Fried, a board-certified specialist in
internal medicine and adult primary care, whose expert testimony is not
challenged on appeal. See N.T., 10/20/21, at 25-26, 34-35 (wherein Dr. Fried
testified that Dr. Pisano deviated from the standard of care for primary care
physicians by failing to recognize that Decedent’s September 2015 PSA test
result was “very abnormal,” failing to have a discussion with him regarding
his abnormal test result, and failing to refer him to a urologist for diagnostic
testing and treatment). Thus, Dr. DeCastro’s standard of care testimony was
merely cumulative of other properly admitted evidence. See Blumer v. Ford
Motor Co., 20 A.3d 1222, 1232 (Pa. Super. 2011) (holding that, even though
the trial court erred in admitting certain reports, the content of the
inadmissible reports was cumulative in nature to the admissible reports and,
consequently, the evidentiary error was harmless).
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discretion may not be found merely because an appellate court
might have reached a different conclusion, but requires a manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such
lack of support so as to be clearly erroneous.
In addition, to constitute reversible error, an evidentiary
ruling must not only be erroneous, but also harmful or prejudicial
to the complaining party.
Parr v. Ford Motor Co., 109 A.3d 682, 690-91 (Pa. Super. 2014) (citations
omitted).
Evidence is relevant if “(a) it has any tendency to make a fact more or
less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Pa.R.E. 401. “All relevant evidence
is admissible, except as otherwise provided by law. Evidence that is not
relevant is not admissible.” Pa.R.E. 402. Relevant evidence may be excluded
“if its probative value is outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.” Pa.R.E.
403. “‘Unfair prejudice’ means a tendency to suggest decision on an improper
basis or to divert the jury's attention away from its duty of weighing the
evidence impartially.” Id. Cmt.
The function of the trial court is to balance the alleged prejudicial effect
of the evidence against its probative value, and it is not for an appellate court
to usurp that function. See Parr, 109 A.3d at 696. Pennsylvania trial judges
enjoy broad discretion regarding the admissibility of potentially misleading
and confusing evidence. See Daset Mining Corp. v. Industrial Fuels
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Corp., 473 A.2d 584, 588 (1984). Evidence is prejudicial not where it merely
hurts a party’s case, but where it tends to fix a decision which has an improper
basis in the minds of the jury. Id.Appellants claim that the primary argument advanced by Appellee to
preclude the admission of Decedent’s non-compliance with the 2008 urology
referrals was the prejudicial effect of such evidence in light of certain
comments made by Dr. Pisano’s during his deposition. In those comments,
Dr. Pisano posited that, because of Decedent’s non-compliance in 2008 with
referrals to a urologist, Dr. Pisano would not have expected Decedent to
comply with such referrals at later dates. Appellants contend that, at oral
argument on Appellee’s motion in limine, Appellants agreed not to present
that particular testimony of Dr. Pisano at trial. Appellants therefore maintain
that there was no longer any basis to preclude the undisputed evidence of
Decedent’s non-compliance with urology referrals in 2008.
Appellants acknowledge that Appellee additionally claimed at oral
argument that the evidence of Decedent’s non-compliance with referrals in
2008 should be precluded because it was too remote in time. Appellants
assert that remoteness in time is not a ground for preclusion of evidence.
Appellants further argue that, because Appellee’s expert witnesses testified
that Decedent should have been under the care of a urologist and that such
care would have cured his prostate cancer, they essentially testified that
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Decedent’s compliance with his referrals to a urologist would have averted his
death.
The trial court considered Appellants’ final issue and concluded that it
lacked merit. The court reasoned:
[Appellants] sought to introduce evidence of the Decedent’s
. . . refusal to see a urologist in 2008 as evidence to support
speculation that Decedent would have refused treatment of a
urologist or hepatologist upon learning of abnormal test results.
The facts and circumstances surrounding those events are
unrelated to the matter before the court. The court determined
that the allowance of such evidence would result in unfair
prejudice, confuse the issues, and mislead the jury.
Trial Court Opinion, 6/13/22, at 9.
We discern no abuse of discretion by the trial court in precluding the
introduction of evidence regarding Decedent’s non-compliance with referrals
to a urologist in 2008. There is no indication in the record that, had Decedent
seen a urologist in 2008, the outcome of the case would have been any
different. Even as late as 2012, Decedent’s PSA level was in the normal range.
Thus, whether Decedent did or did not see a urologist in 2008 was simply not
relevant to the issue of whether Dr. Pisano failed to appreciate the clinical
significance of Decedent’s abnormal PSA test in September 2015 and refer
him to a urologist at that time. Moreover, even if the evidence had some
limited probative value, we discern no abuse of discretion by the trial court in
determining that any such value was substantially outweighed by the danger
of unfair prejudice, confusion of issues, or misleading the jury. See Daset
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Mining Corp., 473 A.2d at 588. Accordingly, Appellants’ final issue merits no
relief.
Finally, we address Appellants’ request for a new trial limited solely to
the prostate cancer cause of action as a remedy for the improper introduction
of Dr. Wu’s testimony and the submission to the jury of the time-barred liver
cancer cause of action. In considering Appellants’ request, we are mindful of
the general verdict rule which provides that “when the jury returns a general
verdict involving two or more issues and its verdict is supported at least as to
one issue, the verdict will not be reversed on appeal.” Cowher v. Kodali,
283 A.3d 794, 804 (Pa. 2022) (quoting Shiflett v. Lehigh Valley Health
Network, Inc., 217 A.3d 225, 234 (Pa. 2019) (citation omitted)).
Elaborating on the rule, our Supreme Court has stated: “‘a defendant who fails
to request a special verdict form in a civil case will be barred on appeal from
complaining that the jury may have relied on a factual theory unsupported by
the evidence when there was sufficient evidence to support another theory
properly before the jury.’” Id. (quoting Shiflett, 217 A.3d at 234). Our
Supreme Court went on to explain:
Thus, under the rule, when a litigant fails to request a special
verdict slip that would have clarified the basis for a general
verdict, and the verdict rests upon valid grounds, the right to a
new trial is waived. The rule promotes judicial efficiency by
preventing needless retrials as well as fairness by keeping a
litigant from benefiting from its own omission in failing to request
a special verdict slip.
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Id. (quoting Shiflett, 217 A.3d at 234) (citations, quotations and brackets
omitted, emphasis added).
In Shiflett, as in the instant matter, the plaintiffs brought a medical
negligence action against a hospital and were later permitted, over objection,
to amend the complaint to add a new cause of action which was barred by the
statute of limitations. Following trial, a jury returned a general damage award
for the plaintiffs. On appeal, this Court determined that the trial court erred
by permitting the plaintiffs to amend the complaint to add the time-barred
cause of action and remanded for a new trial limited to damages. However,
our Supreme Court reversed, explaining that where a time-barred theory of
liability is improperly submitted to the jury, and the defendant fails to request
a clarifying special verdict interrogatory that would have obviated the need
for a new trial, the verdict will stand. See Shiflett, 217 A.3d 236; see also
Cowher, 283 A.3d at 806 (explaining that “[a] special verdict slip . . . asking
the jury to itemize the pain and suffering damages and other component parts
of the survival award would have clarified the specific amount of damages
attributable to Dr. Hayek’s testimony, obviating the need for the new trial on
the totality of damages under the Survival Act”).
In this case, unlike Cowher and Shiflett, Appellants requested a
detailed special verdict form which was submitted to, and completed by, the
jury. Accordingly, the jury in this matter specified its separate findings of
liability, causation, and damages attributable to both Appellee’s negligence
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claim against Appellants for Decedent’s prostate cancer and Appellee’s
negligence claim against Appellants for Decedent’s liver cancer. See Verdict
Sheet, 10/22/21, at unnumbered 1-5. In so doing, the jury clarified its award
of damages attributable to Dr. Wu’s testimony and the time-barred liver
cancer cause of action, thereby obviating the need for a new trial on the
prostate cancer cause of action. Therefore, as the intent of the jury is clear,
we vacate the order entering judgment, vacate and the portion of the jury’s
verdict as it relates to liability and damages against Appellants on the liver
cancer cause of action, affirm the portion of the jury’s verdict as it relates to
liability and damages against Appellants on the prostate cancer cause of
action, and remand for the trial court to enter judgment in favor of Appellees
on the prostate cancer cause of action for compensatory damages in the
amount of $1,500,000 plus delay damages.
Judgment vacated. Verdict affirmed in part and vacated in part. Case
remanded for further proceedings consistent with this memorandum.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2023
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