Shiflett, B. v. Lehigh Valley Health Network, Inc. ( 2017 )

J-A04021-17
2017 Pa. Super. 354
BETTY L. SHIFLETT AND CURTIS IN THE SUPERIOR COURT OF
SHIFLETT, HUSBAND AND WIFE PENNSYLVANIA
Appellees
v.
LEHIGH VALLEY HEALTH NETWORK,
INC.; AND LEHIGH VALLEY HOSPITAL
Appellants No. 2293 EDA 2016
Appeal from the Judgment Entered July 18, 2016
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): 2014-C-0388
BEFORE: SHOGAN, J., SOLANO, J., and PLATT, J.*
OPINION BY SOLANO, J.: FILED NOVEMBER 09, 2017
Appellants, Lehigh Valley Health Network, Inc., and Lehigh Valley
Hospital (together, “Lehigh Valley”), appeal from the judgment entered
following a jury trial and verdict in favor of Appellees Betty L. Shiflett and
Curtis Shiflett. We conclude that the Shifletts’ second amended complaint
pleaded a new cause of action — for vicarious liability against Lehigh Valley
for the negligent actions of Nurse Kristina Michels Mahler in Lehigh Valley’s
Transitional Skills Unit — that did not appear in the Shifletts’ first amended
complaint, and that this new cause of action was barred by the applicable
statute of limitations. Accordingly, we vacate the judgment and reverse with
respect to the verdict against Lehigh Valley for vicarious liability regarding
Nurse Michels Mahler’s actions. We reject Lehigh Valley’s contentions of
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A04021-17
error with respect to the verdict of corporate negligence related to the
Shifletts’ claim of improper care in Lehigh Valley’s Post-Surgical Unit. We
remand for a new trial on the question of damages.
On April 12, 2012, Ms. Shiflett underwent left knee surgery at Lehigh
Valley Hospital. On April 14, 2012, Ms. Shiflett fell out of her hospital bed in
Lehigh Valley’s Post-Surgical Unit (“PSU”) and suffered an avulsion fracture
of her left tibial tubercle, which was not diagnosed until April 19, 2012.
N.T., 2/5/16, at 31, 39.1
On April 15, 2012, Ms. Shiflett was transferred to Lehigh Valley’s
Transitional Skills Unit (“TSU”), where she received physical and
occupational therapy. N.T., 2/3/16, Tr. of Cynthia Balkstra, at 61-64, 68-
69; N.T., 2/5/16, at 39, 64, 66-69; Trial Ct. Op. at 2.2 Ms. Shiflett claims
that soon after her arrival at the TSU, she repeatedly reported “sharp pain”
and a “clicking” in her knee to Kristina Michels Mahler, a nurse working in
the TSU, but Nurse Michels Mahler did not notify a physician about those
complaints. As a result, there was a delay in diagnosing Ms. Shiflett’s
avulsion fracture. After Ms. Shiflett’s physical therapist reported
____________________________________________
1 During his testimony, the Shifletts’ medical expert, Dr. Robert C. Erickson
II, an orthopedic surgeon, explained: “if you feel your kneecap, there’s a
little ridge that goes down to the tibia and there’s a tendon, and then where
it touches is called the tibial tubercle.” N.T., 2/5/16, at 39. He defined an
avulsion fracture as one where the “tendon which was attached . . . pulled a
piece of bone off.” Id. at 40.
2The trial court opinion refers to the “TSU” as the “Transitional Skilled Unit.”
Trial Ct. Op. at 2. However, all parties refer to it as the “Transitional Skills
Unit.” See Second Am. Compl., 7/2/15, at ¶ 20; Lehigh Valley’s Brief at 9;
Shifletts’ Brief at 3.
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Ms. Shiflett’s concerns on April 19, 2012, she had two additional surgeries to
repair her avulsion fracture, but those surgeries were unsuccessful.
Ms. Shiflett was left with no extensor mechanism in her leg and was no
longer a candidate for further surgery due to past infection.3
On February 7, 2014, the Shifletts filed a complaint against Lehigh
Valley (“Original Complaint”) that made the following factual allegations:
10. On April 12, 2012, plaintiff Betty Shiflett underwent left
knee revision surgery at Lehigh Hospital.
* * *
12. In the early morning of April 14, 2012, as a direct and
proximate result of the negligence of the defendants, including
inadequate fall protection provided by defendants, an
unattended Betty Shiflett fell and suffered a left tibia
avulsion fracture.
13. A nursing note in the chart of Lehigh Hospital dated April
14, 2012 at 4:45 A.M. records that immediately after Betty
Shiflett was found on the floor of her hospital room, a bed check
was initiated and yellow socks were put on her feet.
14. The left tibia avulsion fracture suffered as a result of Betty
Shiflett’s fall would not have occurred in the absence of the
negligence of the defendants including their failing to provide
adequate and sufficient fall protection and monitoring.
15. On April 24, 2012, Dr. Ververeli performed open reduction
surgery to repair Betty Shiflett’s left tibia avulsion.
16. Post-surgical care of Betty Shiflett’s left tibia reduction
surgery was complicated by a staph infection. As a result, on
May 22, 2012, Dr. Ververeli performed another surgery on her
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3 Dr. Erickson defined “no extensor mechanism” as meaning “your knee
won’t support you. So if you want to do something simple like stand up out
of a chair; it can’t stand up. Once you’re up straight, the weight[-]bearing’s
fine. . . . The only thing you can go to [to keep the leg from buckling] is a
brace.” N.T., 2/5/16, at 68-69.
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left knee, irrigating and debriding the left knee and inserting
screws and antibiotic beads in an effort to treat the infection.
17. As a result of plaintiff Betty Shiflett’s avulsion fracture and
resulting tibial reduction surgery and infection, she continued to,
and is likely to continue to stiffer pain, reduced range of motion,
weakness and left knee instability and disability.
* * *
20. The injuries and permanent disabilities suffered by plaintiff
Betty Shiflett were the direct result of the defendants’
negligence, by and through their agents, servants and/or
employees and/or their ostensible agents following her April 12,
2012 left knee revision surgery at Lehigh Hospital which
negligence includes:
a.) Failing to use due care or employ reasonable skill in
the treatment administered to plaintiff Betty Shiflett.
b.) Employing inappropriate or inadequate methods,
techniques and procedures in the care and treatment of
plaintiff Betty Shiflett;
c.) Failing to timely and properly recognize that plaintiff
Betty Shiflett was at significant risk for a post-operative
fall;
d.) Failing to timely and properly prepare and/or
otherwise have in place a patient care plan for plaintiff
Betty Shiflett that would include appropriate monitoring
and safeguards to reduce and/or eliminate her risk of post-
operative fall;
e.) Failing to utilize and/or have in place reasonable and
appropriate measures to prevent plaintiff Betty Shiflett
from falling after her April 12, 2012 knee revision surgery,
including but not limited to, full bed side rails, properly
monitor the Plaintiff in her bed, a bed alarm and/or
institute a bed check; provide non-skid socks;
f.) Failing to adopt and enforce adequate policies and
procedures to plan for and to ensure the proper and safe
use of reasonable fall protection methods;
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g.) Failing to select and retain competent physicians and
staff;
h.) Failing to properly oversee the professional staff
working in Lehigh Hospital;
i.) Failing to properly train and educate professional
staff to identify fall risks and use appropriate methods to
reduce the risk of a fall; and
j.) Failing to adhere to the standard of medical care in
the community.
* * *
23. But for the negligence of the defendants described above,
Plaintiff Betty Shiflett would have fully recovered from her knee
revision surgery on April 12, 2012.
Original Compl., 2/7/14, at ¶¶ 10, 12-17, 20, 23 (emphases added). Of
significance here, these allegations all pertained to alleged negligence
leading to Ms. Shiflett’s fall from the bed in her hospital room; they did not
allege subsequent negligence in the TSU.
Lehigh Valley filed preliminary objections. Among other things, it
argued that the allegations in Paragraph 20(a), (b), (d), (h), and (j) were
too “general, vague and overbroad” to state a valid claim and to permit
formulation of defenses. Prelim. Objs. of Lehigh Valley, 3/11/14, at 9-11
¶¶ 30-37; Br. in Supp. of the Prelim. Objs. of Lehigh Valley, 3/11/14, at 8-
10.
In response, the Shifletts filed an amended complaint (“First Amended
Complaint”) on March 27, 2014. This First Amended Complaint repeated the
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allegations in Paragraphs 10, 12-17, and 23 from the Original Complaint4
and added the following new paragraphs:
23. In addition to the allegations of negligence described in
paragraphs 1 through 21 above, the injuries and permanent
disabilities suffered by plaintiff Betty Shiflett were the direct
result of the defendants’ negligence, by and through their
agents, servants and/or employees and/or their ostensible
agents following her April 12, 2012 left knee revision surgery at
Lehigh Hospital which negligence includes: [eight
subparagraphs that are identical to subparagraphs 20(a)-(d),
(g)-(h), and (j) in the Original Complaint].
* * *
31. In addition to the allegations of negligence described in
paragraphs 1 through 29 above, the injuries and permanent
disabilities suffered by plaintiff Betty Shiflett were the direct
result of the defendants’ negligence following her April 12, 2012
left knee revision surgery at Lehigh Hospital which negligence
includes:
a.) Failing to timely and properly prepare and/or
otherwise have in place patient care plans that would
include appropriate monitoring and safeguards to reduce
and/or eliminate risk of post-operative fall;
b.) Failing to utilize and/or have in place reasonable and
appropriate fall protection measures, including but not
limited to, full bed side rails, proper bed monitoring, a bed
alarm and/or institute a bed check, provide non-skid
socks;
c.) Failing to adopt and enforce adequate policies and
procedures to plan for and to ensure the proper and safe
use of reasonable fall protection methods;
d.) Failing to select and retain competent physicians and
staff;
____________________________________________
4 The First Amended Complaint renumbered some of the paragraphs
contained in the Original Complaint without altering their substance.
Specifically, Paragraph 23 of the Original Complaint became Paragraph 21.
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e.) Failing to properly oversee the professional staff
working in Lehigh Hospital;
f.) Failing to properly train and, educate professional
staff to identify fall risks and use appropriate methods to
reduce the risk of a fall; and
g.). Failing to adhere to the standard of medical care in
the community.
First Amended Compl., 3/27/14, at ¶¶ 23, 31. The amendment added no
paragraphs referencing Ms. Shiflett’s care in the TSU.
Once again, Lehigh Valley filed preliminary objections that argued,
among other things, that the negligence allegations were too vague and
general to state a claim and permit framing of defenses. Prelim. Objs. of
Lehigh Valley, 4/10/14, at 7-9 ¶¶ 24-31. It also argued that, if not stricken,
the broad averments of negligence might improperly be used to permit some
“future, unexpected amendment to the complaint based upon new facts after
the statute of limitations has run.” Id. at 9 ¶ 30 (citation omitted); Br. in
Supp. of the Prelim. Objs. of Lehigh Valley, 4/10/14, at 8.
This time, the Shifletts responded by detailing why their allegations
were sufficient:
Here, the Amended Complaint, read as a whole and in context,
contains detailed and specific allegations that are more than
sufficient to allow Lehigh [Valley] to defend against claims of
vicarious and corporate liability. The Amended Complaint alleges
that on “April 12, 2012 plaintiff underwent left knee revision
surgery at Lehigh [Valley] Hospital.” [First Amended Compl.,
3/27/14,] at ¶ 10. During surgery she was given a femoral
nerve block and general anesthesia. Id. After surgery,
“[d]espite having high risk factors for falling, including her age,
being in an unfamiliar location, use of a nerve block and left
knee instability, the physicians, nurses, officers, directors,
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and/or other employees or agents of the defendants that
were responsible for [Ms.] Shiflett’s post-surgical care did
not provide her with adequate fall protection, including,
among other things, full bed side rails, bed alarm and/or bed
checks, non-skid footwear, and monitoring.” Id. at ¶ 11.
Foreseeably, “[i]n the early morning of April 14, 2012, as a
direct and proximate result of the negligence of the
defendants, including inadequate fall protection provided
by the defendants, an unattended [Ms.] Shiflett fell and
suffered a left tibia avulsion fracture.” Id. at ¶ 12. [Ms.]
Shiflett’s avulsion fracture required additional surgery that was
complicated by an infection. Id. at ¶¶ 15-16. As a result of her
fracture and related infection, she “has been advised that there
are no treatment options that would improve the condition of her
left knee[,] leaving her permanently injured, disabled and
damaged.” Id. at ¶ 17.
These averments provide the factual backdrop and
context for the allegations of negligence contained in
paragraph 23 of the Amended Complaint. In conjunction
with these allegations, paragraph 23 specifically details
the legal theories of vicarious liability against the
defendants. As alleged in paragraph 23, defendants are liable
for, among other things, “failing to use due care,” “[e]mploying
inappropriate or inadequate fall protection methods,” “[f]ailing to
timely and properly prepare and/or have in place reasonable and
appropriate measures to prevent plaintiff . . . from falling” and
“failing to adhere to the standard of medical care in the
community.” [First Amended Compl., 3/27/14,] at ¶ 23. Thus,
read as a whole and in context, the Amended Complaint
sufficiently put the defendants on notice as to the vicarious
liability claims against them and allow them to put on a defense.
Shifletts’ Resp. to Lehigh Valley’s Prelim. Objs. to Shifletts’ First Am. Compl.,
5/1/14, at 9-10 ¶ 26 (emphasis added). The Shifletts’ explanation made no
reference to any claim regarding care in the TSU and instead focused only
on the defendants’ failure to prevent her fall in the PSU. On July 1, 2014,
the trial court overruled Lehigh Valley’s preliminary objections.
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The case proceeded to discovery, and a trial date was set. On May 14,
2015 (more than three years after the events in the hospital that give rise to
this case), the Shifletts filed a motion for leave of court to amend their
complaint yet again. This time, they stated that they sought to conform
their first amended complaint “to the evidence uncovered during discovery.”
Shifletts’ Mot. for Leave of Ct. to Amend Compl. to Conform the Pleading to
the Evid., 5/14/15, at 2. Their motion thus sought “leave to file a Second
Amended Complaint identifying specific nurses responsible for [Ms.]
Shiflett’s post-surgical care by name and to include more specific facts
supporting [the Shifletts’] claims.” Id. at 4 ¶ 7. Specifically, the Shifletts
proposed to include the following new paragraphs in their pleading:
14. One of [Lehigh Valley’s] employees, Terry Langham, has
been identified as responsible for implementing fall precautions
the evening of April 13, 2012 and the early morning of
April 14, 2012. Nurse Langham documented Betty Shiflett as a
high fall risk but failed to implement appropriate fall prevention
interventions, including a bed alarm and/or bed check, proper
footwear, fall risk identification methods and monitoring, thus
increasing the risk that Betty Shiflett would suffer a fall.
* * *
20. On or about April 15, 2012, Betty Shiflett was transferred
to Lehigh Valley Hospital’s Transitional Skills Unit (“TSU”).
Transfer documents prepared by the defendants make no
mention of Betty Shiflett having fallen while inpatient at Lehigh
Hospital.
* * *
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22. As a result of Nurse Michels [Mahler’s5] failure to
communicate Betty Shiflett’s complaints, Betty Shiflett received
multiple rounds of physical and occupational therapy between
April 15 and April 19, 2012, increasing the risk of additional
injury to her already compromised knee and, as a result, the
need for subsequent surgical intervention.
23. On or about April 19, 2012, during a physical therapy
session, a physical therapy assistant in the TSU heard the same
“clicking noise” in Betty Shiflett’s left knee that Betty Shiflett had
previously reported to Nurse Michels [Mahler]. The physical
therapy assistant notified the nursing staff and an x-ray was
ordered.
* * *
33. In addition to the allegations of negligence described in
paragraphs 1 through 31 above, the injuries and permanent
disabilities suffered by plaintiff Betty Shiflett were the direct
result of the defendants’ negligence, by and through their
agents, servants and/or employees and/or their ostensible
agents, including Nurses Terry Langham and Kristina Michels
[Mahler], following Betty Shiflett’s April 12, 2012 left knee
revision surgery at Lehigh Hospital, which negligence includes:
a.) Failing to use due care or employ reasonable skill in
the treatment administered to plaintiff Betty Shiflett;
b.) Employing inappropriate or inadequate fall protection
methods, techniques and procedures in the care and
treatment of plaintiff Betty Shiflett;
c.) Failing to timely and properly recognize that plaintiff
Betty Shiflett was at significant risk for a post-operative
fall;
d.) Failing to timely and properly prepare and/or
otherwise have in place a patient care plan for plaintiff
Betty Shiflett that would include appropriate monitoring
____________________________________________
5 According to the trial court opinion, “Nurse Michels Mahler’s name was
changed from Michels to Michels Mahler sometime between the date of Ms.
Shiflett’s hospital stay and trial.” Trial Ct. Op. at 7 n.4. According to Lehigh
Valley’s counsel, she changed her last name after marriage. N.T., 2/9/16, at
6.
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and safeguards to reduce and/or eliminate her risk of post-
operative fall;
e.) Failing to utilize and/or have in place reasonable and
appropriate measures to prevent plaintiff Betty Shiflett
from falling after her April 12, 2012 knee revision surgery,
including but not limited to, full bed side rails, proper
monitoring of Plaintiff in her bed, increased rounding, use
of a bed alarm and/or bed check; use of appropriate non-
skid socks; notification to Curtis Shiflett that his wife was a
high fall risk; and notification to Curtis Shiflett that he
could spend the night at his wife’s bedside to reduce the
risk of a fall;
f.) Nurse Michels[ Mahler’s] failure to timely notify
Betty Shiflett’s physicians and physical therapists
about Betty Shiflett’s post-surgical complaints of
increased left knee weakness and buckling,
increasing sharp pain in her left knee and a clicking
noise in her knee;
g.) Failing to select and retain competent physicians and
staff;
h.) Failing to properly oversee the professional staff
working in Lehigh Hospital; and
i). Failing to adhere to the standard of medical care in the
community.
* * *
41. In addition to the allegations of negligence described in
paragraphs 1 through 39 above, the injuries and permanent
disabilities suffered by plaintiff Betty Shiflett were the direct
result of the defendants’ negligence following her April 12, 2012
left knee revision surgery at Lehigh Hospital which negligence
includes:
* * *
g.) Failing to properly train and educate
professional staff to identify and report worsening
physical symptoms and complaints
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[Proposed] Second Am. Compl., 7/2/15, at ¶¶ 14, 20, 22-23, 33, 41(g)
(emphases added). Thus, for the first time, the proposed second amended
complaint sought to add allegations of negligence regarding Ms. Shiflett’s
care in the TSU in the days following her fall.
Lehigh Valley opposed the motion for leave to amend. In its
opposition, Lehigh Valley argued:
The entire gist of the [First Amended] Complaint concerns fall
prevention strategies. However, [the Shifletts] now seek to
amend the Complaint to assert claims for care provided between
August 14, 2012 and August 19, 2012. . . . [W]hat was a “fall
prevention” case, is now a case with regard to nursing
malpractice relative to the signs and symptoms of a displaced
fracture.
Br. in Supp. of Answer to Pls.’ Mot. for Leave of Ct. to Amend Compl. to
Conform the Pleading to the Evid., 6/11/15, at 1-3. Lehigh Valley contended
that the proposed amendment would “add a complete new cause of action”
that was barred by the statute of limitations because it concerned events
that occurred in April 2012, more than two years before the proposed
amendment. Suppl. Br. in Supp. of Answer to Lehigh Valley’s Mot. for Leave
of Ct. to Amend Compl. to Conform the Pleading to the Evid., 6/12/15, at 1.
On June 12, 2015, the trial court granted the Shifletts’ motion for
leave to file the second amended complaint, and the Shifletts filed that
pleading on July 2, 2015 (“Second Amended Complaint”). As filed, the
Second Amended Complaint was identical to the proposed pleading that had
been attached to the Shifletts’ motion for leave to amend. Lehigh Valley
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filed a motion for reconsideration, which the trial court denied on July 10,
2015.
Meanwhile, the parties continued to prepare for trial. On July 6, 2015,
Dr. Robert C. Erickson II, the Shifletts’ medical liability expert and an
orthopedic surgeon, submitted an expert report in which he opined that
Ms. Shiflett’s fall resulted in the trauma to her knee.
One of the contested issues in the case concerned Ms. Shiflett’s claim
for damages from depression that she contended was the result of her
hospital injuries. Lehigh Valley contended that the depression was caused
by her son’s arrest for a sexual offense involving a close family member. On
January 20, 2016, the parties recorded a deposition of Robert W. Mauthe,
M.D., a physician specializing in physiatry and rehabilitation who was
identified as an expert witness for the defense. Mauthe Dep. at 5-6. Dr.
Mauthe stated that in his examination of Ms. Shiflett she had stated that
both her knee injury and her son’s issues contributed to her depression. Id.
at 41.
Trial commenced on February 1, 2016. During pretrial proceedings,
the Shifletts moved in limine to preclude Lehigh Valley from introducing
evidence that Ms. Shiflett’s adult son had been convicted of corruption of a
minor. N.T., 2/2/16, at 4. The trial court precluded Lehigh Valley from
presenting the details of Ms. Shiflett’s son’s criminal history and “the nature
of the son’s offense” but allowed it to inquire generally about the son’s “legal
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problems” as a proposed alternative explanation for Ms. Shiflett’s
depression. Id. at 10-11.
At trial, Nurse Cynthia Balkstra testified for the Shifletts that Lehigh
Valley had inappropriate fall prevention guidelines in place. When asked
about the appropriate use of the guidelines, Nurse Balkstra explained:
[A.] The purpose of the guidelines, again, is to make sure that
you use them. So the more regular — the more regular use of
them, the more discussion about them, the more promotion of
them the better because staff — I mean, it’s easy — there’s lots
of things to remember as a nurse, and it’s easy for a staff person
to forget exactly what is in the guidelines. So the more
emphasis, the more reeducation to the guidelines the better.
Q. Is reviewing the guidelines during orientation and not
looking at them again, is that an appropriate use of the
guidelines in your opinion as a nurse?
A. No.
N.T., 2/3/16, Tr. of Cynthia Balkstra, at 45-46.
Nurse Balkstra further testified that, based upon her review of the
records, Nurse Langham had scored Ms. Shiflett as a “six” on her fall risk
assessment, indicating a “high risk for falling.” N.T., 2/3/16, Tr. of Cynthia
Balkstra, at 49-50. Nurse Balkstra continued:
[A.] My opinion is that the staff were not educated frequently
enough on the use of the guidelines, and specifically the use of
the guidelines per the risk.
So in other words, the high risk measures, strategies to prevent
a fall were not utilized with Ms. Shiflett. And it — from what Ms.
Langham’s deposition stated, that she really didn’t treat[] a six
any different than she would have treated a two.
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So that’s a failure to educate, properly on the use of the
guidelines, which you spend a lot of effort putting together. So
you definitely want to use them appropriately.
Q. Did you reach a conclusion as to whether or not Lehigh
Valley[’s] failure to appropriately train its nursing staff how to
use fall precautions guidelines increased the risk of [Ms.] Shiflett
falling?
A. Yes, in this case it did because with a score of six, more of
those high risk measures should have been put into place.
Id. at 69-70.
Ms. Shiflett testified that she “feel[s] that there’s nothing more to live
for” and that her knee is “very embarrassing.” N.T., 2/4/16, at 106, 109.
She added that her husband has to shower her, and she can only dress
herself “from the waist up,” since she “cannot bend down.” Id. at 106. She
continued that she has pain “[a]ll the time,” including in her back. Id. at
107. She further testified that, while she can ride as a passenger in an
automobile, she cannot “go far,” because travelling causes her too much
pain. Id. She also mentioned that she was wearing a brace while she was
testifying. Id. at 109. She concluded her direct examination by noting that
she and her husband have contacted other doctors in New Jersey, New York,
and Philadelphia, and all of them agreed that her knee could not be repaired,
since she needed a new tendon and a new kneecap.
On February 5, 2016, Dr. Erickson testified that he reviewed Lehigh
Valley’s medical records regarding Ms. Shiflett, which also included her
physical therapy evaluations from before and after the fall. N.T., 2/5/16, at
34-35, 42. Based on that review, he opined that Ms. Shiflett’s fall out of bed
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caused her to sustain a non-displaced fracture. On the day after her
surgery, Ms. Shiflett’s leg had a range of 6º to 85º, which Dr. Erickson
explained was “great” for the “[f]irst day post-op.” Id. at 34-35.6 On the
day after her fall, April 15, 2012, Ms. Shiflett was in excruciating pain and
her range of leg motion had decreased to 20º to 65º. Id. The nursing
notes from the TSU recorded various symptoms of distress, including
continuing pain, buckling of her knee, and a need for maximum assistance
from staff. Id. at 48-49, 52-62. On April 19, after receiving physical and
occupational therapy between April 16 and 19 in the TSU, Ms. Shiflett was
diagnosed with the avulsion fracture. Dr. Erickson said this meant that the
physical therapy that Ms. Shiflett had been receiving in the TSU was “not
appropriate,” because “[t]he tendon keeps pulling and ultimately the quad
muscle gets strong enough that it pulls the large tendon, bone comes loose,
and this retinaculum tears.” Id. at 29-40, 47-48. In Dr. Erickson’s opinion,
Ms. Shiflett’s knee became displaced around April 19 due to the stress put
on it by the physical therapy in the TSU between April 16 and 19. Id. at 63-
64.
Also on February 5, 2016, the Shifletts’ life care planner expert, Nurse
Nadene Taniguchi, testified about Ms. Shiflett’s damages, and, specifically,
her future medical costs. N.T., 2/5/16, at 124-56.
____________________________________________
6Dr. Erickson explained that when a leg is straight, it is considered at 0º;
when it bends to a normal sitting position, it is at 90º, a right angle; when
bent all the way back, it is considered at 120º. N.T., 2/5/16, at 34-35, 42.
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At the close of the Shifletts’ case-in-chief later that day, Lehigh Valley
moved for a non-suit and/or directed verdict with respect to the claims
relating to Ms. Shiflett’s treatment at the TSU because those claims related
to a new cause of action that had not been pleaded within the period allowed
by the statute of limitations. N.T., 2/5/16, at 193. The trial court denied
that motion.
When court resumed on Monday, February 8, 2016, counsel and the
trial court had the following colloquy:
THE COURT: Okay. Counsel, just so I understand – this will be
on the record. The corporate negligence claim is only with
regard to the TSU.
[LEHIGH VALLEY’S COUNSEL:] No. It’s with regard to the
hospital. . . . My understanding is the corporate negligence was
with regard to Terri Langham’s training on the fall prevention
strategy.
[SHIFLETTS’ COUNSEL]: Yes. That’s true, Your Honor. It’s
not –
THE COURT: That’s where the corporate negligence is?
[SHIFLETTS’ COUNSEL]: That’s right.
THE COURT: Is the fall?
[SHIFLETTS’ COUNSEL]: The fall itself, right.
THE COURT: . . . And where is the vicarious liability? . . .
[SHIFLETTS’ COUNSEL]: . . . The vicarious liability would be for
Nurse Langham as well in failing to use appropriate procedures
for the fall is one part of the vicarious liability. . . .
THE COURT: . . . So vicarious liability is in both instances and
the corporate negligence?
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[SHIFLETTS’ COUNSEL]: Just for the fall.
THE COURT: Is just for the fall. Is there vicarious liability in
the fall also?
[SHIFLETTS’ COUNSEL]: Yes. . . .
THE COURT: . . . [W]e’re going to have to instruct the jury both
on corporate and vicarious.
N.T., 2/8/16, at 4-6. The parties thus agreed that the Shifletts’ vicarious
liability claims related to both the fall in the PSU and the alleged diagnosis
failure in the TSU, but that the Shifletts made no claim (and thus sought no
jury instruction) for corporate liability against Lehigh Valley with respect to
the events that occurred in the TSU. See id.
At the end of the court session on February 8, 2016, the trial court
presented counsel with a draft verdict sheet, see N.T., 2/8/16, at 115, which
(with instructions omitted) stated the following:
1. Do you find that Nurse Langham of the Lehigh Valley
Hospital (Post Surgical Unit) was negligent?
2. Was the negligence of Nurse Langham of the Lehigh Valley
Hospital (Post Surgical Unit) a factual cause of harm to Plaintiff
Betty L. Shiflett?
3. Do you find that Nurse Michels Mahler of the Lehigh Valley
Hospital (Transactional Skilled Unit) was negligent?
4. Was the negligence of Nurse Michels Mahler of the Lehigh
Valley Hospital (Transitional Skilled Unit) a factual cause of harm
to Plaintiff, Betty L. Shiflett?
5. Do you find that Lehigh Valley Hospital itself was
negligent?
6. Was the negligence of Lehigh Valley Hospital a factual
cause of harm to Plaintiff, Betty L. Shiflett?
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After each question, the jury could answer “Yes” or “No.” The remainder of
the verdict sheet allowed for the calculation of damages but not for an
itemization of damages by claim. The next day, the parties agreed to this
verdict sheet. N.T., 2/9/16, at 4.
Prior to closing arguments, the court confirmed with the parties that it
would instruct the jury on corporate negligence for failure to train and
supervise:
[THE COURT: T]ell me which of those options under
corporate negligence, because there are like four different
examples under the corporate negligence instruction.
[SHIFLETTS’ COUNSEL]: I think it was the failure to train,
Your Honor.
THE COURT: What about supervise?
[SHIFLETTS’ COUNSEL]: And supervise – I think that’s right.
. . . I think it’s going to be failure to supervise, Your Honor. And
I think it’s also going to be failure to properly train employees.
THE COURT: Train and supervise.
N.T., 2/9/16, at 9-10.
During his closing argument, the Shifletts’ counsel provided his
understanding of the verdict sheet to the jury:
[T]he fifth question is about Lehigh Valley Hospital itself. So the
first question is about Terri Langham. The next question’s about
Nurse Michels [Mahler], but the fifth question is was the Hospital
negligent? . . . [H]ow can it be that we have these policies and
procedures in place for the sole purpose of preventing falls that
are 75 percent accurate in predicting who’s going to fall, how
can it be that we only have our nurses look at them once during
orientation and never have them do it again. I submit to you
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that’s negligent and that was just as big a cause as anything
else.
N.T., 2/9/16, at 44-45. During her closing argument, Lehigh Valley’s
counsel also provided her interpretation of liability allegations against her
clients as reflected on the verdict sheet:
It is the plaintiff that must prove to you that Lehigh Valley
Hospital committed either what we call corporate negligence or
its nurses committed professional negligence. . . . They also
have a claim for corporate negligence, which means Lehigh
Valley Hospital didn’t train and supervise its nurses with regard
to a fall prevention policy.
N.T., 2/9/16, at 52-53.
The trial court then instructed the jury as follows:
The issues, basically, in the framework, there are three different
kinds of negligence which we need you to look at. One is Nurse
Langham’s alleged negligence; one is Nurse Michels Mahler’s
alleged negligence; and the other, which is a whole separate
issue, is the corporate negligence of Lehigh Valley Hospital
Network. . . . I just want you to know that because Nurse
Langham and Nurse Michels Mahler were employees of Lehigh
Valley Hospital, that if you find either or both of them negligent,
that, in fact, a verdict would be against Lehigh Valley Hospital
and not against them personally. . . .
The next thing I’m going to do is describe to you the standard
that is going to be applied to Question Number 5 which is: Do
you find that Lehigh Valley Hospital itself was negligent? . . .
Because that is a different type of negligence than the one I’ve
been describing to you with regard to the nurses. . . . [T]his
theory is called corporate liability of a health care provider. And
it goes as follows, and this is the standard you are to apply to
Question Number 5. A health care institution, in this case a
hospital, is directly liable to the patient if it violates a duty that it
owes to the patient to ensure the patient’s safety and well-being
while under the care of the hospital. The following are the duties
that a hospital must fulfill and that it cannot pass on to anyone
else. A duty to oversee all persons who practice, including
nursing care, within its walls as to patient care, and a duty to
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adopt, formulate, and enforce adequate rules and policies to
ensure quality care for the patients. If you decide that the
hospital as an institution violated those duties, then you must
decide whether the Hospital knew or should have known of the
breach of that duty and that the conduct was a factual cause in
bringing about the harm or injury.
N.T., 2/9/16, at 109, 113-14 (emphasis added). Although the trial court did
not explicitly instruct whether the corporate negligence claim was with
respect to the events that occurred in the PSU and/or the TSU, neither
counsel nor the court suggested that the corporate negligence claim related
to events in the TSU. Significantly, at trial and in its brief to this Court
Lehigh Valley did not challenge this jury instruction as defective for failing to
specify the time period or location of the corporate negligence claim. See
generally N.T., 2/9/16; Lehigh Valley’s Brief.
The jury returned its verdict later on February 9, 2016. Following the
verdict sheet, the jury found that (1) Nurse Langham (the nurse who was
alleged not to have employed proper fall-protection procedures in the PSU)
was not negligent (Question 1); (2) Nurse Michels Mahler (the nurse who
was alleged not to have reported Ms. Shiflett’s post-operative complaints in
the TSU) was negligent (Question 3), and her negligence was “a factual
cause of harm” to Ms. Shiflett (Question 4); and (3) “Lehigh Valley Hospital
itself was negligent” (Question 5), and “the negligence of Lehigh Valley
Hospital” was “a factual cause of harm” to Ms. Shiflett (Question 6). Verdict
Sheet, 2/9/16, at 1-2 ¶¶ 1, 3-6; see also Trial Ct. Op. at 2-3. The jury
awarded the Shifletts $2,391,620 in damages; consistent with the verdict
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sheet, there was no breakdown of the verdict by claim. See Verdict Sheet,
2/9/16, at 3 ¶ 7. After the verdict was read into the record, the trial court
asked counsel, “Is there any business with the jury before we excuse them?”
N.T., 2/9/16, at 130. Lehigh Valley’s counsel asked for the jury to be polled
but did not object to the verdict. Id.
On February 18, 2016, Lehigh Valley filed post-trial motions, including
a motion for judgment notwithstanding the verdict and a motion for a new
trial. Mots. of Lehigh Valley for Post-trial Relief & a New Trial, 2/18/16, at 4-
15 ¶¶ 21-75. Again, with respect to the vicarious liability claim regarding
Nurse Michels Mahler, Lehigh Valley maintained that “[w]hat was a ‘fall
prevention’ case became, by virtue of the Second Amended Complaint, a
case of nursing malpractice relative to the signs and symptoms of a
displaced fracture involving a different facility and a different time frame.”
Br. of Lehigh Valley in Supp. of Post-trial Mots., 4/29/16, at 8; see also
Reply Br. of Lehigh Valley in Supp. of Post-trial Mots., 5/26/16, at 3. Lehigh
Valley’s post-trial motions were denied by the trial court on June 30, 2016.
On July 18, 2016, judgment was entered against Lehigh Valley.
Lehigh Valley appealed on July 29, 2016, and raises the following
issues for our review:
A. Whether the trial court erred in permitting the Shifletts to
amend their Complaint a year after the statute of limitations
expired and then not granting a non-suit and/or a directed
verdict on the Shifletts’ negligence allegations related to the
treatment in the [TSU] by Nurse [Michels] Mahler since such
allegations were barred by the statute of limitations and there
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was no expert testimony relative to causation for any alleged
harm in the TSU?
B. Whether the trial court erred in permitting the Shifletts to
amend their Complaint a year after the statute of limitations
expired and then not granting a non-suit and/or a directed
verdict on the Shifletts’ corporate negligence claim when such
claim, to the extent it was related to the actions of Nurse
[Michels] Mahler, was time-barred [by] the statute of
limitations?
C. Whether the trial court erred in precluding evidence of the
criminal history of [Ms.] Shiflett’s son since such evidence
directly affected the level of damages she attributed to [Lehigh
Valley’s] alleged acts of negligence and such evidence was
directly relevant to her credibility?
D. Whether the trial court erred in permitting the Shifletts’ life
care planner expert to testify on future medical expenses which
were not reduced to present value?
E. Whether the trial court erred in allowing the Shifletts’
liability expert, Dr. Erickson, to testify beyond the scope of his
report?
F. Whether the trial court erred in denying remittitur where
the jury’s award for future medical expenses was not supported
by the evidence and the award substantially deviated from what
can be considered reasonable compensation?
G. Whether the trial court erred in not granting judgment
notwithstanding the verdict when the jury’s verdict finding that
Nurse Langham was not negligent was inconsistent with its
verdict finding [Lehigh Valley] liable for corporate negligence?
Lehigh Valley’s Brief at 6-7.
Statute of Limitations Regarding TSU Claims
Lehigh Valley contends that it was entitled to judgment as a matter of
law because the TSU claims added by the Second Amended Complaint were
barred by the statute of limitations.
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Our standards of review when considering motions for a directed
verdict and judgment notwithstanding the verdict are identical.
We will reverse a trial court’s grant or denial of a judgment
notwithstanding the verdict only when we find an abuse of
discretion or an error of law that controlled the outcome of the
case. Further, the standard of review for an appellate court is
the same as that for a trial court.
There are two bases upon which a judgment [notwithstanding
the verdict] can be entered; one, the movant is entitled to
judgment as a matter of law and/or two, the evidence is such
that no two reasonable minds could disagree that the outcome
should have been rendered in favor of the movant. With the
first, the court reviews the record and concludes that, even with
all factual inferences decided adverse to the movant, the law
nonetheless requires a verdict in his favor. Whereas with the
second, the court reviews the evidentiary record and concludes
that the evidence was such that a verdict for the movant was
beyond peradventure.
Reott v. Asia Trend, Inc., 7 A.3d 830, 835 (Pa. Super. 2010) (citations
and internal brackets omitted), aff’d, 55 A.3d 1088 (Pa. 2012).
Lehigh Valley contends that, because the Second Amended
Complaint’s new negligence allegations related to Ms. Shiflett’s treatment at
the TSU from April 15 to April 19, 2012, the TSU claim was barred by the
two-year statute of limitations applicable to tortious injuries. See 42 Pa.C.S.
§ 5524(2). According to Lehigh Valley, “the statute of limitations had
expired on these new claims on April 19, 2014, more than [a] year before
the Shifletts sought leave to amend [in May 2015]. . . . Accordingly, a new
trial is needed to remedy this injustice.” Id. at 16, 21; see also id. at 50.
Lehigh Valley emphasizes that the events in the TSU involving Nurse
Michels Mahler occurred during a different (later) time period from the
allegedly negligent conduct that had been alleged in the Shifletts’ prior
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pleadings, happened at a different location (the TSU, rather than her
hospital room), and were caused by different people (Nurse Michels Mahler
and the TSU staff, rather than the hospital staff). According to Lehigh
Valley, the claims of negligence in the Ms. Shiflett’s hospital room relate to
the failure to take measures to prevent her from falling from her bed; the
claims of negligence in the TSU relate to a failure to inform TSU personnel of
Ms. Shiflett’s symptoms following her fall, which caused deferral of the
diagnosis of her injuries and allowed aggravation of those injuries during
therapy. See N.T., 2/3/16, Tr. of Cynthia Balkstra, at 61-64, 68-69; N.T.,
2/5/16, at 31, 39, 64, 66-69; Trial Ct. Op. at 2. Lehigh Valley claims that
the TSU events therefore constitute a separate cause of action from the
events that gave rise to Ms. Shiflett’s fall in her hospital room.
The Shifletts answer that their second amended complaint “did not
plead a new cause of action for vicarious liability after the statute of
limitations had run. Rather, it merely amplified the theory of vicarious
liability pled in the First Amended Complaint.” Shifletts’ Brief at 31 (citations
to the record omitted).
The trial court agreed with the Shifletts, writing:
Here, the amendment did not change the causes of action
asserted against [Lehigh Valley], but merely amplified what had
already been asserted in the Amended Complaint. . . . The
language of the Amended Complaint is broad enough to
encompass the specific allegations in the Second Amended
Complaint. The Amended Complaint generally asserted that
[Lehigh Valley] undertook and/or assumed a duty to plaintiffs to
use reasonable, proper, adequate and appropriate medical care,
services and treatment and to take appropriate measures to
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avoid harm to Plaintiff Betty Shiflett. Plaintiffs’ Amended
Complaint, ¶ 19. Further, it asserted that [Lehigh Valley] was
negligent, by and through their agents, servants and/or
employees and/or their ostensible agents following Ms. Shiflett’s
April 12, 2012, left knee revision surgery at [Lehigh Valley] for:
"failing to use due care or employ reasonable skill in the
treatment administered to Plaintiff Betty Shiflett; failing to select
and retain competent physicians and staff; failing to properly
oversee the professional staff working in Lehigh Valley Hospital;
and failing to adhere to the standard of medical care in the
community.” Id. at if 23(a), (f), (g), (h). Plaintiffs’ assertion in
the Second Amended Complaint was a specific example of the
asserted negligence against [Lehigh Valley]: one of [Lehigh
Valley]’s employees, Nurse Michels Mahler, following
Ms. Shiflett’s April 12, 2012, surgery, failed to use due care or
employ reasonable skill in the treatment administered to
Ms. Shiflett when Nurse Michels Mahler failed to communicate
Ms. Shiflett’s complaints about her sharp knee pain, clicking,
instability, and buckling to a doctor or physical therapist causing
an increased risk of harm to the compromised knee.
The specific allegation against Nurse Michels Mahler amplified
the timely-filed vicarious liability cause of action against [Lehigh
Valley]. Accordingly, the Second Amended Complaint was
properly permitted, the allegations of negligence against [Lehigh
Valley] regarding Ms. Shiflett’s time in the TSU were not time-
barred, and [Lehigh Valley’s] motion for directed verdict on that
basis was properly denied.
Trial Ct. Op. at 8-9 (internal brackets and footnote omitted).
The determinative question is whether the part of the Shifletts’ Second
Amended Complaint that sought recovery for post-operative events that
occurred in the TSU on April 15-19, 2012, stated a new cause of action that
had not been pleaded within two years of those dates — that is, by April 19,
2014. If so, then that portion of the Second Amended Complaint, which was
not filed until July 2, 2015, was time-barred. After reviewing the record, we
conclude that the trial court erred because the TSU claim was not mentioned
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in the Shifletts’ pleadings prior to the Second Amended Complaint and, most
importantly, when called upon to explain those earlier pleadings, the
Shifletts’ represented to both the trial court and Lehigh Valley that their
allegations related only to negligence leading to Ms. Shiflett’s fall in the PSU.
The law governing deadlines for filing negligence claims is well-settled:
In Pennsylvania, a cause of action for negligence is controlled by
the two-year statute of limitations set forth in 42 Pa.C.S[.]
§ 5524(2). The statute of limitations begins to run as soon as
the right to institute and maintain a suit arises; lack of
knowledge, mistake or misunderstanding do not toll the running
of the statute of limitations. It is the duty of the party asserting
a cause of action to use all reasonable diligence to properly
inform himself of the facts and circumstances upon which the
right of recovery is based and to institute suit within the
prescribed period.
Cappelli v. York Operating Co., 711 A.2d 481, 484–85 (Pa. Super. 1998)
(en banc) (brackets, citations, and internal quotation marks omitted).
Under our rules of procedure, leave to amend a complaint is to be
liberally granted. Hill v. Ofalt, 85 A.3d 540, 557 (Pa. Super. 2014).
Nevertheless, “[i]t is axiomatic that a party may not plead a new cause of
action in an amended complaint when the new cause of action is barred by
the applicable statute of limitations at the time the amended complaint is
filed.” N.Y. State Elec. & Gas Corp. v. Westinghouse Elec. Corp., 564
A.2d 919, 928 (Pa. Super. 1989) (en banc); see also Echeverria v.
Holley, 142 A.3d 29, 37 (Pa. Super. 2016) (“amendment introducing a new
cause of action will not be permitted after the statute of limitations has run
in favor of a defendant” (brackets and citation omitted)), appeal denied,
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169 A.3d 17 & 169 A.3d 18 (Pa. 2017); Junk v. East End Fire Dep’t, 396
A.2d 1269, 1277-78 (Pa. Super. 1978). “[T]he test is whether an attempt is
made to state facts which give rise to a wholly distinct and different legal
obligation against the defendant.” Hodgen v. Summers, 555 A.2d 214,
215 (Pa. Super.) (citation omitted), appeal denied, 563 A.2d 888 (Pa.
1989). The question is whether the operative facts supporting the claim
were changed, not whether the amendment presented a new category of
claim or theory of recovery. See id.7
Two cases, with facts and procedural histories similar to those of the
current action, are instructive in resolving this issue. Chaney v. Meadville
Med. Ctr., 912 A.2d 300 (Pa. Super. 2006), was a malpractice action arising
from the death of an 18-year-old woman, Jessica Kimple. On March 13,
2000, Kimple reported to Meadville Medical Center’s emergency room with a
cough and a high temperature. She was examined by a Dr. Bollard, who
without ordering x-rays or laboratory tests, diagnosed viral bronchitis and
discharged Kimple with instructions to use an inhaler and to take over-the-
counter cough medicine. Two days later, on March 15, Kimple returned to
____________________________________________
7 “Fall prevention” and nursing malpractice claims are both types of medical
malpractice claims. See Freed v. Geisinger Med. Ctr., 971 A.2d 1202,
1206 (Pa. 2009) (nursing malpractice is medical malpractice); Ditch v.
Waynesboro Hosp., 917 A.2d 317, 319, 322 (Pa. Super. 2007) (fall from
hospital bed raised a claim of professional negligence/malpractice, not of
ordinary negligence), aff’d, 17 A.3d 310 (Pa. 2011). To establish a cause of
action for medical malpractice, a plaintiff must demonstrate: (1) a duty
owed by the medical professional to the patient; (2) a breach of that duty by
the professional; (3) that the breach was the proximate cause of the harm
suffered; and (4) that the damages suffered were a direct result of the
harm. Freed, 971 A.2d at 1206.
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the emergency room with much more serious symptoms. An x-ray revealed
signs of pneumonia and severe hypoxia (oxygen deficiency). Kimple was
hospitalized and placed on a ventilator, and she died soon thereafter. On
June 12, 2002, her estate brought a malpractice action against Dr. Bollard
and Meadville that, in an amended complaint, alleged lack of proper care
during Dr. Bollard’s March 13, 2000 examination and diagnosis of Kimple.
On September 14, 2005, Kimple’s estate sought leave to amend its
complaint to add allegations that Dr. Bollard treated Kimple on March 17,
2000, after she was admitted to the hospital, and that his treatment of her
at that time was negligent. The trial court denied the motion on the ground
that it sought to allege new claims against Dr. Bollard that had not
previously been pleaded, and on appeal, this Court agreed, stating:
[A] fair reading of the amended complaint does not include an
averment of malpractice against Dr. Bollard for the treatment he
administered to Kimple on March 17, 2000. Accordingly, the
final three paragraphs of the Estate’s proposed amendment
constitute an entirely new allegation of negligence against
Dr. Bollard personally, and not just an amplification of the theory
contained in the amended complaint.
912 A.2d at 304 (emphasis added). This Court held, “The Estate was
properly barred from introducing a new theory of the case against
Dr. Bollard personally, as it had not put him on notice, before the statute of
limitations had expired, that his actions on March 17, 2000 constituted the
basis of its case against him.” Id. at 307-08.8
____________________________________________
8 Although the Estate’s complaint did not allege malpractice by Dr. Bollard
after March 13, 2000, it did allege malpractice by Meadville after that date,
(Footnote Continued Next Page)
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Schweikert v. St. Luke’s Hosp. of Bethlehem, 886 A.2d 265 (Pa.
Super. 2005), was another malpractice case. The plaintiff alleged that a
piece of sponge was left inside her abdomen during one of three surgeries
performed on January 10, January 12, and March 12, 1999, or “during the
wound care of her infected abdominal wound . . . by the visiting nurses” at
her home between January 27 and March 12, 1999. Id. at 267. More than
two years later, during his trial deposition, the plaintiff’s expert “added a
third possible option on which the foreign material could have been
introduced, that is during her post-operative hospitalization” between
January 12 and January 27, 1999. Id. The trial court refused to permit the
plaintiff to present that theory to the jury, because it was outside of her
pleading and barred by the statute of limitations. At trial, the jury found in
favor of the defendant hospital. On appeal, the plaintiff argued that the trial
court erred in prohibiting her from presenting the expert’s third theory and
(Footnote Continued) _______________________
asserting that Meadville’s doctors, nurses, and other staff were negligent in
that period in not recognizing Kimple’s signs of distress and treating her
appropriately in light of those signs. 912 A.2d at 307. This Court therefore
held that even though the proposed amendment specifying negligence after
March 13 stated a new time-barred claim against Dr. Bollard, it did not add a
new claim against the hospital, because the complaint had already “clearly
put [the hospital] on notice that the Estate was complaining about the care
rendered by [the hospital]’s agents from March 13th to 17th.” Id. at 307-
08. As discussed below, the claim regarding Nurse Michels Mahler did add a
new claim against the hospital, because the hospital was sought only to be
held vicariously liable for Nurse Michels Mahler’s conduct — not directly liable
for corporate negligence relating to events in the TSU. This aspect of the
case is therefore different from Chaney.
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in denying her leave to amend her complaint to add that theory to her
pleading. We disagreed.
We first explained that the new theory advanced by the expert differed
from what the complaint alleged and therefore was properly barred:
[T]he theory advanced by the expert that the sponge could have
been introduced into her abdomen during post operative
hospitalization. . . . was advanced by the expert in a deposition
. . . well after the statute of limitations had run. The trial court
found that because the proposed testimony deviated from the
pleadings, it should be precluded under the discovery rules . . . .
[The plaintiff] argues that the trial court ignored the “fair
scope” test for the expert’s reports and/or that the language of
her amended complaint subsumed the idea of negligent post
operative care to account for the presence of the sponge. As to
the first premise, [the plaintiff] would have us find the following
language of the expert’s report all encompassing:
Under no scenario can a physician or nurse be “excused”
for leaving a sponge in a patient’s abdominal wall or cavity
and/or not finding (or discovering) a sponge after it has
been left inside of a patient causing an infection.
[The plaintiff] posits the notion that because the expert’s
(first) report discusses post operative wound care by visiting
nurses, a suggestion that hospital nurses were responsible for
introduction of the sponge could be extrapolated from the
quoted passage, and would, therefore, come as no surprise. . . .
. . . In his report, the expert expressly identified two possible
time frames within which the introduction of the sponge might
have occurred: during the surgical procedures of [January] or
March of 1999, and during the ministrations of the visiting
nurses after [the plaintiff]’s release from the hospital. No events
during post surgical hospitalization are ever mentioned, and
neither the general statement of practice nor any other section
of the expert report refers to post operative hospital care.
Accordingly, the trial court decision to exclude the expert’s newly
introduced theory was proper.
886 A.2d at 268-69 (citations omitted).
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We then turned to the plaintiff’s argument that she should have been
allowed to amend her complaint to add her expert’s new theory. The
plaintiff contended that the theory was fairly encompassed by general
language already included in the complaint, which alleged that the plaintiff
received deficient post-operative care due to negligence “[i]n failing to
properly diagnose and treat the abdominal infection of [the plaintiff]
following the January 10, 1999 surgical procedure and continuing
thereafter.” 886 A.2d at 269. She relied on our statement in Reynolds v.
Thomas Jefferson Univ. Hosp., 676 A.2d 1205, 1209-10 (Pa. Super.),
appeal denied, 700 A.2d 442 (Pa. 1996):
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 which a party might have been
permitted to give under a more specific statement.
We disagreed, stating:
We are not persuaded that Appellant’s eleventh-hour
construction of this very vague language to constitute the instant
claim is a mere amplification of an allegation in her complaint.
Rather, the additional theory proposes another basis for recovery
altogether, positing negligence committed by different
tortfeasors during a different time frame. . . . Further, as the
trial court accurately points out, this paragraph could only refer
to a sponge left during surgery, the subject of the preceding six
subparagraphs of the complaint.
The Reynolds Court examined the holding of our Supreme
Court in Connor v. Allegheny General Hospital, 501 Pa. 306,
461 A.2d 600 (1983), that a complaint may be amended after
the statute of limitations has run in order to specify other forms
of a defendant’s negligence where the plaintiff does not seek to
add new allegations of different negligent acts. The idea of
pleadings is actually to convey notice of the intended grounds for
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suit, not require the opponent to guess at their substance. . . .
Even the most generous reading of the Rule permitting liberal
allowance of amendment would not countenance the introduction
of a new theory sought so late by Appellant. Here, too, the trial
court’s decision to deny Appellant’s motion to amend was
correct.
Schweikert, 886 A.2d at 269-70 (emphases added and some citations and
footnotes omitted).
The facts of Chaney and Schweikert are similar to those presented
here. In both Chaney and Schweikert, the malpractice plaintiff waited
until after the statute of limitations had run and then sought to amend the
complaint to allege claims based on medical treatment that occurred at a
different time period than had been alleged. And in each case, this Court
held that the plaintiff was properly barred from making that amendment,
because it would introduce a new theory of the case as to which the
defendant had not been put on notice before the statute of limitations had
expired. Chaney, 912 A.2d at 302-04, 307-08; Schweikert, 866 A.2d at
267-70.
Here, the Shifletts’ amendment added claims of improper medical
treatment in the TSU after Ms. Shiflett’s fall from her hospital bed. The
claims rely on different facts — a failure to report symptoms that would lead
to an earlier diagnosis — than those regarding the alleged negligence that
caused Ms. Shiflett’s fall. The time of the events is different, the location is
different, and the personnel who are alleged to have engaged in the
negligent conduct are different. While it is true that here, as in Chaney and
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Schweikert, these events were part of a larger story regarding the
plaintiff’s medical care at the hands of a medical facility, they still are
separate acts that had to be pleaded within the statute of limitations to place
Lehigh Valley on notice of the claims and to enable Lehigh Valley to prepare
a defense. See Junk, 396 A.2d at 1277-78 (emphasizing differences in
defenses relating to old and new claims). Because the Shifletts’ TSU claims
presented a new basis for recovery that was not pleaded before the statute
of limitations ran, the trial court erred in permitting amendment to add those
claims.
We thus disagree with the trial court’s holding that “the amendment
did not change the causes of action asserted against [Lehigh Valley], but
merely amplified what had already been asserted in the Amended
Complaint.” Trial Ct. Op. at 8. Notably, none of the trial court’s citations to
the Amended Complaint specifically discuss care in the TSU after April 15,
2012. Instead, the trial court considered the very general allegations
relating to negligence following Ms. Shiflett’s knee surgery — and,
particularly, the general language in the subparagraphs of Paragraph 23 —
to relate to everything that happened after April 12, 2012, including the
events in the TSU after April 15. This same type of reliance on “very vague
language” in a pleading was rejected by this Court in Schweikert, 886 A.2d
at 269, and we hold that it was error here as well.
The Supreme Court addressed when general allegations of negligence
can be used to expand negligence theories in a post-limitations amendment
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in Connor v. Allegheny Gen. Hosp., 461 A.2d 600 (Pa. 1983). As part of
emergency medical treatment at Allegheny General Hospital, the plaintiff,
Mary Connor, was given a barium enema. The barium leaked into her
abdominal cavity through a perforation in her colon, causing serious injuries.
Connor sued, claiming the hospital was negligent in perforating her colon,
causing the barium to leak into her abdomen, and “otherwise failing to use
due care and caution under the circumstances.” 461 A.2d at 601. After the
statute of limitations had run, Connor sought to amend her complaint to add
an allegation that the hospital negligently delayed removing the barium from
her abdomen. The trial court denied leave to amend, but the Supreme Court
reversed, holding that the amendment merely amplified the allegation that
the hospital had failed “to use due care and caution under the
circumstances.” Id. at 602. The Court then added:
If appellee did not know how it “otherwise fail[ed] to use due
care and caution under the circumstances,” it could have filed a
preliminary objection in the nature of a request for a more
specific pleading or it could have moved to strike that portion of
appellants’ complaint. Compare Arner v. Sokol, 373 Pa. 587,
592-93, 96 A.2d 854, 856 (1953), citing King v. Brillhart, 271
Pa. 301, 114 A. 515, 516 (1921) (“[T]he [plaintiff’s statement]
may not be a statement in a concise and summary form of the
material facts upon which the plaintiff relies . . .; but, if not, it
was waived by defendant’s affidavit to and going to trial upon
the merits . . . a defendant may move to strike off an insufficient
statement, or, if it is too indefinite, may obtain a rule for one
more specific. Failing to do either, he will not be entitled to a
compulsory nonsuit because of the general character of plaintiff’s
statement.”). In this case, however, appellee apparently
understood this allegation of appellants’ complaint well enough
to simply deny it in its answer. Thus, appellee cannot now claim
that it was prejudiced by the late amplification of this allegation
in appellants’ complaint.
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Id. at 602 n.3. It is in light of this qualification that this Court stated in
Reynolds, 676 A.2d at 1209-10, that “[g]eneral 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.”
Here, however, the general averments in the Amended Complaint on
which the trial court relied were objected to by Lehigh Valley. In
preliminary objections to the Amended Complaint (and, indeed, in similar
objections to the original Complaint), Lehigh Valley asked that they be
stricken or dismissed because they were too “general, vague and overbroad”
in failing to specify exactly what misconduct was being referenced. The
Shifletts responded to Lehigh Valley’s objections by, in effect, providing a
more specific statement of what they were alleging. They emphasized that
the allegations “cannot be read in isolation” and then summarized the
“detailed and specific allegations” that supported the more general
averments. All of those specific allegations related to Ms. Shiflett’s fall in the
PSU and none related to alleged misconduct in the TSU. The trial court
overruled Lehigh Valley’s preliminary objections after receiving the Shifletts’
explanation.
Viewed in this context, the trial court erred in holding that the general
averments in Paragraph 23 of the Amended Compliant put Lehigh Valley on
notice of a claim regarding malpractice in the TSU after April 15, 2012. The
Amended Complaint made no reference to such events, and the Shifletts’
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explanation of the general averments made clear that they were speaking of
Ms. Shiflett’s fall from her bed, not anything that occurred days later in the
TSU. Lehigh Valley was entitled to rely on the representations made in that
explanation.
Under Connor and Reynolds, it was error for the trial court to allow
the new negligence claim in the Second Amended Complaint on the basis of
Paragraph 23’s general allegations. The TSU allegations were no “mere
amplification of an allegation in [the earlier] complaint,” but instead alleged
“another basis for recovery altogether, positing negligence committed by
different tortfeasors during a different time frame.” Schweikert, 886 A.2d
at 269. Because the Second Amended Complaint was filed after the statute
of limitations had run, the Shifletts’ vicarious liability claims based on those
new allegations were time-barred.
Corporate Negligence
Statute of Limitations
We have concluded that the Shifletts’ vicarious liability claim relating
to the TSU was time-barred, but Lehigh Valley argues further that “the trial
court erred in allowing the Shifletts’ corporate negligence claim related to
the care provided in the TSU or by Nurse [Michels] Mahler to go to the jury
because the claims were barred by the statute of limitations” also. Lehigh
Valley’s Brief at 25.
The Shifletts respond that Lehigh Valley “waived any objection to the
corporate negligence verdict,” because “on the record after the close of [the
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Shifletts’] case, counsel for both [the Shifletts] and [Lehigh Valley] agreed
that the corporate negligence claim was limited to the fall itself, not the care
in the TSU.” Shifletts’ Brief at 9 (citing N.T., 2/8/16, at 4-5). The Shifletts
also contend that the “record evidence supports the corporate negligence
verdict.” Id. at 16. In other words, the Shifletts contend that the corporate
negligence claim cannot be time-barred because it is not based on any
allegations relating to the events in the TSU. See id. at 9, 16. The trial
court agreed with the Shifletts that Lehigh Valley “waived any challenge to
the jury’s verdict as to the corporate negligence claim,” because both sides
agreed during trial that “the corporate negligence claim was against [Lehigh
Valley] for failing to train and supervise the [PSU] nurses in fall prevention
strategy[,]” adding that “the corporate negligence claim did not assert any
wrongdoing against Nurse Michels Mahler in the TSU.” Trial Ct. Op. at 15-16
(citing N.T., 2/8/16, at 4-5; N.T., 2/9/16, at 9-10).
The record reveals that the parties agreed, both parties’ counsel
argued, and the trial court instructed as follows: Question 1 on the verdict
sheet referred to Lehigh Valley’s vicarious liability for events in the PSU;
Question 3 on the verdict sheet related to Lehigh Valley’s vicarious liability
for events in the TSU; and Question 5 addressed Lehigh Valley’s corporate
liability. N.T., 2/8/16, at 4-6; N.T., 2/9/16, at 9-10, 44-45, 52-53, 109,
113-14. Further, the parties agreed that there was no claim for corporate
negligence of Lehigh Valley with respect to events in the TSU. N.T., 2/8/16,
at 4-6. Neither party argued to the jury that there was a claim against
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Lehigh Valley for corporate negligence in the TSU. See N.T., 2/9/16, at 44-
45, 52-53. Lehigh Valley did not seek a jury instruction seeking clarification
of the limited scope of this claim or object to the absence of such a
clarification from the instruction. We therefore agree with the trial court that
any argument by Lehigh Valley that the corporate negligence claim extends
to negligence in the TSU was waived. The corporate negligence claim
therefore could not have been barred by the statute of limitations.
Consistency of the Verdict
Lehigh Valley also argues that “the trial court erred in not granting a
[judgment notwithstanding the verdict (“JNOV”)] when the jury’s verdict was
inconsistent (finding Nurse Langham not negligent but finding [Lehigh
Valley] negligent for failing to properly train her).” Lehigh Valley’s Brief at
48. Lehigh Valley contends:
The evidence at trial to support the Shifletts’ corporate
negligence claim was grounded in the alleged improper training
of Nurse Langham (in the [PSU]) on [Lehigh Valley]’s fall
prevention policies. The jury found that Nurse Langham did NOT
commit negligence. Yet the jury also found [Lehigh Valley] liable
for corporate negligence. . . . Given these inconsistent verdict
findings, the trial court should have entered a JNOV on the
corporate negligence claim.
Id. at 48-49 (emphasis in original; citations to the record omitted; citing
Thompson v. Nason Hosp., 591 A.2d 703 (Pa. 1991); Kit v. Mitchell, 771
A.2d 814, 818-19 (Pa. Super. 2001)). The Shifletts reply that “the jury
verdict is consistent and even if it were not, [Lehigh Valley] has waived any
objection.” Shifletts’ Brief at 29.
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“[I]f a party seeks relief upon grounds of verdict inconsistency, it must
forward a timely, contemporaneous objection upon the rendering of the
verdict.” Criswell v. King, 834 A.2d 505, 513 (Pa. 2003) (emphasis
added). Here, Lehigh Valley did not object to any inconsistency between the
verdict regarding Nurse Langham and the verdict on corporate negligence at
the time they were entered. N.T., 2/9/16, at 130. Thus, it has failed to
preserve this challenge.
In addition, we find no inconsistency between the verdicts. Our law on
how to address inconsistent verdicts is as follows:
Generally, inconsistencies in jury verdicts are not permissible in
civil actions in the Commonwealth. Inconsistency mandating a
new trial most often occurs when a jury returns a verdict
assessing liability on the part of a principal while finding no
liability on the part of the agent when the only foundation for the
principal’s liability is the imputed negligence of the agent under
the doctrine of respondeat superior. However, every reasonably
possible intendment is to be made in favor of the findings of a
jury, and an inconsistency may justifiably be declared to exist
only if there is no reasonable theory or conclusion to support the
jury's verdict.
Walsh v. Pa. Gas & Water Co., 449 A.2d 573, 576 (Pa. Super. 1982)
(emphasis in original; citations and quotation marks omitted); see also
McDermott v. Biddle, 674 A.2d 665, 667 (Pa. 1996) (in civil cases, jury
verdicts are presumed to be consistent “unless there is no reasonable theory
to support the jury’s verdict”); Goldmas v. Acme Markets, Inc., 574 A.2d
100, 103 (Pa. Super. 1990) (“there is a presumption of consistency with
respect to a jury’s findings which can only be defeated when there is no
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reasonable theory to support the jury’s verdict” (citation omitted)). We
conclude that it is reasonable to construe the verdicts here to be consistent.
The verdict regarding Nurse Langham addressed her own personal
conduct in the PSU and her failure to prevent Ms. Shiflett’s fall. The verdict
regarding corporate negligence addressed Lehigh Valley’s conduct in setting
policies and procedures for fall-prevention in the PSU. As the Supreme
Court stated in Welsh v. Bulger, 698 A.2d 581 (Pa. 1997):
[C]orporate negligence is based on the negligent acts of the
institution. A cause of action for corporate negligence arises
from the policies, actions or inaction of the institution itself
rather than the specific acts of individual hospital employees.
Thus, under this theory, a corporation is held directly liable, as
opposed to vicariously liable, for its own negligent acts.
698 A.2d at 585 (internal citations omitted). Thus, in proving corporate
negligence, “an injured party does not have to rely on and establish the
negligence of a third party,” including a corporate employee. Thompson,
591 A.2d at 707 (footnote omitted).
“Pennsylvania recognizes the doctrine of corporate negligence as
a basis for hospital liability separate from the liability of the
practitioners who actually have rendered medical care to a
patient.” Rauch v. Mike–Mayer, 783 A.2d 815, 826 (Pa.
Super. 2001) (citation omitted). The doctrine of corporate
negligence imposes a non-delegable duty on the hospital to
uphold a proper standard of care to patients. Id.
Seels v. Tenet Health Sys. Hahnemann, LLC, 167 A.3d 190, 205 (Pa.
Super. 2017). Thus, the fact that the jury found that Nurse Langham was
not negligent in causing Ms. Shiflett’s injuries does not preclude a finding
that the injuries were caused by Lehigh Valley’s corporate negligence.
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At trial, Nurse Balkstra testified that Lehigh Valley had appropriate fall
prevention guidelines in place, but that they were not appropriately used
because the staff were not educated frequently enough about them. N.T.,
2/3/16, Tr. of Cynthia Balkstra, at 44-46, 69-70. She also testified that
Lehigh Valley’s failure to train its nursing staff appropriately about how to
use the fall prevention guidelines increased the risk of Ms. Shiflett falling.
Id. at 70. On the basis of this testimony, the jury may have held Lehigh
Valley liable for a failure to properly train and supervise its staff about
prevention of falls. See Rauch v. Mike–Mayer, 783 A.2d 815, 826-27 (Pa.
Super. 2001) (doctrine of corporate negligence imposes a non-delegable
duty on a hospital if it fails to oversee those practicing medicine within its
walls as to patient care and fails to formulate, adopt and enforce adequate
rules and policies to ensure quality care for the patients). Consistent with
such a finding, the jury also could have concluded that Nurse Langham was
not properly trained to implement appropriate fall-prevention procedures
and therefore was not personally responsible for Ms. Shiflett’s fall.
Accordingly, after making every possible intendment in favor of the
jury’s findings and after considering every reasonable theory to support the
verdicts, we conclude that the trial court did not err in holding that the jury’s
finding of corporate negligence was consistent with its finding that Nurse
Langham was not negligent. See Reott, 7 A.3d at 835; McDermott, 674
A.2d at 667; Goldmas, 574 A.2d at 103; Walsh, 449 A.2d at 576.
Therefore, Lehigh Valley’s argument on this issue is meritless.
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Scope of Dr. Erickson’s Testimony
Lehigh Valley raises one evidentiary issue that relates to liability: “the
trial court erred in allowing the Shifletts’ liability expert, Dr. Erickson, to
testify beyond the fair scope of his report.” Lehigh Valley’s Brief at 41. We
review this issue for an abuse of discretion, as “[a]dmission or exclusion of
evidence rests within the sound discretion of the trial court, and we will not
reverse the court absent an abuse of discretion or error of law.” Webb v.
Volvo Cars of N. Am., LLC, 148 A.3d 473, 484 (Pa. Super. 2016), appeal
denied, 168 A.3d 129 & 168 A.3d 1294 (Pa. 2017).
Lehigh Valley argues:
The Shifletts’ liability expert, Dr. Erickson, provided a short, two
and a half page report during discovery in this case. . . .
Dr. Erickson also was allowed to testify, over [Lehigh Valley]’s
objections, on physical therapy evaluations, including range of
motion assessments, before and after her fall which had never
been addressed in his report. . . . Dr. Erickson was further
allowed to testify, over [Lehigh Valley]’s objection, as to his
conclusions about the significance of [Ms.] Shiflett’s reports of
“sharp pain” – again, an opinion not discussed in his report.
Id. at 41-42, 44 (citing Rep. of Dr. Erickson, 7/6/15; N.T., 2/5/16, at 34-37,
54-55). The Shifletts reply that “Dr. Erickson’s testimony did not go beyond
the fair scope of his report and caused no prejudice to [Lehigh Valley].”
Shifletts’ Brief at 46. They continue:
[Lehigh Valley’s] arguments are clearly contradicted by a plain
reading of Dr. Erickson’s report and there is no genuine
argument that [Lehigh Valley] was surprised or prejudiced. . . .
In light of Dr. Erickson’s expert report specifically opining about
[Ms.] Shiflett’s substantial trauma and non-displaced fracture,
his trial testimony was clearly within the fair scope of his
opinion. . . . Lehigh Valley[’s] objection is not only contrary to
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the law, but is completely impractical. . . . Dr. Erickson began
his report by indicating that he reviewed all of the relevant
medical records, including the records from “Lehigh Valley
Hospital.” . . . Even if Dr. Erickson’s reference to one physical
therapy note in the Lehigh Valley Hospital chart was somehow
outside the fair scope of his opinion, it was harmless error.
Id. at 46, 48-50. In resolving this dispute, the trial court found that “Dr.
Erickson’s report was sufficient to include the testimony he provided
regarding the surgery and his testimony regarding how the fall resulted in
trauma to Ms. Shiflett’s knee and to further testify at trial that she suffered a
non-displaced fracture.” Trial Ct. Op. at 27.
The parties and the trial court all rely upon Pa.R.C.P. 4003.5(c):
To the extent that the facts known or opinions held by an expert
have been developed in discovery proceedings under . . . this
rule, the direct testimony of the expert at the trial may not be
inconsistent with or go beyond the fair scope of his or her
testimony in the discovery proceedings as set forth in the
deposition, answer to an interrogatory, separate report, or
supplement thereto. However, the expert shall not be prevented
from testifying as to facts or opinions on matters on which the
expert has not been interrogated in the discovery proceedings.
In Callahan v. Nat'l R.R. Passenger Corp., 979 A.2d 866 (Pa. Super.
2009), appeal denied, 12 A.3d 750 (Pa. 2010), this Court stated:
Pa.R.C.P. 4003.5(c) does provide that the direct testimony of an
expert may not be inconsistent with or go beyond the fair scope
of the materials which have been developed during discovery.
In deciding whether an expert’s trial testimony is within
the fair scope of his report, the accent is on the word
“fair.” The question to be answered is whether, under the
circumstances of the case, the discrepancy between the
expert’s pre-trial report and his trial testimony is of a
nature which would prevent the adversary from preparing
a meaningful response, or which would mislead the
adversary as to the nature of the appropriate response.
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We review a trial court’s ruling on this type of issue for an abuse
of discretion.
Id. at 876-77 (citations omitted).
We agree with the trial court that Dr. Erickson’s specific testimony at
trial is consistent with the fair scope of his report. In his report, Dr. Erickson
stated that he reviewed Lehigh Valley’s own records and, based on those
records, concluded that Ms. Shiflett’s fall resulted in the trauma to her knee.
In his trial testimony, Dr. Erickson specified which Lehigh Valley records he
reviewed, including the physical therapy range-of-motion assessments, to
deduce that Ms. Shiflett was not improving from the surgery as expected.
N.T., 2/5/16, at 34-37, 54-55. Thus, Dr. Erickson’s testimony did not
present a new theory, and it was not inconsistent with his report. See
Callahan, 979 A.2d at 876-77. The trial court hence did not abuse its
discretion in permitting Dr. Erickson to testify about Ms. Shiflett’s physical
therapy assessments.
Damages and Retrial
Lehigh Valley’s remaining arguments all relate to the damages award.
We need not reach Lehigh Valley’s specific damages issues, however,
because our holding that it was error to permit trial of the Shifletts’ time-
barred claim regarding negligence by Nurse Michels Mahler requires that
there be a new trial on, at the least, the issue of damages. It is impossible
to determine from the verdict sheet (which did not break down damages by
claim) whether all of the damages awarded by the jury were caused by Ms.
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Shiflett’s fall in the PSU, or whether some portion of those damages was the
result of the negligence found to have taken place in the TSU. On remand,
there must be a new determination of damages that is limited to those
caused by the corporate negligence in the PSU.9
The remaining question is whether the new trial should be limited to
only a determination of what amount of damages was caused by the
corporate negligence that led to Ms. Shiflett’s fall in the PSU, or whether
there should be a new trial on liability as well. A court has discretion to hold
a new trial solely on the issue of damages if: “(1) the issue of damages is
not ‘intertwined’ with the issue of liability, and (2) . . . the issue of liability
has been ‘fairly determined.’” Mirabel v. Morales, 57 A.3d 144, 152 (Pa.
Super. 2012); see Kiser v. Schulte, 648 A.2d 1, 7-8 (Pa. 1994); Troncatti
v. Smereczniak, 235 A.2d 345, 346 (Pa. 1967); Kraner v. Kraner, 841
A.2d 141, 147 (Pa. Super. 2004); Lambert v. PBI Indus., 366 A.2d 944,
955-57 (Pa. Super. 1976). “[L]iability is not intertwined with damages when
the question of damages is readily separable from the issue of liability.”
Mirabel, 57 A.3d at 152 n.8. The liability issue has been “fairly determined”
____________________________________________
9 On remand, the trial court is free to revisit the damages issues raised by
Lehigh Valley in this case. On Lehigh Valley’s Issue D regarding reduction of
life care expenses to present value, we direct the parties’ attention to
Tillery v. Children’s Hosp. of Phila., 156 A.3d 1233 (Pa. Super. 2017),
which was decided by this Court after the parties filed their briefs in this
case. On Issue C, regarding admissibility of the criminal history of Ms.
Shiflett’s son, the court is free to reweigh the competing arguments as it
exercises its discretion under Rule 403 of the Rules of Evidence, noting both
the potential for prejudice and potentially high probative value of the
proffered evidence.
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when liability has been found “on clear proof” under circumstances that
would not cause the verdict to be subject to doubt. Lambert, 366 A.2d at
956. Here, we have resolved the issues raised by Lehigh Valley regarding
the propriety of the liability verdict regarding its corporate negligence, and it
appears to us that the damages issue is readily separable from that liability
issue. We therefore see no impediment to limiting the new trial to damages
issues.
In this situation, a limited new trial is the preferred course. In McNeil
v. Owens-Corning Fiberglas Corp., 680 A.2d 1145 (Pa. 1996), a jury
properly rendered a verdict in favor of the defendant on the plaintiff’s claim
that his cancer was caused by exposure to asbestos, but the trial court erred
in failing to present to the jury the plaintiff’s claim that asbestos exposure
caused his non-malignant injuries. This Court ordered a new trial on all
issues, but the Supreme Court reversed that aspect of our decision,
instructing:
This Court has consistently held that where the only trial errors
disclosed in the record deal with specific and discrete issues, the
grant of a new trial should be limited to those issues. In Messer
v. Beighley, 409 Pa. 551, 187 A.2d 168 (1963), this Court held
that where errors deal exclusively with damages, the new trial
should be limited to damages. Likewise, in McKniff v. Wilson,
404 Pa. 647, 172 A.2d 801 (1961), we held that since the only
meritorious assignments of error involved damages, retrial
should concern that issue alone. . . . The new trial ordered in the
instant case, therefore, should be limited to the non-cancer
claims, the lung cancer claim having already been fully litigated
and resolved by a jury.
680 A.2d at 1148.
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The Supreme Court followed this course in Quinby v. Plumsteadville
Family Practice, Inc., 907 A.2d 1061 (Pa. 2006), in which it ordered a new
trial limited to determining whether the plaintiff’s alleged injury was caused
by the negligence established at trial. Coincidentally, Quimby was another
medical malpractice case relating to a fall in a hospital.10 That time,
however, the patient died. The Supreme Court held that on the facts proven
at trial, the decedent’s estate was entitled to a judgment in its favor on the
issue of negligence. 907 A.2d at 1075-77. But there remained a question
whether the decedent’s death resulted from his injuries in the fall. Because
negligence already had been established, the Court held that on remand,
“the only factual issue for the jury to determine is whether Decedent’s death
resulted from injuries sustained during the fall, thus warranting recovery of
those damages peculiar to a cause of action for wrongful death.” Id. at
1077.
We followed this same course in Shiner v. Moriarty, 706 A.2d 1228
(Pa. Super.), appeal denied, 729 A.2d 1130 (Pa. 1998). The plaintiff in that
case prevailed at trial on claims of abuse of process, wrongful use of civil
proceedings, and intentional interference with contractual relations, but the
jury did not apportion damages among each of the claims. After reversing
the judgment on the latter two claims, we held that a new trial on remand
should be limited to determining the amount of damages that were caused
by the abuse of process, explaining:
____________________________________________
10 The patient in Quimby, a quadriplegic, fell from an examination table.
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The damages were assessed without regard to each specific
cause of action. It is impossible to determine what portion of
those damages was attributable to the equity and ejectment
proceedings upon which liability was found for abuse of process.
We find that a new trial on the issue of damages is warranted in
these circumstances.
706 A.2d at 1242.
Informed by these decisions, we remand for a new trial to determine
what damages were caused by Lehigh Valley’s corporate negligence relating
to Ms. Shiflett’s fall in the PSU.11
Judgment vacated. Case remanded for a new trial consistent with this
opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2017
____________________________________________
11 Our decision on this issue is hampered by the fact that the trial court has
not had an opportunity to opine on the appropriate scope of any retrial, and
the parties have had no cause to brief this issue before now. In light of this
fact, our remand is without prejudice to the authority of the trial court to
consider whether matters not brought to our attention caution against
limiting the retrial because, for example, the questions of damages and
liability are more closely intertwined than we have perceived. The trial court
may depart from our mandate only as to the scope of any retrial, and any
such departure must be supported by an appropriate record and
explanation.
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