Burton-Lister v. Siegel, Sivitz and Lebed Associates

798 A.2d 231

Karen BURTON-LISTER, as parent and natural guardian of Tiffany Burton-Lister, a minor and Karen Burton-Lister, in her own right, Appellee, v. SIEGEL, SIVITZ AND LEBED ASSOCIATES and Jay Sivitz, M.D., Joel Lebed, D.O., and David Klebanoff, M.D., Appellants.

Superior Court of Pennsylvania.

Argued December 13, 2001.

Filed May 1, 2002.

John P. Shusted, Philadelphia, for appellants.

Gustine J. Pelagatti, Philadelphia, for appellee.

Before JOYCE, OLSZEWSKI and MONTEMURO¹, JJ.

MONTEMURO, J.

¶ 1 This is an appeal from a judgment awarding $200,000 to Appellee Karen Burton-Lister, and $1,800,000 to her daughter, minor Appellee Tiffany Burton-Lister, in an action for medical malpractice.

¶ 2 On October 18, 1990, Appellee Tiffany Burton-Lister was born by Caesarian section after it became clear that the disproportion between the infant's head circumference and the size of her mother's pelvis made vaginal delivery impossible. Prior to the birth, Appellee Karen Burton-Lister had been given Pitocin to stimulate labor. After approximately seven hours, when labor failed to progress and fetal distress was noted, the surgical delivery was performed; the baby's head was found to be wedged in the mother's pelvis.

¶ 3 When the minor Appellee was one year old, she was diagnosed with brain damage manifested as cerebral palsy and right hemiparesis; later, various cognitive deficits were also noted. This action was commenced on September 28, 1998, alleging that negligence on the part of Appellant obstetricians had resulted in the injuries to the minor Appellee. At trial, the jury awarded Appellee a total of $2,000,000, to which the trial court added $209,929.60 in delay damages. This appeal followed.

The proof required for a prima facie showing of negligence is that a duty was owed and breached, the breach was the cause of the injury, and damages resulted from the harm thus caused. Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 891 (1990). Where the alleged negligence is medical in nature, the plaintiff must present evidence from a expert "who will testify, to a reasonable degree of medical certainty, that the acts of the [care giver] deviated from good and acceptable medical standards, and that such deviation was the proximate cause of the harm suffered." Id. at 62, 584 A.2d at 892.

Checchio v. Frankford Hospital-Torresdale Division, 717 A.2d 1058, 1060 (Pa.Super. 1998), appeal denied, 566 Pa. 633, 781 A.2d 137 (2001).

¶ 4 Appellants' first claim is that a judgment notwithstanding the verdict (JNOV) as to the damages claim of Appellee Karen Burton-Lister should be entered in their favor "because there was not sufficient evidence to sustain the jury's verdict." (Appellants' Brief at 4).

¶ 5 "The entry of judgment notwithstanding the verdict ... is a drastic remedy. A court cannot lightly ignore the findings of a duly selected jury." Neal by Neal v. Lu, 365 Pa.Super. 464, 530 A.2d 103, 110 (1987) (citations omitted).

¶ 6 The standard to be applied in assessing the validity of a motion for JNOV is that

[T]he evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor. Moreover, [a] judgment n.o.v. should only be entered in a clear case and any doubts must be resolved in favor of the verdict winner. Further, a judge's appraisement of evidence is not to be based on how he would have voted had he been a member of the jury, but on the facts as they come through the sieve of the jury's deliberations.

Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003, 1007 (1992) (citations omitted). Finally, a JNOV must be denied where conflicting evidence has been presented to the jury. Farmers' Northern Market Company v. Gallagher, 392 Pa. 221, 139 A.2d 908 (1958).

¶ 7 Appellants offer alternative reasons why JNOV should be entered: they argue first, that Appellee Karen Burton-Lister's request for damages is time barred, and then insist that because it is outside the scope of the complaint, her claim should not have gone to the jury.

¶ 8 To address these in reverse order, we note, as did the trial court, that in Count VI, Paragraph 43, the allegations (of negligence) advanced in Paragraphs 1-42 are incorporated by reference. In Paragraph 44, Appellee states the following:

44. As a result of the maladies sustained by the Minor-Plaintiff, Tiffany Burton-Lister, Parent Plaintiff, Karen Burton-Lister has been forced to expend various and diverse sums of money in an effort to treat and cure Minor-Plaintiff.

WHEREFORE, Parent-Plaintiff, Karen Burton-Lister, demands judgment against the Defendants, in an amount in excess of Fifty Thousand Dollars ($50,000.00).

(Complaint at ¶ 44).

Accordingly, this claim was properly submitted to the jury.

¶ 9 In their limitations argument, Appellants contend that because a parent's cause of action is not derivative of a child's, the two year statute of limitations is applicable and had run by the time Appellee filed her complaint.

¶ 10 The law pertaining to the issue raised herein is well settled:

[T]he 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, even though a person may not discover his injury until it is too late to take advantage of the appropriate remedy, this is incident to a law arbitrarily making legal remedies contingent on mere lapse of time. Once the prescribed statutory period has expired, the party is barred from bringing suit unless it is established that an exception to the general rule applies which acts to toll the running of the statute.

The "discovery rule" is such an exception, and arises from the inability of the injured, despite the exercise of due diligence, to know of the injury or its cause.

Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468, 471 (1983) (citations omitted) (emphasis in original).

¶ 11 However,

[w]here "through fraud or concealment, the defendant causes the plaintiff to relax his vigilance or deviate from his right of inquiry," the defendant is estopped from invoking the bar of the statute of limitations. Moreover, defendant's conduct need not rise to fraud or concealment in the strictest sense, that is, with an intent to deceive; unintentional fraud or concealment is sufficient. Mere mistake, misunderstanding or lack of knowledge is insufficient however, and the burden of proving such fraud or concealment, by evidence which is clear, precise and convincing, is upon the asserting party.

Molineux v. Reed, 516 Pa. 398, 532 A.2d 792, 794 (1987) (quoting Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267, 269 (1963) (citations omitted)).

¶ 12 Further, "the fact that a plaintiff is not aware that the defendant's conduct is wrongful, injurious or legally actionable is irrelevant to the discovery rule analysis." Haggart v. Cho, 703 A.2d 522, 528 (Pa.Super.1997) (citing E.J.M. v. Archdiocese of Philadelphia, 424 Pa.Super. 449, 622 A.2d 1388, 1394 (1993)). Once the plaintiff becomes aware of the injury and who occasioned it, she is under a duty to investigate the matter and commence a cause of action. Id. at 528-29. "The very essence of the discovery rule in Pennsylvania is that it applies only to those situations where the nature of the injury itself is such that no amount of vigilance will enable the plaintiff to detect an injury." Dalrymple v. Brown, 549 Pa. 217, 701 A.2d 164, 170 (1997). Having said so much, we also note that

[t]h[e Pennsylvania Supreme] Court has long held that there are few facts which diligence cannot discover, but there must be some reason to awaken inquiry and direct diligence in the channel in which it would be successful. This is what is meant by reasonable diligence. Although reasonable diligence is an objective rather than a subjective standard, "[I]t is sufficiently flexible ... to take into account the difference[s] between persons and their capacity to meet certain situations and the circumstances confronting them at the time in question." A plaintiff's actions must be evaluated, therefore, to determine whether he exhibited "those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others." In other words, a party is not under an absolute duty to discover the cause of his injury. Instead he must exercise only the level of diligence that a reasonable man would employ under the facts and circumstances presented in a particular case.

Crouse v. Cyclops Industries, 560 Pa. 394, 745 A.2d 606, 611-12 (2000) (citations omitted).

¶ 13 In the instant matter, Plaintiff Karen Burton-Lister initially failed to make inquiries because Appellant Dr. Klebanoff explained that her daughter's condition had been an act of God. Because this information had been imparted to her by her doctor, she believed it to be true. ¶ 14 These facts are, as the trial court observes, comparable to the situation in Hayward v. Medical Center of Beaver County, 530 Pa. 320, 608 A.2d 1040 (1992). There, the appellant had had a portion of his lung removed after a misdiagnosis of cancer, only discovering that the operation had not been medically necessary, despite his doctor's assurances to the contrary, after another doctor so informed him. Our Supreme Court concluded that although a jury could find the appellant "reasonably should have investigated the need for the surgery at the time he was informed of the misdiagnosis," id. at 1043, "[a] jury could ... just as well find that appellant acted reasonably in not investigating further and in being satisfied by appellee's [ ] assurances that the surgery was indeed necessary." Id. Thus, the discovery rule operates to confirm the propriety of submitting...