Corey v. Wilkes-Barre Hosp. Co.

307 A.3d 701

Lesley COREY, as Administratrix of the Estate of Joseph Corey, and Lesley Corey, in Her Own Right, Appellant

v.WILKES-BARRE HOSPITAL COMPANY, LLC, d/b/a Wilkes-Barre General Hospital, Wilkes-Barre General Hospital Emergency Department and J. Charles Lentini, M.D.

v.Pennsylvania Physicians Services, LLC, Additional Defendant

No. 507 MDA 2021

Superior Court of Pennsylvania.

Argued August 9, 2023

Filed: December 11, 2023

Appeal from the Judgment Entered March 24, 2021, In the Court of Common Pleas of Luzerne County, Civil Division, at No(s): 2015-07551, Lesa Gelb, J.

Michael D. Brophy, Bala Cynwyd, for appellant.

Ryan Joseph Brady, Lemoyne, for Pennsylvania, Physician Services, appellee.

Ira L. Podheiser, Pittsburgh, for Wilkes-Barre Hospital Company, LLC appellee.

BEFORE: PANELLA, P.J., BOWES, J., OLSON, J., DUBOW, J., KUNSELMAN, J., MURRAY, J., McLAUGHLIN, J., KING, J., and McCAFFERY, J.

OPINION BY KING, J.:

Appellant, Lesley Corey, as administratrix of the estate of Joseph Corey, and Lesley Corey, in her own right, appeals from the judgment entered in the Luzerne County Court of Common Pleas, in favor of Appellee, Wilkes-Barre Hospital Company, LLC, d/b/a Wilkes-Barre General Hospital ("WBGH").¹ We affirm the judgment and grant the application to dismiss Appellant’s second issue, which was filed by the additional defendant, Pennsylvania Physicians Services, LLC ("PPS").

The relevant facts of this appeal are as follows. On August 8, 2013, Joseph Corey ("Decedent") experienced chest pain and difficulty breathing. During the early morning hours of August 9, 2013, Decedent called 911 and requested emergency medical assistance. Ambulances responded to Decedent’s house and transported him to WBGH, where Decedent was treated in the emergency department. Approximately twelve (12) hours later, Decedent was transferred to Milton Hershey Medical Center ("MHMC"). On August 11, 2013, Decedent died at MHMC.

Appellant commenced this action by filing a praecipe for writ of summons on July 1, 2015. On November 25, 2015, Appellant filed a complaint against WBGH. The complaint included claims for wrongful death, a survival action, and corporate negligence.

The complaint also advanced a theory of vicarious liability. (See Complaint, filed 11/25/15, at ¶140; R.R. at 27a).

On July 22, 2016, WBGH filed a joinder complaint against PPS. The joinder complaint stated that WBGH executed a contract for PPS to provide "the physicians, physician assistants and nurse practitioners" to staff WBGH’s emergency department. (Joinder Complaint, filed 7/22/16 at ¶9; R.R. at 57a). Thus, WBGH asserted its "right to indemnification and/or contribution against [PPS] … for the amount of any judgment entered in favor of [Appellant]." (Id. at ¶22; R.R. at 61a).

[1] The trial court opinion set forth the remaining procedural history of this appeal as follows:

A jury trial was conducted beginning on October [2], 2020. On October 7, 2020, after the testimony of all of [Appellant’s] liability witnesses, including her only medical liability expert, Ronald A. Paynter, M.D. (hereinafter Dr. Paynter), PPS moved for a compulsory nonsuit on all claims against it and WBGH moved for a compulsory nonsuit with respect to [Appellant’s] claim based on corporate negligence. [Appellant] did not oppose PPS’s motion, however, WBGH did. [Appellant] did oppose WBGH’s motion, however, PPS did not. Ultimately, the court denied PPS’s motion for a compulsory nonsuit but granted WBGH’s. As a result, [Appellant’s] only claims remaining against WBGH were those based on vicarious liability. WBGH’s claim against PPS seeking indemnification and/or contribution also remained.

Trial resumed and, on October 15, 2020, following, the court’s instructions to the jury regarding the applicable law involved in the case and the closing arguments of counsel for the parties, the court … presented a verdict slip to the jury in which "Question No. 1" appeared as follows:

Question No. 1

Do you find that the conduct of anyone listed below fell below the standard of care. In other words, was anyone listed below negligent?

Laura Bond, RN[2]	__ Yes	__ No
[PPS]	__ Yes	__ No

[Editor’s Note: The preceding image contains the reference for footnote²].

If you answer Question No, 1 "No" as to everyone, you have reached a verdict. The foreperson should sign the verdict slip and notify the tip-staff.

If you answer Question No. 1 "Yes" as to anyone, go to Question No. 2.

The court specifically instructed the jury regarding "Question No. 1" as well [as] the other five jury verdict interrogatories that were included on the verdict slip. At the conclusion of the court’s final instructions, the jury was left by themselves in the courtroom to deliberate (rather than retire to a separate room because of COVID restrictions in place at the time):

After approximately fourteen minutes of deliberation, the jury informed the court’s tipstaff that they had reached a verdict. The parties who were present, counsel, and the undersigned returned to the courtroom. At no time prior to the jury announcing their verdict did counsel for any party raise an objection with respect to the length of time that the jury had deliberated. After the court reviewed the verdict slip and found it to be in order, the jury foreperson announced that the jury had answered "No" on "Question No. 1" as to both Laura Bond, RN and [PPS]. The request of [Appellant’s] counsel to poll the jury was granted and it indicated that ten of the twelve jurors were in agreement with [the] verdict. The court directed that the verdict be entered of record and the jurors were dismissed. On October 26, 2020, [Appellant] filed a motion for post-trial relief pursuant to Pa.R.C.P. No. 227.1 in which she requested a removal of the nonsuit with the respect to her corporate negligence claim, a "new trial on all issues of liability and damages" and the "scheduling of an evidentiary hearing with respect to issues of potential jury misconduct." Both WBGH and PPS filed responses to the motion. All parties filed briefs, and oral argument on the motion was held before the court on December 23, 2020. Prior to the court ruling on the motion …, WBGH, on March 24, 2021, entered judgment on the verdict pursuant to Pa. R.C.P.No.227.4(1)(b).³

(Trial Court Opinion at 2-4; R.R. at 1116a-1118a) (some capitalization omitted).

Appellant timely filed a notice of appeal on April 22, 2021. The trial court did not order Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On January 20, 2023, a three-judge panel of this Court vacated the judgment in favor of WBGH and remanded the case for a new trial. WBGH timely filed an application for reargument on February 1, 2023. On March 31, 2023, this Court granted en baric review and withdrew the prior panel’s decision.

Appellant now raises three issues for this Court’s review:

Did [Appellant] present evidence of corporate liability sufficient to have required the trial court to deny a nonsuit motion by [WBGH] and submit this claim to the jury?

Did [Appellant] present evidence of [WBGH’s] vicarious liability for the acts and omissions of attending physician, Dr. Perry, and its staff in general, sufficient to submit this claim to the jury as against the hospital itself on question 1 of the verdict slip?

Given the overall record of trial proceedings, should an evidentiary hearing have been conducted by the trial court to determine whether juror misconduct influenced the verdict?

(Appellant’s Brief at 4).

In her first issue, Appellant insists that hospital personnel must "recognize and report abnormalities in the treatment and condition of [their] patients." (Id. at 35). Appellant relies on the testimony from her liability expert, Dr. Paynter, to establish that hospital personnel recognized Decedent’s deteriorating condition, but they failed to take appropriate actions under the circumstances. Appellant acknowledges WBGH’s argument that the record is "devoid of evidence of [WBGH’s] actual or constructive knowledge of the defects or procedures that caused harm" to Decedent. (Id. at 34). Appellant emphasizes, however; that emergency department personnel knew that Decedent was tachycardic, with falling blood pressure, and elevated respirations. Appellant claims these symptoms were "reported on monitors located in the patient’s room and at the central nurses’ station," and these monitors provided "actual, continuing notice" of Decedents deteriorating condition. (Id. at 36) (emphasis omitted). Moreover, Appellant asserts that "constructive notice must be imposed when the failure to act to receive actual notice is caused by the absence of supervision." (Id. at 44) (quoting Brodowski v. Ryave, 885 A.2d 1045, 1057 (Pa.Super. 2005), appeal denied, 587 Pa. 680, 897 A.2d 449 (2006)). In light of the relevant case law, Appellant argues that Dr. Paynter’s testimony established a deviation from the applicable standard of care. Appellant concludes that the trial court should have submitted her corporate negligence claim to the jury, and the court committed reversible error by granting WBGH’s motion for nonsuit. We disagree.

[2–5] The relevant standard of review is as follows:

In reviewing the entry of a nonsuit, our standard of review is well-established: we reverse only if, after giving appellant the benefit of all reasonable inferences of fact, we find that the factfinder could not reasonably conclude that the essential elements of the cause of action were established. Indeed, when a nonsuit is entered, the lack of evidence to sustain the action must be so clear that it admits no room for fair and reasonable disagreement. The fact-finder, however, cannot be permitted to reach a decision on the basis of speculation or conjecture.

* * *

On appeal, entry of a compulsory nonsuit is affirmed only if no liability exists based on the relevant facts and circumstances, with appellant receiving the benefit of every reasonable inference and

...