Dubose v. Quinlan

125 A.3d 1231

2015 PA Super 223

Robert DUBOSE, Administrator of the Estate of Elise Dubose, Deceased

v.Mark QUINLAN, Donna Brown, RNC, BSN, Albert Einstein Medical Center d/b/a Willowcrest, Willowcrest and Jefferson Health System.

Appeal of Willowcrest Nursing Home, Albert Einstein Healthcare Network, Albert Einstein Medical Center d/b/a Willowcrest and Willowcrest, Appellants.

Robert Dubose, Administrator of the Estate of Elise Dubose, Deceased

v.Willowcrest Nursing Home, and Albert Einstein Healthcare Network, Appellants.

Superior Court of Pennsylvania.

Argued April 7, 2015.

Filed Oct. 23, 2015.

Reargument Denied Dec. 23, 2015.

James M. Doyle, Philadelphia, for appellants.

Rhonda H. Wilson, Philadelphia, for appellee.

Opinion

OPINION BY FORD ELLIOTT, P.J.E.:

Appellants appeal the judgments entered August 21, 2013, in this wrongful death and survival action. We affirm.

The trial court has aptly summarized the history of this matter as follows:

Plaintiff, Robert Dubose, Administrator of the Estate of Elise Dubose, filed this nursing home liability action against Defendants, Willowcrest Nursing Home, and Albert Einstein Healthcare Network, under the lead case August Term, 2009, No. 1603. Subsequently, Plaintiff filed a second action, September Term, 2009, No. 846 against Willowcrest, Albert Einstein Medical Center d/b/a Willowcrest, Mark Quinlan (Medical Director of Willowcrest) Donna Brown (Willowcrest Director of Nursing) and Jefferson Health System, which was consolidated under the Court Term and Number of the lead case. Plaintiff alleged that Ms. Dubose developed severe pressure ulcers which were left untreated leading to a painful and gruesome death due to neglect and deterioration of said ulcers. Defendants argued that at a certain point said bedsores were untreatable. The instant case went to trial twice.

Plaintiff's decedent, Elise Dubose, was originally admitted to Albert Einstein Medical Center on July 25, 2005 when she suffered severe head injuries, including anoxia and brain injury as a result of a fall at home. Not long thereafter, in August, 2005 she was transferred and admitted to Willowcrest Nursing Home where she was diagnosed inter alia with diabetes type II, respiratory failure necessitating a ventilator, COPD, and several Stage II pressure ulcers (bed sores). On September 6, 2005 there was a physician's order for a flexor bed and frequent repositioning of the patient who was unable to care for herself, on a one to two hour cycle. Plaintiff's counsel presented evidence at trial that the physician's order was negligently followed, leading to a marked deterioration of existing bed sores, and proliferation of pressure ulcers to other parts of Mrs. Dubose's body including her shin, heels, so that there were at least 10 pressure ulcers existing at the time of her death on October 18, 2007.

During her stay at Willowcrest, Mrs. Dubose was malnourished, suffered severe dehydration, conscious pain from bed sores, bone infection, and sepsis systemic infection that lead ultimately to organ failure and death.

Plaintiff's liability claims were predicated at trial based on allegations and evidence presented that Defendants failed to adequately treat bed sores, failed to provide wound care within the standard of care, failed to adequately hydrate the patient, failed to guard against infection, and gave nursing and medical care that was below standard and negligent.

In October, 2012, there was [a] mistrial resulting from testimony by Plaintiff's expert in violation of a preclusion of evidence Order.

A second jury trial was held from February to March 2013. On March 5, 2013, the Court granted Defendant Jefferson Health System's Motion for Non–Suit because Jefferson Health System existed only as a fundraising entity, whose sole function was to issue bonds, and which did not engage in any of the four bases for corporate liability under the Thompson v. Nason Hospital, 527 Pa. 330[,] 591 A.2d 703 (Pa.1991) line of cases.

On March 13, 2013, a jury found in favor of Plaintiff in the amount of $125,000, on the Wrongful Death Claim and $1,000,000.00 on the Survival Action. The jury verdict sheet apportioned liability as 60% to Willowcrest, 25% to Albert Einstein Healthcare Network, and 15% to Donna Brown, the Willowcrest Director of Nursing.

The trial was bifurcated to include a punitive damages phase in which, on March 21, 2013, the same jury found punitive damages in the amount of $875,000.00 against Defendants, Albert Einstein Medical Center d/b/a Willowcrest. (N.T. 3–21–13 at 50–51).

Defendants filed Post Trial Motions on March 25, 2013, to which Plaintiff responded. On August 21, 2013, upon consideration of the Motion for Post–Trial Relief of Defendants Willowcrest Nursing Home, Albert Einstein Healthcare Network, Donna Brown, R.N.C., B.S.N., Albert Einstein Medical Center d/b/a Willowcrest and Willowcrest, Plaintiff's Response thereto, and upon hearing oral argument thereon, the trial Court granted Defendants' Motions in part, and denied them in part. The Court denied Defendants' Motion for a New Trial. The Post Trial Motion for Judgment N.O.V. was granted as to Defendant, Donna Brown, R.N.C., B.S.N., without a reduction in the total verdict amount, because she was an employee of Willowcrest. Defendants' Motion for Judgment N.O.V. was denied in all other respects as to all other remaining Defendants and issues. Defendants' Motion for Remittitur was denied in in [sic] its entirety as to both compensatory and punitive damages. Judgment was entered on the Verdict.

Trial court opinion, 6/27/14 at 1–3.

This timely appeal followed. Appellants have complied with Pa.R.A.P.1925(b), and the trial court has filed an opinion.

Appellants have raised the following issues for this court's review:

A. Are [appellants] entitled to judgment n.o.v. where the Survival Act claim was clearly time-barred, and there were no recoverable Wrongful Death Act damages?

B. Are [appellants] entitled to judgment n.o.v. on punitive damages, where this case did not involve any of the types of conduct that have been held to support punitive damages?

C. Are [appellants] entitled to judgment n.o.v. on Plaintiff's corporate negligence claims, or alternatively, a new trial, where Plaintiff failed to prove the elements of a corporate negligence claim?

D. Are [appellants] entitled to a new trial because the verdicts were excessive, and because the jurors were wrongly allowed to hear evidence of [appellants'] “wealth” before the jury decided whether to impose punitive damages?

E. Did the trial court commit reversible error by awarding delay damages even though Plaintiff's request was untimely?

Appellants' brief at 4.

When reviewing the propriety of an order granting or denying judgment notwithstanding the verdict, we must determine whether there is sufficient competent evidence to sustain the verdict. Johnson v. Hyundai Motor America, 698 A.2d 631, 635 (Pa.Super.1997), appeal denied, 551 Pa. 704, 712 A.2d 286 (1998) (citations omitted); Rowinsky v. Sperling, 452 Pa.Super. 215, 681 A.2d 785, 788 (1996), appeal denied, 547 Pa. 738, 690 A.2d 237 (1997) (quoting Samuel Rappaport Family Partnership v. Meridian Bank, 441 Pa.Super. 194, 657 A.2d 17, 20 (1995)).

We must view the evidence in the light most favorable to the verdict winner and give the verdict winner the benefit of every reasonable inference arising therefrom while rejecting all unfavorable testimony and inferences. Johnson, supra at 635; Rowinsky, supra at 788. We apply this standard in all cases challenging the grant of a motion for J.N.O.V. Shearer v. Reed, 286 Pa.Super. 188, 428 A.2d 635, 637 (1981).

Pennsylvania law makes clear that a judgment notwithstanding the verdict is proper only in clear cases where the facts are such that no two reasonable minds could disagree that the verdict was improper. Johnson, supra at 635; Rowinsky, supra at 788. Questions of credibility and conflicts in evidence are for the fact-finder to resolve. Commonwealth, Department of Transportation v. Patton, 546 Pa. 562, 568, 686 A.2d 1302, 1305 (1997); Miller v. Brass Rail Tavern, Inc., 702 A.2d 1072, 1076 (Pa.Super.1997) (citation omitted). This Court will not substitute its judgment based upon a cold record for that of the fact-finder where issues of credibility and weight are concerned. Id.

Birth Center v. St. Paul Companies, Inc., 727 A.2d 1144, 1154–1155 (Pa.Super.1999).

First, appellants claim that the survival action was filed beyond the statute of limitations. According to appellants, the statute began to run in 2005, when Mrs. Dubose developed a pressure wound. (Appellants' brief at 14.) Appellants are mistaken. The MCARE Act¹ clearly provides that wrongful death and survival actions may be brought within two years of death.² Mrs. Dubose died on October 18, 2007, and the plaintiff filed two complaints, one in August 2009, and one in September 2009, which were ultimately consolidated. Both were filed within two years of the decedent's death. Therefore, the Survival Act claim was timely filed within the two-year statute of limitations.

Appellants also complain that the plaintiff was allowed to add new causes of action in his amended complaints, outside the statute of limitations. (Appellants' brief at 21.) This claim was not raised in appellants' Rule 1925(b) statement, nor was it addressed by the trial court. Therefore, it is waived. Pa.R.A.P.1925(b)(4)(vii); Lazarski v. Archdiocese of Philadelphia, 926 A.2d 459, 463–464 (Pa.Super.2007), appeal denied, 594 Pa. 714, 937 A.2d 446 (2007) (citations omitted).

Next, appellants argue that the plaintiff failed to establish compensable damages for wrongful death. According to appellants, damages under the Wrongful Death Act are strictly limited to pecuniary losses. (Appellants' brief at 24.) Appellants contend that wrongful death does not encompass damages for emotional loss or mental pain and suffering. (Id. at 25.)

Pennsylvania's Wrongful Death Act, 42 Pa.Cons.Stat.Ann. § 8301, allows a...