Tiburzio-Kelly v. Montgomery

Page 757

681 A.2d 757

452 Pa.Super. 158

Marcia TIBURZIO-KELLY and Francis Tiburzio, Individually and on Behalf of Their Minor Daughter, Lauren Rose Tiburzio, Appellants, v. Bruce MONTGOMERY, M.D., Thomas D. Mull, M.D., Anesthesia Associates of Bryn Mawr, Bryn Mawr Hospital, Appellees.

Superior Court of Pennsylvania.

Argued June 7, 1995.

Filed July 15, 1996.

Reargument Denied Sept. 27, 1996.

[452 Pa.Super. 167] David A. Yanoff, Philadelphia, for appellants.

Kevin H. Wright and Francis J. McGovern of Blue Bell, for appellee Bruce Montgomery, M.D.

Barbara Magen, Philadelphia, for appellees Thomas D. Mull, M.D. & Anesthesia Assoc. of Bryn Mawr.

Mary E. Nepps, Philadelphia, for appellee Bryn Mawr Hospital.

Before McEWEN, TAMILIA and KELLY, JJ.

KELLY, Judge.

This appeal is brought from an order of the Court of Common Pleas of Montgomery County granting appellant Lauren Tiburzio's request for a new trial, ¹ and denying the remaining appellants' claims for post-trial relief. We reverse in part and affirm in part.

All parties to this appeal agree to one immutable fact: appellant, Marcia Tiburzio-Kelly, delivered a baby (Lauren Tiburzio) by emergency caesarian delivery without the benefit of general or epidural anesthesia. The how, why, and wherefore of this occurrence, and the resultant damage to the appellants, is the sine qua non of this case.

On July 20, 1983, at 7:00 p.m., appellant Marcia Tiburzio-Kelly ² was admitted to Bryn Mawr Hospital. She was pregnant and was experiencing labor symptoms. Dr. Bruce Montgomery was the attending obstetrician. At 7:15 p.m., an initial examination of Mrs. Tiburzio-Kelly was conducted and a fetal heart rate of one hundred, sixty-four beats per minute was detected. Mrs. Tiburzio-Kelly was checked again at 8:00 p.m. at which time a fetal heart rate of one hundred, sixty beats per minute was detected. At 8:40 p.m., another check revealed a fetal heart rate of one hundred, twenty beats per minute, which is at the low end of a normal fetal heart rate. Because of the decline in the heart rate, a fetal monitor was placed on Mrs. Tiburzio-Kelly which could continuously monitor the fetal heart rate. By 8:47 p.m., the heart rate had dropped to between sixty and eighty beats per minute. The attending nurse immediately called Dr. Montgomery who was in the doctors' lounge removing surgical garb which he had worn during a recently completed procedure.

Within five minutes of receiving the nurse's call, Dr. Montgomery appeared in Mrs. Tiburzio-Kelly's room and began a full examination. By 8:56 p.m., Dr. Montgomery had ordered Mrs. Tiburzio-Kelly to be moved to a "labor room." In the next ten minutes, Dr. Montgomery attempted to deliver the baby vaginally. By 9:07 p.m., Dr. Montgomery called for caesarian section surgery and gave orders to call anesthesia, and two additional surgeons, as well as to prepare the "delivery room" for surgery. Mrs. Tiburzio-Kelly was placed in the "delivery room" for preparation while Dr. Montgomery prepared for surgery by "scrubbing" and donning surgical garb. By the time the patient and doctor were prepared, no anesthesiologist appeared.

Initially, Dr. Montgomery decided to wait for the anesthesiologist, but after an undetermined but nonetheless short period of time, he began the operation using local anesthesia. This decision required him to cut into Mrs. Tiburzio-Kelly while she was fully conscious, and required him to anesthetize each progressive layer of the abdomen before each incision. Lauren Rose Tiburzio was born at 9:34 p.m. Approximately seven minutes later, an anesthesiologist, Dr. Thomas Mull, arrived and administered appropriate anesthetic to permit the doctors to complete the operation on Mrs. Tiburzio-Kelly.

Lauren Rose Tiburzio was born with complications. Testimony indicated that she had suffered from oxygen deprivation during her last hours in utero. As a consequence, she suffered and continues to suffer from a seizure disorder, and has a reduced mental capacity which borders on mental retardation (I.Q. 74).

Lauren Tiburzio and her parents brought suit against Dr. Montgomery, Dr. Mull, Bryn Mawr Hospital, and Anesthesia Associates of Bryn Mawr, asserting a number of claims including but not limited to negligence, negligent infliction of emotional distress and loss of consortium. Dr. Mull was dismissed as a defendant and, after a lengthy trial, the jury returned a verdict absolving Dr. Montgomery and Anesthesia Associates of Bryn Mawr of all liability. The jury awarded Mrs. Tiburzio-Kelly twenty-five thousand dollars on her claim against Bryn Mawr Hospital, and failed to reach a final verdict on Lauren Tiburzio's claim against Bryn Mawr Hospital. Mr. Tiburzio's claims of loss of consortium and negligent infliction of emotional distress were denied. Upon consideration of post-trial motions, the trial court granted a new trial to Lauren Tiburzio against Bryn Mawr Hospital only.

This appeal followed in which appellants have raised the following issues: ³

1) WHETHER THE TRIAL COURT ERRED IN PRECLUDING APPELLANTS FROM GOING FORWARD AGAINST DEFENDANT ANESTHESIA ASSOCIATES AS A UNIQUE AND SEPARATE ENTITY.

2) WHETHER THE TRIAL COURT ERRED IN LIMITING THE SCOPE OF APPELLANTS' EXPERT WITNESS' TESTIMONY REGARDING THE NEGLIGENCE OF ANESTHESIA ASSOCIATES.

3) WHETHER THE TRIAL COURT ERRED IN PRECLUDING APPELLANTS' COUNSEL FROM CROSS-EXAMINING DEFENDANT'S EXPERT WITNESS REGARDING REPRESENTATION BY DEFENSE COUNSEL IN OTHER MATTERS.

4) WHETHER THE TRIAL COURT ERRED IN PRECLUDING APPELLANTS' OBSTETRICS EXPERT FROM TESTIFYING AS TO SPECIFIC TIME REQUIREMENTS FOR COMMENCING A CAESAREAN SECTION PROCEDURE.

5) WHETHER THE TRIAL COURT ERRED IN PERMITTING THE CROSS-EXAMINATION OF APPELLANTS' OBSTETRICS EXPERT REGARDING PAST INCOME FOR HIS SERVICES AS AN EXPERT WITNESS.

6) WHETHER THE TRIAL COURT ERRED IN PRECLUDING CROSS-EXAMINATION OF DEFENDANTS' EXPERT WITNESS REGARDING TIME ESTIMATES FOR INDUCING ANESTHESIA FOR A CAESAREAN PROCEDURE.

7) WHETHER THE TRIAL COURT ERRED IN CROSS-EXAMINING APPELLANTS' EXPERT WITNESSES.

8) WHETHER THE TRIAL COURT IMPUGNED THE CREDIBILITY OF APPELLANTS' TRIAL COUNSEL.

9) WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANTS' REQUEST TO HAVE A WITNESS WHO WAS EMPLOYED BY DEFENDANT HOSPITAL DECLARED A HOSTILE WITNESS.

10) WHETHER THE TRIAL COURT ERRED IN REFUSING TO CHARGE THE JURY THAT NURSES EMPLOYED BY DEFENDANT HOSPITAL COULD SIMULTANEOUSLY BE ACTING AS AGENTS OF DEFENDANT DOCTORS.

11) WHETHER TRIAL COURT ERRED IN DISMISSING MR. TIBURZIO'S CLAIMS FOR LOSS OF CONSORTIUM AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS.

12) WHETHER THE TRIAL COURT ERRED IN REFUSING TO CHARGE THE JURY ON MARCIA TIBURZIO'S CLAIMS FOR "LOSS OF LIFE'S PLEASURES, EMBARRASSMENT, AND HUMILIATION."

There is sufficient merit to the first three issues to warrant the grant of a new trial. However, for the reasons discussed below, we find no merit to the remaining issues.

Appellants' first two issues may be examined together. Prior to the commencement of trial the trial judge, in response to a defense motion in limine, ruled that appellants could not proceed directly against defendant Anesthesia Associates of Bryn Mawr for its negligence as a separate entity, but instead must proceed against it vicariously by establishing the negligence of its employees. The basis for the trial court's ruling was its determination that the fair import of appellants' expert reports did not apprise defendants of a claim against the Anesthesia Associates itself but rather criticized the actions of the individual physicians involved. ⁴ We disagree.

Rulings on the admission and exclusion of evidence are within the discretion of the trial judge and will not be reversed on appeal absent a manifest abuse of that discretion. General Equipment Manufacturers v. Westfield Insurance Company, 430 Pa.Super. 526, 543, 635 A.2d 173, 182 (1993), allocatur denied, 537 Pa. 663, 644 A.2d 1200 (1994). The admission of expert testimony is a matter within the sound discretion of the trial court, and appellate review of the trial court's action is similarly and correspondingly limited. Estate of Pew, 409 Pa.Super. 417, 424, 598 A.2d 65, 69 (1991), allocatur denied, 530 Pa. 645, 607 A.2d 255 (1992) (citing Mitchell v. Randall, 368 Pa.Super. 421, 426-27, 534 A.2d 508, 510 (1987)). The decision of the trial judge on the question of the admissibility of expert testimony will not be reversed, remanded, overruled, or disturbed by an appellate court unless there was a clear abuse of discretion or a clear error. Estate of Pew, supra (citing Mitchell v. Randall, supra ). However, that discretion is not unlimited, and where the ruling of a trial court exceeds those limits and a party is prejudiced thereby, reversible error occurs. See Swartz v. General Electric, 327 Pa.Super. 58, 71, 474 A.2d 1172, 1178 (1984).

"Experts may testify at trial concerning matters which are within the fair scope of a pretrial report. The avoidance of unfair surprise to an adversary concerning the facts and substance of an expert's proposed testimony is the primary purpose of the rule requiring that testimony be within the fair scope of the pretrial report." Pascale v. Hechinger Company of Pennsylvania, 426 Pa.Super. 426, 435, 627 A.2d 750, 754 (1993) (citations omitted).

In Wilkes-Barre Iron & Wire Works, Inc. v. Pargas of Wilkes-Barre, Inc., 348 Pa.Super. 285, 502 A.2d 210 (1985), this Court noted:

it is impossible to formulate a hard and fast rule for determining when a particular expert's testimony exceeds the fair scope of his or her pretrial report. Rather, the determination must be made with reference to the particular facts and circumstances of each case. The controlling principle which must guide is whether the purpose of Rule 4003.5 is being served. The purpose of requiring a party to disclose, at his adversary's request, "the substance of the facts and opinions to which the expert is expected...