Marvin Summerford, age 88, presented to the emergency department of Abington Memorial Hospital ("AMH") with concerns for pneumonia. He was admitted to AMH, and the next day, he suffered cardiac arrest. Mr. Summerford survived and was transferred to the ICU. The next day, a feeding tube was inserted and an order was placed for an x-ray to confirm proper placement. The x-ray revealed that the tube had been inadvertently inserted into the lung and was therefore removed. The feeding tube was re-inserted, and another x-ray was ordered to confirm proper placement. Again, the feeding tube was not properly placed. After the third try to properly place the feeding tube, Dr. Kristin Crisci, a radiologist, incorrectly confirmed proper placement. Unfortunately, the tube was in Mr. Summerford’s lung when tube feedings began; consequently, his condition deteriorated, and there was a delay in diagnosing the improper placement of the feeding tube. By the time the error was recognized, Mr. Summerford had died.
After a five-day jury trial, the jury returned a verdict on May 13, 2016 in favor of Mrs. Summerford’s daughter and against AMH and Dr. Crisci in the total sum of $5,000,000 ($1.5 million for the wrongful death claim and $3.5 million for the survival action claim). The jury apportioned liability as follows: AMH 25% and Dr. Crisci 75%. The verdict was molded to add Rule 238 delay damages for Mrs. Summerford and against the defendants, resulting in a molded verdict in the amount of $5,947,157.53.
The defendants raised several issues for appeal, two of which requested judgment notwithstanding the verdict (JNOV) claiming that Summerford failed to present substantial competent evidence to support her negligence claims. Pennsylvania law provides that a motion for a non-suit may be granted only where it is clear that no other conclusion could be reached under the evidence presented. Bowser v. Lee Hosp., 399 Pa.Super. 332,337,582 A.2d 369,371 (1990). The Superior Court quickly disposed both issues by stating that there was sufficient evidence to support both the negligence claim against Crisci and the corporate negligence claim against AMH.
Crisci argued that she is entitled to a new trial because AMH’s radiology expert testified that a first year resident could have identified the misplaced tube on x-ray. Here, the Superior Court referred to precedent, which holds that:
[e]very unwise or irrelevant remark made in the course of a trial by a judge, a witness, or counsel does not compel the granting of a new trial. A new trial is required when the remark is prejudicial; that is, when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial. Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973) (citations omitted).
Further, the Superior Court noted that the trial court properly disallowed AMH’s expert to offer an opinion regarding the standard of care because the opinion was not contained in the expert’s report. Finally, the court explained that the expert’s testimony when taken in context was referring to the quality of the x-ray, and not the interpretation of same. Thus, the court found no merit to Crisci’s claim.
Next, Crisci argued that the trial court erred in allowing AMH’s radiology expert to testify that Crisci’s negligence “increased the risk of harm” to Summerford. The Superior Court held that the trial court’s discretion concerning the allowance of expert testimony was broad, and that it was appropriate for the court to limit AMH’s radiology expert to “increased risk of harm,” and prohibiting him from opining that Crisci’s negligence caused Summerford’s death.
Finally, the defendants argued that the $5,000,000 jury award was excessive, punitive and clearly exceeded what the evidence warrants. In this case, the jury’s award was based solely upon a noneconomic award. Mr. Summerford was 88-years-old at the time of the time of his death; he had suffered from dementia, syncope, hypertension, pulmonary insufficiency, congestive heart failure, coronary artery disease, and other maladies; and, he suffered cardiac arrest prior to the negligent conduct, which defendants argued reduced significantly his chances of mortality. Specifically, the defense expert, John Kirby, M.D. testified that an 88-year-old person normally has a life expectancy of 4.55 years, but that Mr. Summerford had a zero percent life expectancy before the feeding tube in dispute was placed into Mr. Summerford at AMH.
Regarding the wrongful death claim, the defendants argued that Mrs. Summerford produced very little evidence to demonstrate the value of loss of the decedent’s life to the family. Mr. Summerford lived in a nursing home in Pennsylvania while Mrs. Summerford lived in California or Georgia for most of her adult life. The defense argued that while Mrs. Summerford visited her father whenever she could get to Pennsylvania, the visits were infrequent. Furthermore, while Mrs. Summerford testified that she spoke with her father on the telephone several times each week; there were notes in Mr. Summerford’s nursing home records concerning the lack of family involvement and interest in his care.
In response, Mrs. Summerford testified that she spoke with her father 2-3 times each week for 40 years. She also demonstrated her father's importance to her and her family by introducing family photographs of their time together at her graduation and at other times with her children and grandchildren. She also testified she and her sister would rendezvous with her father over the years; and, that one of her sons attended high school in Pennsylvania while living for an extended period of time with decedent, and another one of her sons lived with Mr. Summerford for four years while attending college.
According to the law of Pennsylvania, the grant or refusal of a new trial due to the excessiveness of the verdict is within the discretion of the trial court. Appellate courts will not find a verdict excessive unless it is so grossly excessive as to shock one’s sense of justice. Each case is unique and dependent on its own special circumstances and a court should apply only those factors which it finds to be relevant in determining whether or not the verdict is excessive. Tindall v. Friedman, 970 A.2d 1159, 1177 (Pa.Super. 2009) (citations omitted), reargument denied, June 1, 2009.
Here, the Superior Court found that Mrs. Summerford’s evidence was sufficient to submit to the jury for consideration of damages under the Wrongful Death Act. 'The duty of assessing damages is within the province of the jury' and, thus, as a general matter, a compensatory damage award 'should not be interfered with by the court unless it clearly appears that the amount awarded resulted from caprice, prejudice, partiality, corruption or some other improper influence.' Gradel v. Inouye, 491 Pa. 534,421 A.2d 674, 680-81 (1980) (quoting Tonikv. Apex Garages, Inc., 442 Pa. 373,275 A.2d 296,299 (1971)). Further, the court found that the jury's award of $1.5 million is consistent with other Pennsylvania verdicts for wrongful death claims. See, Rettger, supra; Hyrcza v. W Penn Allegheny Health System, Inc., 978 A.2d 961 (Pa. Super. 2009). Therefore, the court determined that the trial court’s decision to deny defendants’ request for remittitur was proper.
The measure of damages awarded in a survival action includes, inter alia, the decedent's conscious pain and suffering. Kiser v. Schulte, 648 A.2d 1, 4 (Pa. 1994). In awarding damages for pain and suffering, a jury may consider, inter alia, the severity of the injury, the duration and extent of the physical pain and mental anguish which the decedent experienced, as well as the health and physical condition of the plaintiff prior to the injuries. See, Pa.R.C.P. 223.3. The defendant has the burden of convincing the court that the award deviates substantially from what is considered reasonable compensation. Hyrcza, supra. The determination of the amount to be awarded for pain and suffering is primarily a jury question." Gunn v. Grossman, 748 A.2d 1235, 1241 (Pa. Super. 2000); see also, Whitaker v. Franliford Hosp. of City of Philadelphia, 984 A.2d 512 (Pa. Super. 2009). In this case, there was testimony that Mr. Summerford essentially drowned in the tube feedings and suffered significantly as a result. Therefore, the Superior Court agreed with the trial court that the verdict was not “so grossly excessive as to shock our sense of justice.”