In Munoz v. The Children’s Hospital of Philadelphia, 2021 PA Super 217, the Superior Court reversed a trial court’s decision to remove a nonsuit in favor of Children’s Hospital of Philadelphia (“CHOP”).
Freddy Munoz (“Munoz”) took his four-year old son, S.M., to the Einstein Emergency Department for treatment of congestion and difficulty breathing. Emergency medicine physician, Dr. Parrillo, made arrangements with CHOP’s pediatric intensive care unit (“PICU”), and Dr. Matt Taylor, a pediatric intensive care fellow in CHOP’s PICU for S.M.’s transport to CHOP. In the meantime, Dr. Taylor suggested administration of saline and antibiotics. Dr. Parrillo notified Dr. Taylor that he could intubate S.M., if necessary.
While the CHOP team, nurses Maerten and Galvin, was en route to Einstein, S.M. was provided oxygen through a mask. CHOP did not send an intensivist even though its policy provided for an intensivist when “patient[s] with unstable vital signs and potential for loss of vital signs on transport.” (At trial, Munoz’ expert, Dr. Paynter, was critical of CHOP for failing to transport a pediatric intensivist to Einstein’s ED.) Upon arrival to Einstein, Nurse Galvin called CHOP, reported that S.M. was blue, that his oxygen saturation was very low at 80%, and that she was going to “get this kid intubated.” Dr. Parrillo attempted—unsuccessfully—to intubate S.M. His second intubation attempt was similarly unsuccessful. The CHOP nurses, who had much more experience in intubating children than Dr. Parrillo, did not participate in the intubation attempts. (Munoz’ expert, Dr. Paynter, was critical of CHOP’s nurses in failing to attempt to intubate S.M.”)
Dr. Parrillo attempted to increase S.M.’s oxygen levels with an Ambu bag and mask. Nonetheless, S.M. had no detectable pulse and Einstein providers began CPR. Dr. Parrillo accepted a King’s Airway device (an alternative to intubation) from the CHOP team and inserted it as CPR continued. S.M. regained his pulse; his oxygen level rose to the mid-90’s, and CPR was discontinued. Nurse Galvin left the area and updated the CHOP intensivist, Dr. Taylor, over the phone, who instructed her to correct any abnormalities to electrolytes and to administer bicarbonate, calcium gluconate, and another dose of epinephrine, and that a chest tube be considered. (Munoz’ expert, Dr. Paynter, admitted that this was an acceptable method to “run a code.”)
Subsequently, S.M. lost his pulse again and CPR was resumed, this time with Nurse Maerten taking turns with Einstein providers. CHOP arranged to send a second team to Einstein by ambulance, this time with an intensivist physician, but was later recalled because they would not arrive in time to assist in S.M.’s care. In the meantime, two Einstein anesthesiologists arrived in the ED and each unsuccessfully attempted to intubate S.M., resulting in S.M.’s passing.
At the conclusion of Munoz’ case-in-chief, the trial court determined that CHOP did not undertake to render services to S.M.; and, therefore, owed no duty to S.M. Accordingly, the trial court granted CHOP’s motion for a nonsuit. Munoz then settled his claims against the remaining defendants. The trial court denied Munoz’ post-trial motion seeking to remove the nonsuit, and judgment was entered.
[E]ntry 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 resolving all evidentiary conflicts in [appellant’s] favor.” Agnew v. Dupler, 553 Pa. 33, 717 A.2d 519, 523 (1998). The compulsory nonsuit is otherwise properly removed and the matter remanded for a new trial. Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582, 595-96 (Pa. 2012).
The Superior Court disagreed with the trial court and determined that sufficient competent evidence was admitted at trial to show that CHOP rendered services to S.M., thereby establishing a duty to S.M. Moreover, the Superior Court determined that Munoz’ expert, Dr. Paynter, offered testimony that supported CHOP’s departure from the standard of care for its failure to transport a pediatric intensivist to Einstein and for CHOP’s intensive care nurses’ failure to intervene in attempting to intubate S.M. when they had far more experience than Dr. Parrillo. The Superior Court also concluded that Munoz presented expert testimony that suggested CHOP’s actions, or lack thereof, increased the risk of harm to S.M.
The Superior Court cited to Hill v. Slippery Rock University, 138 A.3d 673 (Pa. Super. 2016), which in pertinent part provided:
In Pennsylvania, an increased risk of harm can occur through a failure to act, or a “sin of omission.” Indeed, in addressing increased risk of harm under Section 323 of the Restatement, the Pennsylvania Supreme Court stated as follows: [O]nce a plaintiff has demonstrated that defendant’s acts or omissions, in a situation to which Section 323(a) applies, have increased the risk of harm to another, such evidence furnishes a basis for the fact-finder to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm; the necessary proximate cause will have been made out if the jury sees fit to find cause in fact. Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280, 1288 (1978) (footnote omitted) (emphasis added). Moreover, in Hamil, the Court noted the effect of Section 323(a) was to relax the degree of certainty ordinarily required of a plaintiff’s evidence in order to make a case for the jury. Id.; see also [Feeney v. Disston Manor Personal Care Home, Inc., 849 A.2d 590, 595 (Pa. Super. 2004) (applying the standard announced in Hamil to a motion to remove a compulsory nonsuit). Id. at 680 (footnote omitted).
After giving Munoz the benefit of every reasonable inference, and resolving all evidentiary conflicts in his favor, the Superior Court could not say “that the factfinder could not reasonably conclude that the essential elements of the cause of action were established” or that “the lack of evidence to sustain the action [is] so clear that it admits no room for fair and reasonable disagreement.” Rolon v. Davies, 232 A.3d 773, 776-77 (Pa. Super. 2020). Accordingly, the Superior Court determined the trial court erred in granting the nonsuit in favor of CHOP, and remanded the case with direction that the nonsuit be removed and a new trial be granted.