Drusko, J. v. UPMC Northwest
Drusko, J. v. UPMC Northwest No. 1144 WDA 2015
| Pa. Super. Ct. | Mar 1, 2017Background
- Cathy Drusko presented to UPMC Northwest ER with abdominal pain and was admitted; exploratory laparotomy performed; two days post-op she became unresponsive and later died from acute myocardial infarction.
- Plaintiff (Joseph Drusko, PR of estate) sued multiple defendants alleging nursing negligence (failure to report post-op chest/epigastric pain and obtain EKG), ostensible agency, and corporate negligence; most defendants settled or were dismissed except Dr. Daniel Lovestrand.
- Trial proceeded solely against Dr. Lovestrand; plaintiff argued a pre-op EKG showed ischemia and a cardiology consult/monitoring would have prevented or detected the MI earlier; defense denied EKG showed ischemia and disputed causation.
- After closing, trial court allowed the previously-settled Hospital (UPMC Northwest) to be placed on the verdict slip for apportionment based on testimony criticizing nursing response to reported chest pain.
- Jury found Dr. Lovestrand negligent but that his negligence did not increase the risk of harm (defense verdict); jury found the Hospital non-negligent. Plaintiff moved for new trial claiming improper inclusion of the Hospital and harmful error; trial court denied relief.
- Superior Court reviewed whether (1) evidence supported a prima facie malpractice case against the Hospital to permit inclusion on the verdict slip and (2) any error was harmless; it affirmed the judgment for Dr. Lovestrand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by including the settled Hospital on the verdict slip without prima facie evidence of negligence | Inclusion improper because no expert testimony established nursing standard breach or causation; defendants’ reports did not preserve nursing claim | Evidence from experts (Stark, Brown, Traill) criticized nursing response and supported apportionment; inclusion was appropriate | Court held testimony of Drs. Stark and Brown (and Dr. Traill’s criticisms) when viewed favorably supplied prima facie evidence to place Hospital on verdict slip for apportionment |
| Whether a dismissed/settling defendant can be placed on verdict slip absent a pretrial expert report by the moving party implicating that defendant | Appellant argued settling defendant should not be listed unless moving party preserved claim in pretrial expert report to avoid surprise | Defendants argued plaintiff had expert reports critical of Hospital and evidence could support apportionment; crossclaims not required | Court rejected new rule; found plaintiff did have expert reports (Stark, Brown) critical of Hospital and declined to require the proposed refinement; inclusion permissible |
| Whether any error in including Hospital was harmless or required a new trial under Deeds precedent | Inclusion likely influenced jury and prejudiced plaintiff; two jurors found Hospital negligent, so inclusion may have affected causation finding | Inclusion was harmless: jury unanimously found Lovestrand negligent but overwhelmingly found no causation; Hospital was found non-negligent and no apportionment occurred | Court concluded any inclusion error was harmless because verdict was not reduced and there was no showing the inclusion affected causation determination |
| Whether expert testimony must use “magic words” to establish standard/breach/causation for non-physician care (nursing) | Expert testimony here did not articulate nursing standard/breach in required terms; objections sustained to some questions | Experts’ testimony about expected nursing responses and effect of delay supplied the standard and breach substance; experts may testify about nursing when qualified | Court reiterated experts need not use formulaic language; substance of Stark and Brown’s testimony sufficed to meet prima facie requirement |
Key Cases Cited
- Hyrcza v. West Penn Allegheny Health Sys., 978 A.2d 961 (Pa. Super. 2009) (settling defendant may be omitted from verdict slip if no prima facie evidence warrants apportionment)
- Herbert v. Parkview Hosp., 854 A.2d 1285 (Pa. Super. 2004) (plaintiff’s expert testimony can implicate multiple treating providers and support inclusion of settling defendants on verdict slip)
- Deeds v. University of Pennsylvania Med. Ctr., 110 A.3d 1009 (Pa. Super. 2015) (improper, highly prejudicial evidence may so taint deliberations that a new trial is required)
- Welsh v. Bulger, 698 A.2d 581 (Pa. 1997) (expert opinions need not contain "magic words"; substance controls)
- Harman ex rel. Harman v. Borah, 756 A.2d 1116 (Pa. 2000) (harmless-error analysis: absence of demonstrable prejudice defeats a new-trial claim)
- Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001) (expert reports need not use formulaic language when their substance implicates defendants)