530 A.2d 1004 | Pa. Commw. Ct. | 1987
Opinion by
Charles Werner and his mother, Odette Werner, plaintiffs below, appeal a Delaware County Common Pleas Court order denying their motion for a new trial following a jury verdict in favor of the Commonwealths Department of Public Welfare (DPW). We affirm.
Charles Werner, a psychiatric patient at Haverford State Hospital, committed self-mutilation by removing his eye with a blunt stick several hours after he was re
We will first address the Werners’ contention that the trial judge erred in instructing the jury to apply a gross negligence standard.
The court applied a gross negligence standard pursuant to Section 114 of the Mental Health Procedures Act
Immunity from civil and criminal liability
(a) In the absence of willful misconduct or gross negligence, a county administrator, a director of a facility, a physician, a peace officer or any other authorized person who participates in a decision that a person be examined or treated under this act, or that a person be discharged, or placed under partial hospitalization, outpatient care or leave of absence, or that''the restraint upon such person be otherwise reduced, or a county administrator or other authorized person who denies an application for voluntary treatment or for involuntary emergency examination and treatment, shall not be civilly or*137 criminally liable for such decision or for any of its consequences.
50 P.S.. §7114(a) (emphasis added).
The Werners initially argue that Section 114 is inapplicable because their action is one for general “malpractice,” which is not specifically enumerated in the statute as being immunized from simple negligence. The Werners also contend that Section 114 was intended to apply only when the action is commenced by a third party who is harmed by the patient, not when the action is commenced by the patient himself. We disagree.
This Court may not disregard the clear and unambiguous language of a statute under the pretext of pursuing its spirit. 1 Pa. C. S. §1921(b). Section 114 clearly and unambiguously provides that, in the absence of willful misconduct or gross negligence, an “authorized person who participates in a decision [to reduce a patients restraints] shall not be civilly or criminally liable for such decision or for any of its consequences” 50 P.S. §7114(a) (emphasis added). We initially conclude that merely categorizing the complaints allegations as “malpractice” cannot negate the statutes clear and unambiguous language immunizing decisions to reduce restraints.
The Werners argue that this construction abridges their right to sue for malpractice, in violation of Section
We also reject the Werners’ argument that Section 114 immunizes only the individual persons named therein and thus has no application to the health care entity. Since the asserted liability of DPW is predicated upon a theory of respondeat superior,
We, therefore, conclude that the trial court did not err in instructing the jury to apply the standards provided in Section 114 of the MHPA.
The Werners next contend that the trial judge erred in allowing DPW’s expert witness to testify because DPW did not disclose the witness’ identity and opinion within the trial judge’s established discovery deadline. Although the Werners did in fact receive this information six days before trial, they argue that the trial judge should have precluded the testimony pursuant to Pa. R.C.P. Nos. 4003.5(b) and 4019(i).
Rule 4003.5. Discovery of Expert Testimony.
Trial Preparation Material
(b) If the identity of an expert witness is not disclosed in compliance with subdivision (a)(1) of this rule, he shall not be permitted to testify on behalf of the defaulting party at the trial of the action. However, if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief.
Rule 4019(i) provides for essentially the same sanction and differs only in that it applies to all witnesses undisclosed during discovery. These rules do not require the trial court to preclude the testimony. Rather, the court “must balance the facts and circumstances of each case to determine the prejudice to each party.” Feingold v. Southeastern Pennsylvania Transportation Authority, 512 Pa. 567, 573, 517 A.2d 1270, 1273 (1986).
We agree with the trial court that, under the circumstances, the Werners have failed to demonstrate prejudice. The Werners claim prejudice in that they did not have the benefit of DPW’s expert report prior to videotaping their own expert’s testimony. However, although the Werners were aware for some time that DPW intended to produce an expert witness, they did not move to compel DPW to provide the expert report before the videotaping session. See Dion v. Graduate Hospital of University of Pennsylvania, 360 Pa. Superior Ct. 416, 520 A.2d 876 (1987) (in practice, sanctions for noncompliance with discovery requests are generally not imposed until there has been a refusal to comply with a court order compelling compliance). We also note that DPW disclosed its witness’ identity two days
The Werners next contend that the trial judge erred in excluding evidence that Charles was placed in full leather restraints immediately after the incident. Again, we disagree. Evidence of post-incident remedial measures is admissible to show that such measures were available alternatives prior to the incident. Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971) rev'd on other grounds, Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980). However, such evidence is inadmissible to show antecedent negligence. Id. In the instant case, it is undisputed that full leather restraints were an available alternative prior to the incident and therefore the only relevance of such evidence would be to prove DPWs antecedent negligence. We therefore find no error in the trial courts exclusion of this evidence.
We also reject the Werners’ contention that the trial court erred in allowing DPW to file late responses to requests for admissions. Pa. R.C.P. No. 4014(b) provides that a requested admission is deemed admitted unless,
We also reject the Werners’ contention that the trial judge erred in allowing an improper hypothetical question by DPW’s counsel on cross-examination of the Werners’ expert witness. At trial, the Werners attempted to show that DPW was negligent in not ordering “one-on-one” supervision of Charles; On cross-examination of the Werners’ expert witness, the posed hypothetical required the witness to assumé that one-on-one supervision was “in effect” being employed by the hospital staff notwithstanding the lack of documented orders to do so. The Werners argue that there is no record evidence to support this assumption.
Hypothetical questions are proper if the jury could be justified in finding the hypothesized facts from rec
Based upon the foregoing, we hold that the trial court committed no error of law or abuse of discretion. We therefore affirm.
Order
The order of the Delaware County Common Pleas Court, No. 84-8830 dated February 27, 1986, is affirmed.
The denial of a new trial will not be reversed unless the appellate court finds that the jury instructions have caused prejudicial error. McCay v. Philadelphia Electric Co., 447 Pa. 490, 291 A.2d 759 (1972).
Act of July 9, 1976, P.L. 817, as amended, 50 P.S. §7114.
We note that the trial judge carefully instructed the jury to limit the gross negligence standard to the specific decision to release Charles’ restraints. This instruction was clearly consistent with Section 114 of the Act.
50 P.S. §7113.
The parties entered into a stipulation that DPW would be liable on a respondeat superior theory for any negligent acts which may be established on the part of the Hospital’s health care employees or servants.
In a separate contention, the Werners argue that prejudicial surprise resulted when the Werners’ counsel elicited an unexpected response from DPWs expert when asked what was the maximum effective dosage of a certain prescribed drug. The witness agreed, consistent with other experts’ evidénce, that the recommended maximum dosage was seventy-five to eighty milligrams per day. The Werners claim that prejudicial surprise resulted when the witness further testified that research institutes have employed up to 130 milligrams. We disagree and find no reversible error. This testimony clearly did not contradict the other evidence so as to prejudice the Werners’ case.