J-A06025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LILLIAN MARIE CIECHOSKI, A MINOR BY          IN THE SUPERIOR COURT OF
HER PARENT AND NATURAL                             PENNSYLVANIA
GUARDIAN, LESLIE PROFFIT



                   v.

AMY JANE CA'DIEUX, M.D., WOMEN'S
HEALTH CARE, GROUP OF
PENNSYLVANIA, LLC D/B/A WOMEN'S
HEALTH CARE GROUP OF PA,
PHOENIXVILLE HOSPITAL COMPANY, LLC
D/B/A PHOENIXVILLE HOSPITAL,
PHOENIXVILLE HOSPITAL OF THE
UNIVERSITY OF PENNSYLVANIA HEALTH
SYSTEM

APPEAL OF: PHOENIXVILLE HOSPITAL
COMPANY, LLC D/B/A PHOENIXVILLE
HOSPITAL

                                                 No. 1931 EDA 2014


              Appeal from the Judgment Entered July 11, 2014
              In the Court of Common Pleas of Chester County
                     Civil Division at No(s): 2012-05117


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                             FILED JULY 08, 2015

     Phoenixville Hospital appeals from the judgment entered July 11,

2014, in the Court of Common Pleas of Chester County. A jury determined

Phoenixville Hospital was responsible, through the action of two of its
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nurses, for injuries suffered by Lillian Ciechoski at birth. The jury awarded

Ciechoski, who suffered hypoxic ischemic encephalopathy,1 in excess of

$32,000,000.00.        In this timely appeal, Phoenixville Hospital raises four

claims of error.     It alleges the trial court erred in (1) denying the three

separate motions regarding corporate negligence; (2) denying the grant of a

new trial based on instructions to the jury addressing the dismissal of claims

against Dr. Cadieux;2 (3) denying the motion in limine seeking to prevent

Nurse Cydney Menihan from testifying for lack of qualifications under the

Medical Care Availability and Reduction of Error (MCARE) Act, 40 P.S. §

1303.512; and (4) denying the motion for JNOV for failing to establish a

causal nexus between the alleged negligence of Nurses Winter and Jones-

Sandy and the injuries suffered by Lillian Ciechoski. After a thorough review

of the submissions by the parties, relevant law, and the certified record, we

affirm.




____________________________________________


1
  Hypoxic ischemic encephalopathy is the technical name for a brain injury
caused by oxygen deprivation. In this case, the injury is manifested as
spastic quadriplegia, the most severe form of spastic cerebral palsy.
2
  Although the caption spells Dr. Cadieux’s name with an apostrophe
between the “a” and the “d”, the majority of the record spells her name
without the apostrophe. Dr. Cadieux did not use an apostrophe when
spelling her name for the record when she testified on January 9, 2014.
Therefore, we will not use the apostrophe.



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       We recite the relevant factual history as related by the trial court in its

Pa.R.A.P. 1925(a) opinion.
      On the evening of November 14, 2009, upon the advice of
      Group, her OB/GYN provider, Leslie Proffitt (“Mother”) arrived at
      Phoenixville Hospital.   The Group’s on-call physician that
      evening, defendant Cadieux, was already at the hospital.

       Mother was admitted to the hospital and was taken to the labor
       and delivery unit where she was hooked up to a fetal heart
       monitor. Around 1:07 A.M. on November 15, 2009, the fetal
       heart monitor indicated the baby’s heart rate dropped to a
       below-normal rate.[3] Nurse Christine Winter was the first to
       arrive in Mother’s room after the drop in heart rate and
       attempted to adjust Mother’s position in order to get the baby’s
       heart rate to return to a normal rate. Nurse Lana Jones-Sandy
       arrived in the room at some point after that. Meanwhile, Nurse
       Heverly and defendant Cadieux were attending to another
       patient in a nearby room. Around 1:17 or 1:20 A.M., nurse
       Winter informed defendant Cadieux of the baby’s decelerated
       heart rate and defendant Cadieux came into the room. After
       struggling with malfunctioning equipment, around 1:25 A.M.
       defendant Cadieux began taking steps to prepare for a possible
       caesarean section.     At approximately 1:33 A.M. defendant
       Cadieux called a code OB to signal that Mother needed an
       emergency caesarean section.        At 1:49 A.M. on Sunday
       November 15, 2009, [Lillian Ciechoski] was born via caesarean
       section.

       [Ciechoski] was not breathing when she was born. She was gray
       in color and experienced seizures. She was immediately taken
       to an intensive care unit and then was taken to the Children’s
       Hospital of Pennsylvania for treatment.


____________________________________________


3
  Evidence indicated that within 40 seconds, the baby’s heart rate dropped
from the baseline 125 beats per minute to 60 beats per minute. See N.T.
Trial, 1/13/2014, at 125-26.



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      When she was about one year old, [Ciechoski] was diagnosed
      with spastic quadriplegic cerebral palsy. Since her diagnosis,
      she has been receiving many types of treatment including
      rehabilitation therapy, physical therapy, occupational therapy,
      and speech therapy. She attends a school for children with
      special needs.     She cannot stand, walk or perform basic
      functions such as turning the page of a book without supervision
      or equipment or both. She cannot speak and is learning how to
      communicate through a program on an ipad. She continues to
      have seizures, though infrequently.

Trial Court Opinion, 10/23/2014, at 2-4 (citations to record omitted).

      In addition to the above, Plaintiff’s expert, Dr. Marcus Hermansen,

M.D., testified Ciechoski’s injuries were caused by birth asphyxia and that in

such situations, every minute of delay causes additional brain damage.

Nursing expert, Cydney Menihan, CNM, MSN, RDMS, testified actions of

Phoenixville Hospital Nurses Winter and Jones-Sandy caused 10 to 13

minutes of delay in the treatment of Ciechoski.

      In its first claim, Phoenixville Hospital argues the trial court erred in

denying three separate motions regarding Ciechoski’s claims of corporate

negligence against it. The trial court denied a motion in limine seeking to

preclude expert, Dr. David Acker, M.D., from testifying on the issue of

corporate negligence, and then denied a motion for nonsuit and motion for

directed verdict on the issue of corporate negligence.

      Here, however, as the trial court noted in its Pa.R.A.P. 1925(a)

opinion, the jury found in favor of Phoenixville Hospital on the issue of




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corporate negligence.4 Our review of the certified record confirms the trial

court’s finding.    Accordingly, even if we were to agree that the trial court

erred in denying the various motions, Phoenixville Hospital suffered no

prejudice.5    Therefore, having prevailed at trial on this issue, Phoenixville

Hospital is not entitled to relief.

       Next, Phoenixville Hospital claims the trial court erred in instructing

the jury regarding Dr. Cadieux’s dismissal from the action. During trial, all

parties agreed that there was no evidence of negligence against Dr. Cadieux

and therefore the case against her should be dismissed. After doing so, the

trial judge informed the jury:

       Now, with respect to Dr. Cadieux and the Women’s Health Care
       Group, as it turns out, we have now reached the stage of the
       trial where we know there is no dispute of fact with regard to Dr.
       Cadieux and, therefore, there is nothing to submit to you, the
       jury, with regard to Dr. Cadieux.        On the contrary, those
       matters, since there is no dispute of fact, it’s up to me to resolve
       that matter. And I do so, as a matter of law.

       So Dr. Cadieux will no longer be participating in this trial through
       counsel, as well as the Women’s Health Care Group will not be
       participating in the trial any further. And you have nothing to
____________________________________________


4
  The trial judge, the Honorable Robert J. Shenkin, expressed a certain
surprise that Phoenixville Hospital raised this issue both post-trial and in this
appeal. We are also at a loss to explain why Phoenixville Hospital has
appealed an issue on which it prevailed.
5
  Liability against Phoenixville Hospital was based on respondeat superior,
not corporate negligence.




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J-A06025-15




      consider on that issue. There is no issue for you to consider.
      And you should not speculate why those two defendants are no
      longer involved in this case. You don’t have to speculate. I told
      you that those issues are resolved as a matter of law.

      And I would also point out to you that there is no claim in this
      case that the defendant, Phoenixville Hospital, is liable on the
      basis of any action taken or any failure to act by Dr. Cadieux.

N.T. Trial, 1/14/2014, at 64-65.

      Phoenixville Hospital raised no objection to this instruction when it was

given.    Therefore, the issue has been waived.        See Harman ex rel.

Harman v. Borah, 756 A.2d 1116, 1126 (Pa. 2000) (the general rule

remains that a party waives an issue concerning perceived trial court error,

if the party fails both to preserve the issue with a timely and specific

objection at trial).

      Phoenixville Hospital’s third issue is a claim the trial court erred in

allowing Plaintiff’s nursing expert, Cydney Menihan, to testify where she was

not qualified under the requirements of 40 P.S. § 1303.512.

      Section 1303.512 is part of the Medical Care Availability and Reduction

of Error Act (MCARE), 40 P.S. § 1303.101 et seq.            Section 1303.512

addresses expert qualifications and states:

      (a) General rule.--No person shall be competent to offer an
      expert medical opinion in a medical professional liability action
      against a physician unless that person possesses sufficient
      education, training, knowledge and experience to provide
      credible, competent testimony and fulfills the additional
      qualifications set forth in this section as applicable.




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      (b) Medical testimony.--An expert testifying on a medical
      matter, including the standard of care, risks and alternatives,
      causation and the nature and extent of the injury, must meet
      the following qualifications:

         (1) Possess an unrestricted physician's license to practice
         medicine in any state or the District of Columbia.

         (2) Be engaged in or retired within the previous five years
         from active clinical practice or teaching.

      Provided, however, the court may waive the requirements of this
      subsection for an expert on a matter other than the standard of
      care if the court determines that the expert is otherwise
      competent to testify about medical or scientific issues by virtue
      of education, training or experience.

40 P.S. § 1303.512(a), (b).

      The trial court notes, and we agree, that there is no authority for the

proposition   that   Section   1303.512   governs   expert   qualifications   for

testimony regarding claims of nursing negligence. Subsection (a) specifically

limits the application of the rule to those persons offering “an expert medical

opinion in a medical professional liability action against a physician”, id.

(emphasis added).     Nurse Menihan offered no opinion regarding the care

provided by a physician; she testified only to the standard of care regarding

the nursing staff. If we were to apply section 1303.512 to nursing care, we

would be ignoring the plain language of the statute. The rules of statutory

interpretation forbid this. “When the words of a statute are clear and free

from all ambiguity, the letter of it is not to be disregarded under the pretext

of pursuing its spirit.” 1 Pa.C.S. § 1921(b).


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      Although MCARE changed the standards for expert qualifications in

offering testimony against physicians, the general standards for expert

qualifications still apply for nursing testimony.

      “The admission of expert testimony is a matter of discretion [for]
      the trial court and will not be remanded, overruled or disturbed
      unless there was a clear abuse of discretion.” Blicha v. Jacks,
      864 A.2d 1214, 1218 (Pa. Super. 2004).

      It is well settled in Pennsylvania that the standard for
      qualification of an expert witness is a liberal one. Rauch v.
      Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001). When
      determining whether a witness is qualified as an expert the court
      is to examine whether the witness has any reasonable
      pretension to specialized knowledge on the subject under
      investigation. Miller v. Brass Rail Tavern, 541 Pa. 474, 664
      A.2d 525 (1995). It is to ascertain whether the proposed witness
      has sufficient skill, knowledge, or experience in the field at issue
      as to make it appear that the opinion or inference offered will
      probably aid the trier of fact in the search for truth. Bergman v.
      United Servs. Auto. Ass’n, 742 A.2d 1101 (Pa. Super. 1999).

Rettger v. UPMC, 991 A.2d 915, 930 (Pa. Super. 2010).

      Briefly, the record reflects at the time of trial Nurse Menihan was

actively licensed in Rhode Island and Florida, and had inactive licenses in

both California and Pennsylvania. She had been a nurse for 40 years and

had worked in various aspects of labor and delivery throughout that time.

She taught electronic fetal heart monitoring and was a nurse midwife. She

taught at Brown University and was the sole awardee of a grant to study

sudden infant death and electronic fetal monitoring patterns.      Based upon

our review of the record, we discern no abuse of discretion in the court’s


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allowing Nurse Menihan to provide expert testimony regarding nursing

standard of care. Phoenixville Hospital is not entitled to relief on this issue.

        In its final claim, Phoenixville Hospital argues the trial court erred in

failing to grant judgment NOV on the grounds Ciechoski had not provided a

causal nexus between the complained of actions by the nurses and the

injuries suffered by Ciechoski.6 Phoenixville Hospital maintains that because

the actions of Nurses Winter and Jones-Sandy occurred in the beginning of

the delivery process, and because Plaintiff’s causation expert testified the

brain damage occurred at the end of the delivery process, their actions

cannot have caused the injury. Phoenixville Hospital fails to recognize that
____________________________________________


6
    Our standard of review for this issue is as follows:

        When reviewing a trial court's denial of a motion for JNOV, we
        must consider all of the evidence admitted to decide if there was
        sufficient competent evidence to sustain the verdict. In so doing,
        we must also view this evidence in the light most favorable to
        the verdict winner, giving the victorious party the benefit of
        every reasonable inference arising from the evidence and
        rejecting all unfavorable testimony and inference. Concerning
        any questions of law, our scope of review is plenary. Concerning
        questions of credibility and weight accorded the evidence at trial,
        we will not substitute our judgment for that of the finder of fact.
        If any basis exists upon which the jury could have properly made
        its award, then we must affirm the trial court's denial of the
        motion for JNOV. A JNOV should be entered only in a clear case.

American Futures Systems, Inc. v. BBB, 872 A.2d 1202, 1215 (Pa.

Super. 2005) (citation omitted).




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the delay, no matter when it occurred in the delivery process, subjected

Ciechoski to the additional 10-13 minutes of oxygen deprivation that

ultimately led to her injuries.

      In denying Phoenixville Hospital relief on this issue, we rely on the able

analysis of the Honorable Robert J. Shenkin, in his Pa.R.A.P. 1925(a)

opinion, at pages 10-12, dated October 23, 2014, that states:

      It was undisputed at trial that the baby’s heart rate decelerated
      at 1:07 A.M. and that defendant Cadieux did not become aware
      of this fact until about ten to thirteen minutes later, around 1:17
      or 1:20 A.M.         Defendant Cadieux testified, and moving
      defendant did not dispute, that a drop in a baby’s heart rate may
      signal that the baby is in distress and not receiving enough
      oxygen to its vital organs. When a baby’s heart is decelerated
      for ten minutes or more, a bradycardia occurs and the longer it
      continues the greater the risk to the baby and the more likely
      that an intervention may be necessary.

      Marcus Hermansen, M.D., plaintiff’s expert, offered opinions in
      the field of neonatology. Dr. Hermansen testified that plaintiff’s
      brain damage occurred because she “suffered lack of oxygen
      delivery to her brain during the final minutes before her birth.”
      He testified that the baby “tolerated the first 15-20 minutes of
      bradycardia without brain damage,” but that had she been born
      15, 16 or 17 minutes earlier she “would have had very little, if
      any, brain damage.”

      Plaintiff also offered the testimony of nurse Menihan, who
      testified that nurse Winter deviated from the standard of care
      applicable to nursing by failing to listen to the fetal heart rate
      and by failing to notify defendant Cadieux and the nursing
      supervisor “at the latest” by 1:09 A.M. that the fetal heart rate
      decelerated and was not responding to her nursing intervention
      strategies. Nurse Menihan also testified that nurse Jones-Sandy
      was an experienced labor and delivery nurse who had been
      assigned as a back-up nurse for the labor room. She testified
      that given her experience, nurse Jones-Sandy deviated from the

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     standard of care because she did not advise nurse Winter, who
     was less experienced, of the “catastrophic potential of the
     situation” and because she also failed to locate and inform
     defendant Cadieux. She also testified that after 1:09 A.M. the
     need to notify defendant Cadieux of the deceleration became
     more urgent because of the increased risk to the baby.

     Defendant Hospital offered the testimony of Nurse Catherine E.
     Cochell, RNC, BSN, who offered expert opinions on the standard
     of care for labor and delivery nursing and fetal heart monitor
     interpretation. She testified that nurse Winter did not deviate
     from the standard of care by continuing to perform nursing
     interventions instead of calling for Dr. Cadieux or the nursing
     supervisor by 1:09 A.M. because she needed to see what the
     results of her interventions were before notifying them. She
     testified that the standard of care did not require nurse Jones-
     Sandy to advise nurse Winter of the severity of Mother’s
     situation because nurse Winter demonstrated that she was
     aware of the severity of Mother’s situation by initiating
     interventions and that discussing the severity of Mother’s
     situation in front of Mother could have scared Mother. Further,
     she testified that the standard of care required that the nurses
     should not leave the patient and nurse Jones-Sandy did not
     deviate from the standard when she stayed with Nurse Winter to
     assist her with her interventions and turned a call light on
     signaling for the doctor to come, knowing that defendant
     Cadieux was on the unit at the time.

     Defendant Hospital also offered the testimony of Dr. Daniel
     Small, M.D., who offered expert opinions in the field of obstetrics
     and labor and delivery nursing. He testified that nurse Winter
     did not deviate from the standard of care when she did not notify
     defendant Cadieux or the nursing supervisor by 1:09 A.M. of the
     heart rate deceleration. He also testified that nurse Jones-Sandy
     did not breach the standard of care by continuing to assist nurse
     Winter with nursing interventions instead of leaving to find the
     nursing supervisor or defendant Cadieux.

     Based on this testimony, reasonable minds could disagree as to
     whether nurses Winter and Jones-Sandy were negligent in failing
     to notify defendant Cadieux of plaintiff baby’s heart deceleration
     sooner than they did and whether their negligence caused

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      plaintiff’s injuries. The jury concluded that nurses Winter and
      Jones-Sandy were negligent and that their negligence caused
      plaintiff’s injuries. This conclusion is supported by the evidence.
      Since a basis exists upon which the jury could have properly
      made its award, we must affirm.

Trial Court Opinion, 10/23/2014, at 10-12 (citations to record omitted).

      Because the trial court correctly determined the jury’s verdict was

supported by the evidence and accordingly denied the motion for JNOV,

Phoenixville Hospital is not entitled to relief on this issue.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2015




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