J-A13006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ARTIS MITCHELL, AS THE                        IN THE SUPERIOR COURT OF
ADMINISTRATOR OF THE ESTATE OF                      PENNSYLVANIA
CAROLYN MITCHELL, DECEASED,

                        Appellant

                   v.

HIGHLAND PARK CARE CENTER, LLC,
OPERATING UNDER THE FICTITIOUS
NAME HIGHLAND PARK CARE CENTER
AND LUTHERAN SENIORLIFE,
OPERATING UNDER THE FICTITIOUS
NAME ST. JOHN SPECIALTY CARE
CENTER,

                        Appellee                   No. 1057 WDA 2015


             Appeal from the Judgment Entered August 11, 2015
             In the Court of Common Pleas of Allegheny County
                    Civil Division at No(s): GD-12-000832


BEFORE: OLSON, STABILE AND MUSMANNO, JJ.:

MEMORANDUM BY OLSON, J.:                         FILED AUGUST 24, 2016

     Appellant, Artis Mitchell, as the administrator of the estate of Carolyn

Mitchell, deceased, appeals from the judgment entered on August 11, 2015.

We affirm.

     The trial court succinctly explained the relevant, underlying facts and

procedural posture of this case:

        [Appellant] brought a survival action alleging that Highland
        Park Care Center [(“HPCC”)] failed to create and implement
        a proper treatment care plan for [Carolyn Mitchell (“Ms.
        Mitchell”)], and failed to promptly notify a physician of a
        significant change in [Ms. Mitchell’s] condition.
J-A13006-16


        In 1992, [Ms.] Mitchell experienced cardiac arrest, resulting
        in a severe anoxic brain injury, which required her to need
        skilled nursing care on a full-time basis for the rest of her
        life. [Shorty thereafter, Ms. Mitchell became a resident of
        HPCC, which is a skilled nursing facility in Pittsburgh.] . . .

        [Appellant] claims specifically that in the weeks leading up
        to February 15, 2010, [Ms.] Mitchell experienced repeated
        episodes of emesis, which is vomiting, that went unreported
        to her physician.      [Appellant] further claims that said
        episodes of emesis led to substances entering the lungs of
        Ms. Mitchell causing her to suffer aspiration pneumonia.
        [Appellant] further alleges that said negligence resulted in a
        downward spiral in the health of Ms. Mitchell, eventually
        resulting in her death on February 7, 2011.

                                     ...

        This matter was initiated by the filing of a praecipe for writ
        of summons on January 12, 2012. Said praecipe was
        followed by a complaint in civil action filed [on] September
        17, 2012. . . .

        Prior to trial, [Appellant] settled his claims with defendant
        Lutheran Seniorlife, operating under the fictitious name of
        St. John Specialty Care Center.

        A trial commenced on March 18, 2015, lasting until March
        25, 2015, at which time the jury empaneled returned a
        verdict for [HPCC] and against [Appellant], finding an
        absence of negligence on the part of [HPCC. The trial court
        denied Appellant’s post-trial motion and judgment on the
        verdict was entered on August 11, 2015].

Trial Court Opinion, 10/1/15, at 1-3 (some internal capitalization omitted).

      Appellant filed a timely notice of appeal and, on appeal, Appellant

raises the following claims:

        [1.] Did the trial court err in denying [Appellant’s]   motion
        for judgment notwithstanding the verdict (“JNOV”)       on the
        issue of negligence when the verdict was such that      no two
        reasonable minds could disagree that the verdict        should

                                     -2-
J-A13006-16


       have been rendered in favor of [Appellant]? Specifically,
       based upon the evidence that was offered at trial, along
       with the fact that the Commonwealth of Pennsylvania
       Department of Health (the “DOH”) specifically found that
       [HPCC] failed to promptly notify a physician of a significant
       change, which ultimately caused Ms. Mitchell to suffer
       aspiration pneumonia, the jury’s finding of “no negligence”
       is indeed such that it shocks one’s “sense of justice,” as the
       jury was charged on the issue of negligence per se.
       Further, the court committed an error by denying
       [Appellant’s] motion for JNOV on the issue of negligence,
       despite the fact that [HPCC’s] own experts admitted that
       [HPCC] violated applicable standards of care. The [trial]
       court committed an error by dismissing [Appellant’s] claim
       for punitive damages at the close of [Appellant’s] case,
       upon [HPCC’s] motion for a directed verdict. [Appellant]
       preserved this issue in his motion for post-trial relief. Based
       upon the evidence adduced at trial, it is clear that the issue
       of punitive damages should have been one presented to the
       jury.

       [2.] Did the trial court err in denying [Appellant’s] motion
       for a new trial on the issue of negligence when the verdict
       was against the clear and substantial weight of the
       evidence, particularly in light of the fact that based on the
       evidence that was offered at trial, along with the fact that
       the DOH specifically found that [HPCC] failed to promptly
       notify a physician of a significant change, which ultimately
       caused Ms. Mitchell to suffer aspiration pneumonia, the
       jury’s finding of “no negligence” is indeed such that it
       shocks one’s “sense of justice,” especially in light of the fact
       that the jury was charged on negligence per se. Further,
       the [trial] court committed an error by denying [Appellant’s]
       motion for a new trial on the issue of negligence, despite
       the fact that [HPCC’s] own experts admitted that [HPCC]
       violated applicable standards of care. The [trial] court
       committed an error by dismissing [Appellant’s] claim for
       punitive damages at the close of [Appellant’s] case, upon
       [HPCC’s] motion for a directed verdict.             [Appellant]
       preserved this issue in his motion for post-trial relief. Based
       upon the evidence adduced at trial, it is clear that the issue
       of punitive damages should have been one presented to the
       jury.


                                    -3-
J-A13006-16



Appellant’s Brief at 5-6 (some internal capitalization omitted).

      We reviewed the briefs of the parties, the relevant law, the certified

record, the notes of testimony, and the opinion of the able trial court judge,

the Honorable Michael A. Della Vecchia. We conclude that there has been no

error in this case and that Judge Della Vecchia’s opinion, entered on October

1, 2015, meticulously and accurately disposes of Appellant’s issues on

appeal. Therefore, we affirm on the basis of Judge Della Vecchia’s opinion

and adopt it as our own. In any future filings with this or any other court

addressing this ruling, the filing party shall attach a copy of the trial court

opinion.

      Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/2016




                                     -4-
                                                                                                          Circulated 08/05/2016 03:29 PM




      IN THE COURT                          OF COMMON      PLEAS OF ALLEGHENY   COUNTY,           PENNSYLVANIA
                                                             CIVIL DIVISION




     ARTIS MITCHELL, as Administrator                                            No. GD 12-000832
     of the Estate of CAROLYN MITCHELL,
     Deceased,
                                                                                                                       ..... ,
                                                                                          <::                          r >
                                                                                                                       ~
                                             Plaintiff,                                       ' TO~:...                c.,,
                                                                                          t.':> ,. ..
                                                                                          :   I       :


                  vs.                                                                                       ..
                                                                                                                       C)
                                                                                                                       C)
                                                                                                                       -l
                                                                                                                                  ,.....
                                                                                                                 =.'              L..:
     HIGHLAND PARK CARE CENTER,                                                                             ·-·             I
                                                                                                                                  LU
                                                                                                                                  __ J
     LLC, operating under the fictitious name                                                                          v
     HIGHLAND PARK CARE CENTER and                                                                                                LL
                                                                                                                       w
     LUTHERAN SENIORLIFE operating under                                                  ...·- ~:. .J ~-i
                                                                                                  I
                                                                                                                       en
     the fictitious name ST. JOHN SPECIALTY                                               ":J
                                                                                                                       l'-..l

     CAR ECENTER,

                                             Defendants.

                                                                          OPINION

                                                                          Honorable Michael A Della Vecchia
                                                                          710 City-County Building
                                                                          414 Grant Street
                                                                          Pittsburgh, PA 15219




                  ~~~
                  . ~,_:,u..
         ....:s     ··~>-
         (')        .. •·1,---

0                            .-
                    :   ~r    •   •    ""




         ::!:                         :,
w        o,                           .)

_J
--
u_       f-
         (.)
                         ,,~      ..,,
         a          :.::::!~
                   - .,.-"" _J
         l()       ---1
                  rjU<l:
  IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                           CIVIL DIVISION




 ARTIS MITCHELL) as the Administrator of                           GD 12-000832
 the Estate of CAROLYN MITCHELL,
 Deceased,                                                         1057 WDA 2015

                              Plaintiff,
                 vs.

 HIGHLAND PARK CARE CENTER, LLC.
 operating under the fictitious name
 HIGHLAND PARK CARE CENTER,

                              Defendant.


                                           OPINION


Michael A. Della Vecchia, Judge


        This matter comes before the Superior Court on the appeal of Artis Mitchell as

the Administrator of the Estate of Carolyn Mitchell, Deceased (hereinafter "Plaintiff")

from this Court's denial of Post-Trial Motions and the Judgment entered thereon.


I. BACKROUND

        The Plaintiff brought a survival action alleging that Highland Park Care Center

(hereinafter "Defendant") failed to create and implement a proper treatment care plan

for the Plaintiff, and failed to promptly notify a physician of a significant change in the

Plaintiff's condition.



                                              1
        In 1992, Carolyn Mitchell experienced cardiac arrest, resulting in a severe anoxic

 brain injury, which required her to need skilled nursing care on a full-time basis for the

 rest of her life. The Plaintiff claims specifically that in the weeks leading up to

 February 15, 2010, Carolyn Mitchell experienced repeated episodes of emesis, which is

 vomiting, that went unreported to her physician. The Plaintiff further claims that said

 episodes of emesis led to substances entering the lungs of Ms. Mitchell causing her to

 suffer aspiration pneumonia. The Plaintiff further alleges that said negligence resulted

 in a downward spiral in the health of Ms. Mitchell, eventually resulting in her death on

 February 7, 2011.

        Following a jury trial in this matter, the jury empanelled returned a verdict in favor

of the Defendant and against the Plaintiff, finding specifically that the Defendant was not

negligent. The Plaintiff filed for Post-Trial Relief alleging that the jury's verdict was

against the weight of the evidence. On June 24, 2015, after reviewing the Briefs and

record and having heard argument on said Post-Trial Motions, this writer denied the

Plaintiff's Motion for Post-Trial Relief, which included the Plaintiff's request for Judgment

Notwithstanding the Verdict or a new trial.



II. PROCEDURAL HISTORY

       This matter was initiated by the filing of a Praecipe for Writ of Summons filed on

January 12, 2012. Said Praecipe was followed by a Complaint in Civil Action filed

September 17, 2012. Following multiple sets of Preliminary Objections, Motions to

Compel and rulings in response thereto, this matter was scheduled for trial.




                                              2
          Prior to trial, the Plaintiff settled his claims with defendant Lutheran Seniorlife,

operating under the fictitious name of St. John Specialty Care Center.

          A trial commenced on March 18, 2015, lasting until March 25, 2015, at which

time the jury empanelled returned a verdict for the Defendant and against the Plaintiff,

finding an absence of negligence on the part of the Defendant After argument, this

Court entered an Order dated June 24, 2015, denying Plaintiff's Motion for Post-Trial

Relief.

          On July 9, 2015, the Plaintiff filed a Notice of Appeal to the Superior Court of

Pennsylvania. As a result, the Plaintiff was directed by Order dated July 15, 2015, to

file a Concise Statement of Matters Complained of on Appeal pursuant to Pa.R.C.P.

1925(b). The Plaintiff timely filed his Matters Complained of on appeal on July 30,

2015. This writer authors the following opinion in response thereto.



Ill. ISSUES RAISED ON APPEAL

The Defendant raises the following claims of err:

                  1. The Court committed an error by denying Plaintiff's Motion for
            Judgment Notwithstanding the Verdict (JNOV) on the issue of
            negligence when the verdict was such that two reasonable minds
            could disagree that the verdict should have been rendered in favor of
            the Plaintiff. Specifically, based upon the evidence that was offered
            at trial, along with the fact that the Commonwealth of Pennsylvania
            Department of Health (the "DOH") specifically found that Highland
            Park failed to promptly notify a physician of a significant change,
            which ultimately caused Ms. Mitchell to suffer aspiration pneumonia,
            the jury's finding of "no negligence" is indeed such that shocks one's
            "sense of justice" as the jury was charged on the issue of negligence
            per se. Further, the Court committed an error by denying Plaintiff's
            Motion for JNOV on the issue of negligence despite the fact that
            Defendant Highland Park Care Center's own experts admitted that
            Highland Park Care Center violated applicable standards of care.
            The Court committed an error by dismissing Plaintiff's claim for

                                                 3
            punitive damages at the close of Plaintiff's case, upon the
            Defendant's Motion for Post-Trial Relief. Based upon the evidence
            adduced at trial, it is clear that the issue of punitive damages should
            have been one presented to the jury.

                  2. The Court committed an error by denying Plaintiff's Motion for
             a New Trail on the issue of negligence when the verdict was against
             the clear and substantial weight of the evldence, particularly in light
             of the fact that based on the evidence that was offered at trial, along
            with the fact that the DOH specifically found that Highland Park failed
            to promptly notify a physician of a significant change, which
            ultimately caused Ms. Mitchell to suffer aspiration pneumonia, the
            jury's finding of "no negligence" is indeed such that shocks one's
            "sense of justice", especially in the light of the fact that the jury was
            charged on negligence per se, Further, the Court committed an error
            by denying Plaintiff's Motion for a New Trial on the issue of
            negligence despite the fact that Defendant Highland Park's own
            experts admitted that Highland Park violated applicable standards of
            care. The Court committed an error by dismissing Plaintiff's claim for
            punitive damages at the close of Plaintiff's case, upon the
            Defendant's Motion for Directed Verdict. Plaintiff preserved this
            issue in his Motion for Post-Trial Relief. Based upon the evidence
            adduced at trial, it is clear that the issue of punitive damages should
            have been one presented to the jury.


IV. DISCUSSION

         The Plaintiff asserts that the jury's finding of 'no negligence' on the part of the

Defendant to be against the weight of the evidence, such that the verdict would have

"shocked one's sense of justice," however, this writer was not the least bit surprised by

said Verdict.

         The Superior Court has clearly established the Plaintiff's burden in making said

claim:

         the standard of review for an order granting or denying judgment
         notwithstanding the verdict is whether there was sufficient competent
         evidence to sustain the verdict. We must view the evidence in the light
         most favorable to the verdict winner and give him or her the benefit of
         every reasonable inference arising therefrom while rejecting all
         unfavorable testimony and inferences. Furthermore, judgment nov should

                                               4
       be entered only in a clear case, where the evidence is such that no
       reasonable minds could disagree that the moving party is entitled to relief.
       Review of the denial of judgment nov has two parts, one factual and one
       legal:

       Concerning any questions of law, our scope of review is plenary.
       Concerning questions of credibility and weight accorded evidence at trial,
       we will not substitute our judgment for that of the finder of fact.

Underwood ex rel. Underwood v. Wind, 954 A.2d 1199, 1206 (Pa.Super. 2008), citing
Northeast Fence & Iron Works v. Murphy Quigley Co .. Inc., 933 A.2d 664, 668
(Pa.Super. 2007).

       The Plaintiff believes he provided the jury with a 'smoking gun' pointing to a

finding by the Commonwealth of Pennsylvania Department of Health ("DOH")

specifically holding that Highland Park failed to promptly notify a physician of a

significant change, which ultimately caused Ms. Mitchell to suffer aspiration pneumonia.

The Plaintiff requested and the trial court incorporated Plaintiff's proposed charge of

negligence per se into the court's instructions to the jury. The jury obviously rejected

Plaintiff's argument as to this point.

       This writer accepts that the jury was not convinced by the Plaintiff's argument as

to causation. specifically. the fact that both the Plaintiff and the Defendant's experts

opined that Ms. Mitchell's aspiration pneumonia developed from events in the hospital,

or immediately prior to her admission, not from any negligence noted in the DOH report.

The DOH finding concerns failures following events reported January 24, 2010,

February 3, 2010, and February 8, 201 O.

       The defense expert, Dr. Adam Sohnen stated that. "there was absolutely no

relationship between any of the emesis events, at least until the most recently

documented one on the (February) 111h and her pneumonia" (Trial Transcript ("Tr.") at

574). Dr. Sohnen explained convincingly to the jury that the initial chest x-rays

                                             5
 examined following the events of emesis failed to show any signs of pneumonia and

 were in fact "clear", "if she had pneumonia that was brewing or developing     over those

 several days, you would have seen a very abnormal appearing chest x-ray" (See, Tr. at

574).

        It was consistently the Plaintiff's position that the emesis was caused by the

negligence in the defendant's choice to feed and medicate Ms. Mitchell through       a G-port
rather than a J-port. When specifically asked whether a change in ports would have

alleviated Ms. Mitchell's instances of vomiting, Dr. Sohnen answer was "no, absolutely

not" (Tr. at 578}.

        The Plaintiff's expert, Dr. Bruce Kinosian opined that "l'rn pretty sure that she

aspirated on the (February) 131h I which is when she developed the wheezing. Whether

that developed into something or whether she had new events) l don't know. My guess

is that she probably had a new event" (Tr. at 244).

        The Plaintiff's own expert failed to advance the theory proffered by the Plaintiff,

that being; that the DOH finding that Highland Park failed to promptly notify a physician

of Ms. Mitchell's change of condition caused the aspiration pneumonia, leading, if not

contributing to her eventual death. Further, the DOH itself later made a finding of "no

harm" with regard to its earlier report of the deficiency at Highland Park Care Center

concerning the lack of notification.

        Ms. Mitchell enjoyed additional care provided by private duty nurses. These

private duty nurses were not affiliated or employed by Highland Park Care Center. The

jury could have plausibly concluded that negligence on the part of said private care

nurses was not attributable to Highland Park Care Center.


                                              6
        The Plaintiff raises additional error with this Court's decision to deny a request

made by the Plaintiff for a charge on punitive damages. As the Superior Court is well

aware, "punitive damages are awarded only for outrageous conduct, that isl for acts

done with a bad motive or with a reckless Indifference to the interests of others. Thus,

the Pennsylvania rule allows the awarding of punitive damages when the act is done

with reckless indifference as well as with bad motive (Focht v. Rabada, 268 A.2d 157,

159 (Pa. Super. 1970), citing, Chambers v. Montgomery, 192 A.2d 355 (Pa. 1963)).

       This writer finds this case completely devoid of bad motive or reckless

indifference. Only 'false charting' assertions made by the Plaintiff could possibly be

construed as a basis for punitive damages. Presumably, the jury found that any

discrepancies were merely mistakes or inaccuracies within the medical charting. In light

of the fact that the jury found that the Defendant was not negligent, any charge on

punitive damages was not warranted.


IV. CONCLUSION

       This Court found the jury's Verdict in the above captioned case to be in accord

with the evidence presented at trial. For the aforesaid reasons, this writer respectfully

requests the Superior Court of Pennsylvania to affirm this Court's Order dated June 24,

2015, and the judgment entered on the Verdict rendered.




                                             7
