J-A04021-17
                                  2017 PA Super 354

BETTY L. SHIFLETT AND CURTIS                        IN THE SUPERIOR COURT OF
SHIFLETT, HUSBAND AND WIFE                                PENNSYLVANIA

                            Appellees

                       v.

LEHIGH VALLEY HEALTH NETWORK,
INC.; AND LEHIGH VALLEY HOSPITAL

                            Appellants                   No. 2293 EDA 2016


                Appeal from the Judgment Entered July 18, 2016
                 In the Court of Common Pleas of Lehigh County
                       Civil Division at No(s): 2014-C-0388

BEFORE: SHOGAN, J., SOLANO, J., and PLATT, J.*

OPINION BY SOLANO, J.:                              FILED NOVEMBER 09, 2017

        Appellants, Lehigh Valley Health Network, Inc., and Lehigh Valley

Hospital (together, “Lehigh Valley”), appeal from the judgment entered

following a jury trial and verdict in favor of Appellees Betty L. Shiflett and

Curtis Shiflett.   We conclude that the Shifletts’ second amended complaint

pleaded a new cause of action — for vicarious liability against Lehigh Valley

for the negligent actions of Nurse Kristina Michels Mahler in Lehigh Valley’s

Transitional Skills Unit — that did not appear in the Shifletts’ first amended

complaint, and that this new cause of action was barred by the applicable

statute of limitations. Accordingly, we vacate the judgment and reverse with

respect to the verdict against Lehigh Valley for vicarious liability regarding

Nurse Michels Mahler’s actions.          We reject Lehigh Valley’s contentions of
____________________________________________
*   Retired Senior Judge assigned to the Superior Court.
J-A04021-17


error with respect to the verdict of corporate negligence related to the

Shifletts’ claim of improper care in Lehigh Valley’s Post-Surgical Unit.             We

remand for a new trial on the question of damages.

       On April 12, 2012, Ms. Shiflett underwent left knee surgery at Lehigh

Valley Hospital. On April 14, 2012, Ms. Shiflett fell out of her hospital bed in

Lehigh Valley’s Post-Surgical Unit (“PSU”) and suffered an avulsion fracture

of her left tibial tubercle, which was not diagnosed until April 19, 2012.

N.T., 2/5/16, at 31, 39.1

       On April 15, 2012, Ms. Shiflett was transferred to Lehigh Valley’s

Transitional    Skills   Unit    (“TSU”),      where     she   received   physical   and

occupational therapy. N.T., 2/3/16, Tr. of Cynthia Balkstra, at 61-64, 68-

69; N.T., 2/5/16, at 39, 64, 66-69; Trial Ct. Op. at 2.2 Ms. Shiflett claims

that soon after her arrival at the TSU, she repeatedly reported “sharp pain”

and a “clicking” in her knee to Kristina Michels Mahler, a nurse working in

the TSU, but Nurse Michels Mahler did not notify a physician about those

complaints.     As a result, there was a delay in diagnosing Ms. Shiflett’s

avulsion    fracture.       After   Ms.     Shiflett’s   physical   therapist   reported
____________________________________________
1  During his testimony, the Shifletts’ medical expert, Dr. Robert C. Erickson
II, an orthopedic surgeon, explained: “if you feel your kneecap, there’s a
little ridge that goes down to the tibia and there’s a tendon, and then where
it touches is called the tibial tubercle.” N.T., 2/5/16, at 39. He defined an
avulsion fracture as one where the “tendon which was attached . . . pulled a
piece of bone off.” Id. at 40.
2The trial court opinion refers to the “TSU” as the “Transitional Skilled Unit.”
Trial Ct. Op. at 2. However, all parties refer to it as the “Transitional Skills
Unit.” See Second Am. Compl., 7/2/15, at ¶ 20; Lehigh Valley’s Brief at 9;
Shifletts’ Brief at 3.

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J-A04021-17


Ms. Shiflett’s concerns on April 19, 2012, she had two additional surgeries to

repair her avulsion fracture, but those surgeries were unsuccessful.

Ms. Shiflett was left with no extensor mechanism in her leg and was no

longer a candidate for further surgery due to past infection.3

       On February 7, 2014, the Shifletts filed a complaint against Lehigh

Valley (“Original Complaint”) that made the following factual allegations:

       10. On April 12, 2012, plaintiff Betty Shiflett underwent left
       knee revision surgery at Lehigh Hospital.

                                       *       *   *

       12. In the early morning of April 14, 2012, as a direct and
       proximate result of the negligence of the defendants, including
       inadequate fall protection provided by defendants, an
       unattended Betty Shiflett fell and suffered a left tibia
       avulsion fracture.

       13. A nursing note in the chart of Lehigh Hospital dated April
       14, 2012 at 4:45 A.M. records that immediately after Betty
       Shiflett was found on the floor of her hospital room, a bed check
       was initiated and yellow socks were put on her feet.

       14. The left tibia avulsion fracture suffered as a result of Betty
       Shiflett’s fall would not have occurred in the absence of the
       negligence of the defendants including their failing to provide
       adequate and sufficient fall protection and monitoring.

       15. On April 24, 2012, Dr. Ververeli performed open reduction
       surgery to repair Betty Shiflett’s left tibia avulsion.

       16. Post-surgical care of Betty Shiflett’s left tibia reduction
       surgery was complicated by a staph infection. As a result, on
       May 22, 2012, Dr. Ververeli performed another surgery on her
____________________________________________
3  Dr. Erickson defined “no extensor mechanism” as meaning “your knee
won’t support you. So if you want to do something simple like stand up out
of a chair; it can’t stand up. Once you’re up straight, the weight[-]bearing’s
fine. . . . The only thing you can go to [to keep the leg from buckling] is a
brace.” N.T., 2/5/16, at 68-69.

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J-A04021-17


     left knee, irrigating and debriding the left knee and inserting
     screws and antibiotic beads in an effort to treat the infection.

     17. As a result of plaintiff Betty Shiflett’s avulsion fracture and
     resulting tibial reduction surgery and infection, she continued to,
     and is likely to continue to stiffer pain, reduced range of motion,
     weakness and left knee instability and disability.

                                 *    *    *

     20. The injuries and permanent disabilities suffered by plaintiff
     Betty Shiflett were the direct result of the defendants’
     negligence, by and through their agents, servants and/or
     employees and/or their ostensible agents following her April 12,
     2012 left knee revision surgery at Lehigh Hospital which
     negligence includes:

           a.)   Failing to use due care or employ reasonable skill in
           the treatment administered to plaintiff Betty Shiflett.

           b.)    Employing inappropriate or inadequate methods,
           techniques and procedures in the care and treatment of
           plaintiff Betty Shiflett;

           c.)   Failing to timely and properly recognize that plaintiff
           Betty Shiflett was at significant risk for a post-operative
           fall;

           d.)   Failing to timely and properly prepare and/or
           otherwise have in place a patient care plan for plaintiff
           Betty Shiflett that would include appropriate monitoring
           and safeguards to reduce and/or eliminate her risk of post-
           operative fall;

           e.)    Failing to utilize and/or have in place reasonable and
           appropriate measures to prevent plaintiff Betty Shiflett
           from falling after her April 12, 2012 knee revision surgery,
           including but not limited to, full bed side rails, properly
           monitor the Plaintiff in her bed, a bed alarm and/or
           institute a bed check; provide non-skid socks;

           f.)   Failing to adopt and enforce adequate policies and
           procedures to plan for and to ensure the proper and safe
           use of reasonable fall protection methods;


                                     -4-
J-A04021-17


            g.)    Failing to select and retain competent physicians and
            staff;

            h.)  Failing to properly oversee the professional staff
            working in Lehigh Hospital;

            i.)    Failing to properly train and educate professional
            staff to identify fall risks and use appropriate methods to
            reduce the risk of a fall; and

            j.)   Failing to adhere to the standard of medical care in
            the community.

                                 *    *    *

      23. But for the negligence of the defendants described above,
      Plaintiff Betty Shiflett would have fully recovered from her knee
      revision surgery on April 12, 2012.

Original Compl., 2/7/14, at ¶¶ 10, 12-17, 20, 23 (emphases added).         Of

significance here, these allegations all pertained to alleged negligence

leading to Ms. Shiflett’s fall from the bed in her hospital room; they did not

allege subsequent negligence in the TSU.

      Lehigh Valley filed preliminary objections.    Among other things, it

argued that the allegations in Paragraph 20(a), (b), (d), (h), and (j) were

too “general, vague and overbroad” to state a valid claim and to permit

formulation of defenses.   Prelim. Objs. of Lehigh Valley, 3/11/14, at 9-11

¶¶ 30-37; Br. in Supp. of the Prelim. Objs. of Lehigh Valley, 3/11/14, at 8-

10.

      In response, the Shifletts filed an amended complaint (“First Amended

Complaint”) on March 27, 2014. This First Amended Complaint repeated the




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J-A04021-17


allegations in Paragraphs 10, 12-17, and 23 from the Original Complaint4

and added the following new paragraphs:

       23. In addition to the allegations of negligence described in
       paragraphs 1 through 21 above, the injuries and permanent
       disabilities suffered by plaintiff Betty Shiflett were the direct
       result of the defendants’ negligence, by and through their
       agents, servants and/or employees and/or their ostensible
       agents following her April 12, 2012 left knee revision surgery at
       Lehigh     Hospital    which    negligence   includes:     [eight
       subparagraphs that are identical to subparagraphs 20(a)-(d),
       (g)-(h), and (j) in the Original Complaint].

                                       *       *   *

       31. In addition to the allegations of negligence described in
       paragraphs 1 through 29 above, the injuries and permanent
       disabilities suffered by plaintiff Betty Shiflett were the direct
       result of the defendants’ negligence following her April 12, 2012
       left knee revision surgery at Lehigh Hospital which negligence
       includes:

              a.)   Failing to timely and properly prepare and/or
              otherwise have in place patient care plans that would
              include appropriate monitoring and safeguards to reduce
              and/or eliminate risk of post-operative fall;

              b.) Failing to utilize and/or have in place reasonable and
              appropriate fall protection measures, including but not
              limited to, full bed side rails, proper bed monitoring, a bed
              alarm and/or institute a bed check, provide non-skid
              socks;

              c.)   Failing to adopt and enforce adequate policies and
              procedures to plan for and to ensure the proper and safe
              use of reasonable fall protection methods;

              d.)    Failing to select and retain competent physicians and
              staff;

____________________________________________
4 The First Amended Complaint renumbered some of the paragraphs
contained in the Original Complaint without altering their substance.
Specifically, Paragraph 23 of the Original Complaint became Paragraph 21.

                                           -6-
J-A04021-17


            e.)  Failing to properly oversee the professional staff
            working in Lehigh Hospital;

            f.)    Failing to properly train and, educate professional
            staff to identify fall risks and use appropriate methods to
            reduce the risk of a fall; and

            g.). Failing to adhere to the standard of medical care in
            the community.

First Amended Compl., 3/27/14, at ¶¶ 23, 31. The amendment added no

paragraphs referencing Ms. Shiflett’s care in the TSU.

      Once again, Lehigh Valley filed preliminary objections that argued,

among other things, that the negligence allegations were too vague and

general to state a claim and permit framing of defenses.      Prelim. Objs. of

Lehigh Valley, 4/10/14, at 7-9 ¶¶ 24-31. It also argued that, if not stricken,

the broad averments of negligence might improperly be used to permit some

“future, unexpected amendment to the complaint based upon new facts after

the statute of limitations has run.” Id. at 9 ¶ 30 (citation omitted); Br. in

Supp. of the Prelim. Objs. of Lehigh Valley, 4/10/14, at 8.

      This time, the Shifletts responded by detailing why their allegations

were sufficient:

      Here, the Amended Complaint, read as a whole and in context,
      contains detailed and specific allegations that are more than
      sufficient to allow Lehigh [Valley] to defend against claims of
      vicarious and corporate liability. The Amended Complaint alleges
      that on “April 12, 2012 plaintiff underwent left knee revision
      surgery at Lehigh [Valley] Hospital.” [First Amended Compl.,
      3/27/14,] at ¶ 10. During surgery she was given a femoral
      nerve block and general anesthesia.           Id.    After surgery,
      “[d]espite having high risk factors for falling, including her age,
      being in an unfamiliar location, use of a nerve block and left
      knee instability, the physicians, nurses, officers, directors,

                                     -7-
J-A04021-17


      and/or other employees or agents of the defendants that
      were responsible for [Ms.] Shiflett’s post-surgical care did
      not provide her with adequate fall protection, including,
      among other things, full bed side rails, bed alarm and/or bed
      checks, non-skid footwear, and monitoring.”         Id. at ¶ 11.
      Foreseeably, “[i]n the early morning of April 14, 2012, as a
      direct and proximate result of the negligence of the
      defendants, including inadequate fall protection provided
      by the defendants, an unattended [Ms.] Shiflett fell and
      suffered a left tibia avulsion fracture.” Id. at ¶ 12. [Ms.]
      Shiflett’s avulsion fracture required additional surgery that was
      complicated by an infection. Id. at ¶¶ 15-16. As a result of her
      fracture and related infection, she “has been advised that there
      are no treatment options that would improve the condition of her
      left knee[,] leaving her permanently injured, disabled and
      damaged.” Id. at ¶ 17.

      These averments provide the factual backdrop and
      context for the allegations of negligence contained in
      paragraph 23 of the Amended Complaint. In conjunction
      with these allegations, paragraph 23 specifically details
      the legal theories of vicarious liability against the
      defendants. As alleged in paragraph 23, defendants are liable
      for, among other things, “failing to use due care,” “[e]mploying
      inappropriate or inadequate fall protection methods,” “[f]ailing to
      timely and properly prepare and/or have in place reasonable and
      appropriate measures to prevent plaintiff . . . from falling” and
      “failing to adhere to the standard of medical care in the
      community.” [First Amended Compl., 3/27/14,] at ¶ 23. Thus,
      read as a whole and in context, the Amended Complaint
      sufficiently put the defendants on notice as to the vicarious
      liability claims against them and allow them to put on a defense.

Shifletts’ Resp. to Lehigh Valley’s Prelim. Objs. to Shifletts’ First Am. Compl.,

5/1/14, at 9-10 ¶ 26 (emphasis added). The Shifletts’ explanation made no

reference to any claim regarding care in the TSU and instead focused only

on the defendants’ failure to prevent her fall in the PSU. On July 1, 2014,

the trial court overruled Lehigh Valley’s preliminary objections.




                                      -8-
J-A04021-17


      The case proceeded to discovery, and a trial date was set. On May 14,

2015 (more than three years after the events in the hospital that give rise to

this case), the Shifletts filed a motion for leave of court to amend their

complaint yet again.   This time, they stated that they sought to conform

their first amended complaint “to the evidence uncovered during discovery.”

Shifletts’ Mot. for Leave of Ct. to Amend Compl. to Conform the Pleading to

the Evid., 5/14/15, at 2. Their motion thus sought “leave to file a Second

Amended    Complaint   identifying   specific   nurses   responsible   for   [Ms.]

Shiflett’s post-surgical care by name and to include more specific facts

supporting [the Shifletts’] claims.” Id. at 4 ¶ 7. Specifically, the Shifletts

proposed to include the following new paragraphs in their pleading:

      14. One of [Lehigh Valley’s] employees, Terry Langham, has
      been identified as responsible for implementing fall precautions
      the evening of April 13, 2012 and the early morning of
      April 14, 2012. Nurse Langham documented Betty Shiflett as a
      high fall risk but failed to implement appropriate fall prevention
      interventions, including a bed alarm and/or bed check, proper
      footwear, fall risk identification methods and monitoring, thus
      increasing the risk that Betty Shiflett would suffer a fall.

                                 *     *    *

      20. On or about April 15, 2012, Betty Shiflett was transferred
      to Lehigh Valley Hospital’s Transitional Skills Unit (“TSU”).
      Transfer documents prepared by the defendants make no
      mention of Betty Shiflett having fallen while inpatient at Lehigh
      Hospital.

                                 *     *    *




                                     -9-
J-A04021-17


       22. As a result of Nurse Michels [Mahler’s5] failure to
       communicate Betty Shiflett’s complaints, Betty Shiflett received
       multiple rounds of physical and occupational therapy between
       April 15 and April 19, 2012, increasing the risk of additional
       injury to her already compromised knee and, as a result, the
       need for subsequent surgical intervention.

       23. On or about April 19, 2012, during a physical therapy
       session, a physical therapy assistant in the TSU heard the same
       “clicking noise” in Betty Shiflett’s left knee that Betty Shiflett had
       previously reported to Nurse Michels [Mahler]. The physical
       therapy assistant notified the nursing staff and an x-ray was
       ordered.

                                       *       *    *

       33. In addition to the allegations of negligence described in
       paragraphs 1 through 31 above, the injuries and permanent
       disabilities suffered by plaintiff Betty Shiflett were the direct
       result of the defendants’ negligence, by and through their
       agents, servants and/or employees and/or their ostensible
       agents, including Nurses Terry Langham and Kristina Michels
       [Mahler], following Betty Shiflett’s April 12, 2012 left knee
       revision surgery at Lehigh Hospital, which negligence includes:

              a.)   Failing to use due care or employ reasonable skill in
              the treatment administered to plaintiff Betty Shiflett;

              b.)   Employing inappropriate or inadequate fall protection
              methods, techniques and procedures in the care and
              treatment of plaintiff Betty Shiflett;

              c.)   Failing to timely and properly recognize that plaintiff
              Betty Shiflett was at significant risk for a post-operative
              fall;

              d.)   Failing to timely and properly prepare and/or
              otherwise have in place a patient care plan for plaintiff
              Betty Shiflett that would include appropriate monitoring
____________________________________________
5  According to the trial court opinion, “Nurse Michels Mahler’s name was
changed from Michels to Michels Mahler sometime between the date of Ms.
Shiflett’s hospital stay and trial.” Trial Ct. Op. at 7 n.4. According to Lehigh
Valley’s counsel, she changed her last name after marriage. N.T., 2/9/16, at
6.

                                           - 10 -
J-A04021-17


          and safeguards to reduce and/or eliminate her risk of post-
          operative fall;

          e.)    Failing to utilize and/or have in place reasonable and
          appropriate measures to prevent plaintiff Betty Shiflett
          from falling after her April 12, 2012 knee revision surgery,
          including but not limited to, full bed side rails, proper
          monitoring of Plaintiff in her bed, increased rounding, use
          of a bed alarm and/or bed check; use of appropriate non-
          skid socks; notification to Curtis Shiflett that his wife was a
          high fall risk; and notification to Curtis Shiflett that he
          could spend the night at his wife’s bedside to reduce the
          risk of a fall;

          f.)  Nurse Michels[ Mahler’s] failure to timely notify
          Betty Shiflett’s physicians and physical therapists
          about Betty Shiflett’s post-surgical complaints of
          increased left knee weakness and buckling,
          increasing sharp pain in her left knee and a clicking
          noise in her knee;

          g.)    Failing to select and retain competent physicians and
          staff;

          h.)  Failing to properly oversee the professional staff
          working in Lehigh Hospital; and

          i). Failing to adhere to the standard of medical care in the
          community.

                                *     *      *

     41. In addition to the allegations of negligence described in
     paragraphs 1 through 39 above, the injuries and permanent
     disabilities suffered by plaintiff Betty Shiflett were the direct
     result of the defendants’ negligence following her April 12, 2012
     left knee revision surgery at Lehigh Hospital which negligence
     includes:

                                *     *      *

          g.)  Failing   to   properly   train  and   educate
          professional staff to identify and report worsening
          physical symptoms and complaints


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J-A04021-17


[Proposed] Second Am. Compl., 7/2/15, at ¶¶ 14, 20, 22-23, 33, 41(g)

(emphases added). Thus, for the first time, the proposed second amended

complaint sought to add allegations of negligence regarding Ms. Shiflett’s

care in the TSU in the days following her fall.

      Lehigh Valley opposed the motion for leave to amend.            In its

opposition, Lehigh Valley argued:

      The entire gist of the [First Amended] Complaint concerns fall
      prevention strategies. However, [the Shifletts] now seek to
      amend the Complaint to assert claims for care provided between
      August 14, 2012 and August 19, 2012. . . . [W]hat was a “fall
      prevention” case, is now a case with regard to nursing
      malpractice relative to the signs and symptoms of a displaced
      fracture.

Br. in Supp. of Answer to Pls.’ Mot. for Leave of Ct. to Amend Compl. to

Conform the Pleading to the Evid., 6/11/15, at 1-3. Lehigh Valley contended

that the proposed amendment would “add a complete new cause of action”

that was barred by the statute of limitations because it concerned events

that occurred in April 2012, more than two years before the proposed

amendment. Suppl. Br. in Supp. of Answer to Lehigh Valley’s Mot. for Leave

of Ct. to Amend Compl. to Conform the Pleading to the Evid., 6/12/15, at 1.

      On June 12, 2015, the trial court granted the Shifletts’ motion for

leave to file the second amended complaint, and the Shifletts filed that

pleading on July 2, 2015 (“Second Amended Complaint”).         As filed, the

Second Amended Complaint was identical to the proposed pleading that had

been attached to the Shifletts’ motion for leave to amend.    Lehigh Valley



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J-A04021-17


filed a motion for reconsideration, which the trial court denied on July 10,

2015.

         Meanwhile, the parties continued to prepare for trial. On July 6, 2015,

Dr. Robert C. Erickson II, the Shifletts’ medical liability expert and an

orthopedic surgeon, submitted an expert report in which he opined that

Ms. Shiflett’s fall resulted in the trauma to her knee.

         One of the contested issues in the case concerned Ms. Shiflett’s claim

for damages from depression that she contended was the result of her

hospital injuries. Lehigh Valley contended that the depression was caused

by her son’s arrest for a sexual offense involving a close family member. On

January 20, 2016, the parties recorded a deposition of Robert W. Mauthe,

M.D., a physician specializing in physiatry and rehabilitation who was

identified as an expert witness for the defense. Mauthe Dep. at 5-6. Dr.

Mauthe stated that in his examination of Ms. Shiflett she had stated that

both her knee injury and her son’s issues contributed to her depression. Id.

at 41.

         Trial commenced on February 1, 2016.      During pretrial proceedings,

the Shifletts moved in limine to preclude Lehigh Valley from introducing

evidence that Ms. Shiflett’s adult son had been convicted of corruption of a

minor.     N.T., 2/2/16, at 4.   The trial court precluded Lehigh Valley from

presenting the details of Ms. Shiflett’s son’s criminal history and “the nature

of the son’s offense” but allowed it to inquire generally about the son’s “legal



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J-A04021-17


problems”   as    a   proposed   alternative   explanation   for   Ms.   Shiflett’s

depression. Id. at 10-11.

      At trial, Nurse Cynthia Balkstra testified for the Shifletts that Lehigh

Valley had inappropriate fall prevention guidelines in place.       When asked

about the appropriate use of the guidelines, Nurse Balkstra explained:

      [A.] The purpose of the guidelines, again, is to make sure that
      you use them. So the more regular — the more regular use of
      them, the more discussion about them, the more promotion of
      them the better because staff — I mean, it’s easy — there’s lots
      of things to remember as a nurse, and it’s easy for a staff person
      to forget exactly what is in the guidelines.        So the more
      emphasis, the more reeducation to the guidelines the better.

      Q.    Is reviewing the guidelines during orientation and not
      looking at them again, is that an appropriate use of the
      guidelines in your opinion as a nurse?

      A.    No.

N.T., 2/3/16, Tr. of Cynthia Balkstra, at 45-46.

      Nurse Balkstra further testified that, based upon her review of the

records, Nurse Langham had scored Ms. Shiflett as a “six” on her fall risk

assessment, indicating a “high risk for falling.” N.T., 2/3/16, Tr. of Cynthia

Balkstra, at 49-50. Nurse Balkstra continued:

      [A.] My opinion is that the staff were not educated frequently
      enough on the use of the guidelines, and specifically the use of
      the guidelines per the risk.

      So in other words, the high risk measures, strategies to prevent
      a fall were not utilized with Ms. Shiflett. And it — from what Ms.
      Langham’s deposition stated, that she really didn’t treat[] a six
      any different than she would have treated a two.




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J-A04021-17


       So that’s a failure to educate, properly on the use of the
       guidelines, which you spend a lot of effort putting together. So
       you definitely want to use them appropriately.

       Q.     Did you reach a conclusion as to whether or not Lehigh
       Valley[’s] failure to appropriately train its nursing staff how to
       use fall precautions guidelines increased the risk of [Ms.] Shiflett
       falling?

       A.    Yes, in this case it did because with a score of six, more of
       those high risk measures should have been put into place.

Id. at 69-70.

       Ms. Shiflett testified that she “feel[s] that there’s nothing more to live

for” and that her knee is “very embarrassing.” N.T., 2/4/16, at 106, 109.

She added that her husband has to shower her, and she can only dress

herself “from the waist up,” since she “cannot bend down.” Id. at 106. She

continued that she has pain “[a]ll the time,” including in her back.      Id. at

107.   She further testified that, while she can ride as a passenger in an

automobile, she cannot “go far,” because travelling causes her too much

pain. Id. She also mentioned that she was wearing a brace while she was

testifying. Id. at 109. She concluded her direct examination by noting that

she and her husband have contacted other doctors in New Jersey, New York,

and Philadelphia, and all of them agreed that her knee could not be repaired,

since she needed a new tendon and a new kneecap.

       On February 5, 2016, Dr. Erickson testified that he reviewed Lehigh

Valley’s medical records regarding Ms. Shiflett, which also included her

physical therapy evaluations from before and after the fall. N.T., 2/5/16, at

34-35, 42. Based on that review, he opined that Ms. Shiflett’s fall out of bed

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J-A04021-17


caused her to sustain a non-displaced fracture.        On the day after her

surgery, Ms. Shiflett’s leg had a range of 6º to 85º, which Dr. Erickson

explained was “great” for the “[f]irst day post-op.” Id. at 34-35.6 On the

day after her fall, April 15, 2012, Ms. Shiflett was in excruciating pain and

her range of leg motion had decreased to 20º to 65º.         Id.   The nursing

notes from the TSU recorded various symptoms of distress, including

continuing pain, buckling of her knee, and a need for maximum assistance

from staff. Id. at 48-49, 52-62. On April 19, after receiving physical and

occupational therapy between April 16 and 19 in the TSU, Ms. Shiflett was

diagnosed with the avulsion fracture. Dr. Erickson said this meant that the

physical therapy that Ms. Shiflett had been receiving in the TSU was “not

appropriate,” because “[t]he tendon keeps pulling and ultimately the quad

muscle gets strong enough that it pulls the large tendon, bone comes loose,

and this retinaculum tears.” Id. at 29-40, 47-48. In Dr. Erickson’s opinion,

Ms. Shiflett’s knee became displaced around April 19 due to the stress put

on it by the physical therapy in the TSU between April 16 and 19. Id. at 63-

64.

       Also on February 5, 2016, the Shifletts’ life care planner expert, Nurse

Nadene Taniguchi, testified about Ms. Shiflett’s damages, and, specifically,

her future medical costs. N.T., 2/5/16, at 124-56.


____________________________________________
6Dr. Erickson explained that when a leg is straight, it is considered at 0º;
when it bends to a normal sitting position, it is at 90º, a right angle; when
bent all the way back, it is considered at 120º. N.T., 2/5/16, at 34-35, 42.

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      At the close of the Shifletts’ case-in-chief later that day, Lehigh Valley

moved for a non-suit and/or directed verdict with respect to the claims

relating to Ms. Shiflett’s treatment at the TSU because those claims related

to a new cause of action that had not been pleaded within the period allowed

by the statute of limitations. N.T., 2/5/16, at 193.         The trial court denied

that motion.

      When court resumed on Monday, February 8, 2016, counsel and the

trial court had the following colloquy:

      THE COURT: Okay. Counsel, just so I understand – this will be
      on the record. The corporate negligence claim is only with
      regard to the TSU.

      [LEHIGH VALLEY’S COUNSEL:]          No. It’s with regard to the
      hospital. . . . My understanding is the corporate negligence was
      with regard to Terri Langham’s training on the fall prevention
      strategy.

      [SHIFLETTS’ COUNSEL]:            Yes. That’s true, Your Honor. It’s
      not –

      THE COURT:        That’s where the corporate negligence is?

      [SHIFLETTS’ COUNSEL]:            That’s right.

      THE COURT:        Is the fall?

      [SHIFLETTS’ COUNSEL]:            The fall itself, right.

      THE COURT: . . . And where is the vicarious liability? . . .

      [SHIFLETTS’ COUNSEL]: . . . The vicarious liability would be for
      Nurse Langham as well in failing to use appropriate procedures
      for the fall is one part of the vicarious liability. . . .

      THE COURT: . . . So vicarious liability is in both instances and
      the corporate negligence?


                                       - 17 -
J-A04021-17


      [SHIFLETTS’ COUNSEL]:            Just for the fall.

      THE COURT:         Is just for the fall. Is there vicarious liability in
      the fall also?

      [SHIFLETTS’ COUNSEL]:            Yes. . . .

      THE COURT: . . . [W]e’re going to have to instruct the jury both
      on corporate and vicarious.

N.T., 2/8/16, at 4-6.    The parties thus agreed that the Shifletts’ vicarious

liability claims related to both the fall in the PSU and the alleged diagnosis

failure in the TSU, but that the Shifletts made no claim (and thus sought no

jury instruction) for corporate liability against Lehigh Valley with respect to

the events that occurred in the TSU. See id.

      At the end of the court session on February 8, 2016, the trial court

presented counsel with a draft verdict sheet, see N.T., 2/8/16, at 115, which

(with instructions omitted) stated the following:

      1.    Do you find that Nurse Langham of the Lehigh Valley
      Hospital (Post Surgical Unit) was negligent?

      2.    Was the negligence of Nurse Langham of the Lehigh Valley
      Hospital (Post Surgical Unit) a factual cause of harm to Plaintiff
      Betty L. Shiflett?

      3.    Do you find that Nurse Michels Mahler of the Lehigh Valley
      Hospital (Transactional Skilled Unit) was negligent?

      4.     Was the negligence of Nurse Michels Mahler of the Lehigh
      Valley Hospital (Transitional Skilled Unit) a factual cause of harm
      to Plaintiff, Betty L. Shiflett?

      5.    Do you      find   that   Lehigh    Valley   Hospital   itself   was
      negligent?

      6.   Was the negligence of Lehigh Valley Hospital a factual
      cause of harm to Plaintiff, Betty L. Shiflett?

                                       - 18 -
J-A04021-17



After each question, the jury could answer “Yes” or “No.” The remainder of

the verdict sheet allowed for the calculation of damages but not for an

itemization of damages by claim. The next day, the parties agreed to this

verdict sheet. N.T., 2/9/16, at 4.

      Prior to closing arguments, the court confirmed with the parties that it

would instruct the jury on corporate negligence for failure to train and

supervise:

      [THE COURT:      T]ell me which of those options under
      corporate negligence, because there are like four different
      examples under the corporate negligence instruction.

      [SHIFLETTS’ COUNSEL]:           I think it was the failure to train,
      Your Honor.

      THE COURT:         What about supervise?

      [SHIFLETTS’ COUNSEL]:             And supervise – I think that’s right.
      . . . I think it’s going to be failure to supervise, Your Honor. And
      I think it’s also going to be failure to properly train employees.

      THE COURT:         Train and supervise.

N.T., 2/9/16, at 9-10.

      During his closing argument, the Shifletts’ counsel provided his

understanding of the verdict sheet to the jury:

      [T]he fifth question is about Lehigh Valley Hospital itself. So the
      first question is about Terri Langham. The next question’s about
      Nurse Michels [Mahler], but the fifth question is was the Hospital
      negligent? . . . [H]ow can it be that we have these policies and
      procedures in place for the sole purpose of preventing falls that
      are 75 percent accurate in predicting who’s going to fall, how
      can it be that we only have our nurses look at them once during
      orientation and never have them do it again. I submit to you


                                      - 19 -
J-A04021-17


      that’s negligent and that was just as big a cause as anything
      else.

N.T., 2/9/16, at 44-45.        During her closing argument, Lehigh Valley’s

counsel also provided her interpretation of liability allegations against her

clients as reflected on the verdict sheet:

      It is the plaintiff that must prove to you that Lehigh Valley
      Hospital committed either what we call corporate negligence or
      its nurses committed professional negligence. . . . They also
      have a claim for corporate negligence, which means Lehigh
      Valley Hospital didn’t train and supervise its nurses with regard
      to a fall prevention policy.

N.T., 2/9/16, at 52-53.

      The trial court then instructed the jury as follows:

      The issues, basically, in the framework, there are three different
      kinds of negligence which we need you to look at. One is Nurse
      Langham’s alleged negligence; one is Nurse Michels Mahler’s
      alleged negligence; and the other, which is a whole separate
      issue, is the corporate negligence of Lehigh Valley Hospital
      Network. . . . I just want you to know that because Nurse
      Langham and Nurse Michels Mahler were employees of Lehigh
      Valley Hospital, that if you find either or both of them negligent,
      that, in fact, a verdict would be against Lehigh Valley Hospital
      and not against them personally. . . .

      The next thing I’m going to do is describe to you the standard
      that is going to be applied to Question Number 5 which is: Do
      you find that Lehigh Valley Hospital itself was negligent? . . .
      Because that is a different type of negligence than the one I’ve
      been describing to you with regard to the nurses. . . . [T]his
      theory is called corporate liability of a health care provider. And
      it goes as follows, and this is the standard you are to apply to
      Question Number 5. A health care institution, in this case a
      hospital, is directly liable to the patient if it violates a duty that it
      owes to the patient to ensure the patient’s safety and well-being
      while under the care of the hospital. The following are the duties
      that a hospital must fulfill and that it cannot pass on to anyone
      else. A duty to oversee all persons who practice, including
      nursing care, within its walls as to patient care, and a duty to

                                       - 20 -
J-A04021-17


      adopt, formulate, and enforce adequate rules and policies to
      ensure quality care for the patients. If you decide that the
      hospital as an institution violated those duties, then you must
      decide whether the Hospital knew or should have known of the
      breach of that duty and that the conduct was a factual cause in
      bringing about the harm or injury.

N.T., 2/9/16, at 109, 113-14 (emphasis added). Although the trial court did

not explicitly instruct whether the corporate negligence claim was with

respect to the events that occurred in the PSU and/or the TSU, neither

counsel nor the court suggested that the corporate negligence claim related

to events in the TSU.     Significantly, at trial and in its brief to this Court

Lehigh Valley did not challenge this jury instruction as defective for failing to

specify the time period or location of the corporate negligence claim. See

generally N.T., 2/9/16; Lehigh Valley’s Brief.

      The jury returned its verdict later on February 9, 2016. Following the

verdict sheet, the jury found that (1) Nurse Langham (the nurse who was

alleged not to have employed proper fall-protection procedures in the PSU)

was not negligent (Question 1); (2) Nurse Michels Mahler (the nurse who

was alleged not to have reported Ms. Shiflett’s post-operative complaints in

the TSU) was negligent (Question 3), and her negligence was “a factual

cause of harm” to Ms. Shiflett (Question 4); and (3) “Lehigh Valley Hospital

itself was negligent” (Question 5), and “the negligence of Lehigh Valley

Hospital” was “a factual cause of harm” to Ms. Shiflett (Question 6). Verdict

Sheet, 2/9/16, at 1-2 ¶¶ 1, 3-6; see also Trial Ct. Op. at 2-3.         The jury

awarded the Shifletts $2,391,620 in damages; consistent with the verdict


                                     - 21 -
J-A04021-17


sheet, there was no breakdown of the verdict by claim. See Verdict Sheet,

2/9/16, at 3 ¶ 7. After the verdict was read into the record, the trial court

asked counsel, “Is there any business with the jury before we excuse them?”

N.T., 2/9/16, at 130. Lehigh Valley’s counsel asked for the jury to be polled

but did not object to the verdict. Id.

      On February 18, 2016, Lehigh Valley filed post-trial motions, including

a motion for judgment notwithstanding the verdict and a motion for a new

trial. Mots. of Lehigh Valley for Post-trial Relief & a New Trial, 2/18/16, at 4-

15 ¶¶ 21-75. Again, with respect to the vicarious liability claim regarding

Nurse Michels Mahler, Lehigh Valley maintained that “[w]hat was a ‘fall

prevention’ case became, by virtue of the Second Amended Complaint, a

case of nursing malpractice relative to the signs and symptoms of a

displaced fracture involving a different facility and a different time frame.”

Br. of Lehigh Valley in Supp. of Post-trial Mots., 4/29/16, at 8; see also

Reply Br. of Lehigh Valley in Supp. of Post-trial Mots., 5/26/16, at 3. Lehigh

Valley’s post-trial motions were denied by the trial court on June 30, 2016.

On July 18, 2016, judgment was entered against Lehigh Valley.

      Lehigh Valley appealed on July 29, 2016, and raises the following

issues for our review:

      A.    Whether the trial court erred in permitting the Shifletts to
      amend their Complaint a year after the statute of limitations
      expired and then not granting a non-suit and/or a directed
      verdict on the Shifletts’ negligence allegations related to the
      treatment in the [TSU] by Nurse [Michels] Mahler since such
      allegations were barred by the statute of limitations and there


                                     - 22 -
J-A04021-17


      was no expert testimony relative to causation for any alleged
      harm in the TSU?

      B.     Whether the trial court erred in permitting the Shifletts to
      amend their Complaint a year after the statute of limitations
      expired and then not granting a non-suit and/or a directed
      verdict on the Shifletts’ corporate negligence claim when such
      claim, to the extent it was related to the actions of Nurse
      [Michels] Mahler, was time-barred [by] the statute of
      limitations?

      C.     Whether the trial court erred in precluding evidence of the
      criminal history of [Ms.] Shiflett’s son since such evidence
      directly affected the level of damages she attributed to [Lehigh
      Valley’s] alleged acts of negligence and such evidence was
      directly relevant to her credibility?

      D.    Whether the trial court erred in permitting the Shifletts’ life
      care planner expert to testify on future medical expenses which
      were not reduced to present value?

      E.      Whether the trial court erred in allowing the Shifletts’
      liability expert, Dr. Erickson, to testify beyond the scope of his
      report?

      F.    Whether the trial court erred in denying remittitur where
      the jury’s award for future medical expenses was not supported
      by the evidence and the award substantially deviated from what
      can be considered reasonable compensation?

      G.    Whether the trial court erred in not granting judgment
      notwithstanding the verdict when the jury’s verdict finding that
      Nurse Langham was not negligent was inconsistent with its
      verdict finding [Lehigh Valley] liable for corporate negligence?

Lehigh Valley’s Brief at 6-7.

              Statute of Limitations Regarding TSU Claims

      Lehigh Valley contends that it was entitled to judgment as a matter of

law because the TSU claims added by the Second Amended Complaint were

barred by the statute of limitations.


                                        - 23 -
J-A04021-17


      Our standards of review when considering motions for a directed
      verdict and judgment notwithstanding the verdict are identical.
      We will reverse a trial court’s grant or denial of a judgment
      notwithstanding the verdict only when we find an abuse of
      discretion or an error of law that controlled the outcome of the
      case. Further, the standard of review for an appellate court is
      the same as that for a trial court.

      There are two bases upon which a judgment [notwithstanding
      the verdict] can be entered; one, the movant is entitled to
      judgment as a matter of law and/or two, the evidence is such
      that no two reasonable minds could disagree that the outcome
      should have been rendered in favor of the movant. With the
      first, the court reviews the record and concludes that, even with
      all factual inferences decided adverse to the movant, the law
      nonetheless requires a verdict in his favor. Whereas with the
      second, the court reviews the evidentiary record and concludes
      that the evidence was such that a verdict for the movant was
      beyond peradventure.

Reott v. Asia Trend, Inc., 7 A.3d 830, 835 (Pa. Super. 2010) (citations

and internal brackets omitted), aff’d, 55 A.3d 1088 (Pa. 2012).

      Lehigh    Valley   contends   that,     because   the   Second   Amended

Complaint’s new negligence allegations related to Ms. Shiflett’s treatment at

the TSU from April 15 to April 19, 2012, the TSU claim was barred by the

two-year statute of limitations applicable to tortious injuries. See 42 Pa.C.S.

§ 5524(2).     According to Lehigh Valley, “the statute of limitations had

expired on these new claims on April 19, 2014, more than [a] year before

the Shifletts sought leave to amend [in May 2015]. . . . Accordingly, a new

trial is needed to remedy this injustice.” Id. at 16, 21; see also id. at 50.

      Lehigh Valley emphasizes that the events in the TSU involving Nurse

Michels Mahler occurred during a different (later) time period from the

allegedly negligent conduct that had been alleged in the Shifletts’ prior

                                     - 24 -
J-A04021-17


pleadings, happened at a different location (the TSU, rather than her

hospital room), and were caused by different people (Nurse Michels Mahler

and the TSU staff, rather than the hospital staff).         According to Lehigh

Valley, the claims of negligence in the Ms. Shiflett’s hospital room relate to

the failure to take measures to prevent her from falling from her bed; the

claims of negligence in the TSU relate to a failure to inform TSU personnel of

Ms. Shiflett’s symptoms following her fall, which caused deferral of the

diagnosis of her injuries and allowed aggravation of those injuries during

therapy. See N.T., 2/3/16, Tr. of Cynthia Balkstra, at 61-64, 68-69; N.T.,

2/5/16, at 31, 39, 64, 66-69; Trial Ct. Op. at 2. Lehigh Valley claims that

the TSU events therefore constitute a separate cause of action from the

events that gave rise to Ms. Shiflett’s fall in her hospital room.

      The Shifletts answer that their second amended complaint “did not

plead a new cause of action for vicarious liability after the statute of

limitations had run.      Rather, it merely amplified the theory of vicarious

liability pled in the First Amended Complaint.” Shifletts’ Brief at 31 (citations

to the record omitted).

      The trial court agreed with the Shifletts, writing:

      Here, the amendment did not change the causes of action
      asserted against [Lehigh Valley], but merely amplified what had
      already been asserted in the Amended Complaint. . . . The
      language of the Amended Complaint is broad enough to
      encompass the specific allegations in the Second Amended
      Complaint. The Amended Complaint generally asserted that
      [Lehigh Valley] undertook and/or assumed a duty to plaintiffs to
      use reasonable, proper, adequate and appropriate medical care,
      services and treatment and to take appropriate measures to

                                     - 25 -
J-A04021-17


      avoid harm to Plaintiff Betty Shiflett.        Plaintiffs’ Amended
      Complaint, ¶ 19. Further, it asserted that [Lehigh Valley] was
      negligent, by and through their agents, servants and/or
      employees and/or their ostensible agents following Ms. Shiflett’s
      April 12, 2012, left knee revision surgery at [Lehigh Valley] for:
      "failing to use due care or employ reasonable skill in the
      treatment administered to Plaintiff Betty Shiflett; failing to select
      and retain competent physicians and staff; failing to properly
      oversee the professional staff working in Lehigh Valley Hospital;
      and failing to adhere to the standard of medical care in the
      community.” Id. at if 23(a), (f), (g), (h). Plaintiffs’ assertion in
      the Second Amended Complaint was a specific example of the
      asserted negligence against [Lehigh Valley]: one of [Lehigh
      Valley]’s    employees,     Nurse    Michels    Mahler,     following
      Ms. Shiflett’s April 12, 2012, surgery, failed to use due care or
      employ reasonable skill in the treatment administered to
      Ms. Shiflett when Nurse Michels Mahler failed to communicate
      Ms. Shiflett’s complaints about her sharp knee pain, clicking,
      instability, and buckling to a doctor or physical therapist causing
      an increased risk of harm to the compromised knee.

      The specific allegation against Nurse Michels Mahler amplified
      the timely-filed vicarious liability cause of action against [Lehigh
      Valley].   Accordingly, the Second Amended Complaint was
      properly permitted, the allegations of negligence against [Lehigh
      Valley] regarding Ms. Shiflett’s time in the TSU were not time-
      barred, and [Lehigh Valley’s] motion for directed verdict on that
      basis was properly denied.

Trial Ct. Op. at 8-9 (internal brackets and footnote omitted).

      The determinative question is whether the part of the Shifletts’ Second

Amended Complaint that sought recovery for post-operative events that

occurred in the TSU on April 15-19, 2012, stated a new cause of action that

had not been pleaded within two years of those dates — that is, by April 19,

2014. If so, then that portion of the Second Amended Complaint, which was

not filed until July 2, 2015, was time-barred. After reviewing the record, we

conclude that the trial court erred because the TSU claim was not mentioned


                                     - 26 -
J-A04021-17


in the Shifletts’ pleadings prior to the Second Amended Complaint and, most

importantly, when called upon to explain those earlier pleadings, the

Shifletts’ represented to both the trial court and Lehigh Valley that their

allegations related only to negligence leading to Ms. Shiflett’s fall in the PSU.

      The law governing deadlines for filing negligence claims is well-settled:

      In Pennsylvania, a cause of action for negligence is controlled by
      the two-year statute of limitations set forth in 42 Pa.C.S[.]
      § 5524(2). The statute of limitations begins to run as soon as
      the right to institute and maintain a suit arises; lack of
      knowledge, mistake or misunderstanding do not toll the running
      of the statute of limitations. It is the duty of the party asserting
      a cause of action to use all reasonable diligence to properly
      inform himself of the facts and circumstances upon which the
      right of recovery is based and to institute suit within the
      prescribed period.

Cappelli v. York Operating Co., 711 A.2d 481, 484–85 (Pa. Super. 1998)

(en banc) (brackets, citations, and internal quotation marks omitted).

      Under our rules of procedure, leave to amend a complaint is to be

liberally granted.   Hill v. Ofalt, 85 A.3d 540, 557 (Pa. Super. 2014).

Nevertheless, “[i]t is axiomatic that a party may not plead a new cause of

action in an amended complaint when the new cause of action is barred by

the applicable statute of limitations at the time the amended complaint is

filed.” N.Y. State Elec. & Gas Corp. v. Westinghouse Elec. Corp., 564

A.2d 919, 928 (Pa. Super. 1989) (en banc); see also Echeverria v.

Holley, 142 A.3d 29, 37 (Pa. Super. 2016) (“amendment introducing a new

cause of action will not be permitted after the statute of limitations has run

in favor of a defendant” (brackets and citation omitted)), appeal denied,


                                     - 27 -
J-A04021-17


169 A.3d 17 & 169 A.3d 18 (Pa. 2017); Junk v. East End Fire Dep’t, 396

A.2d 1269, 1277-78 (Pa. Super. 1978). “[T]he test is whether an attempt is

made to state facts which give rise to a wholly distinct and different legal

obligation against the defendant.”             Hodgen v. Summers, 555 A.2d 214,

215 (Pa. Super.) (citation omitted), appeal denied, 563 A.2d 888 (Pa.

1989).    The question is whether the operative facts supporting the claim

were changed, not whether the amendment presented a new category of

claim or theory of recovery. See id.7

       Two cases, with facts and procedural histories similar to those of the

current action, are instructive in resolving this issue. Chaney v. Meadville

Med. Ctr., 912 A.2d 300 (Pa. Super. 2006), was a malpractice action arising

from the death of an 18-year-old woman, Jessica Kimple.            On March 13,

2000, Kimple reported to Meadville Medical Center’s emergency room with a

cough and a high temperature.           She was examined by a Dr. Bollard, who

without ordering x-rays or laboratory tests, diagnosed viral bronchitis and

discharged Kimple with instructions to use an inhaler and to take over-the-

counter cough medicine. Two days later, on March 15, Kimple returned to
____________________________________________
7 “Fall prevention” and nursing malpractice claims are both types of medical
malpractice claims. See Freed v. Geisinger Med. Ctr., 971 A.2d 1202,
1206 (Pa. 2009) (nursing malpractice is medical malpractice); Ditch v.
Waynesboro Hosp., 917 A.2d 317, 319, 322 (Pa. Super. 2007) (fall from
hospital bed raised a claim of professional negligence/malpractice, not of
ordinary negligence), aff’d, 17 A.3d 310 (Pa. 2011). To establish a cause of
action for medical malpractice, a plaintiff must demonstrate: (1) a duty
owed by the medical professional to the patient; (2) a breach of that duty by
the professional; (3) that the breach was the proximate cause of the harm
suffered; and (4) that the damages suffered were a direct result of the
harm. Freed, 971 A.2d at 1206.

                                          - 28 -
J-A04021-17


the emergency room with much more serious symptoms. An x-ray revealed

signs of pneumonia and severe hypoxia (oxygen deficiency).          Kimple was

hospitalized and placed on a ventilator, and she died soon thereafter.       On

June 12, 2002, her estate brought a malpractice action against Dr. Bollard

and Meadville that, in an amended complaint, alleged lack of proper care

during Dr. Bollard’s March 13, 2000 examination and diagnosis of Kimple.

       On September 14, 2005, Kimple’s estate sought leave to amend its

complaint to add allegations that Dr. Bollard treated Kimple on March 17,

2000, after she was admitted to the hospital, and that his treatment of her

at that time was negligent. The trial court denied the motion on the ground

that it sought to allege new claims against Dr. Bollard that had not

previously been pleaded, and on appeal, this Court agreed, stating:

       [A] fair reading of the amended complaint does not include an
       averment of malpractice against Dr. Bollard for the treatment he
       administered to Kimple on March 17, 2000. Accordingly, the
       final three paragraphs of the Estate’s proposed amendment
       constitute an entirely new allegation of negligence against
       Dr. Bollard personally, and not just an amplification of the theory
       contained in the amended complaint.

912 A.2d at 304 (emphasis added).              This Court held, “The Estate was

properly barred from introducing a new theory of the case against

Dr. Bollard personally, as it had not put him on notice, before the statute of

limitations had expired, that his actions on March 17, 2000 constituted the

basis of its case against him.” Id. at 307-08.8

____________________________________________
8 Although the Estate’s complaint did not allege malpractice by Dr. Bollard
after March 13, 2000, it did allege malpractice by Meadville after that date,
(Footnote Continued Next Page)
                                          - 29 -
J-A04021-17


      Schweikert v. St. Luke’s Hosp. of Bethlehem, 886 A.2d 265 (Pa.

Super. 2005), was another malpractice case.        The plaintiff alleged that a

piece of sponge was left inside her abdomen during one of three surgeries

performed on January 10, January 12, and March 12, 1999, or “during the

wound care of her infected abdominal wound . . . by the visiting nurses” at

her home between January 27 and March 12, 1999. Id. at 267. More than

two years later, during his trial deposition, the plaintiff’s expert “added a

third possible option on which the foreign material could have been

introduced, that is during her post-operative hospitalization” between

January 12 and January 27, 1999. Id. The trial court refused to permit the

plaintiff to present that theory to the jury, because it was outside of her

pleading and barred by the statute of limitations. At trial, the jury found in

favor of the defendant hospital. On appeal, the plaintiff argued that the trial

court erred in prohibiting her from presenting the expert’s third theory and




(Footnote Continued) _______________________
asserting that Meadville’s doctors, nurses, and other staff were negligent in
that period in not recognizing Kimple’s signs of distress and treating her
appropriately in light of those signs. 912 A.2d at 307. This Court therefore
held that even though the proposed amendment specifying negligence after
March 13 stated a new time-barred claim against Dr. Bollard, it did not add a
new claim against the hospital, because the complaint had already “clearly
put [the hospital] on notice that the Estate was complaining about the care
rendered by [the hospital]’s agents from March 13th to 17th.” Id. at 307-
08. As discussed below, the claim regarding Nurse Michels Mahler did add a
new claim against the hospital, because the hospital was sought only to be
held vicariously liable for Nurse Michels Mahler’s conduct — not directly liable
for corporate negligence relating to events in the TSU. This aspect of the
case is therefore different from Chaney.

                                         - 30 -
J-A04021-17


in denying her leave to amend her complaint to add that theory to her

pleading. We disagreed.

     We first explained that the new theory advanced by the expert differed

from what the complaint alleged and therefore was properly barred:

     [T]he theory advanced by the expert that the sponge could have
     been introduced into her abdomen during post operative
     hospitalization. . . . was advanced by the expert in a deposition
     . . . well after the statute of limitations had run. The trial court
     found that because the proposed testimony deviated from the
     pleadings, it should be precluded under the discovery rules . . . .

        [The plaintiff] argues that the trial court ignored the “fair
     scope” test for the expert’s reports and/or that the language of
     her amended complaint subsumed the idea of negligent post
     operative care to account for the presence of the sponge. As to
     the first premise, [the plaintiff] would have us find the following
     language of the expert’s report all encompassing:

        Under no scenario can a physician or nurse be “excused”
        for leaving a sponge in a patient’s abdominal wall or cavity
        and/or not finding (or discovering) a sponge after it has
        been left inside of a patient causing an infection.

         [The plaintiff] posits the notion that because the expert’s
     (first) report discusses post operative wound care by visiting
     nurses, a suggestion that hospital nurses were responsible for
     introduction of the sponge could be extrapolated from the
     quoted passage, and would, therefore, come as no surprise. . . .

     . . . In his report, the expert expressly identified two possible
     time frames within which the introduction of the sponge might
     have occurred: during the surgical procedures of [January] or
     March of 1999, and during the ministrations of the visiting
     nurses after [the plaintiff]’s release from the hospital. No events
     during post surgical hospitalization are ever mentioned, and
     neither the general statement of practice nor any other section
     of the expert report refers to post operative hospital care.
     Accordingly, the trial court decision to exclude the expert’s newly
     introduced theory was proper.

886 A.2d at 268-69 (citations omitted).

                                    - 31 -
J-A04021-17


      We then turned to the plaintiff’s argument that she should have been

allowed to amend her complaint to add her expert’s new theory.              The

plaintiff contended that the theory was fairly encompassed by general

language already included in the complaint, which alleged that the plaintiff

received deficient post-operative care due to negligence “[i]n failing to

properly diagnose and treat the abdominal infection of [the plaintiff]

following   the   January   10,   1999   surgical   procedure   and   continuing

thereafter.” 886 A.2d at 269. She relied on our statement in Reynolds v.

Thomas Jefferson Univ. Hosp., 676 A.2d 1205, 1209-10 (Pa. Super.),

appeal denied, 700 A.2d 442 (Pa. 1996):

      General allegations of a pleading, which are not objected to
      because of their generality, may have the effect of extending the
      available scope of a party’s proof, such that the proof would not
      constitute a variance, beyond which a party might have been
      permitted to give under a more specific statement.

We disagreed, stating:

      We are not persuaded that Appellant’s eleventh-hour
      construction of this very vague language to constitute the instant
      claim is a mere amplification of an allegation in her complaint.
      Rather, the additional theory proposes another basis for recovery
      altogether, positing negligence committed by different
      tortfeasors during a different time frame. . . . Further, as the
      trial court accurately points out, this paragraph could only refer
      to a sponge left during surgery, the subject of the preceding six
      subparagraphs of the complaint.

         The Reynolds Court examined the holding of our Supreme
      Court in Connor v. Allegheny General Hospital, 501 Pa. 306,
      461 A.2d 600 (1983), that a complaint may be amended after
      the statute of limitations has run in order to specify other forms
      of a defendant’s negligence where the plaintiff does not seek to
      add new allegations of different negligent acts. The idea of
      pleadings is actually to convey notice of the intended grounds for

                                     - 32 -
J-A04021-17


        suit, not require the opponent to guess at their substance. . . .
        Even the most generous reading of the Rule permitting liberal
        allowance of amendment would not countenance the introduction
        of a new theory sought so late by Appellant. Here, too, the trial
        court’s decision to deny Appellant’s motion to amend was
        correct.

Schweikert, 886 A.2d at 269-70 (emphases added and some citations and

footnotes omitted).

        The facts of Chaney and Schweikert are similar to those presented

here.    In both Chaney and Schweikert, the malpractice plaintiff waited

until after the statute of limitations had run and then sought to amend the

complaint to allege claims based on medical treatment that occurred at a

different time period than had been alleged. And in each case, this Court

held that the plaintiff was properly barred from making that amendment,

because it would introduce a new theory of the case as to which the

defendant had not been put on notice before the statute of limitations had

expired. Chaney, 912 A.2d at 302-04, 307-08; Schweikert, 866 A.2d at

267-70.

        Here, the Shifletts’ amendment added claims of improper medical

treatment in the TSU after Ms. Shiflett’s fall from her hospital bed.       The

claims rely on different facts — a failure to report symptoms that would lead

to an earlier diagnosis — than those regarding the alleged negligence that

caused Ms. Shiflett’s fall. The time of the events is different, the location is

different, and the personnel who are alleged to have engaged in the

negligent conduct are different. While it is true that here, as in Chaney and


                                     - 33 -
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Schweikert, these events were part of a larger story regarding the

plaintiff’s medical care at the hands of a medical facility, they still are

separate acts that had to be pleaded within the statute of limitations to place

Lehigh Valley on notice of the claims and to enable Lehigh Valley to prepare

a defense.    See Junk, 396 A.2d at 1277-78 (emphasizing differences in

defenses relating to old and new claims). Because the Shifletts’ TSU claims

presented a new basis for recovery that was not pleaded before the statute

of limitations ran, the trial court erred in permitting amendment to add those

claims.

        We thus disagree with the trial court’s holding that “the amendment

did not change the causes of action asserted against [Lehigh Valley], but

merely amplified     what had already been asserted in the Amended

Complaint.” Trial Ct. Op. at 8. Notably, none of the trial court’s citations to

the Amended Complaint specifically discuss care in the TSU after April 15,

2012.     Instead, the trial court considered the very general allegations

relating to negligence following Ms. Shiflett’s knee surgery — and,

particularly, the general language in the subparagraphs of Paragraph 23 —

to relate to everything that happened after April 12, 2012, including the

events in the TSU after April 15. This same type of reliance on “very vague

language” in a pleading was rejected by this Court in Schweikert, 886 A.2d

at 269, and we hold that it was error here as well.

        The Supreme Court addressed when general allegations of negligence

can be used to expand negligence theories in a post-limitations amendment

                                    - 34 -
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in Connor v. Allegheny Gen. Hosp., 461 A.2d 600 (Pa. 1983). As part of

emergency medical treatment at Allegheny General Hospital, the plaintiff,

Mary Connor, was given a barium enema.               The barium leaked into her

abdominal cavity through a perforation in her colon, causing serious injuries.

Connor sued, claiming the hospital was negligent in perforating her colon,

causing the barium to leak into her abdomen, and “otherwise failing to use

due care and caution under the circumstances.” 461 A.2d at 601. After the

statute of limitations had run, Connor sought to amend her complaint to add

an allegation that the hospital negligently delayed removing the barium from

her abdomen. The trial court denied leave to amend, but the Supreme Court

reversed, holding that the amendment merely amplified the allegation that

the   hospital   had   failed   “to   use   due   care   and   caution   under   the

circumstances.” Id. at 602. The Court then added:

      If appellee did not know how it “otherwise fail[ed] to use due
      care and caution under the circumstances,” it could have filed a
      preliminary objection in the nature of a request for a more
      specific pleading or it could have moved to strike that portion of
      appellants’ complaint. Compare Arner v. Sokol, 373 Pa. 587,
      592-93, 96 A.2d 854, 856 (1953), citing King v. Brillhart, 271
      Pa. 301, 114 A. 515, 516 (1921) (“[T]he [plaintiff’s statement]
      may not be a statement in a concise and summary form of the
      material facts upon which the plaintiff relies . . .; but, if not, it
      was waived by defendant’s affidavit to and going to trial upon
      the merits . . . a defendant may move to strike off an insufficient
      statement, or, if it is too indefinite, may obtain a rule for one
      more specific. Failing to do either, he will not be entitled to a
      compulsory nonsuit because of the general character of plaintiff’s
      statement.”).      In this case, however, appellee apparently
      understood this allegation of appellants’ complaint well enough
      to simply deny it in its answer. Thus, appellee cannot now claim
      that it was prejudiced by the late amplification of this allegation
      in appellants’ complaint.

                                        - 35 -
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Id. at 602 n.3.    It is in light of this qualification that this Court stated in

Reynolds, 676 A.2d at 1209-10, that “[g]eneral allegations of a pleading,

which are not objected to because of their generality, may have the

effect of extending the available scope of a party’s proof.”

      Here, however, the general averments in the Amended Complaint on

which the trial court relied were objected to by Lehigh Valley.                  In

preliminary objections to the Amended Complaint (and, indeed, in similar

objections to the original Complaint), Lehigh Valley asked that they be

stricken or dismissed because they were too “general, vague and overbroad”

in failing to specify exactly what misconduct was being referenced.             The

Shifletts responded to Lehigh Valley’s objections by, in effect, providing a

more specific statement of what they were alleging. They emphasized that

the allegations “cannot be read in isolation” and then summarized the

“detailed   and   specific   allegations”   that   supported   the   more   general

averments. All of those specific allegations related to Ms. Shiflett’s fall in the

PSU and none related to alleged misconduct in the TSU.               The trial court

overruled Lehigh Valley’s preliminary objections after receiving the Shifletts’

explanation.

      Viewed in this context, the trial court erred in holding that the general

averments in Paragraph 23 of the Amended Compliant put Lehigh Valley on

notice of a claim regarding malpractice in the TSU after April 15, 2012. The

Amended Complaint made no reference to such events, and the Shifletts’


                                       - 36 -
J-A04021-17


explanation of the general averments made clear that they were speaking of

Ms. Shiflett’s fall from her bed, not anything that occurred days later in the

TSU. Lehigh Valley was entitled to rely on the representations made in that

explanation.

      Under Connor and Reynolds, it was error for the trial court to allow

the new negligence claim in the Second Amended Complaint on the basis of

Paragraph 23’s general allegations.     The TSU allegations were no “mere

amplification of an allegation in [the earlier] complaint,” but instead alleged

“another basis for recovery altogether, positing negligence committed by

different tortfeasors during a different time frame.” Schweikert, 886 A.2d

at 269. Because the Second Amended Complaint was filed after the statute

of limitations had run, the Shifletts’ vicarious liability claims based on those

new allegations were time-barred.

                           Corporate Negligence

                            Statute of Limitations

      We have concluded that the Shifletts’ vicarious liability claim relating

to the TSU was time-barred, but Lehigh Valley argues further that “the trial

court erred in allowing the Shifletts’ corporate negligence claim related to

the care provided in the TSU or by Nurse [Michels] Mahler to go to the jury

because the claims were barred by the statute of limitations” also. Lehigh

Valley’s Brief at 25.

      The Shifletts respond that Lehigh Valley “waived any objection to the

corporate negligence verdict,” because “on the record after the close of [the

                                     - 37 -
J-A04021-17


Shifletts’] case, counsel for both [the Shifletts] and [Lehigh Valley] agreed

that the corporate negligence claim was limited to the fall itself, not the care

in the TSU.” Shifletts’ Brief at 9 (citing N.T., 2/8/16, at 4-5). The Shifletts

also contend that the “record evidence supports the corporate negligence

verdict.” Id. at 16. In other words, the Shifletts contend that the corporate

negligence claim cannot be time-barred because it is not based on any

allegations relating to the events in the TSU.    See id. at 9, 16. The trial

court agreed with the Shifletts that Lehigh Valley “waived any challenge to

the jury’s verdict as to the corporate negligence claim,” because both sides

agreed during trial that “the corporate negligence claim was against [Lehigh

Valley] for failing to train and supervise the [PSU] nurses in fall prevention

strategy[,]” adding that “the corporate negligence claim did not assert any

wrongdoing against Nurse Michels Mahler in the TSU.” Trial Ct. Op. at 15-16

(citing N.T., 2/8/16, at 4-5; N.T., 2/9/16, at 9-10).

       The record reveals that the parties agreed, both parties’ counsel

argued, and the trial court instructed as follows: Question 1 on the verdict

sheet referred to Lehigh Valley’s vicarious liability for events in the PSU;

Question 3 on the verdict sheet related to Lehigh Valley’s vicarious liability

for events in the TSU; and Question 5 addressed Lehigh Valley’s corporate

liability.   N.T., 2/8/16, at 4-6; N.T., 2/9/16, at 9-10, 44-45, 52-53, 109,

113-14. Further, the parties agreed that there was no claim for corporate

negligence of Lehigh Valley with respect to events in the TSU. N.T., 2/8/16,

at 4-6.      Neither party argued to the jury that there was a claim against

                                     - 38 -
J-A04021-17


Lehigh Valley for corporate negligence in the TSU. See N.T., 2/9/16, at 44-

45, 52-53. Lehigh Valley did not seek a jury instruction seeking clarification

of the limited scope of this claim or object to the absence of such a

clarification from the instruction. We therefore agree with the trial court that

any argument by Lehigh Valley that the corporate negligence claim extends

to negligence in the TSU was waived. The corporate negligence claim

therefore could not have been barred by the statute of limitations.

                           Consistency of the Verdict

      Lehigh Valley also argues that “the trial court erred in not granting a

[judgment notwithstanding the verdict (“JNOV”)] when the jury’s verdict was

inconsistent (finding Nurse Langham not negligent but finding [Lehigh

Valley] negligent for failing to properly train her).” Lehigh Valley’s Brief at

48. Lehigh Valley contends:

      The evidence at trial to support the Shifletts’ corporate
      negligence claim was grounded in the alleged improper training
      of Nurse Langham (in the [PSU]) on [Lehigh Valley]’s fall
      prevention policies. The jury found that Nurse Langham did NOT
      commit negligence. Yet the jury also found [Lehigh Valley] liable
      for corporate negligence. . . . Given these inconsistent verdict
      findings, the trial court should have entered a JNOV on the
      corporate negligence claim.

Id. at 48-49 (emphasis in original; citations to the record omitted; citing

Thompson v. Nason Hosp., 591 A.2d 703 (Pa. 1991); Kit v. Mitchell, 771

A.2d 814, 818-19 (Pa. Super. 2001)).           The Shifletts reply that “the jury

verdict is consistent and even if it were not, [Lehigh Valley] has waived any

objection.” Shifletts’ Brief at 29.


                                      - 39 -
J-A04021-17


      “[I]f a party seeks relief upon grounds of verdict inconsistency, it must

forward a timely, contemporaneous objection upon the rendering of the

verdict.”   Criswell v. King, 834 A.2d 505, 513 (Pa. 2003) (emphasis

added). Here, Lehigh Valley did not object to any inconsistency between the

verdict regarding Nurse Langham and the verdict on corporate negligence at

the time they were entered.     N.T., 2/9/16, at 130.   Thus, it has failed to

preserve this challenge.

      In addition, we find no inconsistency between the verdicts. Our law on

how to address inconsistent verdicts is as follows:

      Generally, inconsistencies in jury verdicts are not permissible in
      civil actions in the Commonwealth. Inconsistency mandating a
      new trial most often occurs when a jury returns a verdict
      assessing liability on the part of a principal while finding no
      liability on the part of the agent when the only foundation for the
      principal’s liability is the imputed negligence of the agent under
      the doctrine of respondeat superior. However, every reasonably
      possible intendment is to be made in favor of the findings of a
      jury, and an inconsistency may justifiably be declared to exist
      only if there is no reasonable theory or conclusion to support the
      jury's verdict.

Walsh v. Pa. Gas & Water Co., 449 A.2d 573, 576 (Pa. Super. 1982)

(emphasis in original; citations and quotation marks omitted); see also

McDermott v. Biddle, 674 A.2d 665, 667 (Pa. 1996) (in civil cases, jury

verdicts are presumed to be consistent “unless there is no reasonable theory

to support the jury’s verdict”); Goldmas v. Acme Markets, Inc., 574 A.2d

100, 103 (Pa. Super. 1990) (“there is a presumption of consistency with

respect to a jury’s findings which can only be defeated when there is no



                                    - 40 -
J-A04021-17


reasonable theory to support the jury’s verdict” (citation omitted)).      We

conclude that it is reasonable to construe the verdicts here to be consistent.

      The verdict regarding Nurse Langham addressed her own personal

conduct in the PSU and her failure to prevent Ms. Shiflett’s fall. The verdict

regarding corporate negligence addressed Lehigh Valley’s conduct in setting

policies and procedures for fall-prevention in the PSU.      As the Supreme

Court stated in Welsh v. Bulger, 698 A.2d 581 (Pa. 1997):

      [C]orporate negligence is based on the negligent acts of the
      institution. A cause of action for corporate negligence arises
      from the policies, actions or inaction of the institution itself
      rather than the specific acts of individual hospital employees.
      Thus, under this theory, a corporation is held directly liable, as
      opposed to vicariously liable, for its own negligent acts.

698 A.2d at 585 (internal citations omitted).     Thus, in proving corporate

negligence, “an injured party does not have to rely on and establish the

negligence of a third party,” including a corporate employee.     Thompson,

591 A.2d at 707 (footnote omitted).

      “Pennsylvania recognizes the doctrine of corporate negligence as
      a basis for hospital liability separate from the liability of the
      practitioners who actually have rendered medical care to a
      patient.” Rauch v. Mike–Mayer, 783 A.2d 815, 826 (Pa.
      Super. 2001) (citation omitted).      The doctrine of corporate
      negligence imposes a non-delegable duty on the hospital to
      uphold a proper standard of care to patients. Id.

Seels v. Tenet Health Sys. Hahnemann, LLC, 167 A.3d 190, 205 (Pa.

Super. 2017). Thus, the fact that the jury found that Nurse Langham was

not negligent in causing Ms. Shiflett’s injuries does not preclude a finding

that the injuries were caused by Lehigh Valley’s corporate negligence.


                                    - 41 -
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      At trial, Nurse Balkstra testified that Lehigh Valley had appropriate fall

prevention guidelines in place, but that they were not appropriately used

because the staff were not educated frequently enough about them. N.T.,

2/3/16, Tr. of Cynthia Balkstra, at 44-46, 69-70.       She also testified that

Lehigh Valley’s failure to train its nursing staff appropriately about how to

use the fall prevention guidelines increased the risk of Ms. Shiflett falling.

Id. at 70. On the basis of this testimony, the jury may have held Lehigh

Valley liable for a failure to properly train and supervise its staff about

prevention of falls. See Rauch v. Mike–Mayer, 783 A.2d 815, 826-27 (Pa.

Super. 2001) (doctrine of corporate negligence imposes a non-delegable

duty on a hospital if it fails to oversee those practicing medicine within its

walls as to patient care and fails to formulate, adopt and enforce adequate

rules and policies to ensure quality care for the patients). Consistent with

such a finding, the jury also could have concluded that Nurse Langham was

not properly trained to implement appropriate fall-prevention procedures

and therefore was not personally responsible for Ms. Shiflett’s fall.

      Accordingly, after making every possible intendment in favor of the

jury’s findings and after considering every reasonable theory to support the

verdicts, we conclude that the trial court did not err in holding that the jury’s

finding of corporate negligence was consistent with its finding that Nurse

Langham was not negligent. See Reott, 7 A.3d at 835; McDermott, 674

A.2d at 667; Goldmas, 574 A.2d at 103; Walsh, 449 A.2d at 576.

Therefore, Lehigh Valley’s argument on this issue is meritless.

                                     - 42 -
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                    Scope of Dr. Erickson’s Testimony

      Lehigh Valley raises one evidentiary issue that relates to liability: “the

trial court erred in allowing the Shifletts’ liability expert, Dr. Erickson, to

testify beyond the fair scope of his report.” Lehigh Valley’s Brief at 41. We

review this issue for an abuse of discretion, as “[a]dmission or exclusion of

evidence rests within the sound discretion of the trial court, and we will not

reverse the court absent an abuse of discretion or error of law.” Webb v.

Volvo Cars of N. Am., LLC, 148 A.3d 473, 484 (Pa. Super. 2016), appeal

denied, 168 A.3d 129 & 168 A.3d 1294 (Pa. 2017).

      Lehigh Valley argues:

      The Shifletts’ liability expert, Dr. Erickson, provided a short, two
      and a half page report during discovery in this case. . . .
      Dr. Erickson also was allowed to testify, over [Lehigh Valley]’s
      objections, on physical therapy evaluations, including range of
      motion assessments, before and after her fall which had never
      been addressed in his report. . . . Dr. Erickson was further
      allowed to testify, over [Lehigh Valley]’s objection, as to his
      conclusions about the significance of [Ms.] Shiflett’s reports of
      “sharp pain” – again, an opinion not discussed in his report.

Id. at 41-42, 44 (citing Rep. of Dr. Erickson, 7/6/15; N.T., 2/5/16, at 34-37,

54-55). The Shifletts reply that “Dr. Erickson’s testimony did not go beyond

the fair scope of his report and caused no prejudice to [Lehigh Valley].”

Shifletts’ Brief at 46. They continue:

      [Lehigh Valley’s] arguments are clearly contradicted by a plain
      reading of Dr. Erickson’s report and there is no genuine
      argument that [Lehigh Valley] was surprised or prejudiced. . . .
      In light of Dr. Erickson’s expert report specifically opining about
      [Ms.] Shiflett’s substantial trauma and non-displaced fracture,
      his trial testimony was clearly within the fair scope of his
      opinion. . . . Lehigh Valley[’s] objection is not only contrary to

                                     - 43 -
J-A04021-17


      the law, but is completely impractical. . . . Dr. Erickson began
      his report by indicating that he reviewed all of the relevant
      medical records, including the records from “Lehigh Valley
      Hospital.” . . . Even if Dr. Erickson’s reference to one physical
      therapy note in the Lehigh Valley Hospital chart was somehow
      outside the fair scope of his opinion, it was harmless error.

Id. at 46, 48-50. In resolving this dispute, the trial court found that “Dr.

Erickson’s report was sufficient to include the testimony he provided

regarding the surgery and his testimony regarding how the fall resulted in

trauma to Ms. Shiflett’s knee and to further testify at trial that she suffered a

non-displaced fracture.” Trial Ct. Op. at 27.

      The parties and the trial court all rely upon Pa.R.C.P. 4003.5(c):

      To the extent that the facts known or opinions held by an expert
      have been developed in discovery proceedings under . . . this
      rule, the direct testimony of the expert at the trial may not be
      inconsistent with or go beyond the fair scope of his or her
      testimony in the discovery proceedings as set forth in the
      deposition, answer to an interrogatory, separate report, or
      supplement thereto. However, the expert shall not be prevented
      from testifying as to facts or opinions on matters on which the
      expert has not been interrogated in the discovery proceedings.

In Callahan v. Nat'l R.R. Passenger Corp., 979 A.2d 866 (Pa. Super.

2009), appeal denied, 12 A.3d 750 (Pa. 2010), this Court stated:

      Pa.R.C.P. 4003.5(c) does provide that the direct testimony of an
      expert may not be inconsistent with or go beyond the fair scope
      of the materials which have been developed during discovery.

         In deciding whether an expert’s trial testimony is within
         the fair scope of his report, the accent is on the word
         “fair.” The question to be answered is whether, under the
         circumstances of the case, the discrepancy between the
         expert’s pre-trial report and his trial testimony is of a
         nature which would prevent the adversary from preparing
         a meaningful response, or which would mislead the
         adversary as to the nature of the appropriate response.

                                     - 44 -
J-A04021-17



      We review a trial court’s ruling on this type of issue for an abuse
      of discretion.

Id. at 876-77 (citations omitted).

      We agree with the trial court that Dr. Erickson’s specific testimony at

trial is consistent with the fair scope of his report. In his report, Dr. Erickson

stated that he reviewed Lehigh Valley’s own records and, based on those

records, concluded that Ms. Shiflett’s fall resulted in the trauma to her knee.

In his trial testimony, Dr. Erickson specified which Lehigh Valley records he

reviewed, including the physical therapy range-of-motion assessments, to

deduce that Ms. Shiflett was not improving from the surgery as expected.

N.T., 2/5/16, at 34-37, 54-55.        Thus, Dr. Erickson’s testimony did not

present a new theory, and it was not inconsistent with his report.           See

Callahan, 979 A.2d at 876-77.        The trial court hence did not abuse its

discretion in permitting Dr. Erickson to testify about Ms. Shiflett’s physical

therapy assessments.

                            Damages and Retrial

      Lehigh Valley’s remaining arguments all relate to the damages award.

We need not reach Lehigh Valley’s specific damages issues, however,

because our holding that it was error to permit trial of the Shifletts’ time-

barred claim regarding negligence by Nurse Michels Mahler requires that

there be a new trial on, at the least, the issue of damages. It is impossible

to determine from the verdict sheet (which did not break down damages by

claim) whether all of the damages awarded by the jury were caused by Ms.

                                      - 45 -
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Shiflett’s fall in the PSU, or whether some portion of those damages was the

result of the negligence found to have taken place in the TSU. On remand,

there must be a new determination of damages that is limited to those

caused by the corporate negligence in the PSU.9

       The remaining question is whether the new trial should be limited to

only a determination of what amount of damages was caused by the

corporate negligence that led to Ms. Shiflett’s fall in the PSU, or whether

there should be a new trial on liability as well. A court has discretion to hold

a new trial solely on the issue of damages if: “(1) the issue of damages is

not ‘intertwined’ with the issue of liability, and (2) . . . the issue of liability

has been ‘fairly determined.’” Mirabel v. Morales, 57 A.3d 144, 152 (Pa.

Super. 2012); see Kiser v. Schulte, 648 A.2d 1, 7-8 (Pa. 1994); Troncatti

v. Smereczniak, 235 A.2d 345, 346 (Pa. 1967); Kraner v. Kraner, 841

A.2d 141, 147 (Pa. Super. 2004); Lambert v. PBI Indus., 366 A.2d 944,

955-57 (Pa. Super. 1976). “[L]iability is not intertwined with damages when

the question of damages is readily separable from the issue of liability.”

Mirabel, 57 A.3d at 152 n.8. The liability issue has been “fairly determined”

____________________________________________
9  On remand, the trial court is free to revisit the damages issues raised by
Lehigh Valley in this case. On Lehigh Valley’s Issue D regarding reduction of
life care expenses to present value, we direct the parties’ attention to
Tillery v. Children’s Hosp. of Phila., 156 A.3d 1233 (Pa. Super. 2017),
which was decided by this Court after the parties filed their briefs in this
case. On Issue C, regarding admissibility of the criminal history of Ms.
Shiflett’s son, the court is free to reweigh the competing arguments as it
exercises its discretion under Rule 403 of the Rules of Evidence, noting both
the potential for prejudice and potentially high probative value of the
proffered evidence.

                                          - 46 -
J-A04021-17


when liability has been found “on clear proof” under circumstances that

would not cause the verdict to be subject to doubt. Lambert, 366 A.2d at

956. Here, we have resolved the issues raised by Lehigh Valley regarding

the propriety of the liability verdict regarding its corporate negligence, and it

appears to us that the damages issue is readily separable from that liability

issue. We therefore see no impediment to limiting the new trial to damages

issues.

      In this situation, a limited new trial is the preferred course. In McNeil

v. Owens-Corning Fiberglas Corp., 680 A.2d 1145 (Pa. 1996), a jury

properly rendered a verdict in favor of the defendant on the plaintiff’s claim

that his cancer was caused by exposure to asbestos, but the trial court erred

in failing to present to the jury the plaintiff’s claim that asbestos exposure

caused his non-malignant injuries.     This Court ordered a new trial on all

issues, but the Supreme Court reversed that aspect of our decision,

instructing:

      This Court has consistently held that where the only trial errors
      disclosed in the record deal with specific and discrete issues, the
      grant of a new trial should be limited to those issues. In Messer
      v. Beighley, 409 Pa. 551, 187 A.2d 168 (1963), this Court held
      that where errors deal exclusively with damages, the new trial
      should be limited to damages. Likewise, in McKniff v. Wilson,
      404 Pa. 647, 172 A.2d 801 (1961), we held that since the only
      meritorious assignments of error involved damages, retrial
      should concern that issue alone. . . . The new trial ordered in the
      instant case, therefore, should be limited to the non-cancer
      claims, the lung cancer claim having already been fully litigated
      and resolved by a jury.

680 A.2d at 1148.


                                     - 47 -
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        The Supreme Court followed this course in Quinby v. Plumsteadville

Family Practice, Inc., 907 A.2d 1061 (Pa. 2006), in which it ordered a new

trial limited to determining whether the plaintiff’s alleged injury was caused

by the negligence established at trial. Coincidentally, Quimby was another

medical malpractice case relating to a fall in a hospital.10 That time,

however, the patient died. The Supreme Court held that on the facts proven

at trial, the decedent’s estate was entitled to a judgment in its favor on the

issue of negligence. 907 A.2d at 1075-77. But there remained a question

whether the decedent’s death resulted from his injuries in the fall. Because

negligence already had been established, the Court held that on remand,

“the only factual issue for the jury to determine is whether Decedent’s death

resulted from injuries sustained during the fall, thus warranting recovery of

those damages peculiar to a cause of action for wrongful death.”         Id. at

1077.

        We followed this same course in Shiner v. Moriarty, 706 A.2d 1228

(Pa. Super.), appeal denied, 729 A.2d 1130 (Pa. 1998). The plaintiff in that

case prevailed at trial on claims of abuse of process, wrongful use of civil

proceedings, and intentional interference with contractual relations, but the

jury did not apportion damages among each of the claims. After reversing

the judgment on the latter two claims, we held that a new trial on remand

should be limited to determining the amount of damages that were caused

by the abuse of process, explaining:
____________________________________________
10   The patient in Quimby, a quadriplegic, fell from an examination table.

                                          - 48 -
J-A04021-17


       The damages were assessed without regard to each specific
       cause of action. It is impossible to determine what portion of
       those damages was attributable to the equity and ejectment
       proceedings upon which liability was found for abuse of process.
       We find that a new trial on the issue of damages is warranted in
       these circumstances.

706 A.2d at 1242.

       Informed by these decisions, we remand for a new trial to determine

what damages were caused by Lehigh Valley’s corporate negligence relating

to Ms. Shiflett’s fall in the PSU.11

       Judgment vacated. Case remanded for a new trial consistent with this

opinion. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2017




____________________________________________
11 Our decision on this issue is hampered by the fact that the trial court has
not had an opportunity to opine on the appropriate scope of any retrial, and
the parties have had no cause to brief this issue before now. In light of this
fact, our remand is without prejudice to the authority of the trial court to
consider whether matters not brought to our attention caution against
limiting the retrial because, for example, the questions of damages and
liability are more closely intertwined than we have perceived. The trial court
may depart from our mandate only as to the scope of any retrial, and any
such departure must be supported by an appropriate record and
explanation.

                                          - 49 -
