J-A28033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

QUADINA BONILLA,                                IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

JEANES HOSPITAL,

                         Appellee                    No. 193 EDA 2015


             Appeal from the Judgment Entered February 4, 2015
             In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): 05051 January Term, 2012


BEFORE: GANTMAN, P.J., PANELLA, and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED: January 21, 2016

      Appellant, Quadina Bonilla, appeals from the judgment entered on

February 4, 2015, in favor of Jeanes Hospital in this medical malpractice

case. After careful consideration, we reverse and remand this matter for a

new trial.

      The trial court summarized the factual and procedural history of this

case as follows:

             [Appellant] brought this medical malpractice action against
      [Jeanes Hospital] alleging that the care provided to her in its
      emergency department on February 23, 2010 was negligent in
      that its staff failed to diagnose and treat cauda equina
      syndrome,      resulting  in   permanent    neurologic    deficits.
      [Appellant] alleged, inter alia, that [Jeanes Hospital’s]
      emergency department staff breached the standard of care in
      failing to properly diagnose and treat after she reported pelvic
      numbness, the lack of sensation when urinating, and the lack of
      feeling the urgency to urinate.
J-A28033-15


           At trial, [Jeanes Hospital] argued that [Appellant] never
     made such a report and that they did not breach the standard of
     care. They also presented a surveillance video which showed
     [Appellant] climbing the steps of her home while carrying
     shopping bags and climbing in and out of an automobile she was
     operating to pump gas. Armed with this video and her medical
     records, [Jeanes Hospital] suggested alternatively that
     [Appellant] either did not have cauda equina syndrome at the
     time she was seen by emergency department personnel, or that
     if she did have such ailment, its onset had occurred prior to her
     presentation and that any opportunity to address this malady
     had already passed. Furthermore, [Jeanes Hospital] argued that
     [Appellant] had significantly exaggerated the extent of her
     disability.

           [Jeanes Hospital] relied to a significant extent on the fact
     that on February 21, 2010, two days prior to her presentation to
     Jeanes Hospital, [Appellant] had visited St. Luke’s Hospital with
     complaints of pain in her low back that were almost identical to
     the complaints of low back pain that she alleged to have made in
     [Jeanes Hospital’s] emergency department on February 23,
     2010. All of the parties agreed that cauda equina syndrome was
     a condition that required immediate surgical intervention within
     hours of [Appellant] experiencing symptoms, and that if
     immediate intervention did not occur, the condition would
     become permanent and irreversible. [Appellant] was ultimately
     not able to meet her burden of proof by a preponderance of
     evidence that [Jeanes Hospital’s] proven negligence was the
     factual cause of the harm suffered by [Appellant]. Critical to the
     jury’s determination was [Jeanes Hospital’s] argument that if
     [Appellant] did have cauda equina syndrome, it had become
     irreversible by the point in time that she presented to its
     emergency department on February 23, 2010.

            During trial, the parties became involved in an evidentiary
     dispute that formed the factual nexus for the appeal filed by
     [Appellant]. This dispute concerned a document that the parties
     referred to as the Extended Discharge Instruction. Counsel for
     [Appellant] admitted to receiving a summary of the discharge
     instruction during discovery; however, he alleged that the
     Extended Discharge Instruction was not produced in response to
     his request for production of documents. As a result of review
     for this appeal, Counsel for [Jeanes Hospital] agreed that it failed
     to produce the Extended Discharge Instruction in the proper

                                    -2-
J-A28033-15


       course of discovery. . . . [Jeanes Hospital’s] Counsel admitted
       that he had not personally provided the document in question
       but believed [Appellant’s] Counsel had received the documents
       through some other means and, therefore, sought to introduce
       the Extended Discharge Instruction and offer it into evidence
       before the jury.

Trial Court Opinion, 5/8/15, at 1-3.

       After discovering that the extended discharge instructions had not

been disclosed prior to trial, Appellant made a motion for a mistrial on the

basis that introduction of this document “severely” prejudiced Appellant’s

case. N.T., 6/11/14, at 84. The trial court denied that motion for mistrial.

Id. at 93-94. The jury issued a verdict in favor of Jeanes Hospital on June

20, 2014. Appellant filed a post-trial motion on June 30, 2014, seeking a

new trial.    By order entered November 26, 2014, the trial court denied

Appellant’s post-trial motion. Appellant filed a notice of appeal on December

26, 2014.1     Pursuant to a praecipe for entry of judgment, judgment was

entered on February 4, 2015. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

       Appellant presents the following issue for our review:
____________________________________________


1
   Appellant’s notice of appeal indicates that she is appealing from the
November 26, 2014 order denying her post-trial motion. We note that an
order denying post-trial relief is interlocutory and generally not appealable
unless it is reduced to judgment. Dominick v. Hanson, 753 A.2d 824, 825
n.1 (Pa. Super. 2000). However, judgment in this case was entered by
order dated February 4, 2015; therefore, we will consider the appeal filed
after the entry of judgment. Id.; Pa.R.A.P. 905(a). This date is properly
reflected in the appeal paragraph.




                                           -3-
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       Whether the trial court’s order denying post-trial relief should be
       vacated, with instructions to enter a mistrial as previously
       requested by [Appellant], because Jeanes’ use of the Phantom
       Discharge Instructions subjected [Appellant] and her experts to
       “trial by ambush,” violated the Pretrial Order, and allowed
       Jeanes to unfairly attack the credibility of [Appellant] and her
       counsel.   The trial court’s refusal to declare a mistrial in
       response to these circumstances was “manifestly unreasonable.”

Appellant’s Brief at 2-3.

       Appellant argues that Jeanes Hospital failed to produce the extended

discharge instructions, which she refers to as the “phantom discharge

instructions,” during discovery but then inappropriately introduced them at

trial. Appellant’s Brief at 18. Appellant maintains that upon discharge from

Jeanes Hospital, she was presented with summary discharge instructions,

which she refers to as her “actual discharge instructions.” Id. at 22. These

discharge instructions were produced by Jeanes Hospital during discovery

and were Bates-stamped, along with all trial exhibits to which the parties

stipulated, prior to trial.         Id. at 22.   Appellant’s “actual discharge

instructions” did not include a warning to seek immediate medical attention

if certain symptoms presented themselves, but such warning was included

on the extended discharge instructions. Id. at 23.2 Appellant asserts that

Jeanes Hospital improperly presented these extended discharge instructions

during trial, despite the admission by Jeanes Hospital’s counsel that he had
____________________________________________


2
  Appellant maintains that the fact that her signature is on the “actual
discharge instructions,” but not on the extended discharge instructions, is
proof that she received only the summary discharge instructions. Id. at 26.



                                           -4-
J-A28033-15


not provided the extended discharge instructions to Appellant during

discovery or at any time prior to trial. Id.

      Furthermore,    Appellant   contends     that   the   extended    discharge

instructions were directly related to the issue of causation. Appellant’s Brief

at 19-20.   In his closing, Jeanes Hospital’s counsel argued that Appellant

was responsible for her injuries due to her failure to seek medical attention

for symptoms despite receiving detailed extended discharge instructions

directing her to seek such immediate medical attention.          Id. at 19-20.

Appellant maintains that Jeanes Hospital invited the jury to conclude that

Appellant was to blame for having cauda equina syndrome as a result of

failing to obey these detailed discharge instructions.       Id. at 21.     Thus,

Appellant argues that introduction of this evidence unfairly prejudiced her

position. Id.

      Additionally, Appellant posits the use of these undisclosed extended

discharge instructions negatively impacted the testimony of Appellant’s

expert witness, Physician’s Assistant (“PA”) Johanna Moore.            Appellant’s

Brief at 21. Based on the extended discharge instructions presented to her

during cross-examination, PA Moore conceded that the instructions satisfied

the standard of care required of Jeanes Hospital and that her previous

opinion to the contrary was “wrong.” Id. at 21, 29. Appellant contends this

concession and reversal of expert opinion negatively impacted her case. Id.

at 21, 29.      Thus, Appellant maintains that she was prejudiced by


                                     -5-
J-A28033-15


introduction at trial of the extended discharge instructions and, accordingly,

is entitled to a new trial. Id. at 20-21.

      Before reaching the merits of Appellant’s issue, we must first address

whether Appellant has waived her claim.        The trial court concluded that

Appellant waived this claim by failing to object to Jeanes Hospital’s counsel’s

introduction of the extended discharge instruction at trial and provided the

following explanation for its decision:

           This [c]ourt refused to grant a mistrial and denied
      [Appellant’s] motion for post-trial relief because she failed to
      make a timely specific objection to the introduction of the
      Extended Discharge Instruction at trial.

                                     ***

            [Appellant’s] motion to preclude the Extended Discharge
      Instruction and the motion for mistrial were made at a point in
      the trial where few viable, realistic options were available other
      than to give a curative instruction and provide [Appellant] with
      the opportunity to offer rebuttal evidence. This [c]ourt was not
      involved in the discovery process, and it knew nothing about
      [Jeanes Hospital’s] production of the various discharge
      instructions. By the time [Appellant] brought this matter to the
      attention of this [c]ourt, there was no way to preclude the
      content of the Extended Discharge Instruction because its
      content had been placed before the jury without objection on
      June 10th during the cross-examination of [Appellant] and Dr.
      Weihl. The discharge instruction was again introduced without a
      clear specific objection to its content on June 11th during the
      cross-exam of Johanna Moore, PA-C. This [c]ourt was unable to
      prevent what had already occurred; it was impossible to
      preclude what the jury had already seen and heard.

            In all fairness, this [c]ourt could not grant [Appellant’s]
      motion for mistrial because this case was in its fourth day of trial
      and there was no showing of intentional misconduct on the part
      of [Jeanes Hospital]. [Jeanes Hospital’s] Counsel averred that
      any failure on their part to produce the Extended Discharge

                                      -6-
J-A28033-15


      Instruction was inadvertent. It would have been unfair to force
      [Jeanes Hospital] to incur the expense and inconvenience of a
      second trial in a situation where [Appellant] completely failed to
      object until after the content of the discharge instruction was
      placed into evidence.

Trial Court Opinion, 5/8/15, at 8-9 (internal citation omitted).

      This Court has provided the following explanation with regard to

waiver on this basis:

             In order to preserve an issue for appellate review, a party
      must make a timely and specific objection at the appropriate
      stage of the proceedings before the trial court. Failure to timely
      object to a basic and fundamental error will result in waiver of
      that issue. On appeal the Superior Court will not consider a
      claim which was not called to the trial court’s attention at a time
      when any error committed could have been corrected. In this
      jurisdiction [. . .] one must object to errors, improprieties or
      irregularities at the earliest possible stage of the adjudicatory
      process to afford the jurist hearing the case the first occasion to
      remedy the wrong and possibly avoid an unnecessary appeal to
      complain of the matter.

Hong v. Pelagatti, 765 A.2d 1117, 1123 (Pa. Super. 2000) (internal

citations omitted).

      As noted, the trial court asserted that the content of the extended

discharge instructions was placed before the jury on June 10, 2014, during

the cross-examination of Appellant and one of Appellant’s expert witnesses,

Dr. Weihl, without objection. A review of the transcript reveals that instead

of Jeanes Hospital’s counsel physically producing the extended discharge

instructions during examination of these witnesses, Jeanes Hospital’s counsel

simply referred to the content of a set of discharge instructions. Specifically,

defense counsel questioned Appellant as to whether she remembered getting

                                     -7-
J-A28033-15


“discharge instructions from Jeanes Hospital.”          N.T., 6/10/14, at 68.

Appellant agreed that she had received discharge instructions. Id. at 68-70.

As noted, however, the discharge instructions to which counsel referred were

not presented to Appellant for her review. Id.

      Jeanes Hospital’s counsel also questioned Appellant’s expert, Albert

Weihl, M.D., about what he described as “very, very detailed extended

instructions” Appellant received upon discharge from Jeanes Hospital. N.T.,

6/10/14, at 191.     Dr. Weihl testified that he was aware that Appellant

received instructions upon her discharge from Jeanes Hospital. Id. Again,

defense counsel did not present the discharge instructions to Dr. Weihl for

review during this line of cross-examination. Id. at 191-192.

      Because neither Appellant nor Dr. Weihl was physically presented with

the   discharge   instructions   to   which   defense   counsel   was   referring,

Appellant’s counsel and the witnesses had no opportunity or reason to view

the instructions Jeanes Hospital’s counsel had referenced.         As such, the

discharge instructions as referenced by Jeanes Hospital’s counsel during

cross-examination of these two witnesses could be interpreted to have been

references to the discharge instructions Appellant received upon discharge.

Therefore, we cannot conclude that it was clear to the witnesses, the jury, or

Appellant’s counsel that by referring to “discharge instructions,” defense

counsel was referring to the extended discharge instructions, as opposed to

the summary instructions Appellant admitted receiving upon discharge from


                                       -8-
J-A28033-15


the hospital.      As a result, we cannot agree with the trial court that

Appellant’s counsel waived his objection to introduction of the extended

discharge instructions because he failed to object to reference of these

instructions during cross-examination of Appellant and Dr. Wiehl.

        The first time the extended discharge instructions were physically

introduced was on the third day of trial during cross-examination of

Appellant’s expert witness, PA Johanna Moore. N.T., 6/11/14, at 53. The

record reflects that during cross-examination of PA Moore, Jeanes Hospital’s

counsel showed her the extended discharge instructions. Id. When shown

a page of the extended discharge instructions, PA Moore indicated that she

had not seen that page before.3 N.T., 6/11/14, at 53. Appellant’s counsel

questioned where that page was located in the medical record. Id. Jeanes

Hospital’s counsel indicated it was from the discharge instructions.   Id. at

54. Appellant’s counsel further asked if the document was Bates-stamped,




____________________________________________


3
    This discharge instruction included the following statement:

        Seek immediate medical attention if you have numbness,
        tingling, weakness or problems with your use of your arms or
        your legs, you experience severe back pain not relieved with
        medications, there is a change in bowel or bladder control, you
        have increasing pain.

N.T., 6/11/14, at 56.




                                           -9-
J-A28033-15


and defense counsel responded that it was not.4             Id.   The court directed

defense counsel to show Appellant’s counsel the document, and then

directed Jeanes Hospital’s counsel to proceed. Id. Jeanes Hospital’s counsel

continued with a few more questions, at which point, Appellant’s counsel

stated, “Objection, Your Honor.”          Id. at 55.   The trial court overruled the

objection. Id. at 56.

         After the court dismissed the witness, Appellant’s counsel indicated to

the court that he wanted to “put something on the record.” Id. at 78. At

that point, Appellant’s counsel indicated that the discharge instructions

shown to the witness had not been produced during discovery. Id. at 79.

The trial court questioned Appellant’s counsel as to why he did not ask for a

sidebar so that the issue could have been addressed. Id. at 79. Appellant’s

counsel indicated that he was not certain that the document had not been

produced until he had an opportunity to review the voluminous record. Id.

at 79.

         Given the surrounding circumstances, we conclude that the basis of

Appellant’s counsel’s objection was apparent. As soon as the document was

provided to PA Moore, Appellant’s counsel questioned the source of the

document and why it was not Bates-stamped.               The basis of the objection

was apparent to the trial court as evidenced by the trial court’s failure to
____________________________________________


4
 The parties had stipulated to the exhibits to be used at trial and had the
documents Bates-stamped. N.T., 6/11/14, at 84.



                                          - 10 -
J-A28033-15


inquire as to the basis of Appellant’s objection before overruling it.       N.T.,

6/11/14, at 55-56. Thus, under the circumstances of this case, we decline

to find that Appellant waived this claim. Accordingly, we are constrained to

conclude that the trial court erred in determining that Appellant failed to

preserve this issue.

      Thus, we shall address the merits of Appellant’s claim. In reviewing a

trial court’s decision to deny a request by a party for a mistrial, we will

reverse only if the trial court committed an abuse of discretion or legal error

in denying the request.     Gorski v. Smith, 812 A.2d 683, 712-713 (Pa.

Super. 2002).

      In reviewing a trial court’s denial of a motion for a new trial, the
      standard of review for an appellate court is as follows:

            It is well-established law that, absent a clear abuse
            of discretion by the trial court, appellate courts must
            not interfere with the trial court’s authority to grant
            or deny a new trial.

                                     ***

            Thus, when analyzing a decision by a trial court to
            grant or deny a new trial, the proper standard of
            review, ultimately, is whether the trial court abused
            its discretion.

      Moreover, our review must be tailored to a well-settled, two-part
      analysis:

            We must review the court’s alleged mistake and
            determine whether the court erred and, if so,
            whether the error resulted in prejudice necessitating
            a new trial. If the alleged mistake concerned an error
            of law, we will scrutinize for legal error. Once we
            determine whether an error occurred, we must then

                                     - 11 -
J-A28033-15


            determine whether the trial court abused                its
            discretion in ruling on the request for a new trial.

Gurley v. Janssen Pharms., Inc., 113 A.3d 283, 288–89 (Pa. Super.

2015).

      With regard to discovery disputes, we have explained:

             Preliminarily, we note the “‘[t]he purpose of the discovery
      rules is to prevent surprise and unfairness and to allow a fair
      trial on the merits.’” Pennsylvania Rule of Civil Procedure 4019
      provides for sanctions if a party fails to provide discovery. “The
      decision whether to sanction a party, and if so the severity of
      such sanction, is vested in the sound discretion of the trial
      court.” When a court refuses to impose sanctions, we must
      review the evidence to determine whether the court abused its
      discretion.

Dominick v. Hanson, 753 A.2d 824, 826 (Pa. Super. 2000) (internal

citations omitted). According to Pa.R.C.P. 4019, a trial court may “make an

appropriate order” if a party “fails to make discovery or to obey an order of

court respecting discovery.” Pa.R.C.P. 4019(a)(1)(viii).           “[T]he decision

whether to sanction a party for a discovery violation and the severity of such

a sanction are matters vested in the sound discretion of the trial court.”

Philadelphia Contributionship Ins. Co. v. Shapiro, 798 A.2d 781, 784

(Pa. Super. 2002).    When a court refuses to impose sanctions, we must

review the evidence to determine whether the court abused its discretion.

Dominick, 753 A.2d at 826.       This Court has held that when a party has

failed to produce evidence during discovery, an appropriate sanction is

prohibiting admission of the evidence at trial. Duncan v. Mercy Catholic

Med. Ctr. of Southeastern Pa., 813 A.2d 6, 12 (Pa. Super. 2002).

                                     - 12 -
J-A28033-15


       During discovery in this case Appellant requested any documents

related to Appellant’s medical treatment at Jeanes Hospital.         Appellant’s

post-trial motion, Exhibit D (Letter, 6/24/10); Exhibit E (Letter, 7/27/10);

and Exhibit F (Letter, 8/12/10); Appellant’s first set of interrogatories, at ¶¶

37, 43.    Appellant also requested that Jeanes Hospital list and identify all

exhibits and documents it intended to use at trial.      Appellant’s first set of

interrogatories at ¶ 48.       Jeanes Hospital answered, indicating that it had

produced a complete record of Appellant’s hospital records.           Exhibit H,

Appellant’s interrogatories (first set), with Jeanes Hospital’s answer, at ¶ 43.

It further reserved the right to supplement its answer to the interrogatory

asking for identification of documents or evidence to be produced at trial.

Id. at ¶ 48.        However, it is undisputed that the extended discharge

instructions used by Jeanes Hospital on the third day of trial were not

provided to Appellant during discovery or at any time prior to trial. 5 Thus,

admission of these extended jury instructions at trial violated the purpose of

the discovery rules, which is to “prevent surprise and unfairness and to allow

a fair trial on the merits.”      Dominick, 753 A.2d at 826.    Accordingly, we


____________________________________________


5
  During argument on Appellant’s post-trial motion, Jeanes Hospital’s counsel
admitted that he did not produce the extended discharge instructions to
Appellant’s counsel. N.T., 10/30/14, at 54-55. Jeanes Hospital’s counsel
alleged: “As a matter of fact, I didn’t have the extended instructions until
the morning [Appellant] testified.” Id. at 55.




                                          - 13 -
J-A28033-15


conclude that the extended discharge instructions should not have been

admitted at trial.

      This determination, however, constitutes only part of the requisite

analysis.   We must also determine whether admission of this evidence

prejudiced Appellant. “It is axiomatic that ‘the...admission of evidence, even

if erroneous, is not considered a ground for a new trial where no harm or

prejudice has resulted.’” Duncan, 813 A.2d at 12.

      In order to find that the trial court’s evidentiary rulings
      constituted reversible error, such rulings must not only have
      been erroneous but must also have been harmful to the
      complaining party. Appellant must therefore show error in the
      evidentiary ruling and resulting prejudice, thus constituting an
      abuse of discretion by the lower court.         Based upon such
      showing, our only remedy is to grant a new trial.          When
      improperly admitted testimony may have affected a verdict, the
      only correct remedy is the grant of a new trial.

Collins v. Cooper, 746 A.2d 615, 619-620 (Pa. Super. 2000) (internal

citations and quotation marks omitted) (emphasis in original).

      In this case, we are constrained to conclude that the improperly

admitted extended discharge instructions indeed may have affected the

verdict.    As the trial court identified, defense counsel referred to the

extended    discharge   instructions   in   his   cross-examination   of   two   of

Appellant’s witnesses. Reference to “discharge instructions” was confusing

in that there were two separate sets of discharge instructions, which fact

came to light after these witnesses testified. Thus, reference to “discharge

instructions” had been made throughout trial without distinction between


                                       - 14 -
J-A28033-15


those that Appellant admitted she actually received, and those extended

discharge instructions that were not produced by Jeanes Hospital.           There

was no way to go back and clarify the witness’s testimony or the jury’s

understanding regarding the different discharge instructions.

     Furthermore, Jeanes Hospital’s counsel posited that Appellant arguably

caused her injuries by failing to heed the warning to seek immediate medical

help as stated on the extended discharge instructions.       Jeanes Hospital’s

counsel made the following argument during his closing:

           I’m going to suggest to you that the truth in this case is
     that the responsibility for Ms. Bonilla’s injuries, the problem does
     not lie with Jeanes Hospital. Her problems, her disc was not
     caused by Jeanes Hospital. The conduct of Jeanes Hospital did
     not increase the risk of harm. The case presented by [Appellant]
     when you take out all of the frills, you stop nicking around the
     edges and you focus on the real issues, the real medicine,
     confirms what we have said all along from day one.

           [Appellant] did not come to Jeanes Hospital with Cauda
     Equina Syndrome.       [Appellant] never made complaints of
     bladder problems, saddle anesthesia, or the inability to feel the
     urgency to urinate to anyone at Jeanes Hospital or before as she
     claims.

           Still, [Appellant] has somehow tried to manufacture a case
     to develop a theory against the very emergency medicine staff
     that made the correct diagnosis, instituted appropriate course of
     treatment, made appropriate standard of care recommendations.

           All [Appellant] had was back pain with radiculopathy. The
     sad reality is [Appellant] is a very poor historian. She has also
     shown a pattern and history of not following recommendations.
     That’s the truth.

          I’m not picking on [Appellant], but it is a fact. We know
     she was discharged from Jeanes Hospital with detailed
     discharge instructions. You saw them. Her true symptoms,

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J-A28033-15


     Cauda Equina did not become apparent, by her own sworn
     deposition and her own sworn trial testimony until several days
     after she left Jeanes Hospital.     The testimony is that she
     developed increased pain, total numbness from the waist down
     and total urinary incontinence around February 28th.

           That was the moment. That was what the record says.
     Despite this, she didn’t seek medical attention. She didn’t call
     911. She didn’t get any help from anyone. She told us that the
     reason that she didn’t do that is because she had an
     appointment with Dr. Weinik on March 2nd.          That’s just
     incredible.

            We heard that term subjective and objective. You may
     remember my example, I had with Dr. Noble yesterday. I’m not
     going to repeat it, but [Appellant] provided a subjective history
     on March 2nd at Temple.         There’s no doubt she’s a poor
     historian.

           There was no consistency in her history, no reliability in
     much of what she had to say. That’s [Appellant’s] standard of
     care. Is it negligence? I don’t know. That’s up for you to
     decide. Did it cause or contribute to her ultimate injury? I
     suggest that it did.

N.T., 6/18/14, at 52-55 (emphasis added).

     In light of Jeanes Hospital’s argument that Appellant caused her

injuries by not seeking immediate medical help, introduction of the extended

discharge   instructions   directing   Appellant     to   seek   medical   attention

immediately if she experienced certain symptoms, and Appellant’s failure to

do so, may have affected the verdict.           Thus, Appellant was prejudiced by

introduction of and reference to the extended discharge instructions.

     Additionally, Appellant’s expert witness PA Moore’s concession that her

prior opinion that the hospital had not met the required standard of care had

been erroneous, based on her review of the extended discharge instructions,

                                       - 16 -
J-A28033-15


may also have affected the verdict.             Although the trial court denied

Appellant’s motion for a mistrial, it did acknowledge the damage done to

Appellant’s case by this concession:

            [T]hat specific document that you confronted Ms. Moore
      with, I’m not sure that [Appellant] was confronted with that
      document.

            We have a little conundrum here. [Appellant’s counsel]
      said he never received that document. [Jeanes Hospital was]
      able, unfortunately, to secure what might be considered a major
      concession that [Jeanes Hospital] might not have been entitled
      to because the assumption by Ms. Moore, when she made that
      concession, is that [Appellant] had, in fact, received that
      document and we don’t know that to be true.

             So, how do I uncook that apple? I’ll give you some time to
      think about it. Again, I’m not suggesting that you did anything
      wrong. However, if [Appellant] never received that document,
      then Ms. Moore’s concession was inappropriate and you are not
      entitled to that concession if [Appellant’s counsel’s] assertion is
      true.

N.T., 6/11/14, at 82.

      Furthermore, we cannot agree with the trial court’s conclusion that the

admission of the extended discharge instructions was irrelevant to the jury’s

finding on the issue of causation. The trial court explained that:

      Although the jury found [Jeanes Hospital] was negligent in its
      provision of care to [Appellant], it also found that this negligence
      did not cause [Appellant] any harm. [Appellant] objected to the
      introduction of the Extended Discharge Instruction during the
      cross-examination of her liability expert, and the Extended
      Discharge Instruction was primarily relevant to the issue of
      [Jeanes Hospital’s] negligence which was decided in [Appellant’s]
      favor. Therefore, any error committed by this [c]ourt on this
      issue should be considered harmless because the evidence at
      issue was not relevant to the issue of causation.


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Trial Court Opinion, 5/8/15, at 10-11.

      While we agree that the jury found Jeanes Hospital negligent in its

provision of care to Appellant, we cannot agree with the trial court’s

conclusion that admission of the extended discharge instruction was

irrelevant to the issue of causation. Indeed, the jury concluded that Jeanes

Hospital’s negligence did not cause Appellant any harm.         However, it is

possible that the jury’s determination on this issue was influenced by its

belief that Appellant was the cause of her injuries for failing to follow the

instructions to seek immediate medical help.      Thus, we conclude that the

admission of the extended discharge instructions was relevant to the issue of

causation.    Accordingly, improper admission of the evidence was not

harmless error and resulted in prejudice to Appellant.

      While impossible to discern exactly the impact use of this evidence had

on the jury’s verdict, we are constrained to conclude that improper

admission of this evidence may have influenced the jury. As such, the trial

court abused its discretion in failing to grant a new trial. Collins, 746 A.2d

at 620 (“When improperly admitted testimony may have affected a verdict,

the only correct remedy is the grant of a new trial.”)(emphasis in original).

      We note the trial court’s position that any prejudice was cured by the

court’s action of providing the jury with a copy of the extended discharge

instruction along with a curative instruction addressing the discovery

dispute.   Trial Court Opinion, 5/8/15, at 7.   The trial court also offered to


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allow Appellant the opportunity to take the stand for a second time to testify

that she never received the extended discharge instructions, but Appellant’s

counsel declined that offer. Id.

      Despite the trial court’s attempts, we cannot agree that these steps

cured the prejudice to Appellant’s case.     The curative instruction was not

sufficient to clarify the confusion created throughout trial regarding the

“discharge instructions” and the fact that there were two separate sets of

discharge instructions, only one of which included the warning for Appellant

to seek immediate medical care. Additionally, while we need not comment

upon Appellant’s counsel’s strategic decisions, we cannot agree that if

Appellant had taken the stand to clarify the issue regarding the extended

discharge instructions, such action would have been sufficient to remedy the

prejudice caused to Appellant by introduction of the extended discharge

instructions.   Accordingly, we cannot agree that the trial court’s curative

attempts negate the need for a new trial.

      Judgment reversed.      Case remanded for new trial.        Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/21/2016

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