                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-29-2004

Corrigan v. Methodist Hospital
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4432




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"Corrigan v. Methodist Hospital" (2004). 2004 Decisions. Paper 456.
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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 02-4432




                                  JUDY CORRIGAN

                                           v.

                             METHODIST HOSPITAL;
                            SANFORD H. DAVNE, M.D.;
                              DONALD MYERS, M.D.

                                                Sanford H. Davne, M.D.,
                                                                   Appellant




                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                         D.C. Civil Action No. 94-cv-01478
                             (Honorable J. Curtis Joyner)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 27, 2004

       Before: SCIRICA, Chief Judge, FISHER and ALARCÓN*, Circuit Judges

                                 (Filed: July 29, 2004)




   *The Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
                               OPINION OF THE COURT


SCIRICA, Chief Judge.

       In this medical malpractice case, a physician found to have negligently performed

spinal surgery on his patient appeals contending that various errors by the trial court

should have resulted in a mistrial. We will affirm.

                                             I.

       On March 4, 1994, Judy Corrigan brought suit against Drs. Sanford Davne and

Donald Myers alleging, inter alia, negligence in implanting pedicle screws and rods

during spinal surgery performed on M arch 5, 1992. After a two-week trial, the jury

returned a verdict in favor of Corrigan for $400,000, assigning liability at 60% to Dr.

Davne and 40% to Dr. Myers. Drs. Davne and M yers moved for a new trial and moved to

alter and/or amend the judgment. The court granted their motion to amend the judgment

and adjusted the net verdict amount to $170,808.13, but the court denied their motion for

a new trial. Corrigan v. Methodist Hosp., 234 F. Supp. 2d 494, 497 (E.D. Pa. 2002). On

December 6, 2002, Dr. Davne alone filed this timely appeal alleging certain errors by the

District Court.

       We have jurisdiction under 28 U.S.C. § 1291.




                                              2
                                             II.

       Davne contends the District Court made certain prejudicial errors which

necessitate a new trial. A mistrial should not be granted unless errors “are so gross as

probably to prejudice the defendant and the prejudice has not been neutralized by the trial

judge before submission of the case to the jury.” United States v. Leftwich, 461 F.2d 586,

590 (3d Cir. 1972). Moreover, errors that likely did not affect the outcome of the case or

affect the substantial rights of the parties are considered to be harmless. Fed. R. Civ. P.

61; Barker v. Deere & Co., 60 F.3d 158, 164 (3d Cir. 1995). We review for abuse of

discretion. United States v. Xavier, 2 F.3d 1281, 1285 (3d Cir. 1993).

A.     Introduction of the value of Dr. Davne’s Acromed stock options

       During trial, the District Court permitted Corrigan’s counsel to question Dr. Davne

on his affiliation with Acromed, the manufacturer of the pedicile screws used in the 1992

surgery. But when Corrigan’s counsel attempted to question Dr. Davne about the value

of his stock options with Acromed, the court sustained objections by Dr. Davne’s counsel,

holding the value of the options was irrelevant. Against the court’s direction, counsel for

Corrigan then asked Dr. Davne if he had “recently exercised [the stock options] and made

a profit of a million dollars?” At side-bar, the court chastised counsel and then instructed

the jury to disregard the question regarding the stock options’ value. The court held the

medical defendants suffered no undue prejudice by the question, and a mistrial was not




                                              3
necessary. We hold the trial court remedied any possible prejudice with its curative

instruction.

B.          Admission of evidence of Dr. Davne’s financial relationship with Acromed for
            use as impeachment evidence

            Dr. Davne contends the District Court’s admission of evidence of his financial

relationship with Acromed violated Judge Bechtle’s Pre-Trial Order1 approving the class

settlement agreement in Multi-District Orthopedic Bone Screw Litigation, a class of

which Corrigan was a member.

            We see no conflict between the court’s actions and Judge Bechtle’s Pre-Trial

Order. The Order precludes claims in which an element of the claim is a financial

relationship with Acromed or an alleged conflict of interest based upon a financial

relationship with Acromed. But Dr. Davne’s financial relationship with Acromed was

never an element of the claim brought by Corrigan. The thrust of Corrigan’s suit was that

surgery was not indicated. Corrigan’s counsel presented evidence of a financial

relationship to demonstrate that Dr. Davne’s financial connection to Acromed may have




     1
         Order No. 117 reads:
           All settlement class members . . . are permanently BARRED and
           ENJOINED from initiating, asserting, or prosecuting any actions presenting
           Settled Claims against any party. Settlement Class Members . . . may not
           initiate, assert, or prosecute Orthopedic Bone Screw related claims, unless: .
           . . (b) the claim does not . . . (ii) have as an element of the claim financial
           relationships with AcroMed and/or an alleged conflict of interest based
           upon any such financial relationship (impeachment shall not be considered
           an element of a claim).

                                                  4
motivated him to use Acromed’s pedicle screw instrumentation in the 1992 surgery,

causing him to deviate from the due care he owed Corrigan. See 234 F. Supp. 2d at 503.

This financial relationship was not an element of the negligence claim. We see no error.

C.     Jury exhibits utilized by Corrigan’s counsel during closing arguments

       During trial, the District Court refused to admit into evidence excerpts of records

of Dr. Salkind, an expert for Corrigan. Nevertheless, during closing arguments,

Corrigan’s counsel presented to the jury an exhibit containing a summary of excerpts

from Dr. Salkind’s record entitled “NON INDICATIONS FOR SURGERY,” as well as

an exhibit featuring an enlarged copy of the records. Defense counsel moved for a

mistrial. The trial court denied the motion but instructed the jurors to disregard the

exhibits during their deliberations. The trial court acted properly. We see no error.

D.     Admission of evidence of Corrigan’s past and future lost wages

       Dr. Davne contends the District Court erred in admitting evidence of Corrigan’s

past and future lost wages during the damages phase of the trial. He claims Corrigan

failed to establish these damages were causally connected to the alleged negligence of Dr.

Davne. We review for abuse of discretion. Stecyk v. Bell Helicopter Textron, Inc., 295

F.3d 408, 412 (3d Cir. 2002).

       To introduce evidence of past or future lost wages, Corrigan must demonstrate that

Dr. Davne’s actions or omissions were a “substantial factor” in bringing about the lost

wages. First v. Zem Zem Temple, 686 A.2d 18, 22 n.3 (Pa. Super. 1996). At trial, Dr.



                                              5
Butler, a trial expert for Corrigan, testified the 1992 surgery “diminished” Corrigan’s

chances of returning to gainful employment. The District Court held this testimony

provided sufficient evidence to raise a jury question whether the defendant doctors’

negligence was a substantial factor in causing Ms. Corrigan to incur future lost wages.

We see no abuse of discretion.

E.     Expert testimony of Nurse Patterson

       Pennsylvania’s Professional Nursing Law, 63 P.S. § 211 et seq., prohibits nurses

from providing medical diagnoses or prescribing medical, therapeutic or corrective

measures. 63 P.S. § 212(1); see also Flanagan v. Labe, 690 A.2d 183, 185 (Pa. 1997).

The District Court allowed Nurse Terri Patterson to testify on behalf of Corrigan as a

nursing and rehabilitation expert. Dr. Davne objected to Patterson’s testimony, claiming

she essentially made a medical diagnosis by offering her opinions regarding what

medical, therapeutic or corrective measures should have been prescribed by Corrigan’s

physicians. The District Court found Patterson had not “diagnosed or otherwise

identified a disease afflicting [Corrigan] from her symptoms; it rather appears that she

reviewed Ms. Corrigan’s medical and treatment history and testified concerning what

types of treatment Ms. Corrigan could expect to receive from her doctors in the future.”

234 F. Supp. 2d at 500.

       On appeal, Dr. Davne contends Patterson recommended various therapeutic

treatment options, including psychological counseling, biofeedback and occupational



                                             6
therapy, and that those options were not suggested during the testimony of Corrigan’s

treating physician, Dr. Esterhai. But these treatment options appear to be the same or

closely related to those recommended by her other medical experts. Dr. Davne contends

Patterson’s medical “conclusions” were not substantiated by the other medical testimony

offered by Corrigan. But Patterson estimated Corrigan’s quantity, type and frequency of

future medical care needs and costs based on the records of numerous physicians’

diagnoses and prescriptions, in addition to telephone conversations with several of

Corrigan’s treating physicians. Reviewing the record, it is apparent that Patterson’s

testimony was primarily directed to Corrigan’s convalescence and future therapy. We see

no abuse of discretion in permitting her testimony.

F.     Jury instruction regarding increased risk of harm

       Finally, Dr. Davne claims the District Court did not adequately instruct the jury

that a physician’s conduct must be a substantial contributing factor to the patient’s

injuries in order for the physician to be liable. A jury charge can be grounds for a new

trial if the charge confuses or misleads the jury. See Von Der Heide v. Commonwealth,

Dep’t of Transp., 718 A.2d 286, 288 (Pa. 1998). We exercise plenary review over

whether the District Court correctly stated the appropriate legal standard, but review the

precise language employed in the charge for abuse of discretion. United States v.

Johnstone, 107 F.3d 200, 204 (3d Cir. 1997). We must examine the charge in its entirety,

not limiting our review to particular sentences or paragraphs in isolation. Id.



                                              7
       According to Dr. Davne, the District Court did not properly charge the jury on “a

substantial contributing factor.” He points to the following language in the charge:

       A causal connection between the injuries suffered and the defendant’s
       failure to exercise reasonable care may be proved by evidence that the risk
       of incurring those injuries was increased by the defendant’s negligent
       conduct.
       ...
       I further instruct you, members of the jury, that the plaintiff can recover if
       she can demonstrate by the preponderance of the evidence that the
       negligence of the defendant increased the risk of a permanent injury.

While this excerpt does not specifically mention “substantial contributing factor,” other

sections of the charge provide ample clarification. For example, the District Court

instructed the jury that “conduct [by the physicians] must have been a substantial factor in

bringing about the injuries in question.” The court restated this concept twice. 234 F.

Supp. 2d at 501. Furthermore, the court accurately noted in its memorandum dated

November 8, 2002, that the entirety of the charge “virtually mirrored” the Pennsylvania

Suggested Standard Jury Instruction applicable to this charge. We see no error in the jury

instructions.

                                             III.

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                              8
