throbber
J-A31033-17
`
`2018 PA Super 16
`
`
`
`v.
`
`ANITA E. TONG-SUMMERFORD, AS
`ADMINISTRATOR OF THE ESTATE
`OF MARVIN JEROME SUMMERFORD,
`DEC.
`
`
`
`
`
`ABINGTON MEMORIAL HOSPITAL
`AND RADIOLOGY GROUP OF
`ABINGTON, P.C. AND KRISTIN L.
`CRISCI, M.D.
`
`
`APPEAL OF: ABINGTON MEMORIAL
`HOSPITAL
`
` IN THE SUPERIOR COURT OF
` PENNSYLVANIA
`
`
`
`
`
`
` No. 3114 EDA 2016
`
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`Appeal from the Judgment Entered September 2, 2016
`In the Court of Common Pleas of Montgomery County Civil Division at
`No(s): No. 2010-35494
`
`
`
`v.
`
`ANITA E. TONG-SUMMERFORD,
`ADMINISTRATOR OF THE ESTATE
`OF MARVIN JEROME SUMMERFORD
`
`
`
`
`
`ABINGTON MEMORIAL HOSPITAL,
`RADIOLOGY GROUP OF ABINGTON,
`P.C., VALERIE BONICA, D.O. AND
`KRISTIN L. CRISCI, M.D.
`
`
`APPEAL OF: RADIOLOGY GROUP OF
`ABINGTON, P.C., AND KRISTIN L.
`CRISCI, M.D.
`
` IN THE SUPERIOR COURT OF
` PENNSYLVANIA
`
`
`
`
`
`
` No. 3310 EDA 2016
`
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`Appeal from the Judgment Entered September 2, 2016
`In the Court of Common Pleas of Montgomery County Civil Division at
`No(s): No. 2010-35494
`
`
`
`
`
`
`
`
`
`BEFORE: PANELLA, J., OLSON, J., and STEVENS*, P.J.E.
`
`____________________________________
`* Former Justice specially assigned to the Superior Court.
`
`

`

`J-A31033-17
`
`OPINION BY STEVENS, P.J.E.:
`
`FILED January 30, 2018
`
`In these consolidated appeals, Appellants Abington Memorial Hospital
`
`(hereinafter “AMH”); Kristin L. Crisci, M.D. (hereinafter “Dr. Crisci”); and
`
`Radiology Group of Abington, P.C. (hereinafter “RGA”) (hereinafter
`
`collectively, at times, “Appellants”) appeal from the judgment entered in the
`
`Court of Common Pleas of Montgomery County on September 2, 2016, at
`
`which time the trial court denied their respective post-trial motions, molded
`
`the verdict of $5,000,000 in favor of Anita E. Tong-Summerford, as
`
`administrator of the estate of Marvin Jerome Summerford, deceased,
`
`(hereinafter “Appellee”) to add delay damages in the amount of $947,157.53,
`
`and ordered the delay damages to be apportioned between the Wrongful
`
`Death Act and Survival Act claims in the same proportionate allocation as in
`
`the verdict: 30% ($284,147.26) to the Wrongful Death Act claim and 70%
`
`($663,010.27) to the Survival Act claim. Upon our review, we affirm.
`
`The trial court set forth the facts and procedural history herein as
`
`follows:
`
`On November 30, 2008, Marvin Summerford, age 88, was
`transferred to the emergency department of Abington Memorial
`Hospital (hereinafter, "AMH" or the "Hospital") from a long-term
`care facility. Mr. Summerford's past medical history included
`dementia, hypertension, congestive heart failure, and pulmonary
`insufficiency. On December 1, 2008, Mr. Summerford suffered
`cardiac arrest secondary to pneumonia, and a code was called due
`to pulseless electrical activity, decreased heart rate, and low blood
`pressure. Mr. Summerford survived and was transferred to the
`ICU.
`
`On December 2, 2008, a feeding tube was inserted and an
`order was placed for an x-ray to confirm proper placement.1 The
`
`- 2 -
`
`

`

`J-A31033-17
`
`x-ray revealed that the tube had been inadvertently inserted into
`the lung and was therefore removed. The feeding tube was re-
`inserted, and another x-ray was ordered to confirm proper
`placement. Again, the feeding tube was not properly placed.
`On the next day, December 3, 2008, Valerie Bonica, D.O.,
`an AMH resident, inserted a new feeding tube into Mr.
`Summerford. Dr. Bonica ordered a portable chest x-ray to confirm
`proper placement of the tube at 3:55 p.m. In response to this
`order, x-ray technologist Jillian Nickel, an AMH employee,
`performed a portable x-ray at 4:53 p.m. capturing the lower chest
`and abdomen.2 This image was interpreted by Kristin Crisci, M.D.,
`a radiologist, who incorrectly read the study as showing
`termination of the feeding tube in decedent's stomach when, in
`fact, it terminated in Mr. Summerford's left lung. Dr. Crisci signed
`her report at 5:33 p.m. She did not order additional imaging. In
`reliance upon Dr. Crisci's
`report, Dr. Bonica ordered
`administration of a feeding solution (Jevity) at 10 cc's per hour for
`the first eight hours. The first feed was administered at
`approximately 11:00 p.m. on December 3, 2008. From 11:00
`p.m. to 7:00 a.m. the next morning, 50 cc's of Jevity and 420 cc's
`of flush was administered through the feeding tube into Mr.
`Summerford's lung.
`Mr. Summerford's condition deteriorated. At 4:38 a.m. on
`December 4, 2008, Dr. Bonica placed a STAT order for portable
`chest x-ray to aid in the diagnosis/treatment of pneumonia. The
`x-ray was completed at 4:46 a.m. but was not analyzed by a
`radiologist until 8:13 a.m., at which time the radiologist
`recognized the feeding tube was positioned in Mr. Summerford's
`left lung. By this time, Mr. Summerford had already been
`pronounced dead at 7:11 a.m. on December 4, 2008.
`After a five-day jury trial, the jury returned a verdict on May
`13, 2016 in favor of [Appellee] and against [Appellants] AMH and
`Dr. Crisci/Radiology Group of Abington, P.C. (hereinafter, "Dr.
`Crisci")3 in the total sum of $5,000,000 ($1.5 million for the
`wrongful death claim and $3.5 million for the survival action
`claim). The jury apportioned liability as follows: AMH 25% and Dr.
`Crisci 75%. The verdict was molded to add Rule 238 delay
`damages for [Appellee] and against [Appellants], resulting in a
`molded verdict in the amount of $5,947,157.53.4
`AMH and Dr. Crisci each filed timely motions for post-trial
`relief seeking judgment n.o.v., a new trial, and remittitur.
`Following oral argument, on September 2, 2016 this court denied
`[Appellants'] post-trial motions, molded the verdict, and entered
`judgment on the jury verdict in favor of [Appellee] and against
`
`- 3 -
`
`

`

`J-A31033-17
`
`[Appellants]. Thereafter, AMH and Dr. Crisci filed timely appeals,5
`which were consolidated on November 7, 2016 by Order of the
`Superior Court. On October 4, 2016, the court ordered defendants
`to file a concise statement of errors pursuant to Pa. R.A.P.
`1925(b).
`
`____
`
` 1 The feeding tube is supposed to be inserted into the esophagus
`and end up in the stomach. However, due to the close proximity
`of the esophagus and trachea in the back of the throat and the
`difficulty visualizing the proper placement of the feeding tube for
`insertion, occasionally the feeding tube is inadvertently placed in
`the trachea instead of the esophagus. Accordingly, it is necessary
`that an x-ray be obtained to confirm proper placement of the tube
`into the stomach, as opposed to the lung, before feeding solution
`is administered through the tube. All parties agreed that it was
`not negligence for a feeding tube to be inadvertently inserted into
`the trachea instead of the esophagus. N.T. 05.09.16 (a.m.), p. 19.
`
` 2
`
` There was disagreement whether the image captured by the
`portable x-ray was an abdominal study or a lower chest study. Dr.
`Crisci testified that notwithstanding Dr. Bonica's order for a chest
`x-ray, the technologist performed an abdominal study. N.T.
`05.10.16 (p.m.), p. 93. [Appellee’s] expert Dr. Igidbashian
`testified that it was an abdominal study. N.T. 05.10.16 (a.m.), p.
`95. However, AMH's expert, Dr. Hani Abujudeh, testified that," ...
`this was not a chest x-ray. It was not an abdominal x-ray. It was
`a hybrid x-ray, between a chest and an abdomen." N.T. 05.11.16
`(p.m.), p. 144.
`
` 3
`
` It was stipulated that Dr. Crisci was an employee/agent of
`Radiology Group of Abington, P.C. ("RGA"). By agreement of all
`parties, Dr. Crisci and RGA appeared together on the verdict
`sheet. N.T. 05.12.16 (p.m.), p. 89-91.
`
` 4
`
` [Appellants] do not raise any issue on appeal regarding the
`addition of delay damages.
`
`5AMH appeal Docket Number 3114 EDA 2016; Dr. Crisci appeal
`Docket Number 3310 EDA 2016.
`
`Trial Court Opinion, filed 12/29/16, at 1-3.
`
`- 4 -
`
`

`

`J-A31033-17
`
`
`
`On October 18, 2016, Dr. Crisci and RGA filed a timely Concise
`
`Statement of Errors Complained of on Appeal wherein they raised ten (10)
`
`issues. On October 25, 2016, AMH filed its Statement of Matters Complained
`
`of on Appeal wherein it also set fourth ten (10) issues.
`
`
`
`In their brief, Dr. Crisci and RGA raise the following Statement of
`
`Questions Presented:
`
`
`
`judgment
`trial court have entered a
`the
`A. Should
`notwithstanding the verdict in favor of [Dr.] Crisci because
`[Appellee] failed to prove, by competent and sufficient
`evidence, her prima facie case of negligence against her?
`
`
`B. Whether the trial court erred in denying Appellants' Motion
`for a Non-Suit?
`
`
`C. Whether the trial court erred in denying a new trial on the
`basis of highly inflammatory and unfairly prejudicial
`statements made by Co-[Appellants’] radiology expert, Hani
`Abujudeh, M.D.?
`
`
`D. Whether the trial court abused its discretion and/or made
`an error of law in permitting [co-Appellants’] radiology
`expert, Hani Abujudeh, M.D., to testify to issues relating to
`the standard of care of Dr. Crisci, beyond the opinions
`testified to by [Appellee’s] expert, which resulted in
`prejudice to Dr. Crisci?
`
`
`E. Whether the trial court committed an abuse of discretion
`and/or an error of law in only granting in part the Motion in
`Limine filed by Crisci to preclude [Appellee’s] expert, Vartan
`Igidbashian, D.O., from testifying to causation issues
`outside his expertise?
`
`
`F. Whether the trial court committed an abuse of discretion
`and/or an error of law in denying a new trial because of
`improper statements made by [Appellee’s] counsel?
`
`
`
`- 5 -
`
`

`

`J-A31033-17
`
`G. Whether the trial court committed an abuse of discretion
`and/or an error of law in denying Appellants' Motion for
`Post-trial relief on the basis that statements made by
`[Appellee’s] counsel, in disregard of the [c]ourt's ruling on
`subsequent remedial measures, were highly and unfairly
`prejudicial to [Appellants]?
`
`
`H. Whether the trial court committed an abuse of discretion
`and/or an error of law in denying Appellants' Motion for
`Remittitur because [Appellee] failed to introduce sufficient
`evidence to support the Jury's unreasonable award of
`damages?
`
`
`I. Whether the trial court abused its discretion and/or made
`an error of law in denying Appellants' Motion for a New Trial
`on damages since the verdict was against the weight of the
`evidence?
`
`
`Brief of Appellants at 1-2.
`
`
`
`In its brief, AMH sets forth the following Statement of the Questions
`
`Involved:
`
`
`
`1. Whether this Court should grant a new trial on the basis that
`the trial court allowed [Appellee] to vigorously cross-examine a
`defense expert using industry guidelines, but where there was no
`foundation for the guidelines' applicability to the medical
`treatment at issue, and where this Court and the Supreme Court
`have repeatedly rejected the trial court's rationale that the
`Defendant should be made to rebut the improperly admitted
`evidence with cross-examination.
`
`2. Whether this Court should grant a new trial on the basis that
`the trial court allowed [Appellee] to introduce an adverse event
`notification letter, required by the Medical Care and Reduction of
`Error Act, in violation of the statute's express prohibition on using
`such letters as admissions of liability, where the letter introduced
`during testimony that it was an acknowledgement of the "truth"
`after several hours of lies.
`
`3. Whether this Court should grant a new trial on the basis that
`the trial court allowed [Appellee’s] expert to substantiate an
`opinion with analysis that is not within the fair scope of his report,
`
`- 6 -
`
`

`

`J-A31033-17
`
`thus lending credibility to his opinion that may have affected the
`verdict.
`
`4. Whether this Court should vacate the judgment and grant a
`j.n.o.v., or else remand for a new trial, because the evidence failed
`to establish the elements of causation and notice, or else the
`verdict was against the clear weight of the evidence on these
`points.
`
`5. Whether this Court should remand for a new trial or else vacate
`the judgment and grant a j.n.o.v., because the verdict concerning
`the taking of the x-rays by the technologist was against the weight
`of the evidence, or else was unsupported by necessary,
`competent, and qualified expert testimony.
`
`6. Whether this Court should, in this rare case, grant a new trial
`on damages or a remittitur, because the gross verdict amount
`shocks the conscience, and the factors analyzed for such an
`argument preponderate heavily in favor of reducing the award.
`
`
`Brief of AMH at 5-6.
`
`For ease of discussion, we first will consider the claims raised by Dr.
`
`Crisci and RGA and thereafter discuss those asserted by AMH. Where issues
`
`within each discussion are related, we will analyze them together.
`
`Initially, Dr. Crisci and RGA assert the trial court erred in failing to grant
`
`their motion for judgment notwithstanding the verdict (JNOV) due to
`
`Appellee’s failure to present competent evidence to support her negligence
`
`claim. Dr. Crisci and RGA also claim they are entitled to JNOV due to the trial
`
`court’s failure to grant their motion for a partial nonsuit on the issue of
`
`whether Dr. Crisci breached the standard of care in her interpretation of the
`
`thoracoabdominal x-ray of December 3, 2008. In doing so, they stress that
`
`while Dr. Igidbashian testified Dr. Crisci had breached the necessary standard
`
`of care when she did not order an additional study of the victim’s chest upon
`
`- 7 -
`
`

`

`J-A31033-17
`
`realizing an abdominal study had been done, he did not testify that there had
`
`been a breach in the standard of care with regard to Dr. Crisci’s interpretation
`
`of the actual study performed. Brief of Dr. Crisci and RGA at 13-14. Dr. Crisci
`
`and AMA reason that:
`
`
`
`[i]f Dr. Crisci read the study within the standard of care, the issue
`of whether another study should have been ordered was moot and
`should never have been considered by the jury. Without any
`testimony regarding a breach of the standard of care in the
`interpretation of the x-ray by Dr. Crisci, [Appellee] failed to satisfy
`her burden of proving a prima facie case of negligence and
`therefore, JNOV must be entered in Crisci’s favor.
`
`
`***
`It was imperative to the defense for the trial court to have
`
`granted Dr. Crisci’s partial motion for non-suit so that the jury
`would not consider the issue of whether Dr. Crisci breached the
`standard of care in interpreting the x-ray.
`
`Id. at 14-15, 20 (emphasis in original).
`
`At the outset, we note that where a defendant presents evidence
`
`following the denial of a motion for nonsuit, the correctness of the trial court's
`
`denial is rendered a moot issue and unappealable. See Williams v. A–Treat
`
`Bottling Co, Inc., 551 A.2d 297, 299 (Pa.Super. 1988). Here, Dr. Crisci and
`
`RGA raised a motion for partial nonsuit at the close of Appellee’s case which
`
`the trial court denied. See N.T. Trial, 5/11/16, at 222-24. However, Dr. John
`
`Kirby testified as a witness for Dr. Crisci following the denial of the nonsuit.
`
`See N.T. Trial, 5/12/16 a.m., at 95-136; N.T. Trial 5/12/16 p.m., at 1-14.
`
`Accordingly, the propriety of the court's order is a moot issue, Williams, 551
`
`- 8 -
`
`

`

`J-A31033-17
`
`A.2d at 299, and we next consider the trial court’s denial of their motion for
`
`JNOV. In doing so, we employ a well-settled standard of review:
`
`
`
`A JNOV can be entered upon two bases: (1) where the movant is
`entitled to judgment as a matter of law; and/or, (2) the evidence
`was such that no two reasonable minds could disagree that the
`verdict should have been rendered for the movant. When
`reviewing a trial court's denial of a motion for JNOV, we must
`consider all of the evidence admitted to decide if there was
`sufficient competent evidence to sustain the verdict. In so doing,
`we must also view this evidence in the light most favorable to the
`verdict winner, giving the victorious party the benefit of every
`reasonable inference arising from the evidence and rejecting all
`unfavorable testimony and inference. Concerning any questions of
`law, our scope of review is plenary. Concerning questions of
`credibility and weight accorded the evidence at trial, we will not
`substitute our judgment for that of the finder of fact. If any basis
`exists upon which the [court] could have properly made its award,
`then we must affirm the trial court's denial of the motion for JNOV.
`A JNOV should be entered only in a clear case.
`
`
`V–Tech Services, Inc. v. Street, 72 A.3d 270, 275 (Pa.Super. 2013)
`
`(citation omitted).
`
`Medical malpractice is defined broadly as the “unwarranted departure
`
`from generally accepted standards of medical practice resulting in injury to a
`
`patient, including all liability-producing conduct arising from the rendition of
`
`professional medical services.” Toogood v. Owen J. Rogal, D.D.S., P.C.,
`
`573 Pa. 245, 254, 824 A.2d 1140, 1145 (2003). “[T]o prevail in a medical
`
`malpractice action, a plaintiff must ‘establish a duty owed by the physician to
`
`the patient, a breach of that duty by the physician, that the breach was the
`
`proximate cause of the harm suffered, and the damages suffered were a direct
`
`result of the harm.’” Id. (quoting Hightower–Warren v. Silk, 548 Pa. 459,
`
`- 9 -
`
`

`

`J-A31033-17
`
`698 A.2d 52, 54 (1997). Thus, the basic elements of medical malpractice and
`
`ordinary negligence are the same, although medical malpractice has some
`
`distinguishing characteristics. See Grossman v. Barke, 868 A.2d 561, 566
`
`(Pa.Super. 2005).
`
`
`
`Upon our review of the trial testimony, we agree with Dr. Crisci and RGA
`
`that Dr. Igidbashian did not opine Dr. Crisci had deviated from the standard
`
`of care by misinterpreting the x-ray she reviewed on December 3, 2008.
`
`However, it was not her “alleged misinterpretation” of that x-ray which was
`
`highlighted to the jury as being “a cause or a substantial factor in bringing
`
`about Mr. Summerford’s injury and death” as Dr. Crisci and RGA opine in their
`
`appellate brief, see Brief of Appellants at 19, but rather her failure to seek an
`
`additional study to achieve a proper diagnosis which was represented as
`
`constituting a deviation from that standard of care. As such, Dr. Crisci’s
`
`analysis of an incomplete study was not determinative in deciding Appellee’s
`
`medical malpractice claim. In this regard, the trial court reasoned as follows:
`
`At trial, Dr. Vartan Igidbashian, [Appellee’s] expert
`radiologist, testified that the end/tip of the feeding tube was
`supposed to terminate in Mr. Summerford's stomach and not his
`lung.6 He testified that he could not determine based on the
`December 3rd x-ray alone whether or not the feeding tube was
`actually in Mr. Summerford's stomach:
`
`MR. TRUNK: That's the end of the feeding tube, correct?
`
`DR. IGIDBASHIAN: Correct.
`
`Q. Where is that supposed to be located?
`
`A. That's supposed to be located in the stomach.
`
`- 10 -
`
`

`

`J-A31033-17
`
`
`Q. Can you tell from this image whether that is in the
`stomach or not?
`
`A. No.
`
`
`N.T. 05.10.16 (a.m.), p. 90-91.
`
`
`Dr. Igidbashian stated that Dr. Crisci breached the standard
`of care by interpreting this x-ray instead of obtaining additional
`views:
`
`MR. TRUNK: And what should Dr. Crisci, the radiologist who
`reviewed this film, have done when she saw that an
`abdominal study was taken to check the placement of a
`feeding tube?
`
`DR. IGIDBASHIAN: She should have asked for additional
`views to include the chest, the major airway, so that you
`can make sure that the tube is not going through those and
`ending up in the lung, instead of coming through and ending
`up in the stomach.
`Q. Did she do that?
`
`A. No.
`
`Q. And was that a violation of the standard of care?
`
`A. Yes.
`
`
`N.T. 05.10.16 (a.m.), pp. 92-93.
`
`
`Dr. lgidbashian opined that Dr. Crisci was incorrect in
`concluding that the December 3rd study confirmed the
`feeding tube terminated in Mr. Summerford's stomach:
`
`MR. TRUNK: And then the conclusion [of Dr. Crisci] is:
`Feeding tube terminates within the stomach. Is that a
`conclusion that a radiologist would be able to reach by
`looking at the image, the abdominal study, that we just
`saw?
`
`DR. IGIDBASHIAN: No.
`
`
`- 11 -
`
`

`

`J-A31033-17
`
`Q. And was this the correct conclusion? The conclusion is
`that you cannot tell.
`
`Q. Was this the correct conclusion that Dr. Crisci reached?
`
`A. No.
`
`Q. Why is that?
`
`A. Because you cannot tell where it is exactly.
`
`Q. And where was the feeding tube?
`
`A. It was in the lung.
`
`
`N.T. 05.10.16 (a.m.), pp. 97-98.
`
`
`MR. TRUNK: You told us earlier that Dr. Crisci should have
`-- when she saw that study on December 3rd, she should
`have recognized that it was an abdominal study, and she
`should have ordered another study. Did I get that right?
`
`DR. IGIDBASHIAN: Yes.
`
`Q. Did she do that?
`
`A. No.
`
`Q. Was that a breach of the standard of care?
`
`A. Yes.
`
`Q. And did that failure increase the risk of harm to Mr.
`Summerford?
`
`A. Yes.
`
`
`N.T. 05.10.16 (a.m.), pp. 136-137.
`
`
`The expert testimony at trial was sufficient for the jury to
`find that Dr. Crisci violated the standard of care by her failure to
`order another study to make sure the feeding tube was in Mr.
`Summerford's stomach and not his lung. The court properly
`denied Dr. Crisci's motion for a non-suit because the evidence was
`
`- 12 -
`
`

`

`J-A31033-17
`
`sufficient for a jury to determine that Dr. Crisci was liable to
`[Appellee].
`Dr. Crisci claims she is entitled to judgment n.o.v. or a new
`trial because Dr. Igidbashian failed to testify that Dr. Crisci,
`"breached the standard of care in her interpretation of the
`thoracoabdominal x-ray performed on December 3, 2008." Crisci
`Post-Trial Motion, 3. In support of this argument, Dr. Crisci
`asserts: "Dr. Igidbashian testified that it was a breach of the
`standard of care for Dr. Crisci not to have ordered a new study;
`however, Dr. Igidbashian did not testify that there was a breach
`in the standard of care with regard to the interpretation of the
`study itself." Id.
`At the conclusion of Plaintiffs case-in-chief, Dr. Crisci made
`the following oral motion for a partial non-suit:
`
`MS. RAYNOR (Counsel for Crisci): Your Honor, now that
`[Appellee] has closed her case, I would like to make a partial
`motion for nonsuit on the basis that, as I understand
`[Appellee’s] claims, there were two.
`
`Number 1, that Dr. Crisci misread an x-ray, which has been
`conceded and that she failed, allegedly failed to recognize it
`was a bad study from a technical perspective and ask for
`another study.
`
`[Appellee’s] expert, Dr. Igidbashian, testified that she
`breached the standard of care on only one of those pieces,
`which was not appreciating that it was not the proper study,
`and ordering another study that would better capture the
`anatomy.
`
`He did not state that she breached the standard of care by
`making an error, a mistake, and I think for that piece of it
`to go to the jury as -- he would have had to have given that
`testimony, and he did not.
`
`THE COURT: Okay. Do you want to respond to that?
`
`
`
`MR. TRUNK (Counsel for [Appellee]): He actually did
`give that testimony, and the testimony was that there was
`a breach of the standard of care to incorrectly interpret the
`study, and as well as to not ask for a new study.
`
`THE COURT: Okay.
`
`- 13 -
`
`

`

`J-A31033-17
`
`
`MS. RAYNOR: Your Honor, if l may say, I specifically asked
`him on recross, to be clear, that his own only claim of the
`breach of the standard of care was that she did not ask for
`another study for interpretation.
`
`
`
`THE COURT: Okay. I'm going to deny the motion.
`
`
`X X X
`
`N.T. 05.11.16 (p.m.), pp. 222-224.
`
`In Montgomery v. S. Philadelphia Med. Group, Inc., 656
`A.2d 1385 (Pa. Super. 1995), the Superior Court explained:
`A motion for a non-suit may be granted only where it is clear
`that no other conclusion could be reached under the
`evidence presented. Bowser v. Lee Hosp., 399 Pa.Super.
`332,337,582 A.2d 369,371 (1990), allocatur denied, 527
`Pa. 614,590 A.2d 755 (1991); A.J Aberman, Inc. v. Funk
`Bldg. Corp., 278 Pa.Super. 385,393,420 A.2d 594, 598
`(1980). When considering such a motion, issues of
`credibility and the weight to be assigned to the evidence are
`not to be resolved by the trial judge, but must be left for the
`finder of fact to resolve at the close of the evidence. Scott
`v. Purcell, 490 Pa. 109, 113,415 A.2d 56, 58 (1980).
`Because a jury may not reach its verdict on mere
`speculation, however, a trial court may enter a non-suit if
`the plaintiff has failed to produce sufficient evidence to meet
`his or her burden of proof. Morena v. South Hills Health Sys.,
`501 Pa. 634,462 A.2d 680, 683 (1983).
`Montgomery, 656 A.2d at 1388.
`Dr. Crisci is correct that Dr. lgidbashian did not offer an
`expert opinion that she violated the standard of care by
`misinterpreting the x-ray on December 3, 2008. His criticism of
`her care was limited to her failure to recognize the December 3,
`2008 x-ray was inadequate and failing to order an additional x-
`ray to confirm placement of the feeding tube.
`It is of no moment that the court denied Dr. Crisci's motion
`for a partial non-suit regarding an unproven claim. If erroneous,
`this ruling had no effect whatsoever regarding the admission of
`any evidence at trial or the court's charge to the jury at the
`conclusion of the case. It is not the court's practice to instruct the
`jury regarding the theories of liability or the defenses to liability
`but, instead, to instruct the jury that they must weigh the credible
`
`- 14 -
`
`

`

`J-A31033-17
`
`evidence and apply the law charged by the court in order to
`determine whether plaintiff satisfied her burden of proof or not. 7
`"Where a case is submitted to a jury on several theories which
`have been pleaded in the alternative, the verdict can be upheld if
`the evidence is sufficient to prove a valid cause under any of those
`theories." Niles v. Fall Creek Hunting Club, Inc., 545 A.2d 926,
`931 (Pa.Super. 1988).
`____
`
`6 The tip of the feeding tube is denser, and thus brighter, so that
`it can more easily be identified by x-ray.
`7Dr. Crisci did not request a limiting instruction that the jury
`should not consider Dr. Crisci’s misinterpretation of the x-ray as a
`basis for liability.
`
`Trial Court Opinion, filed 12/29/16, at 6-11.
`
`Viewing the foregoing evidence presented at trial in a light most
`
`favorable to Appellee as we must, we find it was sufficient to sustain the
`
`verdict. As such, we affirm the trial court’s decision to deny the motion for
`
`JNOV.
`
`
`
`In their third and fourth issues, Dr. Crisci and RGA challenge certain
`
`testimony of Dr. Hani Abujudeh, an expert in radiology, presented by AMH.
`
`Counsel for Appellee asked Dr. Abujudeh on cross-examination whether a
`
`first-year resident would be able to identify the path of the feeding tube from
`
`the image presented on the December 3, 2008, x-ray. Over objection, Dr.
`
`Abujudeh responded as follows:
`
`
`
`
`
`
`Q. Could a first year resident tell on the image from
`December 3rd, 2008?
`
`Ms. Raynor: Objection, that’s beyond the scope of his
`report, and he’s asking for a standard of care opinion.
`
`The Court: Overruled. Go ahead.
`
`- 15 -
`
`

`

`J-A31033-17
`
`
`
`
`
`
`
`
`
`Q. Could a first year resident determine on that x-ray
`that Dr. Crisci misinterpreted that the course of the feeding
`tube is misplaced and goes into the lungs and not the
`stomach?
`
`A. Yes. In fact, the jury can also tell right now, based on
`education that I gave them, that is the wrong place, not just
`a first year resident.
`
`A first year resident, and even a jury of - - you’re
`Q.
`assuming that they are not radiologists, I assume, right?
`
`Right, based on experience that they have explored,
`A.
`you can see that the first one is going down this way, and
`the second one is going down on the same path.
`
`And that’s because that was a superb film to see,
`Q.
`right?
`
`
`
`
`N.T. Trial, 5/11/16 p.m., at 190-191.
`
`Correct.
`
`A.
`
`Dr. Crisci and RGA reason that the aforementioned exchange “gave the
`
`jury the misinterpretation that that they were more competent and trained to
`
`interpret such an x-ray than Dr. Crisci who attended medical school and was
`
`the Chair of the Radiology Department at Abington Hospital for years, and
`
`that, she was at best, not competent to read the film, or at worst, she was
`
`grossly negligent.” Brief of Appellants at 24. They further contend a new trial
`
`is warranted as this testimony was outside the scope of Dr. Abujudeh’s report
`
`in violation of Pa.R.C.P. § 4003.4(c) and exceeded the testimony of Appellee’s
`
`expert as to Dr. Crisci’s breach of the standard of care. Id. at 27.
`
`- 16 -
`
`

`

`J-A31033-17
`
`When considering whether the trial court had erred in denying an
`
`appellant’s motion for a mistrial based upon certain remarks of a
`
`Commonwealth witness, our Supreme Court generally observed that:
`
`[e]very unwise or irrelevant remark made in the course of a trial
`by a judge, a witness, or counsel does not compel the granting of
`a new trial. A new trial is required when the remark is prejudicial;
`that is, when it is of such a nature or substance or delivered in
`such a manner that it may reasonably be said to have deprived
`the defendant of a fair and impartial trial.
`
`Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973)
`
`(citations omitted).
`
`
`
`Initially, we note that prior to the aforesaid cross-examination, AMH had
`
`elicited testimony from Dr. Abujudeh, without a specific objection from Dr.
`
`Crisci or any objection from RGA, that a first year resident could observe the
`
`feeding tube had entered Mr. Summerford’s lung. N.T. Trial, 5/11/16 p.m.,
`
`at 159-160, 160-62. Once that testimony had been given without objection,
`
`Appellee properly explored it further on cross-examination. Furthermore, the
`
`record belies Dr. Crisci’s and RGA’s representation that the aforesaid
`
`testimony pertained to the relevant standard of care, for the objection to the
`
`specific question concerning whether this was a violation of the standard of
`
`care was sustained, and Dr. Abujudeh did not opine in this regard. See N.T.
`
`Trial, 5/11/16 p.m., at 192.
`
`
`
`Also, to the extent Appellants challenge Dr. Abujudeh’s surmising as to
`
`what a juror could observe as minimizing Dr. Crisci’s credentials, we note that
`
`- 17 -
`
`

`

`J-A31033-17
`
`Appellants failed to raise this argument at the proper juncture before the trial
`
`court; therefore, it is waived.
`
`[I]n 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, such as an erroneous jury
`instruction, 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.... By specifically objecting to any
`obvious error, the trial court can quickly and easily correct the
`problem and prevent the need for a new trial. Additionally, the
`appellate court should not be required to waste judicial resources
`correcting a problem that the trial court could have easily
`corrected if it had been given the opportunity to avoid the
`necessity of granting a new trial.
`
`Fillmore v. Hill, 665 A.2d 514, 515–16 (Pa.Super. 1995), appeal denied, 674
`
`A.2d 1073 (Pa. 1996) (citations omitted); Pa.R.A.P. 302(a).
`
`In addition, as the trial court notes, Dr. Abujudeh’s testimony was
`
`relevant to a key and contested issue concerning the quality of the December
`
`3, 2008, x-ray. As the trial court explained:
`
`It is important to review the evidence introduced in the trial
`record before Dr. Abujudeh's testimony regarding a central issue
`in the case -the quality of the December 3rd x-ray. Dr. Igidbashian
`had already testified that it was below the standard of care for Dr.
`Crisci to rely upon the December 3rd x-ray because, inter alia,
`there was inadequate visualization of the feeding tube, chest and
`major airway. N.T. 05.10.16 (a.m.), pp. 92-98. Dr. Crisci had
`earlier testified that the x-ray film was of good diagnostic quality
`(N.T. 05.10.16 (p.m.), p. 94), but acknowledged that she had
`misread the study:
`
`BY MR TRUNK:
`
`
`- 18 -
`
`

`

`J-A31033-17
`
`Q. That is, if you thought that the tube was coming this way out
`of the esoph

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