Capan v. Divine Providence Hospital
| Decision Date | 19 September 1979 |
| Citation | 410 A.2d 1282,270 Pa.Super. 127 |
| Parties | Anna Marie CAPAN, Administratrix of the Estate of Frank M. Capan, Deceased, Appellant, v. DIVINE PROVIDENCE HOSPITAL, a corporation, Raimund Rueger, M.D., J. R. Friday, M.D., G. Ray Vilsack, M.D., Robert Clevenger, M.D., Alfred R. Price, M.D., Individuals, Defendants, v. Philip POLLICE, M.D. |
| Court | Pennsylvania Superior Court |
Thomas W. Trimm, Pittsburgh, for appellant.
David H. Trushel, Pittsburgh, for appellee Vilsack, M.D.
George M. Weis, Pittsburgh, for appellee Divine Providence Hospital, a corporation.
Harry J. Zimmer, Pittsburgh, did not file a brief on behalf of appellees Rueger, M.D. and Clevenger, M.D.
Ronald H. Heck, Pittsburgh, for appellee Friday, M.D.
Bruce R. Martin, Pittsburgh, for appellee Pollice, M.D.
Before CERCONE, WIEAND and HOFFMAN, JJ.
This is an appeal from the order of the Court of Common Pleas of Allegheny County denying appellant's motions for new trial and motion to take off non-suits in wrongful death and survival actions. We affirm the decision of the lower court.
The decedent, Frank Capan, was admitted to Divine Providence Hospital on November 17, 1972 for treatment of a nosebleed. Appellee, Dr. Raimund Rueger, was the first physician to treat Frank. He packed his nose in gauze, prescribed some medication, and had Frank remain in the hospital. On November 19, Frank developed a rapid heartbeat and was transferred to the Intensive Care Unit. It was during this time that Frank went into delirium tremens, a condition arising due to the lack of alcohol, whereby he became violent and disturbed other patients. The remainder of the appellees, Doctors Friday, Vilsack, Clevenger, Price, and Pollice, treated Frank during this time, and several central nervous system depressants were prescribed in order to calm Frank's symptoms and rapid heartbeat.
On November 23, Frank became so boisterous that he was removed from the Intensive Care Unit and placed in his own room. The medical records for this day read that Frank was "again wild, screaming," and that he had a "poor day, combative." Later that day the medical records reflect that Frank became During the afternoon of November 23, Dr. Pollice was called to Frank's room to help the nursing staff control him. Dr. Pollice was in the hospital at this time serving as the doctor "on call" to answer any emergencies that occurred in the hospital. Frank was treated with a series of drugs in an attempt to calm his actions. When Dr. Pollice left Frank at approximately 7:00 P.M., he seemed calmer and responding to the medication.
Dr. Pollice left the hospital at 7:40 P.M. and went to his sister's home for Thanksgiving dinner. Shortly after arriving there, he was called back to the hospital where the cardiopulmonary resuscitation team began working on Frank. Dr. Pollice aided in the resuscitation efforts, but Frank was declared dead at approximately 9:30 P.M. The cause of death written on the death certificate was cardiac arrythmia and alcoholic cardiomyopathy.
Appellant, Anna Capan, the wife, and administratrix of the estate of Frank Capan, brought wrongful death and survival actions against Divine Providence Hospital, and Doctors Rueger, Friday, Vilsack, Clevenger, and Price. By agreement of the parties, Dr. Alfred R. Price was dropped from the suit. Doctors Rueger and Clevenger then joined Dr. Philip Pollice as an additional defendant. At the close of the pleadings, Dr. Pollice's motion for judgment on the pleadings was granted as to the wrongful death action. The case then went to trial for nine days on the survival action against Dr. Pollice, and on both the wrongful death and survival actions against the hospital and the other named physicians. At the close of the plaintiff's case on liability, non-suits were granted in favor of all the doctors except Doctor Pollice. At the close of the trial, the jury was given special interrogatories. The first question was, The jury returned the verdict with a negative answer to this first question. The court then molded the verdict to read, "for the defendant Divine Providence Hospital and the additional defendant Philip Pollice, M.D. and against the plaintiff."
Appellant filed a Motion to Take Off Non-Suit consisting of 18 allegations of error, and a Motion for New Trial alleging 42 errors by the lower court. Appellant's motions were denied and the appeal is now before us in which appellant raises eleven issues.
First, appellant raises the question of whether the lower court erred in refusing to charge the jury that Divine Providence Hospital could be found liable for the acts of negligence allegedly committed by Dr. Pollice on the theory of vicarious liability, beyond the traditional test of master-servant, the latter upon which a charge was given. In addition, appellant argues the court should have charged the jury on the theories espoused in the Restatement of Torts, 2d §§ 429, 416, 427 and 323 that hold an employer of an independent contractor liable for the negligent acts of that independent contractor. Although appellant poses an interesting argument and devotes a large part of her brief to it, we find this issue was not properly preserved for appellate review. Appellant's counsel did not object to the judge's refusal to charge on the above-mentioned theories, nor did counsel specifically except to the charge after the judge completed it. To the contrary, with respect to the charge, appellant's trial attorney stated that he had On the other hand, counsel for the other parties in the suit made specific exceptions to the charge on the record.
Under the law in effect at the time of the trial in this case, when counsel requested points for charge, a general exception to the charge as a whole would then have preserved his objections to the points for charge that were refused by the trial judge. Act of May 11, 1911, P.L. 279, § 2; May 24, 1923, P.L. 439, § 1, 12 P.S. § 1197 (1953); 1 Goodrich Amram 2d § 277(b):2 (1977). The statute then in effect specifically provided in pertinent part that:
"Such (general exception) shall operate and be construed to be an exception to the charge as a whole and to each and every part thereof, and to the answer of the court to each and every point where requests for charge are filed . . . " (Emphasis added) 12 P.S. § 1197.
However, in the instant case, counsel did not specifically or generally except to the charge at any time. On the contrary, he stated his approval of it as given by the court. Based on the above-quoted law, counsel did not preserve this objection for our appellate review and we do not reach the merits. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Cf. Broxie v. Household Finance Co., 472 Pa. 373, 372 A.2d 741 (1977); Strickler v. United Elevator Co., Inc., 257 Pa.Super. 542, 391 A.2d 614, 617 (1978).
Second, appellant raises the issue of whether the lower court erred in granting a nonsuit as to all defendants except Divine Providence Hospital and additional-defendant, Dr. Pollice, prior to the conclusion of the trial. Initially we note that appellant does not argue that the nonsuits were improperly granted on a substantive basis, but only argues the procedural aspect that Pa.R.C.P. 2231(h)(2) requires that a nonsuit may not be entered prior to the conclusion of the trial unless it is to All of the defendants. 1 However, this argument overlooks the further provisions in the Rules that say:
This rule clearly states that where there is No evidence to support an action against one defendant, that action may be terminated by a nonsuit. The general rule is that a nonsuit may be entered only at the close of the plaintiff's case. F. W. Wise Co., Inc. v. Beech Creek R. R. Co., 437 Pa. 389, 263 A.2d 313 (1970); 6 Standard Pa.Prac. 362-367 (1960). When applying these rules to the trial judge's actions in the case before us, we conclude that, where there was no prima facie case made out against the doctors who were granted the nonsuits, the court properly entered the nonsuits in compliance with Pa.R.C.P. 2232(d) and there was no error.
The remaining eight issues appellant raises deal with questions of evidence. We will briefly comment on them, but conclude that none of these issues has merit.
The first of these evidentiary issues is whether the lower court erred in not permitting appellant's expert to give an opinion as to whether the care given to the decedent by the nursing staff at Divine Providence was in accordance with acceptable hospital practices. The lower court disallowed this testimony because the doctor, who was an expert but mainly affiliated with hospitals out of state, had not established himself "as an expert in Pennsylvania hospital care." Also, it is established in Pennsylvania law that an expert...
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