Goldberg ex rel. Goldberg v. Isdaner

• Decision Date: 19 June 2001
• Citation: 780 A.2d 654
• Parties: Heath GOLDBERG, A Minor, by and Through His Parents and Natural Guardians, Mindy and Michael GOLDBERG, and Mindy and Michael Goldberg as Administrators of the Estate of Blake Goldberg, and Mindy and Michael Goldberg, in Their Own Right, Appellees, v. Neil ISDANER, M.D., Linda Chan, M.D., Appellees, Jeanes Hospital, a/k/a Jeanes Hospital Auxiliary (Six Cases). Appeal of: Jeanes Hospital. Heath Goldberg, A Minor, by and Through His Parents and Natural Guardians, Mindy and Michael Goldberg, Appellee, v. Neil L. Isdaner, M.D., P.C., Appellee (Six Cases). Appeal of: Mindy and Michael Goldberg. Appeal of: Neil L. ISDANER, M.D. and Neil L. Isdaner, M.D. P.C.
• Court: Pennsylvania Superior Court

780 A.2d 654

Heath GOLDBERG, A Minor, by and Through His Parents and Natural Guardians, Mindy and Michael GOLDBERG, and Mindy and Michael Goldberg as Administrators of the Estate of Blake Goldberg, and Mindy and Michael Goldberg, in Their Own Right, Appellees, v. Neil ISDANER, M.D., Linda Chan, M.D., Appellees,

Jeanes Hospital, a/k/a Jeanes Hospital Auxiliary (Six Cases).

Appeal of: Jeanes Hospital.

Heath Goldberg, A Minor, by and Through His Parents and Natural Guardians, Mindy and Michael Goldberg, Appellee, v. Neil L. Isdaner, M.D., P.C., Appellee (Six Cases).

Appeal of: Mindy and Michael Goldberg.

Appeal of: Neil L. ISDANER, M.D. and Neil L. Isdaner, M.D. P.C.

Superior Court of Pennsylvania.

Argued March 21, 2001.

Filed June 19, 2001.

Sheila A. Haren, Philadelphia, for Jeanes Hospital.

Paul E. Peel, Plymouth Meeting, for Isdaner.

Steven J. Cooperstein, Philadelphia, for Goldberg.

Before: FORD ELLIOTT, MONTEMURO¹ and BECK, JJ.

BECK, J.²

¶ 1 These consolidated appeals arise from an order of the trial court which denied in part motions for post-trial relief filed by Neil L. Isdaner, M.D., Neil L. Isdaner, M.D., P.C., and Jeanes Hospital. The order also entered judgment in favor of Heath Goldberg, and Mindy and Michael Goldberg, in their own right and as administrators of the estate of Blake Goldberg. For the reasons that follow, we affirm in part and reverse in part. ¶ 2 The trial court summarized the factual background of this case as follows:

Plaintiff Mindy Goldberg (Mrs. Goldberg) had been under Defendant Dr. Neil L. Isdaner's (Dr. Isdaner) gynecological and obstetrical care throughout her pregnancy. Dr. Isdaner's office was located in the Stapeley building, on Defendant Jeanes Hospital's Campus. During Mrs. Goldberg's first appointment, she and her husband questioned Dr. Isdaner extensively about whether he could capably handle multiple births. Dr. Isdaner assured Plaintiffs he was capable and discussed delivery with them. Defendant informed Plaintiffs deliver would occur at Jeanes Hospital and provided them with a brochure entitled "We Believe in Great Beginnings— The Maternity Suite at Jeanes." The brochure prominently listed Dr. Isdaner as a member of Jeanes' "team of physicians."

On November 20, 1995, Mrs. Goldberg experienced bloody discharge. She immediately called Dr. Isdaner's office and was referred to Jeanes Hospital where "they would check to see if everything was okay." Mrs. Goldberg was admitted to Jeanes Hospital at approximately 12:15 p.m. At the hospital, a nurse determined she was having contractions. An ultrasound performed at 4:00 p.m. by Defendant Linda Chan (Dr. Chan) revealed Mrs. Goldberg was high risk for either incompetent cervix or pre-term labor. Dr. Chan recommended administering a tocolytic drug to forestall labor and a steroid hoping to accelerate maturation of the babies' lungs. Said drugs were not administered until nearly 6:00 p.m.

Dr. Isdaner was informed of Mrs. Goldberg's condition throughout the day, however, he did not arrive at Jeanes Hospital until after 7:30 p.m. Although the doctor testified he had canceled his appointments on November 20, 1995, he could never account for his whereabouts between 12:15 p.m., when Mrs. Goldberg was admitted to Jeanes Hospital, and 7:30 p.m., the earliest time he could have arrived at same. Furthermore, once at the hospital, Dr. Isdaner did not see Mrs. Goldberg immediately. It was not until some time between 9:00 p.m. and 9:30 p.m. that he first evaluated her condition. Between 11:00 p.m. and 12:10 a.m., Mrs. Goldberg's water broke and Dr. Isdaner performed an emergency cesarean section at 1:00 a.m. Infants Heath and Blake Goldberg were transferred at their parents' request to Children's Hospital around 5:00 a.m. where Blake Goldberg died three days later from complications related to premature birth. Heath Goldberg remained in Children's Hospital for three months and developed sepsis, brain damage, cysts and ultimately cerebral palsy, also all resulting from premature birth.

Trial Court Opinion, 9/26/00, at 1-3. (citations to record omitted).

¶ 3 Mindy and Michael Goldberg instituted this medical malpractice action against Dr. Isdaner, Dr. Chan and Jeanes Hospital alleging that the defendants failed to prevent the premature birth of the Goldberg's twins, Heath and Blake. The Goldbergs also alleged the defendants were negligent during the delivery of the twins. Trial commenced on January 24, 2000. The jury returned a verdict in favor of the Goldbergs and against Dr. Isdaner and Jeanes Hospital, determining that Dr. Isdaner was 100% negligent and that Dr. Isdaner was Jeanes Hospital's ostensible agent. The jury found Dr. Chan not negligent. The jury awarded damages as follows: $6,000,000.00 to Heath Goldberg; $625,000.00 to the estate of Blake Goldberg; and $648,000.00 to Mindy and Michael Goldberg. These appeals followed.

¶ 4 In their appeal, the Goldbergs argue the trial court erred in failing to grant them delay damages based on the jury's award for reimbursement of medical expenses incurred by their son Heath. The trial court found that Pa.R.Civ.P. 238 does not provide for delay damages to be awarded where the underlying claim is for reimbursement of medical expenses. We agree.

¶ 5 Initially, we note that we will not reverse the trial court's decision regarding the imposition of delay damages absent an abuse of discretion. Shamnoski v. PG Energy, 765 A.2d 297 (Pa.Super.2000). Rule of Civil Procedure 238(a)(1) provides that "at the request of the plaintiff in a civil action seeking monetary relief for bodily injury, death or property damage, damages for delay shall be added to the amount of compensatory damages awarded against each defendant or additional defendant found to be liable to the plaintiff in the verdict of a jury...."

¶ 6 In Anchorstar v. Mack Trucks, Inc., 533 Pa. 177, 620 A.2d 1120 (1993), our Supreme Court noted that a literal and non-expansive interpretation has normally, and quite properly, been accorded to Rule 238, allowing delay damages to be awarded only in cases falling clearly within the purview of the "bodily injury, death or property damage" requirement. In Anchostar, Mrs. Anchorstar sought delay damages on her claim for loss of consortium. The Court affirmed the trial court's denial of delay damages, explaining that while a loss of consortium claim stems from the spouse's bodily injury, it is nevertheless a separate and distinct claim. The Court noted that one who has suffered a loss of consortium has not sustained a bodily injury but rather has experienced an injury to marital expectations.

¶ 7 Likewise, in the present case Mr. and Mrs. Goldberg have not suffered a bodily injury, death or property damage. The plain language of Rule 238 clearly provides for such damages to be awarded only where the plaintiff seeks monetary compensation for "bodily injury, death or property damage." The Goldbergs have suffered a financial loss due to money they have expended to pay for medical expenses for their son Heath's injuries and Blake's death. As with the loss of consortium claim in Anchorstar, the Goldberg's claim stems from bodily injuries of other persons. Like the situation in Anchorstar, their claim is separate and distinct. We find no abuse of discretion on the part of the trial court in holding that, under the clear and express language of Rule 238, delay damages are not applicable to the Goldberg's claim for monetary damages for their sons' medical expenses.

¶ 8 In its cross-appeal Jeanes Hospital presents four issues for our review. It first argues that the trial court erred in refusing to grant a directed verdict in its favor and claims it is entitled to judgment notwithstanding the verdict because there was no evidence to support that Dr. Isdaner was an ostensible agent of the hospital. Jeanes Hospital submits that the Goldbergs failed to present any evidence that they looked to the hospital, and not Dr. Isdaner, for care and treatment. It also submits that the Goldbergs presented no evidence that the hospital held Dr. Isdaner out as its agent.

¶ 9 In reviewing a trial court's decision whether or not to grant judgment in favor of one of the parties, we must "consider the evidence, together with all favorable inferences drawn therefrom, in a light most favorable to ... the verdict winner." Walker v. Grand Central Sanitation, Inc., 430 Pa.Super. 236, 634 A.2d 237, 240 (1993). "[O]ur standard of review when considering motions for a directed verdict and judgment notwithstanding the verdict are identical." Brown v. Philadelphia College of Osteopathic Medicine, 760 A.2d 863, 868 (Pa.Super.2000). "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." Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa.Super.1999). Further, "the standard of review for an appellate court is the same as that for a trial court." Ferry v. Fisher, 709 A.2d 399, 402 (Pa.Super.1998).

There are two bases upon which a judgment n.o.v. 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.

Campo v. St. Luke's Hospital, 755 A.2d 20, 23 (Pa.Super.2000).

¶ 10 Under the doctrine of ostensible agency, a hospital may be held liable for the negligent acts or omissions of an independent doctor. Pennsylvania courts have determined that the two factors relevant to a finding of ostensible agency are:...