Millard v. Nagle
| Citation | 587 A.2d 10,402 Pa.Super. 376 |
| Decision Date | 27 February 1991 |
| Docket Number | No. 286,286 |
| Parties | Christine Plant MILLARD and Kevin Millard, Appellants, v. Warren C. NAGLE, M.D., and Guthrie Clinic, Ltd., Appellees. Hrbg. 1988. |
| Court | Pennsylvania Superior Court |
Joseph P. Mellody Jr., Wilkes-Barre, for appellees.
Rachel Munafo, Philadelphia, amicus curiae.
Before CIRILLO, President Judge, and CAVANAUGH, ROWLEY, WIEAND, OLSZEWSKI, DEL SOLE, TAMILIA, JOHNSON and HUDOCK, JJ.
This action was instituted by Appellants seeking to recover damages suffered as a result of an unauthorized surgical proceeding performed on Appellant, Christine Millard. Prior to addressing the merits of the claims raised by Appellants it is necessary to address whether this court must consider issues contained in untimely post-trial motions which the trial court elected to address.
Prompted by the supreme court's recent decisions on the subject, See, Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804 (1989) and Commonwealth v. Sheaff, 518 Pa. 655, 544 A.2d 1342 (1988), this court has been called upon to review the question of the trial court's authority to rule on untimely filed post-trial motions.
The supreme court in its opinion in Kurtas and its ruling in Sheaff has instructed us to consider issues raised in untimely filed post-trial motions where the trial court has elected to consider and rule on the merits of these claims. The supreme court's action in these cases must cause us to liberally read Pa.R.C.P. 227.1(b)(2) which makes reference to the trial court's grant of "leave" to specify additional grounds for relief. The rule provides:
(b) Post-trial relief may not be granted unless the grounds therefor,
. . . . .
(2) are specified in the motion. The motion shall state how the grounds were asserted in pre-trial proceedings or at trial. Grounds not specified are deemed waived unless leave is granted upon cause shown to specify additional grounds.
(c) Post-trial motions shall be filed within ten days after
(1) verdict Although this rule has been interpreted to require a party seeking to file untimely original or post-trial motions to obtain leave from the trial court to do so, the supreme court has instead held that the trial court has the authority under Pa.R.C.P. 126 to disregard procedural errors. Rule 126 provides:
The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect or procedure which does not affect the substantial rights of the parties.
In accordance with the supreme court's decisions on the subject and the provisions of Rule 126, it is appropriate to conclude that whenever original and/or supplemental post-trial motions are filed at a time where the trial court has jurisdiction over the matter but outside the ten day requirement of 227.1, the trial court's decision to consider these motions should not be subject to review by this court unless the opposing party has set forth an objection setting forth specific facts to demonstrate prejudice. If no objection is raised by the opposing party and the trial court rules on the merits of the issues contained in untimely filed motions, the trial court's action will be considered an implicit grant of leave to the filing of the motions. This decision should not be subject to review by this court, and we should go on to consider the issues contained in these motions on their merits, as did the trial court. Such was the case in Kurtas, supra. There both the original and supplemental post-trial motions were untimely filed, however, no objection to timeliness was raised. The Supreme Court held that this court erred by finding matters raised in these motions waived even though the trial court decided these issues on their merits.
Where an objection to the timeliness of the post-trial motions is lodged by the opposing party, the trial court should be required to set forth its rationale for its decision to consider the issues raised in the motions on their merits, if the objection sets forth facts that demonstrate prejudice. The trial court's decision in such an instance can be reviewed by this court to determine whether an abuse of discretion has occurred. Our review will be aided by the trial court's explanation for its decision to disregard the late filing in the face of an allegation of prejudice which is supported by specific facts.
In this case, the original post-trial motions were timely filed. Approximately four months after the verdict these motions were supplemented by Appellant. An objection was filed by the Appellees with the trial court. The objection called the trial court's attention to the untimely filed supplemental post-trial motions. Although the objection does state that Appellants "have not shown any cause for such delay to the prejudice of the Defendants," the objection does not allege in what manner the Appellees were prejudiced. The trial court considered and decided the issues on their merits. In so doing, it effectively rejected the Appellees' claim of prejudice. The trial court's action was proper for two reasons. First, there were no specific allegations of prejudice claimed by the Appellees. Second, the trial court had before it timely filed post-trial motions which had not yet been argued or decided. In this posture, the Appellees were still within the trial court's jurisdiction and subject to a ruling on the original motions which could have granted a new trial. The Appellees' position in the litigation had not changed. Absent specific allegations of prejudice, this court should look to the action of the trial court in deciding the issues on their merits and do likewise.
In concluding that the issues presented by Appellants are not waived, it becomes necessary to examine the issues at the heart of this appeal. Although Appellants' set forth a number of issues, our decision with regard to their claim that the jury was improperly charged mandates a new trial and makes unnecessary a discussion of the remaining claims of error.
The underlying action was instituted by Christine Millard and her husband who alleged that the defendant, Dr. Nagle, removed Ms. Millard's last remaining ovary without her knowledge or consent resulting in her undergoing an immediate state of menopause at the age of 37. Ms. Millard initially sought the aid of Dr. Nagle to have repaired two fistulae which developed in her bladder as a result of an earlier surgery. During the course of bladder repair surgery, Dr. Nagle encountered Ms. Millard's last remaining ovary in an enlarged condition and in a location which blocked access to the bladder which he was to repair. Dr. Nagle removed the ovary and proceeded to complete repair of the bladder.
Appellants complain that the jury verdict in favor of Appellees was tainted by improper jury instructions. The following portion of the court's charge is at issue:
[Y]ou ought to also know that as to the information that is to be divulged to the plaintiff, in this situation, it is not what she would have thought herself, given the information that perhaps should have been given, if you so find, but what a reasonable person in her situation would have felt. Let me put it another way. Let me say something else really. If you find that a reasonable person in the position of the plaintiff under all of the circumstances as you find them to be would have said to go ahead anyway, she cannot recover.
In Sagala v. Tavares, 367 Pa.Super. 573, 533 A.2d 165 (1987), Alloc. denied 518 Pa. 626, 541 A.2d 1138 (1988) the jury was presented with a similar instruction. The court charged the jury that the plaintiff had the burden of proving the following:
That if a reasonable person in [plaintiff's] condition had known the risks and possible adverse consequences of the recommended surgery, that a reasonable person would not have undergone the surgery.
After considering the above portion of the charge, this court ruled that it was improper and prejudicial to the plaintiff's case and required that a new trial be awarded. The court found that it was irrelevant to consider whether a reasonable person in the plaintiff's position would have consented to the surgery. "The primary focus of Pennsylvania law with respect to informed consent is to guarantee that a patient is supplied with all the material facts from which an intelligent choice as to medical attention may be reached, regardless of whether the patient chooses rationally." Id.
The position taken by the court in Sagala was followed in Gouse v. Cassel, 385 Pa.Super. 521, 561 A.2d 797 (1989). Alloc. granted 524 Pa. 608, 569 A.2d 1367 (1989). In Gouse the jury was presented with an interrogatory which asked it to determine if a reasonable person in the plaintiff's condition "would have agreed to undergo the operation nevertheless." The court ruled that the interrogatory, as written, incorrectly represented the law of Pennsylvania. Because the outcome of the trial may have been different if the improper interrogatory was not provided to the jury, a new trial was ordered. The court based its ruling on the long held principal in this Commonwealth "that a competent adult citizen should have the right to medical self-determination." Id. at 524, 561 A.2d at 799. Further Judge Rowley wrote for the court:
We reaffirm our opinion in Sagala, in which we held that it is improper for a trial court to add to the law in Pennsylvania by saying that before a jury can render a verdict for a plaintiff-patient, that plaintiff must show that a reasonable person in his place, having been properly advised by his doctor, would not have consented to surgery. Id., 367 Pa. Superior Ct. at 580, 533...
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