N.T. v. The Children's Hosp. of Phila.
| Docket Number | 3015 EDA 2022 |
| Decision Date | 25 January 2024 |
| Citation | 2024 PA Super 14 |
| Parties | N.T., A MINOR, BY AND THROUGH MARY JANE BARRETT, ESQUIRE, GUARDIAN OF THE ESTATE OF N.T.Appellant v. THE CHILDREN'S HOSPITAL OF PHILADELPHIA, STEPHANIE MANN, M.D., MARK P. JOHNSON, M.D., THE HOSPITAL OF THE UNIVERSITY OF PENNSYLVANIA AND STEVEN C. HORII, M.D. |
| Court | Pennsylvania Superior Court |
1
2024 PA Super 14
N.T., A MINOR, BY AND THROUGH MARY JANE BARRETT, ESQUIRE, GUARDIAN OF THE ESTATE OF N.T.Appellant
v.
THE CHILDREN'S HOSPITAL OF PHILADELPHIA, STEPHANIE MANN, M.D., MARK P. JOHNSON, M.D., THE HOSPITAL OF THE UNIVERSITY OF PENNSYLVANIA AND STEVEN C. HORII, M.D.
No. 3015 EDA 2022
Superior Court of Pennsylvania
January 25, 2024
Appeal from the Order Entered November 10, 2022 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 160301791
BEFORE: OLSON, J., STABILE, J., and COLINS, J. [*]
OPINION
COLINS, J.
Appellant, N.T. (Minor), by and through Mary Jane Barrett, Esquire, guardian of her estate, appeals from an order of the Philadelphia County Court of Common Pleas dismissing her medical malpractice action against the Children's Hospital of Philadelphia (CHOP) and CHOP physicians Drs. Stephanie Mann and Mark P. Johnson (collectively, the CHOP defendants) and the Hospital of the University of Pennsylvania (HUP) and HUP radiologist Dr. Steven C. Horii (collectively, the HUP defendants) on the ground that Minor's
claims are barred by judicial estoppel. For the reasons set forth below, we affirm.
This case is one of three cases filed on Minor's behalf seeking damages for the same injuries that she suffered in utero prior to her birth. In December 2007, when Minor's mother (Mother) was pregnant with Minor and her twin sister, Mother was diagnosed with twin-to-twin transfusion syndrome (TTTS) by her treating physicians in North Carolina. Complaint ¶¶29-34. TTTS is a condition where abnormal communicating blood vessels in the placenta allow blood to circulate between the fetuses that a woman is carrying, jeopardizing the survival of both fetuses. Id. ¶¶2-3. Mother's treating physicians referred her to CHOP for possible selective laser photocoagulation of communicating vessels treatment (SLPCV), and Mother was seen at CHOP on January 2, 2008. Id. ¶¶35-36. The CHOP defendants concluded that Mother was not a candidate for SLPCV, based on ultrasounds that were interpreted by the HUP radiologist as showing an infection, and did not perform SLPCV on Mother. Id. ¶¶36-41. Mother then went to an Ohio physician, Dr. Timothy Crombleholme, who performed SLPCV on Mother at Cincinnati Children's Hospital in Cincinnati, Ohio on January 14, 2008. Id. ¶¶9, 45-47. Minor was born in April 2008 with severe neurological deficiencies and her twin sister was born healthy with no neurological injury. Id. ¶¶10, 49-51.
On January 26, 2011, an action docketed as Case No. 110103674 (the 2011 action) was brought on Minor's behalf in the Philadelphia County Court
of Common Pleas against CHOP, Dr. Mann, and Dr. Crombleholme. The 2011 action sought damages for severe and permanent neurological injuries suffered by Minor, including cerebral palsy, microcephaly, optic atrophy, immature retinas, blindness, bilateral brain hemorrhages, a seizure disorder, and a near complete absence of a cerebellum, and alleged that Dr. Crombleholme negligently performed the SLPCV and that his SLPCV caused those injuries. 2011 Action Amended Complaint ¶¶8-9, 70-73, 76-77, 96-104. The complaint in the 2011 action further alleged that CHOP was liable for the injuries caused by Dr. Crombleholme because it allegedly inadequately trained him when he was a physician at CHOP and that CHOP and Dr. Mann were liable for Minor's injuries because they allegedly misdiagnosed the condition of the fetuses and negligently failed to treat the TTTS. 2011 Action Amended Complaint ¶¶8-9, 52-53, 78-95.
On December 21, 2012, the court dismissed Minor's claims against Dr. Crombleholme for lack of personal jurisdiction. The 2011 action continued against CHOP and Dr. Mann and in December 2014, a second amended complaint was filed adding Dr. Johnson as a defendant and alleging that the CHOP defendants were liable for Minor's injuries because they misdiagnosed the condition of the fetuses and negligently failed to treat the TTTS. 2011 Action Second Amended Complaint ¶¶46-72. This amended complaint also alleged that Dr. Crombleholme's SLPCV did not properly treat Minor's TTTS. Id. ¶41. On May 2, 2016, the trial court, over the CHOP defendants'
objections, granted the plaintiff's motion to discontinue the 2011 action without prejudice.
In 2013, while the 2011 action was pending, an action docketed as Case No. 1:13-cv-230 (the Ohio action) was filed on Minor's behalf against Dr. Crombleholme and Cincinnati Children's Hospital (the Ohio defendants) in federal district court in Ohio. The complaint in the Ohio action sought damages for the same injuries to Minor as the 2011 action and alleged that the Ohio defendants were liable for those injuries because Dr. Crombleholme negligently performed the SLPCV and his SLPCV caused Minor's injuries. Ohio Action Complaint ¶¶3, 71-107. Counsel for Minor in the Ohio action was the same counsel who represented Minor in the 2011 action.
On March 18, 2016, this action, Case No. 160301791, was filed on Minor's behalf against the CHOP defendants and the HUP Defendants in the Philadelphia County Court of Common Pleas. The complaint in this action sought damages for the same injuries to Minor as the 2011 action and the Ohio action. Complaint ¶¶50-51. This complaint alleged that the CHOP defendants were liable for Minor's injuries because they misdiagnosed the condition of the fetuses and negligently failed to treat the TTTS. Id. ¶¶52-75. The complaint alleged that the HUP defendants were liable for Minor's injuries on the ground that they allegedly failed to properly interpret Mother's ultrasounds and that the CHOP defendants relied on the HUP defendants' misinterpretation of the ultrasounds in their diagnoses and decision not to
perform SLPCV. Id. ¶¶36-44, 76-91. Counsel for Minor in this action is the same counsel who represented Minor in the Ohio action and the 2011 action.
The Ohio action went to trial in October 2017. Shortly before trial, Minor successfully moved to amend the Ohio complaint to add a claim for punitive damages based on the claims that her injuries were caused by Dr. Crombleholme's "blind firing" of the laser in performing the SLPCV, rather than directing it at vessels in the placenta at which it was supposed to be directed, and that Dr. Crombleholme took efforts to conceal the fact that her injuries were caused by his SLPCV. Ohio Action 9/28/17 Order at 1-3, 5-10. Minor also sought to exclude all reference to the present action from the trial of the Ohio action and the Ohio court ruled that the Ohio defendants could not mention this action in their opening statements. Ohio Action N.T., 10/11/17, at 5-11. At the trial of the Ohio action, Minor's medical expert on causation testified that Dr. Crombleholme caused Minor's injuries by firing the laser at healthy placenta tissue multiple times during the SLPCV and damaging 30% of the placenta that was nourishing Minor and testified that Minor's injuries were caused by hypoxic injury from the placental damage and not by TTTS. Ohio Action N.T. Trial, 10/16/17 a.m., at 113-15; Ohio Action N.T. Trial, 10/16/17 p.m., at 60-61, 65-66, 74, 77-78; Ohio Action N.T. Trial, 10/17/17 a.m., at 64. Minor's expert further testified that Minor's brain was normal and uninjured until the SLPCV was performed, that the TTTS was a Stage 2 when the SLPCV was performed, and that Minor's development would have been
normal and she would have had no brain damage if the SLPCV had been properly performed when it was done on January 14, 2008. Ohio Action N.T. Trial, 10/16/17 p.m., at 60-62, 64, 74; Ohio Action N.T. Trial, 10/17/17 a.m., at 63-64; Ohio Action N.T. Trial, 10/25/17, at 54. In addition, Minor's counsel argued to the jury that Minor had no brain injury when she came under Dr. Crombleholme's care, that she would have suffered no injury if he had properly performed the SLPCV, and that her injury was caused by Dr. Crombleholme damaging 30% of Minor's placenta and was not caused by TTTS. Ohio Action N.T. Trial, 10/13/17, at 11; Ohio Action N.T. Trial, 10/26/17, at 15-18.
While the jury was deliberating, Minor's claims against the Ohio defendants were settled for $7 million. Ohio Action Settlement and Release Agreement at 1. This settlement agreement provided that it did not apply to claims against the CHOP defendants and HUP defendants and that the plaintiff agreed "to refrain from making disparaging or critical statements about the care provided to [Minor] or [Mother]" by the Ohio defendants. Id. at 1, 5. This settlement was approved by a probate court in Ohio. Probate Court Docket at 3.
Following the settlement of the Ohio action, the CHOP defendants and HUP defendants were permitted to file and filed amended answers in this action pleading as new matter that Minor's claims were barred by judicial estoppel based on the Ohio action and settlement. CHOP Defendants'
Amended Answer and New Matter ¶¶106, 108; HUP Defendants' Amended Answer and New Matter ¶¶106, 108. On August 24, 2022, the CHOP defendants and the HUP defendants filed motions seeking dismissal of all claims against them in this action on the grounds, inter alia, that Minor's claims were barred by judicial estoppel.[1] On November 10, 2022, the trial court granted both motions and dismissed the action on the grounds that it was barred by judicial estoppel. Trial Court Order, 11/10/22; Trial Court Opinion, 11/10/22, at 4-7. This timely appeal followed.
Appellant presents the following single issue for our review:
Was it an error of law to dismiss the underlying action on judicial estoppel grounds?
Appellant's Brief at 4. The CHOP defendants and HUP defendants argue both that the trial court correctly concluded that this action was barred by judicial estoppel and that the dismissal can also be affirmed on alternative grounds. Whether an action is barred by judicial estoppel is a question of law. Widener University v. Estate...
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