Passarello v. Rowena T. Grumbine, M.D. & Blair Med. Assocs., Inc.

• Decision Date: 07 February 2014
• Citation: 87 A.3d 285
• Parties: Steven P. PASSARELLO, Administrator of the Estate of Anthony J. Passarello, Deceased, and Steven P. Passarello and Nicole M. Passarello, Husband and Wife, v. Rowena T. GRUMBINE, M.D. and Blair Medical Associates, Inc. Appeal of Blair Medical Associates, Inc. Steven P. Passarello, Administrator of the Estate of Anthony J. Passarello, Deceased, and Steven P. Passarello and Nicole M. Passarello, Husband and Wife v. Rowena T. Grumbine, M.D. and Blair Medical Associates, Inc. Appeal of Rowena T. Grumbine, M.D.
• Court: Pennsylvania Supreme Court

87 A.3d 285

Steven P. PASSARELLO, Administrator of the Estate of Anthony J. Passarello, Deceased, and Steven P. Passarello and Nicole M. Passarello, Husband and Wife,

v.Rowena T. GRUMBINE, M.D. and Blair Medical Associates, Inc.

Appeal of Blair Medical Associates, Inc.

Steven P. Passarello, Administrator of the Estate of Anthony J. Passarello, Deceased, and Steven P. Passarello and Nicole M. Passarello, Husband and Wife

v.Rowena T. Grumbine, M.D. and Blair Medical Associates, Inc.

Appeal of Rowena T. Grumbine, M.D.

Supreme Court of Pennsylvania.

Argued Nov. 28, 2012.

Resubmitted Dec. 27, 2013.

Decided Feb. 7, 2014.

John Wesley Jordan IV, Matis Baum O'Connor, Pittsburgh, for Blair Medical Associates, Inc.

Robert B. Hoffman, Eckert Seamans Cherin & Merlott, LLC, Harrisburg, for Pennsylvania Medical Society, Appellant Amicus Curiae.

Lynn Ellen Bell, Davies, McFarland & Carroll, P.C., Pittsburgh, Michael Christopher Hamilton, Pittsburgh, Maureen Murphy McBride, James C. Sargent Jr., Lamb McErlane, PC, West Chester, for Rowena T. Grumbine.

Donald Joseph Feinberg, Feinberg & Silva, Philadelphia, Clifford Alan Rieders, Pamela L. Shipman, Rieders, Travis, Humphrey, Harris, Waters & Waffenschmidt, Williamsport, for Steven P. and Nicole M. Passarello and the Estate of Anthony J. Passarello.

Rosalind T. Kaplan, Jarve Kaplan Granato, LLC, Philadelphia, for Pennsylvania Ass'n for Justice, Appellee Amicus Curiae.

Before CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.

OPINION

Justice McCAFFERY.

We granted review in this medical malpractice case to consider whether the trial court properly gave an “error in judgment” jury instruction, i.e., an instruction that physicians are not liable for their “errors in judgment” when making medical decisions.

I

The Superior Court's opinion sets forth the factual background, as follows:

This matter arose out of the death of two-month-old Anthony Passarello, who died while under the care of defendant pediatrician Rowena T. Grumbine, M.D., and members of her staff at Blair Medical Associates, Inc. [“Blair Medical,” Dr. Grumbine's employer]. Anthony's parents, Stephen and Nicole Passarello [Appellees], brought Anthony to Dr. Grumbine for multiple visits following his birth on May 31, 2001, and contacted Dr. Grumbine's office seven times during the week preceding his death on August 4, 2001. The relevant chronology of that final week appears in the record as follows.

On July 27, [Appellees] brought Anthony to Dr. Grumbine's office concerned about the state of his health, reporting that he would take only 4 ounces of formula rather than the customary 6 or 7, that he was crying after feedings, and that he had a slight cough.

On July 29, [Appellees] called Blair Medical Associates' “tele-a-nurse” phone service and reported that Anthony had experienced projectile vomiting, had been fussy for the previous five days, and was tired after feeding. They reported those same symptoms later that day when they spoke with Dr. Grumbine by telephone. Dr. Grumbine suggested that time that Anthony might suffer from pyloric stenosis and noted that a barium swallow test might be indicated. However, subsequent developments discounted that potential diagnosis and Dr. Grumbine did not order the test.

On July 30, [Appellees] took Anthony for an office visit with Dr. Grumbine and reported that Anthony continued to have a slight cough and had vomited two to three times daily for the preceding four to five days.

Two days later, on August 1, during a follow-up office visit with Dr. Grumbine, [Appellees] reported that Anthony was fussy, vomiting at times, was not sleeping, exhibited pain while feeding, and was wheezy afterward. Dr. Grumbine found Anthony's symptoms consistent with gastroesophogeal reflux and prescribed medications to treat that condition. She also immunized him for DPT, Polio, Haemophilus Influenza Type B, Hepatitis B, and Pneumococcus.

Thereafter, on August 2, [Appellees] called the tele-a-nurse service and reported that Anthony's formula consumption had dropped to three ounces that day, that he was fussy and not sleeping, and was screaming as if in pain. They also reported that he had wet only two diapers that day and had a fever of 101°F despite administration of Tylenol every four hours. Dr. Grumbine found Anthony's symptoms consistent with reactions to his immunizations of the previous day and concluded that he might also be in pain from acid reflux.

Anthony's symptoms remained unabated and on the following day, August 3, [Appellees] took him to the emergency room at Altoona Hospital, where the attending physician, Dr. Holly Thompson, found him to be in severe respiratory distress and confirmed that his heart rate had fallen dangerously low. Despite intubation and the use of a ventilator as well as other supportive measures, Anthony died during the early morning hours of August 4. Postmortem examination established the cause of death to be diffuse acute viral myocarditis, a viral infection of the heart muscle.

Passarello v. Grumbine, 29 A.3d 1158, 1160–61 (Pa.Super.2011).

Appellees commenced an action against Dr. Grumbine, a second doctor, and Blair Medical on July 28, 2003, and the case remained in litigation until entry of a defense verdict on April 29, 2009 ¹ (collectively, Dr. Grumbine and Blair Medical shall be referred to hereafter as “Appellants”). At trial, Appellees presented expert testimony that Dr. Grumbine had deviated from the standard of care by failing to refer Anthony for further testing on August 2. ² Appellants responded with expert testimony that Dr. Grumbine had complied with the standard of care because she had chosen an alternate diagnosis “that fit the symptoms and made sense.” Notes of Testimony (N.T.) Trial, 4/24/09, at 36; R.R. 431a. As the trial neared its close, Dr. Grumbine and Blair Medical each submitted proposed points for charge, including differing versions of the “error in judgment” charge. Blair Medical's proposed version of the charge read: “Under the law, physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless it is proven that an error of judgment was the result of negligence.” Points for Charge of Blair Medical Associates at 3, ¶ 7. Dr. Grumbine's proposed version of the charge stated, “If a physician employs the required judgment and care in reaching his or her diagnosis, the mere fact that he or she erred in the diagnosis will not render them liable, even though their treatment was not proper for the condition that actually existed.” Points for Charge of Rowena Grumbine, M.D. at 7, ¶ 17.

The trial judge held a charging conference and stated that all of Blair Medical's proposed points for charge would “either be read or covered.” N.T. Trial, 4/24/09, at 57; R.R. at 452a. However, the judge did not say exactly which, if any, of Blair Medical's proposed charges it would actually read to the jury, and counsel for Appellees did not raise any objection at that time. The judge then proceeded to discuss Dr. Grumbine's points for charge in detail, and when the judge addressed her proposed “error in judgment” charge, counsel for Appellees objected that the instruction would not be proper in this case. See id. at 85–86; R.R. at 480a–81a. However, the judge did not rule on the objection at that time. Because the conference was taking place on a Friday, the judge adjourned the conference and reconvened it on the following Monday morning, at which time Appellees' counsel again objected to an “error in judgment” charge.

Following the charging conference, the trial judge instructed the jury. It first instructed the jury on the objective standard of professional negligence, explaining that “a physician [whose] conduct falls below the standard of care is negligent.” N.T. Jury Charge, 4/27/09, at 13; R.R. at 529a. The judge told the jury that it was not to “rely on hindsight” and consider a “disastrous result” to be “proof of negligence,” but should rather “determine whether [Dr. Grumbine] failed to have and exercise ordinary skill, care, and knowledge of a specialist, in this case a pediatrician, in the circumstances which were present at the time.” Id. at 35; R.R. at 551a. The judge then read Blair Medical's version of the “error in judgment” charge, and instructed the jury, “Under the law[,] physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless it's proven that an error of judgment was the result of negligence.” Id. at 35–36; R.R. at 551a–52a.

Immediately following the jury charge, the judge called counsel to sidebar to entertain objections to the charge. Appellees' counsel said he was renewing the objections he had made during the Friday charging conference as well as the objection he had raised during the charging conference that morning to the “error in judgment” instruction. Counsel then asked the judge, “[D]o I have those objections preserved, Your Honor?” The judge replied, “It's my understanding you do.” Id. at 37; R.R. at 553a. The judge denied the objections, and the jury retired to deliberate; it later returned a verdict in Appellants' favor.

Appellees filed timely post-trial motions arguing, among other things, that the trial court had improperly given an “error in judgment” charge. Approximately one month after Appellees had filed their post-trial motions—and before the trial court ruled on post-trial motions—the Superior Court filed its decision in Pringle v. Rapaport, 980 A.2d 159 (Pa.Super.2009) ( en banc ). In that case, the trial court had given an “error in judgment” charge very similar to the one given here, instructing the jury that, “Under the law, physicians are permitted a broad range of judgment in their professional duties, and they are not liable for errors of judgments [sic] unless it is proven that an error of judgment was the result of negligence.”...