Povrzenich v. Ripepi

Citation257 A.3d 61
Decision Date19 March 2021
Docket NumberNo. 1764 WDA 2019, No. 1765 WDA 2019,1764 WDA 2019
Parties Lacey POVRZENICH v. Jennifer K. RIPEPI, M.D.; Jennifer K. Ripepi Pediatrics, LLC ; Frank G. Diettinger, M.D. ; Imaging Associates of Greater Pittsburgh, LLC; and Monongahela Valley Hospital Lacey Povrzenich, a Minor, By and Through Her Parents and Natural Guardians, Janna Pallotta and Edward Povrzenich v. Dawn R. McCracken, M.D.; Dawn McCracken, M.D., P.C.; Monongahela Valley Hospital; and Mon Valley Community Health Services, Inc. Appeal of: Lacey Povrzenich, Janna Pallotta and Edward Povrzenich Lacey Povrzenich, a Minor By and Through Her Parents and Natural Guardians, Janna Pallotta and Edward Povrzenich, Appellants v. Dawn R. McCracken, M.D., Dawn McCracken, M.D., PC.; Monongahela Valley Hospital; and Mon Valley Community Health Services, Inc.
CourtSuperior Court of Pennsylvania

Douglas L. Price, Pittsburgh, for appellants.

Christopher C. Rulis, Pittsburgh, for McCracken, appellee.

Joseph N. Bongiovanni, IV, Philadelphia, for Mon Valley Community Health Services, appellee.



Lacey Povrzenich ("Lacey" or "Plaintiff"), appeals at two numbers from the judgment1 entered in her favor and against Mon Valley Community Health Services ("MVCHS") in this medical malpractice action. Plaintiff, the verdict winner below, contends that she is entitled to a new trial limited to damages because the trial court erroneously precluded the testimony of her expert life care planner, Dana Bissontz, as to Plaintiff's future medical expenses. Additionally, Plaintiff alleges that the trial court erred in the computation of delay damages by excluding certain time periods from consideration. We sua sponte consolidated the two appeals pursuant to Pa.R.A.P. 513, and, after careful review, we affirm the judgment in part, vacate in part, and remand.

The facts giving rise to the instant medical malpractice action are as follows. Lacey was born on January 31, 1996, with a cleft palate

for which she underwent several surgeries. From 1997 to 2007, Lacey was treated for five urinary tract infections ("UTI") by her pediatrician, Dr. McCracken.

In 2008, Lacey changed primary care providers and came under the care of pediatrician Jennifer Ripepi. M.D. In February, while under Dr. Ripepi's care, Lacey was treated at Monongahela Valley Hospital for dehydration. A urine screen at that time revealed a UTI, as well as high creatinine

levels. A computed tomography ("CT") scan of her pelvis was interpreted as normal by Dr. Frank Diettinger. The results were forwarded to Dr. Ripepi. A course of antibiotics were prescribed for the infection, and once they were completed, Dr. Ripepi ordered another culture, which was reported as normal. In May 2008, Lacey returned to Dr. Ripepi with complaints of left-sided abdominal pain occurring daily and lasting several hours. Dr. Ripepi reviewed the urine test results and again prescribed antibiotics.

Shortly thereafter, the family relocated and Lacey was seen at MVCHS. On March 3, 2009 and May 4, 2010, Lacey was noted to have elevated blood pressure. Two weeks later, on May 18, 2010, Lacey went to the Mon Valley Hospital emergency room, and was lifeflighted to Children's Hospital in Pittsburgh. There she was diagnosed with end-stage renal disease

secondary to severe reflux nephropathy. Lacey was advised that she would need a kidney transplant, and placed on dialysis immediately.

In 2015, Lacey underwent a kidney transplant

with a kidney donated by her mother. Since the transplant, she has shown signs of rejection and required dialysis, and it is likely that Lacey will require a second kidney transplant in the future.

On September 20, 2013, Janna Pallotta and Edward Povrzenich, parents of then seventeen-year-old Lacey, filed a medical negligence action on her behalf at G.D. 2013-5772 against Dr. McCracken, Dawn McCracken, M.D., PC, Monongahela Valley Hospital, and MVCHS.2 They asserted that these Defendants were negligent in failing to conduct further testing, and/or failing to refer Lacey to a specialist, resulting in additional damages due to delay in diagnosis of her kidney reflux.

Discovery was ongoing in the case filed at G.D. 2013-5772, when Lacey, having reached the age of majority, filed a second medical malpractice action at G.D. 2015-4727 against Jennifer K. Ripepi, M.D., Jennifer K. Ripepi Pediatrics, LLC., Frank G. Diettinger, M.D., and others. She alleged therein that Dr. Ripepi was negligent in failing to follow up on the UTIs and high creatinine

levels, failing to recognize the abnormal labs, treating Lacey with repeated course of antibiotics that aggravated the renal failure, and failing to refer Lacey to an appropriate specialist. Dr. Diettinger was allegedly negligent for failing to note and report abnormalities shown on CT scans. Lacey maintained that if her condition had been detected earlier and properly treated, a less invasive surgical procedure could have been performed.

On September 23, 2015, the trial court granted Plaintiff's motion to consolidate the two actions "for all purposes" at the second docket number G.D. 2015-4727. In addition, the caption was amended to reflect both captions and the consolidated number.

A two-week jury trial of the consolidated action commenced on October 16, 2018. On October 26, 2018, the jury returned a verdict against Dr. McCracken and MVCHS, finding that they were negligent, and that their negligence was a factual cause of harm to Lacey.3 Dr. Ripepi, Dr. Diettinger, and Mon Valley Hospital were found not negligent. The jury attributed eighty-five percent of the negligence to Dr. McCracken, and fifteen percent to MVCHS, and awarded Plaintiff $245,573.28 for past medicals, $1 million for past economic loss, and $3 million for future noneconomic losses.

MVCHS filed a timely motion for post-trial relief, which was denied. Plaintiff also filed a motion for post-trial relief seeking a new trial limited to damages, alleging that the trial court improperly excluded her life care planner from testifying as to future medical expenses, which the trial court denied. She also filed a motion to mold the verdict to include delay damages, which was granted in part and denied in part.

On November 22, 2019, Plaintiff filed two notices of appeal: one designated as an appeal from the order granting in part her motion to mold the verdict and add delay damages, and the other purporting to appeal from the denial of her motion for post-trial relief.4 Both notices of appeal listed the two docket numbers, and were filed at the consolidated number, No. 2015-4727, but were also noted on the docket for No. 2013-5772.

This Court assigned appeal number 1764 WDA 2019 to the first notice of appeal from the order molding the verdict and awarding delay damages, and 1765 WDA 2019 to the second appeal challenging the evidentiary ruling excluding the testimony of the life care planner. We then issued a rule in each appeal directing Plaintiff to show cause why the appeals should not be quashed for failure to comply with the Official Note to Pa.R.A.P. 341(a) and Commonwealth v. Walker , 646 Pa. 456, 185 A.3d 969 (2018). Specifically, in Walker , the Pennsylvania Supreme Court mandated "that when a single order resolves issues arising on more than one lower court docket, separate notices of appeal must be filed," and the failure to do so will result in quashal of the appeal. Order, 12/18/19.

Plaintiff responded to the rule by explaining that there was only one lower court docket number, G.D. 2015-4727, because the actions filed at G.D. 2013-5772 and G.D. 2015-4727, had been consolidated at the latter number. See Response to Rule to Show Cause, 12/26/19, at 1. Plaintiff appended to her response a copy of the docketing statement that had been attached to each notice of appeal, and pointed out that the number at which the case was heard, G.D. 2015-4727, was noted at the top of the docket.

By order of December 30, 2019, this Court discharged the rule to show cause, but noted that this ruling was not binding upon the panel. Counsel was advised that the issue could be revisited by the merits panel, and that counsel should be prepared to address the panel's concerns either in their briefs or at oral argument. Order, 12/30/19, at 1. MVCHS raises the issue in its brief, and urges this Court to quash the appeals pursuant to Walker .

Plaintiff and the trial court have complied with Pa.R.A.P. 1925, and the matter is ripe for our review. Plaintiff presents two issues:

A. Did the trial court err when it granted the Defendant[s’] Motion to Exclude Plaintiff's Life Care Planner Dana Bissontz from testifying, on the basis that she lacked the qualifications to render opinions on the future medical care and costs of the Plaintiff Lacey Povrzenich, which deprived the jury of measuring all of the economic damages of the Plaintiff.
B. Did the trial court err in its calculation of delay damages, when it excluded three periods of time from the calculation of delay damages due to extensions of discovery dates, which did not delay the trial, depriving the Plaintiff Lacey Povrzenich of her right to additional statutory damages.

Appellant's brief at 7.

Before we address the merits of the appeal, we must first determine if Plaintiff has complied with Walker . MVCHS maintains that Plaintiff initiated two actions against two different sets of defendants at two docket numbers. Thus, MVCHS contends that this is a case where a single order, i.e ., the judgment, resolved issues on more than one docket, and that filing a single notice of appeal listing both docket numbers was insufficient. See e.g. , C.T.E. v. D.S.E. , 216 A.3d 296, 299 (Pa.Super. 2019) (quashing the appeal, pursuant to Walker, where the appellant filed a single, timely notice of appeal listing both docket numbers); Commonwealth v. Nichols , 208 A.3d 1087 (Pa.Super. 2019) (quashing the appeal where the...

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