Decision Date17 March 2010
Docket Number48 WDA 2009,No. 2129 WDA 2008,2129 WDA 2008
Citation991 A.2d 915
PartiesKirk RETTGER and Erik Rettger, Co-Executors of the Estate of Michael Rettger, Deceased v. UPMC SHADYSIDE; Eugene Bonaroti; and Oakland Neurosurgical Associates. Appeal of UPMC Shadyside. Kirk Rettger and Erik Rettger, Co-Executors of the Estate of Michael Rettger, Deceased v. UPMC Shadyside; Eugene Bonaroti; and Oakland Neurosurgical Associates. Appeal of UPMC Shadyside.
CourtPennsylvania Superior Court





David R. Johnson, Pittsburgh, for appellant.

John W. Jordan, Pittsburgh, for Oakland Neurosurgical, appellee.

Paul A. Lagnese, Pittsburgh, for Rettger, appellees.



¶ 1 UPMC Shadyside (UPMC, the Hospital) appeals the judgment entered on the jury's verdict in favor of Kirk Rettger and Erik Rettger, co-executors of the Estate of Michael Rettger, Deceased (the Estate). A jury determined, inter alia, that a nurse employed by UPMC had been negligent in her care of the decedent and awarded $2.5 million on a claim of wrongful death but rendered no award on the Estate's survival action. UPMC asserts that the trial court erred in granting a new trial on the Estate's survival action limited to damages and refusing to grant a new trial on all claims. UPMC also asserts, in the alternative, that the court erred in refusing to grant remittitur. In addition, UPMC raises multiple challenges to rulings at trial, asserting that the court erred in restricting evidence of the decedent's medical history prior to 1:00 a.m. on November 19, 2003, excluding certain purported admissions of co-defendant Eugene Bonaroti, M.D., refusing to allow the hospital to amend its pleadings during trial to add a cross-claim against Dr. Bonaroti, allowing a physician expert witness to opine on the standard of care for a registered nurse, charging the jury on the duties of a nurse under the Pennsylvania Code, and allowing the jury to take a copy of the disputed Code section into the jury room during deliberation. Upon review, we find no merit in any of UPMC's claims. According, we affirm the judgment of the trial court.

¶ 2 The Estate commenced this action following the death of Michael Rettger at UPMC Shadyside Hospital while under the care of Eugene Bonaroti, M.D., and Oakland Neurological Associates. Mr. Rettger, then twenty-four years old, initially sought treatment at Cabell Huntington Hospital (CHH) in Huntington, West Virginia after suffering sustained, severe headaches while on work assignment in the Huntington area. Diagnostic imaging at CHH revealed a mass in the left side of Rettger's brain, which doctors there diagnosed as glioblastoma multiforme, an aggressive type of brain tumor, with a differential diagnosis of brain abscess. Thereafter, Rettger was transferred to UPMC Shadyside on November 15, 2003, and commenced treatment with Dr. Bonaroti on November 17, 2003. Dr. Bonaroti concurred in the earlier diagnosis of glioblastoma and retained the differential diagnosis of brain abscess. After a consult with a neuro-oncologist, who determined that Rettger's condition was not amenable to his treatment protocol, Dr. Bonaroti scheduled Rettger for a surgical procedure to take place at 7:30 a.m., Wednesday, November 19, 2003.

¶ 3 Pending surgery, Mr. Rettger was placed in a neurosurgical unit at the Hospital and assigned as a patient to nurse Kirsten Stalder. Stalder was a relatively new employee who had completed nurse's training in May 2003 and commenced employment at UPMC Shadyside in June. After hire, Nurse Stalder attended a one-week new nurse orientation and, thereafter, received on-the-job training for twelve weeks. Following completion of her orientation and training experiences, Nurse Stalder provided nursing care unsupervised, subject to the laws of Pennsylvania governing nursing practice, the policies of UPMC Shadyside, and the direction of the attending physician. The policies at issue included the imperative that a nurse invoke the nursing chain of command to obtain proper care for a patient if the attending physician failed to render such care or to call a "Condition C" to obtain immediate critical care for a patient whose condition appeared emergent.

¶ 4 On November 18, the day prior to the scheduled surgery, Rettger displayed uneven pupil size and experienced substantial pain, for which he received narcotic pain medications and an anti-seizure medication. On November 19, shortly after 1 a.m., Nurse Stalder documented on Rettger's chart that the pupil of his left eye was fixed and dilated, indicating escalating pressure on the brain which, if not treated on an emergency basis, could lead to brain herniation and, ultimately, death. Nurse Stalder's notes also indicate that she telephoned Dr. Bonaroti at home to report Rettger's condition. Nurse Stalder's account of the conversation, however, differs sharply from Dr. Bonaroti's. While Stalder asserted that she told Dr. Bonaroti that Rettger's pupil was fixed and dilated, Bonaroti contends that she told him only that Rettger's pupils were uneven, essentially indicating that his condition was unchanged. Dr. Bonaroti did not report to the hospital or order emergency treatment and Nurse Stalder did not invoke the nursing chain of command or call a Condition C. Thereafter, Rettger's condition continued to deteriorate until, at 6:00 a.m., both pupils were fixed and dilated. When Nurse Stalder telephoned Dr. Bonaroti on that occasion he indicated that he was on his way to the Hospital. Prior to surgery, Rettger lost consciousness and hospital personnel placed him on life support. Although Dr. Bonaroti conducted two emergency surgical procedures that day to relieve the pressure on his brain, Rettger never recovered consciousness and died within twenty four hours. Evaluation during surgery established that Rettger did not suffer from a glioblastoma but rather from a fast growing brain abscess and that as a result of inattention to his worsening condition, he had suffered brain herniation.

¶ 5 The Estate commenced this action within the applicable limitations periods, asserting causes of action for wrongful death and survival and alleging professional negligence by Dr. Bonaroti and hospital staff, among them Nurse Stalder. The Estate also alleged corporate negligence by UPMC in failing to provide adequate training and supervision of its personnel and failing to formulate policies adequate to avoid the breakdown of care that had resulted in Rettger's death.1 In response, UPMC denied all allegations of negligence but did not join Dr. Bonaroti as an additional defendant pursuant to former Civil Rule 2252(d), and did not seek to file a cross-claim against him pursuant to current Rule 1031.1 until after trial had commenced.2 After trial commenced, UPMC argued to the jury that all defendants were blameless in Michael Rettger's care and that neither Nurse Stalder nor Dr. Bonaroti were negligent. However, after a stipulation by counsel for the Estate that no negligence had occurred prior to the 1 a.m. call by Nurse Stalder to Dr. Bonaroti, additional evidentiary rulings by the trial court focused the jury's inquiry on the two witnesses' competing versions of the call and on the alleged failure of Nurse Stalder to take appropriate action afterward. Thereafter, counsel for the Hospital sought to introduce allegedly inculpatory statements made by Dr. Bonaroti to the decedent's family members as "admissions of a party opponent," in an effort to establish that Dr. Bonaroti, rather than Nurse Stalder, bore primary responsibility for Rettger's death. The trial court, the Honorable Timothy Patrick O'Reilly, refused the tendered evidence, however, on the grounds that Dr. Bonaroti was not a party opponent of UPMC, prompting the Hospital to request, for the first time, that it be allowed to file a cross-claim against Dr. Bonaroti pursuant to Pa.R.C.P. 1031.1. Judge O'Reilly denied the motion as untimely and unduly prejudicial to Dr. Bonaroti, thus eliminating the Hospital's ability to seek contribution from him on any claim for which the defendants were not found jointly liable.

¶ 6 In preparation for the deliberations of the jury, Judge O'Reilly instructed the jurors on, among other things, the legal duty of a hospital and its nurses to monitor the treatment provided by physicians and take appropriate action to protect patients from omissions in physician care. Consistent with that charge, the court read a portion of the Pennsylvania Code prescribing the duties of nurses and allowed the jury to take a copy of the relevant Code section to the jury room. Following deliberations, the jury returned a verdict for the plaintiff but awarded damages only on the wrongful death claims of the decedent's family members. The jury awarded no damages on the Estate's survival claim despite uncontroverted testimony that Michael Rettger was a talented and ambitious young accountant who would have achieved the rank of partner at a national accounting firm or, in private industry, would have become controller or chief financial officer.3 In view of this apparent discrepancy in the jury's findings, the court granted the Estate's motion for a new trial on the survival claim limited to damages. The court denied UPMC's motion for remittitur or a new trial as to all claims and all parties, thus sustaining the jury's award of $2.5 million on the Rettgers' wrongful death claim. Following entry of judgment on the verdict, UPMC filed this appeal, raising the following questions for our consideration:

A. Whether the trial court erred in refusing to grant the Hospital's motion for new trial?
B. Whether the trial court erred in restricting evidence of the decedent's medical history prior to 1:00 a.m. on November 19, 2003?
C. Whether the trial court erred by refusing

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