Sutch v. Roxborough Mem'l Hosp.

Decision Date15 June 2016
Docket NumberNo. 3494 EDA 2014,3494 EDA 2014
Citation142 A.3d 38,2016 PA Super 126
PartiesRosalind W. SUTCH, as Executrix of the Estate of Rosalind Wilson, Pennsylvania, Deceased v. ROXBOROUGH MEMORIAL HOSPITAL, Solis Healthcare, LP, Andorra Radiology Assoc., Tenet HealthSystem Roxborough, LLC, Tenet, Inc., Tenet Group, LLC, Roxborough Emergency Physician Associates, LLC, Barbara Goldman Robins, M.D., Robert Domanski, M.D., Michael Deangelis, M.D., Erin O'Malley, M.D., Jeffrey Geller, M.D., and Melanio Aguirre, M.D. Appeal of Nancy Raynor, Esquire and Raynor & Associates, P.C.
CourtPennsylvania Superior Court

Jeffrey B. McCarron, Philadelphia, for appellants.

Matthew T. D'Annunzio, Philadelphia, for appellee.



Appellants, Nancy Raynor, Esquire and Raynor & Associates, P.C., (collectively “Ms. Raynor”) appeal from the order entered in the Philadelphia County Court of Common Pleas, which found Ms. Raynor in civil contempt and imposed monetary sanctions in the amount of $946,197.16. We reverse the contempt order and vacate all judgment on the sanctions imposed.

The relevant facts and procedural history of this case are as follows. Around noon, on May 3, 2007, sixty-eight year-old Rosalind Wilson came to the emergency room at Roxborough Memorial Hospital with complaints of chest pain, shortness of breath on exertion, cough, profuse sweating, nausea, and frontal headache. Her medical history included osteoporosis, vascular disease, hypothyroidism, and hypertension. The immediate treatment plan was to rule out a heart attack. Around 4:00 p.m., Ms. Wilson also underwent a chest x-ray and later lung scans. Ms. Wilson was admitted to the hospital as an inpatient for observation. Although the tests ruled out a cardiac event, the lung studies revealed in relevant part a node in her left lung, with a recommendation for a computed tomography (CT) scan of the thorax for further evaluation. The CT scan was not performed. Ms. Wilson was discharged from the hospital the next day. No one informed Ms. Wilson of her lung node. Ms. Wilson experienced a change in mental status. In January 2009, Ms. Wilson underwent a chest x-ray at Jeanes Hospital. The x-ray revealed a large mass in her left lung. Further testing revealed metastatic brain disease. Ms. Wilson was diagnosed with Stage IV, non-small cell lung cancer with metastases.

On July 9, 2009, Ms. Wilson commenced a malpractice action against numerous medical defendants for negligent medical care and treatment that deviated from the accepted standards of care, increased her risk of harm, directly and proximately contributed to her suffering, and caused enumerated damages. Ms. Wilson died on July 21, 2009. After her death, her daughter Rosalind Sutch, Executrix of the Estate of Rosalind Wilson, was substituted as plaintiff (Plaintiff). Ms. Raynor served as defense counsel on behalf of two of the defendants, Dr. Jeffrey Geller and Roxborough Emergency Physician Associates, LLC (“REPA”). Pleadings and discovery were followed by an amended complaint filed in January 2011.

The parties filed various motions in limine (“MIL”) in 2011. On November 21, 2011, Plaintiff filed a motion to preclude at trial any reference to decedent's smoking history, primarily on the grounds of unfair prejudice, confusion of the issues, and danger of misleading the jury. By order dated December 5, 2011, and docketed December 6, 2011, the trial court entered a pretrial order that granted Plaintiff's MIL, in part, to preclude evidence, testimony and/or argument by the defendants regarding decedent's smoking history as irrelevant and unfairly prejudicial on the issue of liability. The court determined, however, that decedent's smoking history was relevant on the issue of damages. The court ordered the trial bifurcated into two phases with the same jury; if the jury found liability then decedent's smoking history would be admissible in the second phase, to follow immediately, in which damages would be assessed. If Plaintiff chose to withdraw the motion, the trial would not be bifurcated; and decedent's smoking history would be admissible with a cautionary instruction on its limited relevance.

Due to subsequent changes in the witness list, Plaintiff's counsel renewed their pre-trial motion to preclude evidence at trial of decedent's smoking history and asked the trial court to grant the motion in its entirety, not just in part, because now there was no defense expert testimony supporting any issue for which smoking was relevant, even for life expectancy. (See N.T. MIL, 5/16/12, at 8; R.R. at 311a.) The trial court (another jurist) entered a new order that precluded defendants from “presenting any evidence, testimony, and/or argument regarding decedent's smoking history” either before or after her cancer diagnosis. (See Trial Court Order, dated May 16, 2012, filed May 21, 2012, at 1; R.R. at 372a.) This order was entered by agreement of all parties and superseded the earlier December 2011 order on the admission/preclusion of decedent's smoking history. The first jury trial began on May 21, 2012.

When the defense case was about to begin, on May 30, 2012, Plaintiff's counsel asked the court to enter an order directing defense counsel to speak with their defense witnesses about the smoking preclusion immediately before those witnesses took the stand. That exchange was as follows:

[Plaintiff's Counsel] MR. MESSA: I just wanted to make sure we have, you know, we're clear on the record that the defendants' counsel each speak to their expert witnesses before they get on the stand and make it clear that they're not to raise that issue, blurt it out, volunteer it, et cetera, and the defendants as well.
[COURT]: Okay. Well, I don't have a response. They know the rules. So I assume—did you talk with them? Maybe you didn't bring that up this morning.
[Plaintiff's Counsel] MR. MESSA: No, Your Honor.
[COURT]: All right. Well the defendants are on notice of that request which is part of what we're doing, so ...

(N.T. Trial # 1, 5/30/12, A.M. Session, at 5–6; R.R. at 732a–733a). Following this exchange, the court issued no order or directive specifically requiring defense counsel to speak to their expert witnesses or the defendants about the smoking ban or warn them immediately before each expert witness testified.

During the defense case on May 31, 2012, Ms. Raynor called John J. Kelly, D.O. as her emergency medicine expert to testify. About twenty transcript pages of voir dire questions concerning Dr. Kelly's qualifications followed smoothly, and he was accepted as an expert on emergency room medicine and practice. After voir dire concluded, the court said:

COURT: All right. I think it's a little hot. We're going to turn the air conditioners on and take a break, and then we'll come back with the direct examination. I think that's the best way to do this.
Doctor, during the break, you may relax, but don't discuss your testimony during the break.
DR. KELLY: Thank you, Your Honor.
COURT: All right. The jury is excused, about 10 minutes or so, 10 or 15 minutes. Air conditioners can go on.

(N.T. Trial # 1, 5/31/12 P.M. Session, at 83; R.R. at 933a) (emphasis added). After the break, Ms. Raynor began her direct examination of Dr. Kelly. Dr. Kelly explained to the jury generally how emergency rooms work as a practical matter in real time, regarding patients who are treated and then released versus patients who are preliminarily treated in the emergency room and then admitted to the hospital for further medical care and management, including communications among the various health care providers about patient case history and test results under either scenario. (Id. at 84–103; R.R. at 933a–938a). For purposes of relevant, proper context, we quote from the trial transcript as follows:

MS. RAYNOR: Can you tell the jury, give the jury some idea of what Dr. Geller's thought process is as gleaned from the records when this patient came in with the complaints that she had. Can you tell what Dr. Geller was evaluating her for?
DR. KELLY: I read the ER record. And from the emergency department record of Dr. Geller, the patient came in with chest pain. It seemed to be right-sided. There was some associated shortness of breath and sweating with it.
He did the usual thing that an emergency physician would do: go to the bedside, get the vital signs, do a proper physical exam and a history to find out exactly how this happened, what did it feel like, to be able to process exactly what it could be.
MS. RAYNOR: And are those all appropriate things to do?
DR. KELLY: And then, you know, EKG, chest x-ray, some lab tests, cardiac enzymes, and then offer treatment, too. Offer nitroglycerin, morphine, things like that, to be able to see if this would help the patient.
MS. RAYNOR: And were all of those things that you just specified appropriate things to do; in other words, the EKG, the cardiac—
MS. RAYNOR:—enzymes, and so forth?
MS. RAYNOR: Okay. So if Dr. Geller was thinking that she had a cardiac issue, those are the things that would be appropriate to do?
MS. RAYNOR: Okay. Now, you've seen also that a portable chest x-ray was done?
MS. RAYNOR: Was that an appropriate thing to do?
DR. KELLY: Yes. A chest x-ray is an essential part of helping to add some insight into what could be causing a patient's chest pain.
MS. RAYNOR: Did you see any indication in Dr. Geller's records that he was thinking this patient had a pulmonary embolism or PE?
DR. KELLY: I saw no evidence of that in the chart, no.
MS. RAYNOR: Okay. And what type of evidence would you look for if you were looking for that?
DR. KELLY: Well, I mean, patients who have a blood clot in their lungs are usually in a lot of distress. They have pain. They're having trouble breathing. Their oxygen level is low. Sometimes they're blue.
And then they also have risk

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